Makryllos v. Citizens Property Insurance Corp.
103 So. 3d 1032
| Fla. Dist. Ct. App. | 2012Background
- Makryllos home insured by Citizens Property Insurance; roof interior damages claimed after rain in 2006.
- Citizens denied roof damage but paid interior damages under ensuing loss clause; supplemental claim filed in 2007.
- Citizens notified insured to submit a Sworn Proof of Loss and scheduled an examination under oath (EUO).
- Letters (Aug 6, 2007; Sept 10, 2007; Sept 10, 2007; Oct 26, 2007; Jan 4, 2008) instructed that the Proof of Loss be submitted prior to or at EUO.
- Laudable issue: the court awarded summary judgment solely on untimely proof of loss; the appellate court reverses and remands for factual determination.
- Makryllos eventually submitted a sworn proof of loss before the summary judgment was entered, creating factual questions about waiver and partial cooperation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of the proof-of-loss deadline | Makryllos relied on insurer’s repeated instructions to bring the proof of loss to EUO. | Citizens did not waive the 60-day deadline. | Genuine issue of material fact on waiver; remand warranted. |
| Effect of partial cooperation on breach of condition | Partial cooperation could prevent enforcement of the deadline. | Policy requires strict compliance regardless of cooperation. | Partial cooperation creates jury question; summary judgment improper. |
Key Cases Cited
- Reliance Mut. Life Ins. Co. of Ill. v. Booher, 166 So.2d 222 (Fla. 2d DCA 1964) (waiver when insurer’s conduct induces reliance)
- Reddick v. Globe Life & Accident Ins. Co., 596 So.2d 435 (Fla.1992) (insurer’s conduct may estop reliance on policy provisions)
- Brown v. Powell, 531 So.2d 731 (Fla. 4th DCA 1988) (jury question on insurer’s waiver by conduct)
- Sec. Life & Trust Co. v. Jones, 202 So.2d 906 (Fla. 2d DCA 1967) (insurer conduct may create waiver issues)
- Shaw v. Mass. Mut. Life Ins. Co., 298 So.2d 183 (Fla. 1st DCA 1974) (waiver of forfeiture provisions depends on facts)
- Haiman v. Fed. Ins. Co., 798 So.2d 811 (Fla. 4th DCA 2001) (partial cooperation may raise fact questions)
- Starling v. Allstate Floridian Insurance Co., 956 So.2d 511 (Fla. 5th DCA 2007) (summary judgment basis; context of proof of loss)