322 So.3d 663
Fla. Dist. Ct. App.2021Background:
- Hurricane Irma damaged the Trifs’ home on September 10, 2017; Anchor inspected and issued a denial letter in December 2017 (estimate below deductible; no covered storm damage to roof slopes; interior water damage denied).
- The Trifs’ public adjuster retained Nicholas Merced (Exactimators), who prepared a Dec. 6, 2017 Xactimate estimate listing total loss $103,809.68, including $52,800 as a roof replacement "bid item."
- On December 11, 2017 Alex Trif signed a Sworn Proof of Loss stating $103,809.68 (typed content; signature handwritten); the estimate underlay that figure but was not referenced on the form.
- The Trifs sued Anchor for breach of contract; Anchor amended to assert a "Concealment or Fraud" defense alleging post-loss misrepresentations (but did not specifically plead that the roof-cost entry was knowingly false).
- At trial Merced conceded the original roof line-item was "extensively high," later reduced, and testified he made mistakes while producing many estimates; the jury found Anchor breached, found no intentional concealment/fraud/material false statement, and awarded $26,425 in damages.
- The trial court denied Anchor’s motion for directed verdict / JNOV; the Fourth District affirmed, holding (1) the fraud issue was tried by consent and (2) a reasonable view of conflicting evidence supported the jury verdict; the majority also construed the policy to require intent for post-loss "false statements."
Issues:
| Issue | Plaintiff's Argument (Trif) | Defendant's Argument (Anchor) | Held |
|---|---|---|---|
| Whether the Sworn Proof of Loss (based on the $52,800 roof line) voided coverage under the policy's "Concealment or Fraud" clause | The estimate was prepared by a third‑party professional, the Trifs did not create or knowingly adopt a false number, and any overestimate was inadvertent or corrigible | The Sworn Proof of Loss included a materially false roof-cost statement that, if knowingly submitted, voids coverage | Judgment for Trifs affirmed: a reasonable jury could find no intentional, material misrepresentation; directed verdict/JNOV denied |
| Whether Anchor waived the defense because it did not plead the roof-estimate theory with specificity | Trifs: Anchor failed to plead fraud with particularity but raised and tried the issue at trial | Anchor: asserted concealment/fraud in amended answer and pursued evidence at trial | Issue was tried by consent (no timely objection); Trifs had fair opportunity to defend; merits addressed on appeal |
| How to construe the policy term "made material false statements"—does it require intent for post-loss statements? | Trifs: post-loss "false statement" requires scienter; forfeiture disfavored; ambiguity resolved for insureds | Anchor: the plain policy language (disjunctive subsections) allows denial for material false statements without requiring intent (citing other panels) | Majority: for post‑loss conduct, the clause requires proof of knowing/intentional misrepresentation to void coverage; ambiguity construed against drafter |
| Whether the trial court erred in denying directed verdict / JNOV given the record | Trifs: conflicting testimony (Merced’s errors, Trifs’ lack of input, correction before insurer acted, insurer had already denied coverage) supports denial | Anchor: uncontradicted evidence shows the $52,800 item was inflated and traced to insureds, so no reasonable jury could acquit on intent/materiality | Affirmed: under de novo review and viewing evidence for non-movant, any reasonable view supported jury’s finding; no JNOV/new trial warranted |
Key Cases Cited
- U.S. Fire Ins. Co. v. Dickerson, 90 So. 613 (Fla. 1921) (post‑loss false swearing requires element of fraud/intent to vitiate claim)
- Universal Prop. & Cas. Ins. Co. v. Johnson, 114 So. 3d 1031 (Fla. 1st DCA 2013) (interpreting similar policy language in application context; held nonintentional misstatements may void application-based coverage under statute)
- Flores v. Allstate Ins. Co., 819 So. 2d 740 (Fla. 2002) (policy provisions limiting liability construed against insurer)
- Am. Integrity Ins. Co. v. Estrada, 276 So. 3d 905 (Fla. 3d DCA 2019) (forfeiture for post‑loss breach requires materiality)
- Haiman v. Fed. Ins. Co., 798 So. 2d 811 (Fla. 4th DCA 2001) (materiality of misrepresentation is a jury question; corrections are relevant)
- Schneer v. Allstate Indem. Co., 767 So. 2d 485 (Fla. 3d DCA 2000) (jury found intentional inflation of contents claim; materiality considered by jury)
- Lopes v. Allstate Indem. Co., 873 So. 2d 344 (Fla. 3d DCA 2004) (policy clause voiding coverage for material misrepresentation/enforceable)
- Kopel v. Kopel, 229 So. 3d 812 (Fla. 2017) (standard of review for directed verdict/JNOV: de novo; view evidence in favor of nonmovant)
- Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d 247 (Fla. 4th DCA 2009) (affirm denial of directed verdict if any reasonable view supports verdict)