### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

J ul y Term 2014

JUDY RODRIGO
, Appellant,

v.

STATE FARM FLORIDA INSURANCE COMPANY
, Appellee

.

No. 4D 12

- 3410

[ August 20, 2014 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County ; John S. Kastrenakes , Judge; L.T. Case No.

502008CA019828XXXXMB

.

Roy W. Jordan, Jr. of Roy W. Jordan, Jr., P.A., West Palm Beach, for appellant.

Anthony J. Russo, Jared M. Krukar and Curt Allen of Butler Pappas

Weihmuller Katz Craig LLP, Tampa, for appellee.

On Motion for Rehearing, Rehearing En Banc, and For Certification

M AY
, J

.

We deny the insured’s motion for rehearing, rehearing en banc, and for certification. We do however withdraw our previously issued opinion and substitute this opinion in its place.

An insured appeals a n adverse final summary judgment on her claim for property damage to her condominium, its contents, and related expenses. S he argues the trial court erred in entering summary judgment because: (1 ) the insurer waived a condition precedent, the sworn proof of

loss requirement ; and (2) her personal property was covered b ecause the2

damage was caused by a named peril , an “ explosion

. ” 1 We disagree and

affirm.

The insured’s next door neighbor died , and t i me passed before the body was discovered. During that time

, the decomposed body leaked bodily fluids, which infiltrated the walls and the insured’s apartment causing damage. This is the event that gave rise to the insured’s claim.

The insurance polic y required the insured to file a sworn proof of loss within 60 days of the date of loss. While the insured sent invoices and lists of damages, n o one disputes that sh e failed to file a sworn proof of

loss. The policy further provided:

Loss Payment. We will adjust all losses with you.

. . . Loss will be payable 60 days after we receive your proof of loss and:

a. reach agreement with you;

b. there is an entry of a final judgment; or

c. there is a filing of an appraisal award with us.

None of these events occ urred. However, t he insurer’s adjuster contacted a contractor, who inspected the unit and signed an appraisal award. The insurer then tendered payment to the insured for th at amount

, but denied liability for personal property damage. The insured did not accept the payment.

The insured fil ed a two

- count complaint against the insurer

. The first count alleged that the appraisal was invalid

, and request ed the court to modify or vacate the award

, or appoint new appraisers and a neutral umpire for a second appraisal. In the second count, the insured alleged that the insurer breached its contract by failing to pay the owner the amount necessary to repair and remediate her unit

, to compensate her fo r damage to her personal property

, and for living expenses.

In its amended answer, the insurer pled that the insured had :

(1) materially breached her duty to satisfy conditions precedent ;

. . . .

1 The insured raises other issues, which we find lack merit. While we agree with the insured on the insufficiency of the insurer’s affidavit s , it does not alter the outcome of the case. Our decision turns on the plain reading of the insurance policy and t he agreed upon facts.3 (5) failed to satisfy all policy provisions before bringi ng legal

action ; and

(6) otherwise failed to comply with her contractual obligations.

Th e insurer moved for partial summary judgment on the issue of coverage for personal property damage. While acknowledging that the

insured made a claim for personal property damage

, the insurer argued the policy covered personal property damage only for named peril s , and a decompos ing body was not one of them

. T he insured responded that the claim resulted from an “explosion

, ” a named peril under the policy. She

supp lied an affidavit of a licensed physician, who attested that the

deceased ’s body “underwent advanced decomposition” and “the internal contents of her body explosively expanded and leaked

. ”

The insurer also moved for summary judgment on whether the ins ured failed to comply with a condition precedent

— submitting a sworn proof of

loss

— constituting a material breach of the insurance policy . B ecause the

insurer and insured never reached an agreement, no final judgment was entered , and no valid appraisal awa rd existed , there was no coverage for

the claims

. The insured responde d

, in part

, that the insurer had waived

th e “sworn proof of loss” requirement by tender ing payment to the insured

, and that other genuine issue s of material fact precluded entry of a summary judgment.

The trial court entered a single final summary judgment for the insurer, finding that the insurer did not waive the condition precedent of a sworn proof of loss , th ere was no coverage, and th e damage caused by the decompos ing body did not constitute an “ explosion ” as a named peril

. From this summary judgment, the insured now appeals.

The standard of review governing a trial court’s ruling on a motion for summary judgment based upon the interpretation of an insurance policy

is de novo. Chandler v. Geico Indem. Co. , 78 So. 3d 1293, 1296 (Fla. 2011)

.

T he insured argues that the trial court erred by entering summary judgment because the insurer did not show that it was prejudiced by the

insured ’s failure to submit a sworn proof of loss. We disagree.

“ [A] n insurer need not show prejudice when the insured breaches a condition precedent to suit.” Goldman v. State Farm Fire Gen

. Ins

. Co. , 660 So. 2d 300, 303 (Fla. 4 th DCA 1995). Proof of loss is a condition precedent4

to an insured’s suit against an insurer. Soronson v. State Farm Fla. Ins.

Co. , 96 So. 3d 949, 952 (Fla. 4th DCA 2012); Kramer v. State Farm Fla.

Ins. Co. , 95 So. 3d 303, 306 (Fla. 4th DCA 2012).

While the insured argued that she provided the insurer wi th bills, estimates, invoices, and other documents to prove her damages, she failed

to file a sworn proof of loss

. Therefore, the insured materially breached a condition precedent, and the insurer was no t obligat ed to pay. The trial court properly entere d summary judgment in the insurer’s favor. See

Amica Mut. Ins. Co. v. Drummond , 970 So. 2d 456, 459

– 60 (Fla. 2d DCA 2007).

The trial court also correctly found that the insurer did not waive the

sworn proof of loss requirement by tendering payment becau se “[i]nvestigating 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. § 627.426(1) (c) , Fla. Stat. (2007) (emphasis added).

Just prior to oral argument, t he insured filed a notice of supplemental authority and argued that the s upreme c ourt ’s recent deci sion in State

Farm Mut ual Auto mobile Ins urance Co. v. Curran

, 135 So. 3d 1071 (Fla. 2014)

, rendered the sworn proof of loss a condition subsequent rather than a condition precedent

. We disagree as our s upreme c ourt limited its

rationale and holding to the unique subject of uninsured motorist coverage and compulsory medical exams

. Even i f it had not done so, we find the issue in this case vastly different than the one encountered in Curran

.

In Curran , the court held that an insur ance policy’s requirement of a compulsory medical examination (“ CME ”) wa s a condition subsequent, not

a condit ion precedent to coverage . In doing so, the court specifically said

that “ a CME provision in the UM coverage context is not a condition precedent to coverage and we find that an insured’s breach of this provision should not result in post

- occurrence forfeiture of insurance coverage without regard to prejudice.” Id

. at 1079 (emphasis added ) (citations omitted)

.

In rea ching this conclusion, a plurality of the court discussed the purpose of uninsured motorist (“ UM ”) coverage, and “stressed” that such coverage was not designed for the benefit of insurers. Id . at 1077 . It also reviewed the role of CMEs in the process of settling personal injury c laims.

Id

. It then rejected the insurer’s argument and concluded “that a CME provision in the UM context is a post

- loss obligation of the insured and is not a condition precedent to coverage.” Id . at 1078

.5

Unlike the UM poli cy in Curran , the policy in this case specifically provided:

Loss Payment. We will adjust all losses with you.

. . . Loss will be payable 60 days after we receive your proof of loss

and:

a. reach agreement with you;

b. there is an entry of a final judgment; or

c. there is a filing of an appraisal award with us.

. . . .

Your Duties After Loss . After a loss to which this insurance may apply, you shall see that the following duties are performed

. . . .

d. s ubmit to us, within 60 days after the loss, your signed, sworn proof of loss

.

( e mphasis added). This places an affirmative duty on the insured to provide the sworn proof of loss

. U nlike a CME

, which is requested by the

insurer to substantiate a claim a lready made by the insured , t he sworn proof of loss is a condition precedent

. For this reason, Curran does not

mandate a reversal in this case.

The insured next argues that t he trial court erred by entering partial summary judgment on the personal property claim because there was a n issue of material fact as to whether there was an explosion under the policy’s terms. We disagree.

The policy provided personal property coverage for named perils. Among those named perils was an “explosio n.” That term was not defined.

It is black letter law that “ [a] n insurance contract must be construed in accordance with the plain language of the policy.” Harrington v. Citizens Prop. Ins. Corp. , 54 So. 3d 999, 1001 (Fla. 4th DCA 2010) ( quoting Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co. , 913 So. 2d 528, 532 (Fla. 2005) ). It

was t he insured ’s burd en to prove that the term “explosion” include d the explosive expansion of a decomposing body

.

Rather than stretch ing common sense, t he trial court correctly gave the

term “explosion” its “ plain and unambiguous meaning as understood by6

the ‘man

- on

- the

- street.’” 2 Id. at 1001 (citation omitted)

. The plain meaning of the term “explosion” does not include a decomposing body’s cells explosively expand ing , causing leakage of bodily fluids

. In short, although novel in her attempt to do so, the insured could not establish

that the decomposing body was tantamount to an explosion.

T he trial court correctly entered summary judgment for the insurer. We

ther efore affirm

.

Affirmed.

G ROSS and F ORST

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

2 The Merriam

- Webster Dictionary defines “explosion” as “the act or instance of exploding” and “a large

- scale, rapid, or spectacular expansion or bursting out or

forth.” M ERRIAM

- W EBSTER : A N E NCYCLOPÆDIA B RITANNICA C OMPANY

, http://www.merriam

- webster.com/dictionary/explosion (last visited Mar. 28, 2014).