Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DAVID EVERETT and ) PATRICIA EVERETT, ) ) Appellants, ) ) v. ) Case No. 2D19-1563 ) AVATAR PROPERTY & CASUALTY ) INSURANCE COMPANY, ) ) Appellee. ) ___________________________________) Opinion filed January 29, 2021. Appeal from the Circuit Court for Hillsborough County; Emmett Lamar Battles, Judge. Michael E. Lanier, Jacksonville (withdrawn); Grant H. Gibson, St. Augustine (substituted as counsel of record), for Appellants. Carol M. Rooney and Abraham M. Shakfeh of Butler Weihmuller Katz Craig, LLP, Tampa, for Appellee. SILBERMAN, Judge. David and Patricia Everett appeal a final summary judgment entered in favor of Avatar Property & Casualty Insurance Company (Avatar) in the Everetts' action for breach of an insurance contract. Because the affidavit Avatar relied upon was legally insufficient, Avatar failed to prove that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Thus, we reverse the final summary judgment and remand for further proceedings. This dispute arose from wind damage to the roof of the Everetts' residence that occurred on September 4, 2016. After confirming the damage, the Everetts filed their claim with Avatar on September 22, 2016. The next day the Everetts received a request from Avatar that they submit a sworn proof of loss (SPOL) within sixty days. Before retaining counsel, the Everetts submitted to Avatar a SPOL that was dated October 4, 2016. In a letter of October 20, 2016, Avatar notified the Everetts that it elected to repair the insured property. It was not until December 30, 2016, that Avatar requested a second SPOL through the Everetts' counsel. The Everetts submitted a second SPOL dated January 27, 2017. The Everetts filed their complaint against Avatar for breach of the insurance contract on July 31, 2017, and the operative complaint is the second amended complaint. The Everetts alleged that Avatar was required to replace the entire roof, not just the thirty-six shingles Avatar offered to repair. On September 20, 2018, before filing an answer, Avatar filed two motions for summary judgment, one which alleged that the Everetts failed to satisfy a number of postloss contractual obligations and the other which alleged that the Everetts failed to provide Avatar with a valid SPOL (collectively referred to as the motion for summary judgment). Avatar asserted that it had agreed to investigate and attempt to settle the claim subject to a full reservation of rights. In support of its motion, Avatar filed on -2- February 11, 2019, the affidavit of Kendra Shaw, a corporate representative for Avatar. In opposition, the Everetts filed the affidavit of David Everett. The summary judgment hearing was held on March 6, 2019. At the start of the hearing, the trial court pointed out that the motion for summary judgment "makes allegations but it fails to point to evidence of record." Avatar advised that it had filed Shaw's affidavit, but the court noted that contrary to Florida Rule of Civil Procedure 1.510, the motion did not reference the affidavit or any other evidence. Avatar proceeded with arguing its motion, asserting that the Everetts failed to comply with postloss obligations provided for in the policy. Avatar argued that the Everetts failed to (1) give prompt notice of the loss when they gave notice two and a half weeks after the date of loss; (2) mitigate their damage during that two and a half weeks; (3) provide records and documents requested; (4) provide a SPOL in that the first SPOL was timely but rejected and the second failed to set forth a detailed estimate of repairs; and (5) attend examinations under oath (EUO) that Avatar had set. In responding to Avatar's argument, the Everetts' counsel referred to Shaw's affidavit and pointed out that she did not allege to be an attorney and that she made conclusions of law and "basically it's a copy and paste" of the motion for summary judgment. Counsel argued that the notice of loss made within a couple weeks was timely and that there was no support for the contention that the Everetts failed to protect the property from further damage. The court asked the Everetts' counsel to "skip on ahead to a very important issue," the failure to sit for an EUO. The Everetts' counsel asserted that he was unaware that Avatar had made any requests for an EUO, that Avatar did not supply anything showing that it -3- made requests, and that the allegation was unsupported. In addition, counsel stated that the Everetts were willing to sit that day for an EUO. The court stated that it had to consider Shaw's affidavit as evidence of record. Regarding the EUO issue, her affidavit stated, "Avatar requested Plaintiffs submit to examinations under oath." The affidavit further stated, "Despite scheduling the examinations under oath for a date and time certain, Plaintiffs failed to appear, thereby breaching the policy, yet again." The affidavit provides no dates regarding the EUO, and no documents are attached to the affidavit. The Everetts' counsel stated that he did not address the EUO issue in his filings because there was no summary judgment evidence to support the allegation that his "client was unwilling" to submit to an EUO. The court again stated that the Shaw affidavit was evidence. The Everetts' counsel stated that Shaw's affidavit was "an exact word for word copy and paste" of the summary judgment motion and that she signed the affidavit "without any other supporting documentation that she would be the custodial— custodian of the records, that those requests were made." Avatar asserted that the request for the EUO was sent to the Everetts' counsel in a letter of November 23, but that letter was not provided with Avatar's summary judgment evidence. Avatar also asserted that there was a presumption of prejudice to Avatar. The trial court ruled in Avatar's favor, finding "no genuine issue of material fact." The court further found as follows: [T]here has been a failure to satisfy the post contractual obligations as well as the failure to submit a valid sworn proof of loss specifically. We will find that there was that failure to submit the valid sworn proof of loss. There was also a failure—which the Court finds to be very important, failure to submit to and attend the examination under oath. -4- The trial court ruled that the presumption of prejudice "ha[d] not been overcome by any evidence of record." The court concluded that Avatar was entitled to judgment as a matter of law and granted its motion for summary judgment. Prior to a written order being entered, the Everetts filed a motion for reconsideration. The Everetts made detailed arguments concerning the insufficiency of Avatar's affidavit. They also presented a more detailed affidavit of their own, along with supporting documents, to show material facts were in dispute. Among the other issues addressed, the Everetts asserted that they had never been asked to attend an EUO and that their attorney never discussed the topic with them. The trial court denied the motion for reconsideration in a boilerplate order on the same day that it rendered its order granting the motion for summary judgment and entering final judgment in Avatar's favor. We conduct a de novo review of a final summary judgment. Rodriguez v. Avatar Prop. & Cas. Ins. Co., 290 So. 3d 560, 562 (Fla. 2d DCA 2020). A movant is entitled to a summary judgment "if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c). "If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Lupo v. Lawson, 301 So. 3d 366, 368 (Fla. 2d DCA 2020) (quoting Shaw v. Tampa Elec. Co., 949 So. 2d 1066, 1069 (Fla. 2d DCA 2007)). Avatar contends on appeal that the Everetts never presented their arguments to the trial court concerning Shaw's affidavit. Although unartfully stated, the -5- Everetts' counsel did challenge the affidavit and argued that Shaw's affidavit was "an exact word for word copy and paste" of the summary judgment motion and that she signed the affidavit "without any other supporting documentation" for which she would be the custodian of the records. As noted previously, Shaw executed the affidavit as a corporate representative of Avatar. She asserted "knowledge of the matters herein" but did not claim personal knowledge or identify any business records on which she relied, other than the insurance policy, and no business records were attached to the affidavit. Without business records attached and with the affidavit being a copy and paste of the summary judgment motion, the Everetts’ counsel appropriately challenged the affidavit and Avatar's entitlement to summary judgment. Rule 1.510(c) requires a motion for summary judgment to "specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence ('summary judgment evidence') on which the movant relies." Fla. R. Civ. P. 1.510(c). At the beginning of the summary judgment hearing, the trial court correctly noted that contrary to rule 1.510, Avatar's motion did not reference the affidavit or any other evidence. Aside from the problem with the motion, Shaw's affidavit did not comply with rule 1.510(e) which provides in pertinent part: Supporting and opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all documents or parts thereof referred to in an affidavit must be attached thereto or served therewith. -6- An affidavit that fails to comply with the requirements of rule 1.510(e) "is legally insufficient to support the entry of summary judgment in favor of the moving party." Rodriguez, 290 So. 3d at 563 (quoting Enter. Leasing Co. v. Demartino, 15 So. 3d 711, 714 (Fla. 2d DCA 2009)). Shaw's affidavit states: "I, KENDRA SHAW, a duly authorized corporate representative of Avatar Property and Casualty Insurance Company ('Avatar'), do hereby declare under oath or affirmation that I have knowledge of the matters herein as required by Florida Rule of Civil Procedure 1.510(e), and that the following statements are true and correct." The affidavit does not state that Shaw is a records custodian for Avatar or describe any further Shaw's position with Avatar or what her corporate duties are. Although rule 1.510(e) is referenced, she attests that she has knowledge but does not attest that she has personal knowledge of the matters stated. Avatar argues that a corporate representative's knowledge is presumed; therefore, a corporate representative is not required to state her source of knowledge in an affidavit. But Avatar relies upon law dealing with corporate officers, not corporate representatives. See Beverage Canners, Inc. v. E.D. Green Corp., 291 So. 2d 193, 194-95 (Fla. 1974) (corporate president); Alvarez v. Fla. Ins. Guar. Ass'n, 661 So. 2d 1230, 1232 (Fla. 3d DCA 1995) (corporate vice-president). As mentioned above, Shaw's affidavit does not reveal her corporate position or duties. In her affidavit, Shaw makes multiple conclusions of law, such as "that, undisputedly, the policy was materially breached in many, different respects." It is further unclear how she would have personal knowledge of matters stated in her affidavit. For example, she asserts that the Everetts "subjected the property to -7- numerous rainstorms, and, other weather related events" and "did nothing" in order "to protect the property from further damage." Nothing indicates that Shaw would have personal knowledge of whether it rained at the Everetts' home and what the Everetts did. She makes bare assertions that Avatar requested documents that the Everetts did not provide, but she does not assert what documents were requested or when they were requested, and the affidavit does not have any business records attached, such as a letter from Avatar requesting documents. With respect to the assertion that Avatar requested that the Everetts submit a "valid" SPOL, Shaw asserted that Avatar notified the Everetts that the first SPOL they submitted was invalid and requested that they submit a valid SPOL. She asserts that the Everetts did not comply and did not provide Avatar with a valid SPOL. She does not attach any documents, such as Avatar's requests or either SPOL that the Everetts submitted.1 The trial court focused on the Everetts' failure to sit for an EUO at the summary judgment hearing. The Everetts' counsel argued that there was no evidence that the Everetts willfully failed to sit for an EUO and stated that they would be willing to sit for an EUO that day. On this subject, Shaw asserted, "Avatar requested [the Everetts] to submit to examinations under oath." She did not state when or how the request was made. She then asserted, "Despite scheduling the examinations under oath for a date and time certain, [the Everetts] failed to appear, thereby breaching the policy, yet again." She did not assert the date and time certain that was set. Again, no 1Mr. Everett's affidavit in opposition to summary judgment attaches the first and second SPOLs that were submitted to Avatar. -8- business records were attached to support the claims concerning the request to submit to an EUO. Nothing in Shaw's affidavit explains how she would have personal knowledge of any request made and any failure to attend an EUO. Like the present case, in Rodriquez Avatar sought summary judgment before it filed an answer; thus, the record did not contain any affirmative defenses to the insured's claim for breach of the insurance contract. See 290 So. 3d at 562. Also similar is that in Rodriguez this court considered an affidavit by a corporate representative of Avatar. Id. at 563. The affidavit stated "only that [the affiant] is 'a duly authorized corporate representative' of Avatar; it does not identify her title or specify her corporate duties. Nor does the affidavit state that it is made based on personal knowledge. If the affiant possesses relevant skill sets or experience, that, too, is omitted." Id. In determining that the affidavit was insufficient to support the entry of summary judgment in favor of Avatar, this court explained: The affidavit includes matters upon which the affiant has failed to demonstrate a personal knowledge or competency, and it contains unsupported opinions and conclusions of fact and law. Rather than an affidavit based on personal knowledge, competency, and admissible facts, the affidavit here simply restates, almost verbatim, the motions for summary judgment. Because the affidavit was the basis for summary judgment, its insufficiency is fatal to the final summary judgment, and we must reverse. Id. at 564. Similarly, Shaw's affidavit fails to show that it is based on personal knowledge and fails to affirmatively show that she is competent to testify to the matters asserted in the affidavit. Rather, the affidavit simply restates the motion for summary judgment. Like Rodriguez, the affidavit here by a corporate representative of Avatar is -9- insufficient and does not provide admissible evidence to support summary judgment. Therefore, we reverse the summary judgment and remand for further proceedings. For purposes of remand, we address the issues of prompt notice, the submission of an SPOL, and the failure to sit for an EUO. As to Avatar's argument that the Everetts failed to give prompt notice of their claim as it was given two and a half weeks after the event that caused damage to their roof, the question of whether an insured gave timely notice is usually a question for the finder of fact. LoBello v. State Farm Fla. Ins. Co., 152 So. 3d 595, 600 (Fla. 2d DCA 2014). Thus, "what is a reasonable time to give notice of a claim to the insurer must be considered 'in view of all the facts and circumstances of each particular case.' " Id. at 601 (quoting Am. Fire & Cas. Co. v. Collura, 163 So. 2d 784, 792 (Fla. 2d DCA 1964)); see also Rodriguez, 290 So. 3d at 564 (stating that the policy required "prompt notice" which is generally a fact issue). With respect to Avatar's argument that the Everetts failed to submit a valid SPOL, this is another issue that is generally one for the trier of fact. The record shows that upon request the Everetts submitted a second SPOL before they filed suit. "When an insured does submit a sworn proof of loss, however, the issue of whether the submitted document 'substantially complie[s] with policy obligations is a question of fact' which precludes the entry of summary judgment." Himmel v. Avatar Prop. & Cas. Ins. Co., 257 So. 3d 488, 493 (Fla. 4th DCA 2018) (alteration in original) (quoting State Farm Fla. Ins. Co. v. Figueroa, 218 So. 3d 886, 888 (Fla. 4th DCA 2017)); see also Gonzalez v. People's Tr. Ins. Co., 45 Fla. L. Weekly D2391, D2391 (Fla. 3d DCA Oct. 21, 2020) ("[W]hether the Gonzalezes substantially complied with their post-loss - 10 - obligations once People's Trust acknowledged coverage, or whether they totally failed to comply, is a disputed issue of fact and therefore summary judgment was improvidently granted."). With regard to the failure to sit for an EUO, evidence that the Everetts presented on their motion for reconsideration indicates that their trial counsel did not inform them of any scheduled EUO. In another case involving Avatar and an insured's failure to sit for an EUO, a summary judgment was reversed when there was an issue of fact concerning "the insured's willful noncompliance with the policy." Abdo v. Avatar Prop. & Cas. Ins. Co., 302 So. 3d 926, 926 (Fla. 4th DCA 2020). The court explained as follows: Imputation of knowledge to the homeowner is inappropriate—the core inquiry here is whether the homeowner "willfully" breached the insurance contract. Central to a finding of "willfulness" is the insured's actual knowledge of the time and place of the EUO. The failure of an attorney to notify the homeowner of an EUO may subject the attorney to sanctions, but those sanctions would fall short of the entry of summary judgment for the insurer on the insured's claim. Id. at 930. Thus, it appears that on remand there may be a fact issue regarding the willful nature of the Everetts' noncompliance. In conclusion, the sole affidavit Avatar relied upon to support its motion for summary judgment was insufficient under rule 1.510(e). Avatar thus failed to prove that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Therefore, we reverse the final summary judgment and remand for further proceedings. Reversed and remanded. - 11 - NORTHCUTT and SLEET, JJ., Concur. - 12 -