Universal Property & Casualty Insurance Company v. Thomas J. Yager and Deborah Jo Yager
4D2023-2310
| Fla. Dist. Ct. App. | Apr 16, 2025Background
- The Yagers (insureds) filed a breach of contract action against Universal Property & Casualty Insurance Company after Universal partially denied their homeowner’s insurance claim related to a roof leak reported in August 2020.
- Universal argued the insureds failed to provide “prompt notice” of the loss as required by the policy, alleging the leak occurred in May 2020 but was not reported until August.
- Universal paid the insureds around $2,000 for interior damage but denied coverage for roof repairs.
- The insureds moved for partial summary judgment, asserting Universal had waived the “prompt notice” defense by accepting coverage and making a partial payment.
- The trial court granted summary judgment for the insureds on waiver of the prompt notice defense, precluding Universal from presenting it to the jury. The court entered a final judgment for the insureds after a jury trial on other issues.
- Universal appealed, arguing it should have been allowed to present the prompt notice defense, both procedurally (based on pleading requirements) and substantively (merits of waiver).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must waiver of "prompt notice" be pled to avoid insurer’s defense? | The waiver issue was sufficiently pled in the complaint, so no further reply was required. | Waiver needed to be specifically pled in a reply to Universal's answer; not timely raised. | Specific pleading of waiver in a reply is required; insureds failed to do so. |
| Does partial payment by insurer waive the “prompt notice” defense? | Universal’s acceptance of coverage and payment for part of the damage waived the prompt notice defense. | Partial payment does not waive the right to assert a lack of prompt notice as a defense. | Partial payment does not constitute waiver of the prompt notice defense. |
| Was the waiver issue tried by consent? | The issue was tried by consent since Universal did not object. | Universal objected in both written response and at the hearing, so not tried by consent. | Not tried by consent—Universal preserved its objection. |
| Should jury have considered prompt notice defense at trial? | No, Universal waived the defense as a matter of law. | Yes, failure to give prompt notice is a valid jury question if not waived. | Jury should have been permitted to consider prompt notice defense; reversal and remand. |
Key Cases Cited
- Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010) (affirmative defenses based on unsatisfied conditions precedent must be specifically pleaded)
- Gamero v. Foremost Ins. Co., 208 So. 3d 1195 (Fla. 3d DCA 2017) (failure to plead waiver in reply bars summary judgment based on waiver)
- Rodrigo v. State Farm Fla. Ins. Co., 144 So. 3d 690 (Fla. 4th DCA 2014) (insurer's tender of partial payment does not waive post-loss condition defenses)
- Universal Prop. & Cas. Ins. Co. v. Horne, 314 So. 3d 688 (Fla. 3d DCA 2021) (issuance of payment to insured does not waive affirmative defense of failure to comply with post-loss conditions)