In July 2015, Mr. de la Rosa made a claim with his homeowners' insurance carrier, Florida Peninsula Insurance Company, for $22,274 for the alleged damage to his bathroom.

Florida Peninsula denied the claim, and Mr. de la Rosa and his wife sued.

Florida Peninsula alleged as an affirmative defense that the de la Rosas had failed to timely report their claim, to its prejudice. After discovery, Florida Peninsula moved for summary judgment, relying on Mr. de la Rosa's deposition, exhibits, and the affidavit of its adjuster.

In his deposition, Mr. de la Rosa testified that he took a long time to report his claim because he was not aware of his rights under his insurance policy. He admitted that all of the repairs to his bathroom had been completed prior to the insurer inspecting his house.

Florida Peninsula's adjuster inspected the de la Rosas' plumbing leak soon after their claim was filed. In a sworn affidavit, the adjuster stated that “[u]pon [his] inspection, it was evident that all repairs had been made to the bathroom where the water reportedly caused damage and the entire bathroom had been totally renovated.” He could not observe any water damage from the drainage failure because of the renovation. The adjuster reviewed a photograph taken of the master bedroom before the renovation, but testified that it did not show any water damage. The adjuster also testified that while Mr. de la Rosa had kept several damaged building materials from the water leak, such as old drywall and piping, the items were not preserved and were “kept outside and exposed to the exterior elements for over one year.” The adjuster was unable to determine “the cause or origin” or the “extent or scope” of any of the damage.

The de la Rosas countered this evidence with their own affidavits. A licensed public adjuster they hired also conducted an inspection of the property in July 2015. In an affidavit, she testified that she “observed water damage to the master bathroom door frame, master bedroom wall and baseboard, master bedroom tile floors, and the bottom kitchen cabinets.” She inspected the materials from the damaged master bathroom that the de la Rosas had retained, as well as photographs of the water damage and the invoices from their plumbing repairs. The adjuster found that the damage to the retained materials “were consistent with that of a one-time sudden and accidental waste line backup occurring in April of 2014.” She testified that “[t]he only possible event that could have caused this type of damage was a one-time waste line water backup.” She estimated the damage as $22,274.45.

In addition, a licensed engineer hired by the de la Rosas inspected the property in February 2017. He also reviewed the photographs of the master bedroom together with the invoices for the repairs to the property. He testified that he also observed visible water damage in the master bedroom, bathroom, and underneath the kitchen cabinets. He opined that this was “classic” damage caused by a one-time wastewater backup, and stated, “The waste line water back up damages observed during my inspection were clearly evident upon my inspection which was conducted in 2017 and would have been evident upon an inspection by the insurer.” As to the damage it caused, he stated that the wastewater would damage the walls and floor tiles, which damage would have increased as long as it was not removed. He advised that the entire floor should be examined by an architect to determine the extent of damage and remediation needed. He opined that there were multiple ruptured pipes which caused damage to the structure, but only opening the slab could determine the extent of damage.

Florida Peninsula moved for summary judgment. At the hearing, the de la Rosas conceded that they had given late notice of their claim and that the trial court had to presume that Florida Peninsula's investigation had been prejudiced. To rebut that presumption, the de la Rosas argued that because their adjuster and engineer disagreed with the opinion of the insurance company's adjuster as to whether the cause of the damage could be ascertained, there was an issue of fact that precluded summary judgment.

The trial court granted the insurer's motion for summary judgment, finding that there was no genuine issue of fact regarding the presumed prejudice to the insurer.

The de la Rosas appealed, arguing that even assuming that they had given late notice of their claim, there was an issue of fact regarding whether Florida Peninsula had been prejudiced.

The Florida Peninsula Policy

An endorsement to the Florida Peninsula insurance provided:

SECTION I — CONDITIONS

2. Your Duties After Loss 2.a. is replaced by the following:

a. Give prompt notice to us or our agent;

. . . .

2. Your Duties After Loss 2.f. is replaced by the following:

f. As often as we reasonably require;

(1) Show us the damaged property;

The appellate court affirmed.

In its decision, the appellate court explained that although there might be disputed issues of fact as to whether Florida Peninsula had been prejudiced in determining the cause of the incident, the record foreclosed the de la Rosas' ability to overcome the prejudice to Florida Peninsula “in evaluating the extent of the damage because of the delay in making the claim.”

Florida Peninsula, the appellate court said, was prejudiced by a delay in investigating the claim because it was not able to determine the damage “at the time of the incident.” It was prejudiced by the passage of time in investigating “the extent of the loss, and thus, the cost of repair.”

The de la Rosas had not overcome the presumption of prejudice, the appellate court concluded, and the trial court had correctly granted summary judgment in favor of Florida Peninsula.

The case is de la Rosa v. Florida Peninsula Ins. Co., No. 4D17-1294 (Fla. Ct.App. May 16, 2018). Attorneys involved include: Dennis N. Urbano of Greenberg Stone & Urbano, Miami, for appellants. Amy L. Koltnow of Colodny Fass, Sunrise, for appellee.