United States: Florida's Fourth DCA Upholds Sworn Proof Of Loss Requirement

Insurance companies in Florida receive thousands of property damage claims each year. To expedite the claims process and efficiently adjust the loss, property insurance policies require insureds to comply with specific post-loss obligations. One such obligation is the requirement that an insured complete a sworn proof of loss. A sworn proof of loss is a statement completed by an insured under oath which provides information relevant to the alleged damage to the insured's property. Most policies require an insured to complete a sworn proof of loss shortly after the loss occurred (e.g., within 30 to 60 days of the loss). Put simply, the sworn proof of loss requirement allows the insurer at the onset of a claim to receive information pertaining to the loss.

A legal issue arises when an insured suffers a loss, but fails to comply with the sworn proof of loss requirement. In two recent decisions, the Florida Fourth District Court of Appeal established a bright-line rule regarding an insured's failure to submit a sworn proof of loss when bringing litigation against the insurer. Viewed together, these cases hold that if an insured files suit against an insurer before a required sworn proof of loss is submitted, the insurer is relieved of its duties under the policy and the lawsuit is barred. However, if the sworn proof of loss is submitted untimely, but before a lawsuit is filed, courts will allow the lawsuit to proceed and analyze whether the insurer was prejudiced by the untimely submission. The two Fourth DCA cases are discussed in detail below. 

An insured's failure to provide the insurer with a sworn proof of loss before filing suit against the insurer constitutes a material breach of the policy, relieving the insurer of its duties under the policy. Rodrigo v. State Farm Florida Ins. Co., 144 So. 3d 690 (Fla. 4th DCA 2014). In Rodrigo, the insurance policy at issue required the insured to submit a sworn proof of loss within 60 days of the date of loss. After suffering a loss, the insured made a claim with her insurance company and sent invoices and lists of damages to her insurer. However, the insured failed to submit a sworn proof of loss. The insurer nevertheless tendered payment to the insured, which the insured did not accept. Instead, she filed suit against the insurer, claiming it failed to pay her the necessary amount to repair her property. At the trial court level, the insurer was granted summary judgment based on the insured's failure to submit a sworn proof loss before filing suit.

On appeal, the insured argued that the insurer was not entitled to summary judgment, because the insurer did not show that it was prejudiced by the insured's failure to submit a sworn proof of loss. The Fourth District Court of Appeal rejected that argument and affirmed the summary judgment. The court made the following pronouncements:

• Sworn proof of loss is a condition precedent to filing suit against an insurer, and an insurer need not show prejudice when an insured breaches a condition precedent to suit. In this case, because the insured failed to submit a sworn proof of loss, she materially breached a condition precedent to filing suit and the insurer was not obligated to pay. 
• The insurer did not waive the sworn proof of loss requirement by tendering payment to the insured, because "investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim" does not constitute a waiver of a sworn proof of loss requirement. Fla. Stat. § 627.426(1)(c). 
• State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071 (Fla. 2014), a recent Florida Supreme Court decision, does not govern sworn proof of loss cases. Rather, Curran is limited to the unique subject of uninsured motorist coverage and compulsory medical exams. Further, Curran dealt with compulsory medical examinations, which are deemed conditions subsequent, not conditions precedent. Accordingly, the prejudice analysis used in Curran was inapplicable.

The Rodrigo decision leaves the following question unanswered: what happens in a situation where the insured untimely files a sworn proof of loss before filing suit against the insurer? In that scenario, the insurer is relieved of its duties under the policy only if it was prejudiced by the insured's breach. Hunt v. State Farm Florida Ins. Co., 145 So. 3d 210 (Fla. 4th DCA 2014). Prejudice to the insurer is presumed and the insured bears the burden of rebutting the presumption. In Hunt, the insured did not present evidence rebutting the presumed prejudice to the insurer, so the trial court properly entered summary judgment in favor of the insurer.

The Rodrigo case is a victory for property insurers in Florida, especially since the Fourth District Court of Appeal governs six South Florida counties, including Palm Beach and Broward. However, its reach does not extend to the entire state, as the Fifth District Court of Appeal has reached a different conclusion. See, e.g., Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242 (Fla. 5th DCA 2012) (insured failed to submit a sworn proof of loss before filing suit, but it was permissible for the trial court to allow the insured to show the insurer was not prejudiced).

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