DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

JUDY RODRIGO,

Appellant,

v.

STATE FARM FLORIDA INSURANCE COMPANY,

Appellee.

No. 4D12-3410

[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

MAY, 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 an adverse final summary judgment on her claim 

for property damage to her condominium, its contents, and related 

expenses. She 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 because the 
2

damage was caused by a named peril, an “explosion.”

1 We disagree and 

affirm.

The insured’s next door neighbor died, and time 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 policy 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, no one disputes that she 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 occurred. However, the insurer’s adjuster 

contacted a contractor, who inspected the unit and signed an appraisal 

award. The insurer then tendered payment to the insured for that amount, 

but denied liability for personal property damage. The insured did not

accept the payment.

The insured filed a two-count complaint against the insurer. The first 

count alleged that the appraisal was invalid, and requested 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 for 

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 affidavits, it does not alter the 

outcome of the case. Our decision turns on the plain reading of the insurance 

policy and the agreed upon facts.
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(5) failed to satisfy all policy provisions before bringing legal 

action; and

(6) otherwise failed to comply with her contractual 

obligations.

The 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 perils, and a 

decomposing body was not one of them. The insured responded that the 

claim resulted from an “explosion,” a named peril under the policy. She 

supplied 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 insured 

failed to comply with a condition precedent—submitting a sworn proof of 

loss—constituting a material breach of the insurance policy. Because the 

insurer and insured never reached an agreement, no final judgment was 

entered, and no valid appraisal award existed, there was no coverage for 

the claims. The insured responded, in part, that the insurer had waived 

the “sworn proof of loss” requirement by tendering payment to the insured, 

and that other genuine issues 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, there was no coverage, and the damage caused by the 

decomposing 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).

The 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. 4th DCA 1995). Proof of loss is a condition precedent 
4

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 with 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 not obligated to pay. The trial 

court properly entered 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 because 

“[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, the insured filed a notice of supplemental 

authority and argued that the supreme court’s recent decision in State 

Farm Mutual Automobile Insurance 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 supreme court limited its 

rationale and holding to the unique subject of uninsured motorist coverage 

and compulsory medical exams. Even if 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 insurance policy’s requirement of a 

compulsory medical examination (“CME”) was a condition subsequent, not 

a condition 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 reaching 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 claims. 

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. 
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Unlike the UM policy 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. submit to us, within 60 days after the loss, your signed, 

sworn proof of loss. 

(emphasis added). This places an affirmative duty on the insured to 

provide the sworn proof of loss. Unlike a CME, which is requested by the 

insurer to substantiate a claim already made by the insured, the 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 the trial court erred by entering partial 

summary judgment on the personal property claim because there was an 

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 “explosion.” 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 the insured’s burden to prove that the term “explosion” included the 

explosive expansion of a decomposing body. 

Rather than stretching common sense, the trial court correctly gave the 

term “explosion” its “plain and unambiguous meaning as understood by 
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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 expanding, 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. 

The trial court correctly entered summary judgment for the insurer. We 

therefore affirm.

Affirmed.

GROSS and FORST, 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.” MERRIAM-WEBSTER: AN ENCYCLOPÆDIA BRITANNICA COMPANY, 

http://www.merriam-webster.com/dictionary/explosion (last visited Mar. 28, 

2014).