Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ALAIN CORDERO and MAIRINE CORDERO, Appellants, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., as statutory successor in interest to Sawgrass Mutual Insurance Company, Appellee. No. 2D17-766 January 27, 2023 Appeal from the Circuit Court for Hillsborough County; Paul L. Huey, Judge. Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa; and Aaron S. Kling of Smith Kling Thompson, Tampa, for Appellants. Jack R. Reiter, Tiffany M. Decossaux, and Jordan S. Kosches of GrayRobinson, P.A., Miami (withdrew after briefing), for Appellee Sawgrass Mutual Insurance Company. Thomas P. Crapps and Kirsten Matthis of Meenan P.A., Tallahassee, for Appellee Florida Insurance Guaranty Association (substituted as party after briefing). KHOUZAM, Judge. Alain and Mairine Cordero appeal a final summary judgment in favor of Sawgrass Mutual Insurance Company in the Corderos' action for breach of contract arising from a denial of coverage for sinkhole-related loss to their home.1 Because genuine issues of material fact remain, we reverse the summary judgment. BACKGROUND The Corderos' home was insured by Sawgrass against sinkhole loss from March 1, 2010, to March 1, 2011. While painting the home on January 11, 2011, Mr. Cordero noticed two cracks to the exterior of the structure. Mr. Cordero later testified that he simply painted over the cracks because he had no idea they could be related to a sinkhole. No claim for coverage was filed at that time, and the Corderos did not otherwise notify Sawgrass of the cracks. Around January 2012, Mr. Cordero noticed that the cracks were getting bigger. He also started to see cracks appearing on the driveway. Those developments, coupled with "seeing all the problems in Florida with sinkholes," led him to believe for the first time that the cracks could have been caused by sinkhole activity. Around that time, he consulted with an attorney. In February 2012, the Corderos reported a claim to Sawgrass for sinkhole loss. After some investigation, Sawgrass denied the claim on the basis of failure to comply with the policy's Duty After Loss Condition, which contained typical homeowner's policy language requiring the insured to give "prompt notice" in the event of a covered loss. Thereafter, 1 In 2018 while this appeal was pending, Sawgrass was placed in receivership and the case was stayed. But Sawgrass has now been dissolved, the Florida Insurance Guaranty Association has been substituted in its place, and the stay has been lifted. 2 the Corderos filed an action against Sawgrass alleging breach of contract and other claims. Sawgrass moved for final summary judgment, contending as relevant here that by waiting to report the claim for over a year after first seeing cracking, the Corderos failed to provide timely notice of their claim as a matter of law, resulting in prejudice to Sawgrass as a matter of law. In opposition, the Corderos argued that they had provided notice as soon as they became aware that a sinkhole was possibly responsible for the cracks and, further, that the questions of timeliness of notice and prejudice to Sawgrass were both issues of fact for the jury. At the hearing, the Corderos cited this court's decision in Mora v. Tower Hill Prime Ins., 155 So. 3d 1224 (Fla. 2d DCA 2015), for the point that, under appropriate circumstances, an insured might reasonably consider the existence of exterior cracking as a matter of ordinary maintenance rather than one warranting an insurance claim for sinkhole loss. At summary judgment, they contended, the court could not simply reject Mr. Cordero's testimony that he did not realize the cracks could have been caused by sinkhole activity until shortly before reporting them. The trial court interrupted that argument, saying: That's irrelevant. Whatever it is, it could be settling, it could be lots of things, but the point is when you know something you got to give them notice. . . . I think they had a duty and, you know, whether it was caused by a squirrel or a Martian, whatever, they had a duty. If a meteor hit the house they had a duty, right? The trial court took the motion under advisement and later granted it in an unelaborated order. After the court entered final judgment in favor of Sawgrass, the Corderos appealed. 3 ANALYSIS "Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, and (2) the moving party is entitled to a judgment as a matter of law." LoBello v. State Farm Fla. Ins., 152 So. 3d 595, 598 (Fla. 2d DCA 2014) (citations omitted).2 "On summary judgment, the trial court's function 'is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, "the nonexistence of a genuine issue of a material fact." ' " Bryson v. Branch Banking & Tr. Co., 75 So. 3d 783, 785 (Fla. 2d DCA 2011) (quoting Winston Park, Ltd. v. City of Coconut Creek, 872 So. 2d 415, 418 (Fla. 4th DCA 2004)). We review the trial court's order de novo. LoBello, 152 So. 3d at 598. "The purpose of a provision for notice and proofs of loss is to enable the insurer to evaluate its rights and liabilities, to afford it an opportunity to make a timely investigation, and to prevent fraud and imposition upon it." Id. (quoting State Farm Mut. Auto. Ins. v. Ranson, 121 So. 2d 175, 180 (Fla. 2d DCA 1960), overruled in part on other grounds, Am. Fire & Cas. Co. v. Collura, 163 So. 2d 784, 793–94 (Fla. 2d DCA 1964)). "The failure of an insured to give a timely notice of loss in contravention of a policy provision is a legal basis for the denial of recovery under the policy." Id. (quoting Ideal Mut. Ins. v. Waldrep, 400 2 In 2020, the Florida Supreme Court adopted the federal summary judgment standard. See In re Amends. to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192, 194 (Fla. 2020). But that amendment does not apply here because the trial court entered final summary judgment in 2017, well before the amendment's effective date. See Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020) (explaining that the amendment to rule 1.510 is prospective). 4 So. 2d 782, 785 (Fla. 3d DCA 1981)). However, "[a]n event must be of sufficient consequence to trigger an insured's duty to provide notice. 'Notice is necessary when there has been an occurrence that should lead a reasonable and prudent man to believe that a claim for damages would arise.' " Id. at 599 (quoting Waldrep, 400 So. 2d at 785). "[T]he duty to provide notice arises when a reasonable person, viewing all available facts and information, would conclude that an award implicating the policy is likely." Id. (alteration in original) (quoting Vision I Homeowners Ass'n v. Aspen Spec. Ins., 674 F. Supp. 2d 1333, 1338-39 (S.D. Fla. 2009)). In turn, notice is timely if provided within a reasonable time of the triggering event. See Laquer v. Citizens Prop. Ins., 167 So. 3d 470, 474 (Fla. 3d DCA 2015) (explaining that "prompt," "immediate," "as soon as practicable," and other such policy language require reasonable notice, not instantaneous notice). This determination involves "all of the facts and circumstances of the particular case." Id. (quoting Yacht Club on the Intracoastal Condo. Ass'n v. Lexington Ins., 599 F. App'x 875, 879 (11th Cir. 2015)); see also LoBello, 152 So. 3d at 599 (observing the "uniform" state of Florida law holding that for notice to insurers, "what is a reasonable time depends upon the surrounding circumstances and is ordinarily a question of fact for the jury" (quoting Renuart–Bailey–Cheely Lumber & Supply Co. v. Phoenix of Hartford Ins., 474 F.2d 555, 557 (5th Cir. 1972))). "Thus, the issue of whether an insured provided 'prompt' notice generally presents an issue of fact." Laquer, 167 So. 3d at 474 (citing LoBello, 152 So. 3d at 600 (collecting cases)). "On the other hand, if the undisputed evidence will not support a finding that the insured gave notice to the insurer as soon as practicable, then a finding that notice 5 was timely given is unsupportable." LoBello, 152 So. 3d at 600. Here, Sawgrass failed to carry its summary judgment burden. It argued that the duty to notify was triggered when Mr. Cordero first saw the two cracks in January 2011, and that notice over a year later was untimely as a matter of law. But Sawgrass did not produce any evidence as to the degree of the cracking observed in January 2011, or any evidence that the extent of the cracking was such that a reasonably prudent person would have believed that a policy award was likely, thereby constituting an event "of significant consequence" to trigger the Corderos' duty to notify. In fact, the record is silent as to the size, length, depth, or other descriptive details of the cracking on the wall at any time from when the cracks were first observed in January 2011, until the claim was filed in February 2012. Absent any evidence that the supposed triggering event would cause a reasonable insured to believe a policy award was likely, Sawgrass was not entitled to summary judgment on the issue of untimely notice. See, e.g., LoBello, 152 So. 3d at 599. Contrary to Sawgrass's contention and the trial court's comments, the mere observation of two cracks of unspecified nature to the exterior of a home is not as a matter of law an event "of sufficient consequence" that triggers the duty to notify insurers of a claim for sinkhole damage. As this court has recognized—in a decision the Corderos expressly relied upon below—depending on the circumstances, "an insured might not regard repair of common drywall or stucco cracks as a matter that involved more than normal maintenance." Mora, 155 So. 3d at 1228 (reversing insurer summary judgment in sinkhole coverage litigation where insured had denied existence of "cracking damage" despite knowledge of "cracks" at the home). This distinction is particularly relevant where, as here, the policy excludes coverage for losses caused by 6 "[s]ettling, shrinking, bulging or expansion, including resultant cracking, of . . . foundations [and] walls." (Emphasis added.) Thus, the question of whether the Corderos provided timely notice should have been left for the finder of fact to resolve. As in LoBello, "[t]he presence of a material issue of fact concerning the timeliness of the notice made it unnecessary to reach the second step and to consider the question of prejudice." 152 So. 3d at 600. Accordingly, we reverse the final summary judgment. Reversed and remanded for further proceedings. BLACK,3 J., Concurs. ATKINSON, J., Concurs in result only. __________________________ Opinion subject to revision prior to official publication. 3 Judge Black has been substituted for Judge Crenshaw, who was on the original panel. Judge Black has viewed a recording of the oral argument. 7