MARC SAVOY and ROSE HELLER SAVOY v. AMERICAN PLATINUM PROPERTY AND CASUALTY INSURANCE ( 2023 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARC SAVOY and ROSE HELLER SAVOY,
Appellants,
v.
AMERICAN PLATINUM PROPERTY & CASUALTY INSURANCE,
Appellee.
No. 4D22-411
[June 21, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2019-CA-
013557-XXXX-MB.
Charles H. Bechert, III, of Bechert & Associates, P.A., Pompano Beach,
for appellants.
Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, for appellee.
CONNER, J.
The appellant homeowners appeal a final summary judgment in favor
of the appellee, their homeowners’ insurance company. The homeowners
argue the trial court erred in: (1) finding the insurer was not required to
show prejudice where the homeowners breached a condition precedent to
suit; (2) considering the affidavit of the insurer’s corporate representative
as summary judgment evidence; and (3) granting summary judgment
when a factual dispute existed as to whether the homeowners were aware
the insurer had requested a sworn proof of loss. Based on the language
in the policy and the caselaw, the insurer properly concedes error as to the
first issue raised. Finding merit in the homeowners’ argument for reversal
as to the second issue (the corporate representative’s insufficient affidavit),
we reverse and remand for further proceedings. By reversing on the first
two issues, we do not reach the third issue.
Background
In 2017, the insurer issued a homeowners’ insurance policy to the
homeowners. The same year, the homeowners sustained property damage
during Hurricane Irma and sought recovery under the policy. The
homeowners retained a public adjuster to assist with their claim.
In September 2017, the public adjuster reported the homeowners’ claim
to the insurer and emailed its representation letter to the insurer, advising
it had a new office address in Fort Myers, Florida, and a new post office
box address in LaBelle, Florida. The insurer sent a letter to the
homeowners at the property address two days later, acknowledging receipt
of the claim and advising the homeowners of their duties after loss,
including making repair and keeping accurate records.
The insurer completed an inspection of the property in October 2017.
In December 2017, the insurer sent a document request letter to the
public adjuster at its old address. The letter requested the public
adjuster’s compliance with policy conditions, including a “signed, sworn
Proof of Loss.” Less than two weeks later, the insurer’s field adjuster
emailed the public adjuster, memorializing an earlier phone conversation
and requesting that the public adjuster either “submit an estimate of
repairs” or withdraw the claim.
A short time later, the field adjuster emailed the public adjuster again
and repeated his request. The public adjuster replied the next day and
advised that he would be writing an estimate in early January 2018.
The insurer sent a formal letter to the homeowners at the property
address on December 20, 2017. The letter advised that the insurer had
still not received a sworn proof of loss or any repair receipts and requested
documentation in compliance with the policy’s post-loss conditions.
Having still not received any documentation, the insurer sent another
letter to the homeowners at the property address on December 28, 2017.
Additionally, the December 28 letter was emailed to the homeowners and
the public adjuster. The letter further advised that, based on the field
adjuster’s estimate, the homeowners’ damages were well below the policy
deductible. Thus, the insurer concluded that although the policy covered
the homeowners’ claimed damages, they were not entitled to recovery.
The homeowners sued the insurer for breach of contract for failing to
make payment under the policy. The insurer raised the homeowners’
failure to provide a sworn proof of loss in compliance with their duties
under the policy as an affirmative defense. The insurer also alleged it was
prejudiced in its ability to fully investigate the alleged loss due to the lack
of a sworn proof of loss. The homeowners did not reply or otherwise object
to the insurer’s affirmative defense.
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The insurer moved for summary judgment based on the homeowners’
failure to provide a sworn proof of loss. Specifically, the insurer argued
the homeowners’ failure to satisfy their post-loss contractual obligation to
submit a sworn proof of loss prior to instituting the lawsuit presumptively
prejudiced the insurer as a matter of law. Notably, the insurer did not
argue actual prejudice. Instead, the insurer also argued that, based on
the pre-suit policy requirements, “[i]f the insured did not provide a proof
of loss, that is the end of the analysis and the insured may not recover.” 1
In support of its motion, the insurer filed an affidavit from one of its
corporate representatives. In his affidavit, the corporate representative
made conclusory statements as to the elements of the business records
exception to the hearsay rule:
I am the person with knowledge of this matter and records
maintained by [the insurer]. The records of acts or events
contained in [the insurer’s] claim file regarding this matter
and business records of [the insurer] are made at or near the
time of the occurrence by, or from information transmitted by
a person with knowledge and kept regularly as a normal
business activity. It is the regular practice of [the insurer] to
make such memorandum, report, record, or data compilation.
Based upon the business records of [the insurer], I state the
following statements of facts.
Additionally, he stated his knowledge was “based upon my review of [the
insurer’s] file” and that he was “serving as Corporate Representative in
these actions for [the insurer].” He did not provide any further basis for
his knowledge or indicate his employment. The affidavit made numerous
factual statements about the sequence of events surrounding the claim.
Attached to the affidavit were many of the relevant communications
between the insurer, the public adjuster, and the homeowners, including
the December 2017 emails between the insurer’s field adjuster and the
public adjuster.
The homeowners’ written opposition to the summary judgment motion
argued the policy specifically required the insurer to show prejudice, and
their alleged noncompliance with any policy provisions was a question of
fact. The homeowners also argued the trial court should disregard the
corporate representative’s affidavit because it was not properly verified or
1 To the extent the trial court agreed with this argument in granting summary
judgment, the insurer concedes error on appeal.
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sworn and did not lay sufficient facts to satisfy the requirements of the
business records exception.
In support of their opposition, the homeowners attached the deposition
transcripts of the field adjuster and the corporate representative. The
homeowners also filed a demonstrative aid responding to each of the
insurer’s asserted undisputed facts. As to the public adjuster’s December
2017 emails with the field adjuster, the homeowners cited the field
adjuster’s testimony that he had no recollection of the exchange. The
homeowners also argued the public adjuster’s response about sending an
estimate in January had “no material bearing on the issues in this case.”
Further, the homeowners moved to strike the corporate representative’s
affidavit and attachments.
The trial court heard the motions to strike and for summary judgment
at the same time. At the hearing, the insurer pointed to its
communications with the public adjuster and the homeowners as proof it
sufficiently requested the proof of loss. The insurer also argued the
corporate representative’s affidavit was sufficient under the business
records exception because he was the corporate representative, and
therefore had personal knowledge of the insurer’s recordkeeping.
The homeowners argued the corporate representative’s affidavit failed
under the business records exception and he lacked personal knowledge
of the insurer’s recordkeeping protocols. The trial court questioned
whether personal knowledge was even required, as the corporate
representative’s statements in the affidavit did not go beyond the
documents, which spoke for themselves. The homeowners countered that
the corporate representative made multiple statements as to whether and
how the various letters were sent, without referring to anything as proof.
Additionally, the homeowners argued the corporate representative was not
an employee and had not indicated any basis for his personal knowledge.
Finally, the homeowners noted the field adjuster had been unable to
authenticate his own emails during his deposition.
Pertinent to the issues on appeal which we discuss, the trial court orally
granted summary judgment, stating that the corporate representative was
“an individual with knowledge as to the records and how the [insurer] kept
records is sufficient to allow the introduction of the attachments to the
affidavit”; “the records themselves that he introduces through that affidavit
really speak for themselves”; and “his affidavit doesn’t do anything more
than regurgitate exactly what’s in the records.” Thereafter, the trial court
entered its final summary judgment, and the homeowners gave notice of
appeal.
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Appellate Analysis
As mentioned above, the insurer properly concedes the trial court erred
in finding the insurer was not required to show prejudice where the
homeowners breached a condition precedent to suit, despite policy
language to the contrary. Godfrey v. People’s Tr. Ins. Co., 338 So. 3d 908,
909 (Fla. 4th DCA 2022). We agree with this concession and reverse on
this basis.
We also find error in the trial court’s reliance on a deficient affidavit in
granting final summary judgment in favor of the insurer. The homeowners
raise two arguments challenging the trial court’s consideration of the
corporate representative’s affidavit: (1) whether it was sufficiently sworn;
and (2) whether it satisfied the business records exception. We affirm as
to the first argument without further discussion. See Bell v. Renar Dev.
Co., 811 So. 2d 780, 782 (Fla. 4th DCA 2002) (deeming an affidavit
sufficiently notarized where notary’s oversight used the word
“acknowledged” but circumstances showed the document was clearly
intended as a final contractor’s affidavit). We agree, however, with the
homeowners on the second argument.
The corporate representative’s affidavit was significant because it
introduced the December 2017 emails between the field adjuster and the
public adjuster. The affidavit also affirmed that the insurer actually sent
various communications. Without this evidence, it is unlikely the insurer
would have been entitled to summary judgment.
The homeowners argue the trial court erred when it ruled the insurer’s
designated corporate representative was competent to authenticate the
company’s file materials and identify them as records kept in the ordinary
course of business. The insurer counters that the corporate representative
was not required to possess any personal knowledge because he was the
corporate representative. We agree with the homeowners.
“An affidavit or declaration used to support or oppose a motion [for
summary judgment] must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fla. R. Civ. P.
1.510(c)(4). “When a supporting summary judgment affidavit fails to
establish its basis in the affiant’s personal knowledge, the affidavit should
be found legally insufficient to support the entry of summary judgment in
favor of the moving party.” Gromann v. Avatar Prop. & Cas. Ins. Co., 345
So. 3d 298, 300 (Fla. 4th DCA 2022). This is true regardless of whether
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the witness is a corporate representative. See id. (applying the personal
knowledge standard to corporate representative affidavit); Huertas v.
Avatar Prop. & Cas. Ins. Co., 333 So. 3d 767, 771 (Fla. 4th DCA 2022)
(same). In other words, corporate representative affidavits in support of
summary judgment are not excepted from the personal knowledge
requirement.
The insurer argues to the contrary, citing our opinion in Carriage Hills
Condominium, Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329 (Fla.
4th DCA 2013). Carriage Hills holds that corporate representatives need
not possess personal knowledge to testify “about matters known or
reasonably available to the organization.” Id. at 334. But that case does
not address such testimony in the context of summary judgment
affidavits. Indeed, we recently rejected a similar argument, holding that
“in light of the extensive case law prohibiting the entry of summary
judgment predicated on affidavits lacking any personal knowledge, we find
that Carriage Hills is not relevant here.” Gromann, 345 So. 3d at 301.
This is consistent with Rodriguez v. Avatar Property & Casualty
Insurance Co., 290 So. 3d 560 (Fla. 2d DCA 2020), on which the
homeowners rely as a factually similar case. In Rodriguez, the insurer
submitted a corporate representative affidavit in support of its summary
judgment motion. Id. at 563. But the “affidavit state[d] only that [the
affiant was] ‘a duly authorized corporate representative’ . . . [and] d[id] not
identify her title or specify her corporate duties. Nor d[id] the affidavit
state that it [wa]s made based on personal knowledge. If the affiant
possesse[d] relevant skill sets or experience, that, too, [wa]s omitted.” Id.
On those facts, the Second District concluded the affidavit did not
demonstrate personal knowledge, competency, or admissible facts for
purposes of summary judgment evidence. Id.
Although the homeowners do not cite our opinions in Gromann and
Huertas, those opinions are similar to Rodriguez. In Gromann, the insurer
submitted its corporate representative’s affidavit in support of summary
judgment. 345 So. 3d at 301. But the affidavit did not make any claim
that it was “made on personal knowledge,” much less “show that the
affiant . . . [was] competent to testify on the matters stated.” Id. at 301
(quoting Fla. R. Civ. P. 1.510(c)(4)). Citing Rodriguez, we held the affidavit
could not be used to support summary judgment. Id.
Likewise, in Huertas, we considered an insurer’s corporate
representative’s affidavit. 333 So. 3d at 770. We held that “[t]he author
of the affidavit . . . failed to declare the source of the information presented
therein. Instead, Insurer merely attached four unsworn, unauthenticated
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documents.” Id. at 771. Citing Rodriguez, we held the affidavit was
insufficient to support summary judgment. Id. at 771-72.
Here, as in Rodriguez, Gromann, and Huertas, the affiant provided no
basis for the affiant’s personal knowledge or competency. The corporate
representative simply stated his knowledge was “based upon my review of
[the insurer’s] file” and he was “serving as Corporate Representative in
these actions for [the insurer].” He did not provide any further basis for
his knowledge, much less indicate any employment, training, or
experience that might provide him with personal knowledge of the
insurer’s recordkeeping practices. He did not even claim any personal
knowledge of these practices (apart from a conclusory restating of the
elements of the business records exception).
Furthermore, the corporate representative’s statements that various
letters were mailed required additional proof. The mere fact that a letter
was drafted “is not enough to allow a trial court to infer that the letter was
mailed.” Mace v. M&T Bank, 292 So. 3d 1215, 1219 (Fla. 2d DCA 2020).
Instead, a witness generally must: (1) have personal knowledge of the
mailing, (2) provide evidence of routine mailing practices, or (3) provide
records of the mailing, such as a log or return receipt. Id. at 1219-20. The
corporate representative’s affidavit in this case did not come close to
providing such evidence.
The corporate representative therefore failed to demonstrate his
affidavit was “made on personal knowledge, set out facts that would be
admissible in evidence, and show[ed] . . . [his] competen[cy] to testify on
the matters stated” regarding the business record exception. Fla. R. Civ.
P. 1.510(c)(4). Accordingly, the trial court should have disregarded the
affidavit and the attached documents. See, e.g., Roberts v. Direct Gen. Ins.
Co., 337 So. 3d 889, 891 (Fla. 2d DCA 2022) (“[T]he business-records
exception . . . does not authorize hearsay testimony concerning the
contents of business records which have not been admitted into evidence.”
(quoting Thompson v. State, 705 So. 2d 1046, 1048 (Fla. 4th DCA 1998))).
Conclusion
The insurer concedes on appeal that the trial court erred in ruling the
insurer did not need to demonstrate actual prejudice caused by the
homeowners’ failure to provide a sworn proof of loss. Upon review of the
record, we have also determined the trial court relied on a deficient
affidavit in granting final summary judgment in favor of the insurer. For
these reasons, we reverse and remand for further proceedings. Because
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we are reversing on the homeowners’ first two issues on appeal, we do not
address the homeowners’ third issue on appeal.
Reversed and remanded for further proceedings.
WARNER and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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