ON MOTION FOR REHEARING
Wе grant Citizens Property Insurance Corporation’s motion for rehearing, withdraw our previous opinion issued February 6, 2013, and substitute the following opinion in its place:
1500 Coral Towers Condominium (“Coral Towers”) appeals a final summary judgment in favor of Citizens Property Insurance Corporation (“Citizens”) in a breach of contract action. We have reviewed, оnce again, the entire record as well as controlling case law and conclude that the trial court was correct in finding Citizens was presumed prejudiced by Coral Towers’ late notice and, based on our de novo review, find that Coral Towers failed to overcome the presumption of prejudice. Therefore, we affirm the trial court’s summary judgment in fаvor of Citizens.
At the time of Hurricane Wilma, in October 2005, Coral Towers was insured under a commercial-residential property insurance policy with Citizens. Approximately five yeаrs after Hurricane Wilma, on June 29, 2010, Coral Towers notified Citizens for the first time that the property had sustained damages as a result of Hurricane Wilma. Pursuant to the terms of the insurance policy, Citizens requested that Coral Towers submit a sworn proof of loss within sixty days.
4. You[r] Duties After Loss. In case of a loss to covered property, you must:
a. Give prompt notice to us, or your producer, who is to give immеdiate notice to us.
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d. Send to us, within sixty (60) days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:
(1) The time and cause of loss;
(2) Your interest and that of all others in the Covered Property involved, and all liens on the covered property;
(3) Other insurance which may cover the loss;
(4) Changes in titles or occupancy of the Covered Property during the term of the Policy;
(5) Specificаtions of damaged buildings and detailed repair estimates;
(6) The inventory of damaged and undamaged personal property described in Condition number 4.b., Your Duties After Loss.
Citizens also asserted as an affirmative defense that Coral Towers was barred from recovery because it had failed to comply with conditions precedent to filing the lawsuit under the following policy provision:
15. Suits Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within five (5) years from the date the loss occurs.
Three months after filing suit, Coral Towers provided the sworn proof of loss. The first opportunity Citizens had to inspect the property was in early August of 2010.
In discovery, Coral Tоwers admitted knowledge of the loss in November 2005, and that a roofer had repaired the elevator, roof, and surrounding walls in December 2005. The roof continued to leak and Cоral Towers obtained estimates to replace the roof. The latter of the estimates was for $259,269.20. The reason Coral Towers alleged it did not notify Citizens immediately after Hurricane Wilma was because initially there was a question of whether the damages would exceed the policy deductible.
In September 2011, Citizens moved for summary judgment on grounds that Cоral Towers was barred from recovery as a result of the failure to give prompt notice and failure to provide a sworn proof of loss within sixty days. Citizens alleged that it was рrejudiced by the inability to investigate and evaluate the claim under the policy. Coral Towers maintained that the type of damages it had sustained appeared over time and would not have necessarily evidenced themselves within the first two years after the hurricane. The two issues addressed by the trial court and presented on appeal are whether Coral Towers’ notice of loss was timely and, if not, whether Citizens was prejudiced by the late notice.
We agree with the trial court that there is no factual disputе that Coral Towers failed to give timely notice of the loss. When an insurance contract contains a provision which applies to notice of the damage claim, an insured must give notice of the loss that implicates a potential claim without waiting for the full extent of the damages to become apparent. Kendall Lakes Towers Condo. Ass’n v. Pacific Ins.
As a result, Pacific was entitled to prompt notice of the loss following Hurricane Wilma, not, as occurred here, to notice more than four years later. There is no genuine faсtual dispute that Kendall Lakes did not provide timely notice and Pacific is entitled to judgment as a matter of law on this issue.
Kendall Lakes,
The next question in this analysis is whether Coral Towers can overcome the presumption of prejudice to Citizens caused by the late notice. If not, summary judgment was appropriate. We find, based on yet another extensive review of the record and the case law, Coral Towers failed to overcome this presumption at the hearing for summary judgment. An insurer is prejudicеd by untimely notice when the underlying purpose of the notice requirement is frustrated by late notice. 13 Couch on Insurance § 193.30 (3d ed. Supp. 2012). Failure to give timely notice creates a presumption that the insurer was prejudiced. Id.; see, e.g. Ideal Mut. Ins. Co.,
As in Kendall Lakes, Citizens alleges that the extended passage of time creates a very strong inference that Citizens’ investigation and defenses have been diminished as a result of the late notice. Also, it alleges that the repаirs made without first notifying Citizens hampered the monitoring of, and efforts to coordinate, mitigation of damages. Although the issue of whether an insured has overcome the presumption оf prejudice caused by late notice is generally reserved for the trier of fact, it is appropriately raised on summary
The record fails to show any evidence or issue of fact presented by Coral Towers sufficient to overcome the presumption of prejudice resulting from its late notice to the insurer. The closest Coral Towers comes is a conеlusory statement by one of its engineers that, in his opinion, the late notice did not prejudice Citizens. This is not the legally sufficient evidence required to overcome the presumption of prejudice. We affirm the trial court’s grant of summary judgment in favor of Citizens.
Affirmed.
Notes
. We do not find it necessary to address the issue raised by Citizens that it would also have been entitled to summary judgment on the separate ground that the insured allegedly failed to timely comply with Citizens’ request of proof of loss.