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Kelley Kronenberg Litigators Prevail on Appeal, New Trial Granted.

March 19, 2021

On March 10, 2021, the Third District Court of Appeal affirmed the trial court’s order granting Universal Property & Casualty Insurance Company (“Universal”) a new trial. The case involved a first-party breach of homeowner’s insurance contract claim involving two alleged water losses at the Plaintiff’s home. Kelley Kronenberg Partners, Jeffrey M. Wank and Alison J. Trejo, represented Universal at trial.

In 2015, the Plaintiff filed two insurance claims due to water, and her insurer, Universal, commenced an investigation and requested Plaintiff to comply with several post-loss obligations. It was undisputed that during Universal’s investigation of the claims, the Plaintiff failed to attend an Examination Under Oath (“EUO”) after multiple written requests by the carrier.[1] Universal subsequently denied both insurance claims based on the Plaintiff’s failure to attend the EUO and failure to provide certain documentation. The Plaintiff then filed suit against Universal for breach of insurance contract.

The main issue at the trial court level was Plaintiff’s compliance with her post-loss obligations prior to her lawsuit. The Plaintiff argued that it was unreasonable for Universal to request her EUO one-hundred and ten (110) days after she reported the claims. In proving its case, Universal argued that the Plaintiff forfeited her rights to receive insurance benefits by failing to sit for her EUO.  Further, Universal argued that its request for an EUO was not unreasonable because the carrier did not receive the Plaintiff’s Sworn Proof of Loss until seventy-five (75) days after she reported the claim, and approximately thirty (30) days before Universal made its first written request for the EUO.

At trial, Universal moved for a directed verdict on Plaintiff’s failure to attend the EUO at the close of Plaintiff’s case, and at the close of all the evidence. The trial court denied both motions. Then, over Universal’s objection, the trial court amended the verdict form and jury instructions to include a reasonableness factor. Specifically, the jury was required to answer the following:

Did Universal prove by the greater weight of the evidence that Plaintiff unreasonably failed to attend her Examination Under Oath on October 1, 2015?

The jury returned a verdict in favor of the Plaintiff for both claims. Universal then moved for a renewed motion for directed verdict or, in the alternative, motion for new trial. Universal argued that judgment should have been entered in favor of the carrier because it was undisputed that Plaintiff failed to comply with a condition precedent to filing suit and had materially breached the terms and conditions of the contract by failing to appear for her EUO. Universal also argued that the jury instructions and verdict forms were contrary to Florida law and against the manifest weight of the evidence. A successor judge granted a new trial and a directed verdict in Universal’s favor regarding the Plaintiff’s breach of the policy by failing to appear for her EUO. Plaintiff then appealed the trial court’s ruling.

The Third DCA ruled that the successor judge correctly granted the motion or new trial, but erred in directing a verdict as to whether Plaintiff had materially breached the contract where the jury was never instructed on that issue. While the jury was instructed on whether Universal proved by the greater weight of the evidence that Plaintiff unreasonably failed to attend her EUO, and if the Plaintiff proved by the greater weight of the evidence that she sustained covered losses during the coverage period, that the burden was then on Universal to prove by the greater weight of the evidence that the Plaintiff failed to comply with her obligations under the Policy by failing to appear for the EUO. However, neither the jury instructions or verdict form instructed the jury to consider “whether in light of the evidence presented, Universal established that [the Plaintiff] materially breached the contract by failing to appear for her EUO.” Consistent with its holding in American Integrity Insurance Co. v. Estrada, 276 So. 3d 905 (Fla. 3d DCA 2019), the Appellate court remanded the case for a new trial on whether Plaintiff materially breached the insurance policy by failing to attend her EUO.

[1].             Specifically, Universal sent the Plaintiff’s attorney written correspondence requesting dates to schedule the EUO on August 10, 2015, and August 17, 2015. After the Plaintiff’s counsel failed to respond to these requests, Universal sent a third correspondence on September 10, 2015, unilaterally scheduling the EUO for October 1, 2015, which the Plaintiff failed to appear.