Luis Perez v. Citizens Property Insurance Corporation

• Court: District Court of Appeal of Florida
• Decided: January 15, 2025
• Docket: 3D2023-2169
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 15, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-2169 Lower Tribunal No. 22-6921 ________________

Luis Perez, et al., Appellants,

vs.

Citizens Property Insurance Corporation, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge.

Shield Law Group of Florida, LLC, and Jamie Alvarez (Davie), for appellants.

Luks, Santaniello, Petrillo, Cohen & Peterfriend, and Edgardo Ferreyra, Jr. and Tabitha Jackson (Tallahassee), for appellee.

Before EMAS, MILLER and BOKOR, JJ.

PER CURIAM. Affirmed. See Navarro v. Citizens Prop., Ins. Corp., 353 So. 3d 1276,

1279 (Fla. 3d DCA 2023) (“In determining whether an insured's untimely

reporting of a loss is sufficient to support a denial of recovery under a policy,

Florida courts have applied a two-step process. ‘The first step in the analysis

is to determine whether . . . the notice was timely given.’ Second, ‘[i]f the

notice was untimely, then prejudice to the insurer is presumed.’ That

presumption may nevertheless be rebutted if the insured demonstrates the

insurer had not been prejudiced by the untimely notice.”) (quoting LoBello v.

State Farm Fla. Ins. Co., 152 So. 3d 595, 599 (Fla. 2d DCA 2014) and

additional citation omitted); Perez v. Citizens Prop. Ins. Corp., 343 So. 3d

140, 142 (Fla. 3d DCA 2022) (“If the insured breaches the notice provision,

prejudice to the insurer will be presumed, but may be rebutted by a showing

that the insurer has not been prejudiced by the lack of notice.”) (quoting

Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985)). See also

De La Rosa v. Fla. Peninsula Ins. Co., 246 So. 3d 438, 441 (Fla. 4th DCA

2018) (“At the summary judgment hearing, appellants conceded that they

gave late notice of their claim and that they had to present evidence to rebut

the presumption of prejudice to the insurer. Thus, the pertinent issue is

whether appellants presented sufficient counterevidence to rebut the

presumption of prejudice from the late notice.”); In re Amends. to Fla. R. Civ.

2 P. 1.510, 317 So. 3d 72, 75 (Fla. 2021) (“[T]hose applying new rule 1.510

must recognize that a moving party that does not bear the burden of

persuasion at trial can obtain summary judgment without disproving the

nonmovant's case.”); 1500 Coral Towers Condo. Ass'n, Inc. v. Citizens Prop.

Ins. Corp., 112 So. 3d 541, 544-45 (Fla. 3d DCA 2013) (observing that the

“extended passage of time creates a very strong inference Citizen’s

investigation and defenses have been diminished as a result of late notice,”

and concluding that the affidavit of the Coral Towers’ expert failed to rebut

presumption of prejudice: “The closest Coral Towers comes is a conclusory

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.”)