DAVID HIMMEL v. AVATAR PROPERTY & CASUALTY INSURANCE COMPANY
257 So. 3d 488
| Fla. Dist. Ct. App. | 2018Background
- Homeowner David Himmel's house suffered interior water damage from an AC leak on June 13, 2016; mitigation (repair and flooring remediation) began immediately.
- Himmel's public adjuster notified insurer Avatar the day after the loss and submitted a timely sworn proof of loss on a different form (omitting personal property details).
- Avatar provided its own proof-of-loss form and requested a sworn proof of loss within 60 days and an examination under oath (EUO) for insured and various third parties.
- Avatar's counsel deemed the submitted proof of loss "deficient" without specifying missing items and scheduled an EUO; Himmel (through counsel) repeatedly requested to reschedule due to unavailability.
- Avatar refused to reschedule, insisted the proof of loss was deficient, and no one appeared at the scheduled EUO.
- Avatar moved for summary judgment on failure to submit to EUO, failure to provide prompt notice, and failure to submit a compliant sworn proof of loss; the trial court granted summary judgment for Avatar. The Fourth District reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to attend the scheduled EUO was a willful, material breach that bars recovery | Himmel showed he cooperated and sought to reschedule; his counsel repeatedly requested new dates, creating explanation and partial cooperation | Avatar argued Himmel willfully refused the EUO by not appearing | Reversed: factual dispute exists (reasonable cooperation/explanation) — summary judgment improper |
| Whether notice was "prompt" under the policy | Notice given two days after leak discovery while mitigation efforts were ongoing; timeliness is fact-specific | Avatar contended notice was untimely and breached policy | Reversed: promptness is a factual issue for the jury |
| Whether the sworn proof of loss submitted on a different form (omitting personal property losses) was a material breach | The submitted proof was timely and contained substantially equivalent information (except personal property); substantial compliance raises fact question | Avatar asserted the proof was deficient because it did not use insurer's form and omitted requested personal property info | Reversed: whether omission was material is a jury question; summary judgment improper |
Key Cases Cited
- Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995) (insured's refusal to attend EUO can be willful and bar recovery)
- Haiman v. Fed. Ins. Co., 798 So. 2d 811 (Fla. 4th DCA 2001) (cooperation/explanation can create fact issue on material breach)
- Laquer v. Citizens Prop. Ins. Corp., 167 So. 3d 470 (Fla. 3d DCA 2015) (prompt notice measured by reasonableness under facts and circumstances)
- Kramer v. State Farm Fla. Ins. Co., 95 So. 3d 303 (Fla. 4th DCA 2012) (failure to submit sworn proof of loss before suit is usually fatal)
- State Farm Fla. Ins. Co. v. Figueroa, 218 So. 3d 886 (Fla. 4th DCA 2017) (substantial compliance with proof-of-loss requirement is a fact question)
- Schnagel v. State Farm Mut. Auto. Ins. Co., 843 So. 2d 1037 (Fla. 4th DCA 2003) (partial compliance with cooperation clause is for the jury to decide)