Thinking the loss to their property could not meet the deductible, the insureds failed to file timely notice, thereby barring their claim. Slominski v. Citizens Prop. Ins. Corp., 2012 Fla. App. LEXIS 16730 (Fla. Ct. App. Oct. 3, 2012).
After Hurricane Wilma hit Florida on October 24, 2005, the insureds made minimal repairs to their home, costing approximately $1500, well under their policy deductible of $12,860. Three and a half years later, the insureds filed a claim with Citizens based on wind and water damage to their home caused by Hurricane Wilma. Citizens denied the claim, citing the prompt notice requirement. When the insureds sued, the trial court granted summary judgment to Citizens.
In support of their motion and response, the insureds filed depositions and affidavits of their contractor whom the insureds hired to construct an addition to their home in January 2009 and engineer who inspected the home, also in January 2009. Both the engineer and contractor were deposed in August 2012, prior to their giving affidavits.
In his deposition, the contractor concluded that the wind damage could not have occurred without hurricane-force winds, but admitted he was uncertain as to whether the loss was caused by Hurricane Wilma, as opposed to Hurricane Frances in 2004. In his affidavit, on the other hand, he stated the damages occurred as a result of Hurricane Wilma.
Meanwhile, the engineer testified at his deposition that he was unable to determine exactly when the interior staining or roof damage occurred, but opined only that it was caused by a hurricane. He admitted that his conclusions about the wind-driven rain were based on facts presented by the insureds. In hit affidavit, however, he stated he was able to determine that the damages to the house was due to Hurricane Wilma's driving rains.
On appeal, the insureds argued that the affidavits gave rise to genuine issues of material fact, precluding summary judgment. The court disagreed and affirmed summary judgment in favor of Citizens. The subsequent affidavits were inconsistent with the prior deposition testimony. Therefore, the insureds were not able to rely upon them in opposition to summary judgment. Without the affidavits, the insureds failed to meet their burden of proving lack of prejudice to Citizens for the late notice.
