UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 20-cv-22324-MARTINEZ

JULIO RAMIREZ,

Plaintiff,

v.

SCOTTSDALE INSURANCE COMPANY,

Defendant.

_____________________________________/

ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT

THIS CAUSE came before the Court upon Defendant Scottsdale Insurance Company’s 

Motion for Final Summary Judgment or Motion for Partial Summary Judgment in the Alternative 

as to Roof Damages (“Defendant’s Motion for Summary Judgment”), (ECF No. 28). The Court 

has reviewed Defendant’s Motion for Summary Judgment and pertinent portions of the record and 

is otherwise fully advised of the premises. For the reasons set forth herein, Defendant’s Motion 

for Summary Judgment is GRANTED.

I. BACKGROUND

The following facts are undisputed unless otherwise noted. Where the facts are in dispute, 

they are taken in the light most favorable to Plaintiff, the non-movant.

This case arises out of an insurance coverage dispute between Plaintiff Julio Ramirez and 

his insurer, Defendant Scottsdale Insurance Company. Defendant issued Plaintiff policy number 

DFS1264683, which had an effective term coverage for the property located at 5869 Southwest 

16th Street, Miami, Florida 33155 (the “Property”) from June 29, 2017, to June 29, 2018 (the 

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“Policy”).

1 The Policy contained, at the time of the loss and in pertinent part, the following relevant 

condition in the event of loss or damage:

DEFINITIONS

. . . .

B. In addition, certain words or phrases are defined as follows:

. . . .

8. “Occurrence” means an accident, including continuous or repeated exposure to 

substantially the same general harmful conditions, which results, during the policy 

period, in: 

a. “Bodily injury”; or

b. “Property damage”.

9. “Property damage” means physical injury to, destruction of, or loss of use of 

tangible property.” 

. . . .

CONDITIONS

. . . .

C. Duties After “Occurrence”

In case of an “occurrence,” you or another “insured” will perform the following 

duties that apply. We have no duty to provide coverage under this policy if your 

failure to comply with the following duties is prejudicial to us. You will help us by 

seeing that these duties are performed:

1. Give written notice to us or our agent as soon as is practical, which sets 

forth:

a. The identity of the policy and the “named insured” shown om the 

Declarations; 

1 Plaintiff’s “Statement of Undisputed Facts” contains a scrivener’s error regarding the date 

of the alleged loss and the coverage period; the alleged loss occurred on September 10, 2017. 

(Compare Pl.’s Resp. to Def.’s Mot. Summ. J. 1 ¶ 1–2, ECF No. 32, with Compl. ¶¶ 4, 6, ECF No. 

1-2, at 5–6 (acknowledging loss indeed occurred on September 10, 2017, rather than September 

10, 2018)). 

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b. Reasonably available information on the time, place and 

circumstances of the “occurrence”; and 

c. Names and addresses of any claimants and witnesses . . . .

(Notice of Removal, Ex. A., at 50, ECF No. 1-2.)

Plaintiff sues for residential property insurance benefits for damages caused by Hurricane 

Irma on September 10, 2017. Plaintiff alleges he suffered a property loss “as a result of wind and 

water damage” from Hurricane Irma, which caused damage to the roof and exterior and water 

damage to the interior of the Property. (Compl. ¶ 6, ECF No. 1-2, at 6.)

Approximately twenty months later, on or about May 20, 2019, Plaintiff first notified 

Defendant of his claim for damages as a result of the loss. (Sarver Decl. ¶ 6, ECF No. 29-1.) On 

June 19, 2019, Mark Stanley, an independent adjuster for Professional Adjusting Services, 

inspected the Property on behalf of the Defendant. (Id. ¶ 8.) On September 3, 2019, Defendant 

issued a coverage determination letter, indicating that Mr. Stanley had observed wind, wear and 

tear, and deterioration damage to the roof tile, as well as interior water damage to portions of the 

interior as a result thereof. (Id. ¶ 9.) Based on these observations and because Plaintiff’s insurance 

policy contained wind, wear and tear, and deterioration exclusions, Defendant denied coverage. 

(Id. ¶ 11.) 

On April 27, 2020, Plaintiff’s counsel provided Defendant with a demand letter, requesting 

a remittance in the amount of $189,521.27 and attaching an estimate provided by iClaims 

Consulting Inc. (See Notice of Removal Ex. B, ECF No. 1-3.) Of the $189,521.27, $108,542.17 is 

associated with replacement of the tile and flat roof of the Property. (Id.; see also Sarver Decl. ¶ 

12, ECF No. 29-1.)

On May 6, 2020, Plaintiff filed suit against Defendant in the Circuit Court of the Eleventh 

Judicial Circuit in and for Miami-Dade County, Florida. (See generally Notice of Removal, Ex. A, 

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ECF No. 1-2.) On June 4, 2020, Defendant timely removed this action to federal court. (Notice of 

Removal, ECF No. 1.) According to Defendant, throughout the course of discovery, Plaintiff failed 

to serve his initial disclosures, respond to Defendant’s requests for production and interrogatories, 

serve any expert disclosures or reports, and respond to Defendant’s expert discovery requests. (See

Statement of Undisputed Material Facts (the “SOMF”) Ex. 3–4, ECF Nos. 29-3, 29-4.) Plaintiff 

does not deny these assertions. (See Pl.’s Resp. to Def.’s Mot. Summ. J., ECF No. 32.) On May 

24, 2021, Defendant moved for final summary judgment against Plaintiff or, in the alternative, 

partial summary judgment as to Plaintiff’s alleged roof damage as excluded under the policy. (See

Def.’s Mot. Summ. J., ECF No. 28.)

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, a court shall grant summary judgment if “the 

depositions, documents, electronically stored information, affidavits or declarations, 

stipulations . . . , or other materials . . . show . . . that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c). Rule 56 

requires entry of summary judgment “after adequate time for discovery and upon motion, against 

a party who fails to make a showing sufficient to establish the existence of an element essential to 

that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986). 

“The moving party bears the initial burden to show, by reference to materials on file, that 

there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, 

Inc., 929 F.2d 604, 608 (11th Cir. 1991); accord Kol B’Seder, Inc. v. Certain Underwriters at 

Lloyd’s of London Subscribing to Certificate No. 154766 Under Cont. No. 

B0621MASRSWV15BND, 766 F. App’x 795, 798 (11th Cir. 2019). “Only when that burden has 

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been met does the burden shift to the non-moving party to demonstrate that there is indeed a 

material issue of fact that precludes summary judgment.” Clark, 929 F.2d at 608. When the moving 

party has carried its burden, the party opposing summary judgment must do more than show that 

there is “metaphysical doubt” as to any material fact. Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 586 (1986). Indeed, Rule 56 “requires the nonmoving party to go beyond the 

pleadings and, by her own affidavits, or by the depositions, answers to interrogatories, and 

admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex 

Corp., 477 U.S. at 324 (emphasis added); Kol B’Seder, Inc., 766 F. App’x at 798.

At summary judgment, courts are required to view the evidence and draw inferences in the 

light most favorable to the nonmovant. See Matsushita Elec. Indus., 475 U.S. at 586; Chapman v. 

Am. Cyanamid Co., 861 F.2d 1515, 1518 (11th Cir. 1988). “All reasonable inferences arising from 

the undisputed facts should be made in favor of the nonmovant. Chapman, 861 F.2d at 1518.

“However, an inference based on speculation and conjecture is not reasonable.” Id. (citing 

Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985)). “Speculation 

does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is 

a primary goal of summary judgment.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 

2005). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” See Matsushita Elec. Indus., 475 U.S. at 587

(quoting First Nat’l Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 270 (1968)). 

III. ANALYSIS

Defendant moves for final summary judgment on the basis that Plaintiff failed to comply 

with an obligation outlined in the Policy: that Plaintiff failed to provide “prompt notice” of the 

alleged loss and Plaintiff cannot overcome the presumption of prejudice to Defendant. (Def.’s Mot. 

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Summ. J. 6–8, ECF No. 28.) Plaintiff, conceding that his notice was untimely, argues that 

Defendant suffered no prejudice due to Plaintiff’s failure to provide notice because Defendant was 

able to inspect the Property and Plaintiff’s compliance with Defendant’s claim investigation bars 

Defendant’s late notice argument. (Pl.’s Resp. to Def.’s Mot. Summ. J. 12–14.)

A. The Court Deems Plaintiff to Have Admitted Defendant’s Statement of 

Undisputed Material Fact Because Plaintiff Failed to Controvert Undisputed Facts in A 

Separately Filed Statement of Material Facts as Required by Southern District of Florida 

Local Rule 56.1; Plaintiff’s Statement of Undisputed Fact Is, Therefore, Stricken; No 

Genuine Dispute of Material Facts Exists

Before turning to the merits of Defendant’s Motion for Summary Judgment, the Court 

briefly addresses Plaintiff’s failure to controvert Defendant’s Statement of Undisputed Material 

Facts, (SOMF, ECF No. 29), as required by Southern District of Florida Local Rules, see generally 

S.D. Fla. L.R. 56.1. Local Rule 56.1(a) requires that “[a] motion for summary judgment and the 

opposition to it shall each be accompanied by a separate and contemporaneously filed and served 

Statement of Material Facts.” S.D. Fla. L.R. 56.1(a) (emphasis added). Subsection (b) outlines the 

form the Statement of Material Facts is to take: “All statements of Material Facts (whether filed 

by the movant or the opponent) shall be filed and served as separate documents and not as exhibits 

or attachments.” S.D. Fla. L.R. 56.1(b)(1). Moreover, Local Rule 56.1(c) states that an unopposed 

statement of material facts “may be deemed admitted unless controverted by the other party’s 

Statement of Material Facts, provided that: (i) the Court finds that the material fact at issue is 

supported by properly cited record evidence and (ii) any exception under Fed. R. Civ. P. 56 does 

not apply.” S.D. Fla. L.R. 56.1(c). Where a party fails to comply with the requirements set forth in 

Local Rule 56.1, “the Court may strike the Statement . . . .” S.D. Fla. L.R. 56.1(d). 

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Here, Plaintiff failed to file a Statement of Material facts in opposition to Defendant’s 

Statement of Undisputed Material Facts, (ECF No. 29). On these facts, the rule in this jurisdiction

is:

When a party opposing a motion for summary judgment fails to file a statement of 

facts that complies with Local Rule 56.1(a), subsection [(c)] requires that the 

movant’s facts be deemed admitted if they are supported by record evidence—not 

as a Court-imposed sanction, but by operation of the rule.

Deegan v. Aquino, Case No. 16-22820-CIV-LENARD/GOODMAN, 2018 WL 10399979, at *1 

(S.D. Fla. Feb. 23, 2018) (emphasis added) (citing Gossard v. JP Morgan Chase & Co., 612 F. 

Supp. 2d 1242, 1245–46 (S.D. Fla. 2009)).

Accordingly, because Plaintiff failed to submit a statement of material facts in opposition 

to Defendant’s Motion for Summary Judgement, the Court deems Defendant’s facts as admitted 

to the extent that they are supported by record evidence. See S.D. Fla. L.R. 56.1(c); Digioia v. H. 

Koch & Sons, Div. of Wickens Mfg. Co., 944 F.2d 809, 811 n.6 (11th Cir. 1991) (holding that 

defendant’s statement of facts was deemed admitted due to plaintiff’s failure to file a statement of 

material facts in opposition as required by Local Rule 56.1’s predecessor rule, Local Rule 10(J));

Deegan, 2018 WL 10399979, at *1–2; Gossard, 612 F. Supp. 2d at 1245–46; see also Fed. R. Civ. 

P. 56(e) (“If a party . . . fails to properly address another party’s assertion of fact as required by 

Rule 56(c), the court may: . . . (2) consider the fact undisputed for purposes of the motion; (3) grant 

summary judgement if the motion and supporting materials—including the facts considered 

undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order.”). This 

is “not as a Court-imposed sanction”; rather, Defendant’s Statement of Material Fact is deemed 

admitted by operation of the rule.” See Deegan, 2018 WL 10399979, at *1.

Moreover, because the Court finds that Defendant met its initial burden to show that there 

are no genuine issues of material fact, as discussed infra, the burden shifted to Plaintiff to point to 

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record evidence that would show that there exists a genuine issue of material fact. See Celotex 

Corp., 477 U.S. at 322. The Court notes that, even were Plaintiffs’ statement of undisputed facts 

procedurally sound, Plaintiff offers no showing in the section labeled “Statement of Undisputed 

Facts,” (ECF No. 32, at 1–6), that would—even when viewed in the light most favorable to 

Plaintiff—“demonstrate that there is indeed a material issue of fact that precludes summary 

judgment.” Clark, 929 F.2d at 608. Moreover, Plaintiff did not support his Response and 

Memorandum of Law in Opposition to Defendant’s Motion for Final Summary Judgment with any 

“affidavits, . . . depositions, answers to interrogatories, and admissions on file,” that would show 

that there “is a genuine issue for trial.” See Celotex Corp., 477 U.S. at 324 (emphasis added). It is 

further undisputed that Plaintiff “served no initial disclosures in this case[,]” (SOMF, ECF No. 29 

¶ 14); “failed to respond to fact discovery[,]” (id. ¶ 15); “served no expert disclosures or reports[,]” 

(id. ¶ 16); and “failed to respond to expert discovery[,]” (id. ¶ 17). The record is also clear that the 

Court’s deadlines to exchange initial disclosures, responses, and expert disclosers and discovery, 

generally, “have all long expired . . . .” (id. ¶ 18). Therefore, even were Plaintiff to have satisfied 

Local Rule 56.1’s requirements when filing his statement of material facts, Plaintiff could not 

make a showing that there exists a genuine dispute of material fact. 

Accordingly, Plaintiff’s Statement of Undisputed Fact within his Response and 

Memorandum of Law in Opposition to Defendant’s Motion for Final Summary Judgment, (ECF 

No. 32), is STRICKEN. Plaintiff is deemed to have admitted the material facts supported by record 

evidence in Defendant’s Statement of Undisputed Material Facts, (ECF No. 29).

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B. Defendant is Entitled to Final Summary Judgment Because Defendant Was 

Irrefutably Prejudiced as A Matter of Law by Plaintiff’s Failure to Provide Prompt 

Notice of Loss, as Required by the Policy

Because the Court sits in diversity over the instant matter and the incident arose in Florida, 

Florida law applies. See ML Healthcare Servs., LLC v. Publix Super Mkts., Inc., 881 F.3d 1293, 

1299 (11th Cir. 2018) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). “[W]here the 

policy contains a clause requiring that notice of an accident be given ‘as soon as practicable’, the 

clause is breached by a failure to notify the company for a period of more than a year . . . .” Am. 

Fire & Cas. Co. v. Collura, 163 So. 2d 784, 791 (Fla. 2d DCA 1964). The purpose of a notice 

provision in an insurance policy is to allow the insurer to “evaluate its rights and liabilities, to 

afford it an opportunity to make a timely investigation, and to prevent fraud and imposition upon 

it.” Lester v. U.S. Fidelity & Guar. Co., 293 So. 2d 83, 86 (Fla. 3d DCA 1974) (first citing State 

Farm Mut. Auto. Ins. v. Ranson, 121 So. 2d 175, 180 (Fla. 2d DCA 1960); and then citing Deese 

v. Hartford Accident & Indem. Co., 205 So. 2d 328, 330 (Fla. 1st DCA 1967)); accord Gemini II 

Ltd. v. Mesa Underwriters Specialty Ins., 592 F. App’x 803, 806 (11th Cir. 2014).

1. PLAINTIFF’S NOTICE TO DEFENDANT WAS NOT “PROMPT” AS A MATTER 

OF LAW

The Court first turns to whether notice of the loss was timely. While the question whether 

notice was timely is generally a question of fact for the jury, “when the undisputed factual record 

establishes notice is so late that no reasonable juror could find it timely, Florida courts will deem 

the notice untimely as a matter of law.” Clena Invs., Inc. v. XL Specialty Ins., Case No. 10-cv62028, 2012 WL 1004851, at *4 (S.D. Fla. Mar. 26, 2012) (first citing Kroener v. Fla. Ins. Guar. 

Ass’n, 63 So. 3d 914, 916 (Fla. 4th DCA 2011); then citing Ro-Ro Enters, Inc. v. State Farm Fire 

& Cas. Co., Case No. 93-1754-CIV, 1994 WL 16782171, *2–4 (S.D. Fla. June 22, 1994); and then 

citing Ideal Mut. Ins. Co. v. Waldrep, 400 So. 2d 782, 785 (Fla. 3d DCA 1981)); see also PDQ 

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Coolidge Formad, LLC v. Landmark Am. Ins., 566 F. App’x 845, 848 (11th Cir. 2014) (“Florida 

Courts have ruled on summary judgment that an insured’s delayed notice to an insurer did not 

constitute prompt notice under the policy when the factual record did not support an argument that 

the delay was reasonable.”) As is the case here, where the Policy does not define what “as soon as 

is practical” notice is, the unambiguous Policy here shall be construed to mean “with reasonable 

dispatch and within a reasonable time in view of all of the facts and circumstances of the particular 

case.” See Yacht Club on the Intracoastal Condo Ass’n, Inc. v. Lexington Ins., 599 F. App’x 875, 

879 (11th Cir. 2015) (citing Ranson, 131 So. 2d at 181).

Here, taking the undisputed facts, see infra Part III.A., in the light most favorable to 

Plaintiff, see Matsushita Elec. Indus., 475 U.S. at 586; Chapman, 861 F.2d at 1518, it is clear that 

Plaintiff’s notice to Defendant was not prompt as a matter of law, see, e.g., Soronson v. State Farm 

Fla. Ins., 96 So. 3d 949, 951–53 (Fla. 4th DCA 2012) (finding that three-year delay in providing 

notice was not prompt); PDQ Coolidge Formad, 566 F. App’x at 849 (finding that district court 

did not err in holding that six-month delay in providing insurer notice was not prompt as a matter 

of law); Ro-Ma Holdings #4, LLC v. Scottsdale Ins., No. 20-21599-CIV-MARTINEZ/OTAZOREYES, 2021 U.S. Dist. LEXIS 75860, at *7 (S.D. Fla. Apr. 19, 2021) (“Given the undisputed 

record before it, the Court finds that this fourteen-month delay does not constitute prompt notice 

as a matter of law, as it is so late that no reasonable jury could find it timely.”). Plaintiff alleges 

that the loss to the property occurred on September 10, 2017, due to Hurricane Irma. (SOMF ¶ 5, 

ECF No. 29.) The undisputed record before the Court reveals that Plaintiff first reported any claim 

for damage to the Property due to Hurricane Irma on May 20, 2019, approximately 617 days after 

the date of the alleged loss. (SOMF ¶ 6, ECF No. 29.) 

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Just like the plaintiff in Ro-Ma Holdings, Plaintiff’s loss was alleged to have been caused 

by Hurricane Irma. See Ro-Ma Holdings, 2021 U.S. Dist. LEXIS 275890, at *6. The plaintiff in 

Ro-Ma Holdings #4 provided its insurer with notice of the alleged loss on November 6, 2018, 

approximately 424 days or about fourteen months after the alleged loss. Ro-Ma Holdings, 2021 

U.S. Dist. LEXIS 275890,. at *7. There, the plaintiff’s notice was not prompt as a matter of law. 

Id. Here, as Plaintiff seems to concede, 617 days—more than twenty months—is so late notice that 

“no reasonable jury could find it timely.” See id. Accordingly, the Court finds that Plaintiff’s notice 

to Defendant was not prompt as a matter of law. See, e.g., Soronson, 96 So. 3d at 951–53; PDQ 

Coolidge Formad, 566 F. App’x at 849; Ro-Ma Holdings, 2021 U.S. Dist. LEXIS 75860, at *7.

2. PLAINTIFF FAILED TO REBUT THE PRESUMPTION THAT DEFENDANT 

SUFFERED PREJUDICE DUD TO PLAINTIFF’S FAILURE TO PROVIDE PROMPT 

NOTICE

Having found that Plaintiff’s notice was untimely, the burden now shifts to Plaintiff to 

rebut the presumption that Defendant was prejudiced. See Bankers Ins. v. Macias, 475 So. 2d 1216, 

1217–18 (Fla. 1985). “If the insured breaches the notice provision, prejudice to the insurer will be 

presumed . . . .” Bankers Ins. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985) (citing Nat’l Gypsum 

Co. v. Travelers Indem. Co., 417 So. 2d 254, 256 (Fla. 1982)). As the Florida Supreme Court 

earlier explained,

[T]he proper interpretation of the effect of prejudice in delayed notice cases was 

that while prejudice to the insurer is presumed, if the insured can demonstrate that 

the insurer has not been prejudiced thereby, then the insurer will not be relieved of 

liability merely by a showing that notice was not given “as soon as practicable.”

Tiedtke v. Fidelity & Cas. Co. of N.Y., 222 So. 2d 206, 209 (Fla. 1969) (emphasis added). Insureds 

bear the burden of rebutting the presumption of prejudice by presenting competent evidence that 

the insurer has not been prejudiced by the late notice. Macias, 475 So.2d at 1217–18. “Prejudice 

is properly resolved on summary judgment where an insured fails to present evidence sufficient to 

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rebut the presumption.” PDQ Coolidge, 566 F. App’x at 849 (first citing 1500 Coral Towers 

Condo. Ass’n, Inc. v. Citizens Prop. Ins., 112 So. 3d 541 (Fla. 3d DCA 2013); then citing Soronson, 

96 So. 3d at 953; and then citing City Mgmt. Grp. Corp. v. Am. Reliance Ins. Co., 528 So. 2d 1299, 

1300 (Fla. 3d DCA 1988)).

Plaintiff argues that, because (1) Plaintiff cooperated—to some degree—with Defendant’s 

inspection of the Property and (2) Defendant had the opportunity to inspect the property, the 

question of whether Plaintiff materially breached the Policy “remains a question for the factfinder”

and Defendant suffered no prejudice. (Pl.’s Resp. to Def.’s Mot. Summ. J. 12–14, ECF No. 32

(first citing Curtis v. Tower Hill Prime Ins., 154 So. 3d 1193 (Fla. 2d DCA 2015); and then citing 

Makryllos v. Citizens Prop. Ins., 103 So. 3d 1032, 1034 (Fla. 2d DCA 2012)).) Plaintiff’s 

arguments fail on two fronts: First, Plaintiff conflates settled Florida law regarding breaches of 

cooperation provisions in insurance contracts with the law that applies here, a case in which 

Plaintiff breached a “prompt notice” provision,2 and second, Plaintiff does not offer sufficient 

record evidence to rebut the presumption that Defendant was prejudiced by Plaintiffs’ late notice.

2 Different presumptions arise when an insured is alleged to have breach an obligation to the 

insurer pursuant to an insurance contract. Compare Macias, 475 So. 2d at 1218 (“If the insured 

breaches [a] notice provision, the prejudice to the insurer will be presumed . . . . The burden should 

be on the insured to show lack of prejudice . . . .”), with Ramos v. Nw. Mut. Ins., 336 So. 2d 71, 75 

(Fla. 1976) (“[T]o constitute the breach of a policy [for] lack of cooperation[, the failure to 

cooperate] must be material and the insurance company must show that it was substantially 

prejudiced in the particular case by failure to cooperate.” (citing Am. Fire & Cas. Co. v. Vilet, 4 

So. 2d 862, 863 (Fla. 1941))). Therefore, the cases to which Plaintiff cites in support of his attempt 

to shift the burden of disproving the prejudice Defendant is presumed to have suffered to 

Defendant are inapposite. See State Farm Mut. Auto. Ins. v. Curran, 83 So. 3d 793, 802–03 (Fla. 

5th DCA 2011) (discussing whether insured’s failure to comply with compulsory medical 

examination was a condition precedent); Amica Mut. Ins. v. Drummond, 970 So. 2d 456, 459 (Fla. 

2d DCA 2007) (discussing insured’s failure to submit to examinations under oath as a condition 

precedent to coverage by insurer); Goldman v. State Farm Fire Gen. Ins., 660 So. 2d 300, 304 

(Fla. 4th DCA 1995) (discussing insured’s failure to comply with condition precedent and 

affirming summary judgment in insurer’s favor); Allstate Floridian Ins. v. Farmer, 104 So. 3d 

1242, 1248 (Fla. 5th DCA 2012) (distinguishing between general breach of condition subsequent 

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Without addressing Plaintiff’s first argument in further detail, the Court turns to Plaintiff’s

second argument—that “the record evidence on its face clearly demonstrates that the Defendant 

suffered no prejudice to its claim investigation process whatsoever” because Defendant was able 

to inspect the Property. (Pl.’s Resp. to Def.’s Mot. Summ. J., ECF No. 32, at 12.) Here, first and 

foremost, Plaintiff fails to point to anything in the record, as he required to do, see Celotex Corp., 

477 U.S. at 322, to support this averment, (Pl.’s Resp. to Def.’s Mot. Summ. J., ECF No. 32, at 

12–14). Second, Plaintiff’s argument is insufficient to rebut the presumption of prejudice. See, 

e.g., PDQ Coolidge, 566 F. App’x at 848; Ro-Ma Holdings, 2021 U.S. Dist. LEXIS 75860 at *8. 

Like in PDQ Coolidge and Ro-Ma Holdings, an independent adjuster, Mark Stanley, inspected the 

Property on Defendant’s behalf. (SOMF, ECF No. 29 ¶ 8); see PDQ Coolidge, 566 F. App’x at 

849. Mr. Stanley was able to determine that the damage to the Property was consistent with “wind 

damage, and wear and tear, deterioration.” (SOMF, ECF No. 29 ¶ 9.) Cindy Sarver, a claims 

representative authorized to handle claims on Defendant’s behalf, stated in her Declaration3 that 

in insurance contract and breach of notice provision as outlined in Macias, 475 So. 2d at 1218); 

Whistler’s Park, Inc. v. Fla. Ins. Guar. Ass’n, 90 So. 3d 841, 845–46 (Fla. 5th DCA 2012) 

(discussing conditions precedent to filing suit against insurer); Am. Integrity Ins. v. Estrada, 276 

So. 3d 905, 913 (Fla. 3d DCA 2019) (same); Curtis, 154 So. 3d at 1198 (discussing cooperation 

clause); Makryllos, 103 So. 3d at 1034 (same). Plaintiff seems to confuse the issue before the 

Court: whether Plaintiff’s can rebut the presumption that Plaintiff’s late notice, which Plaintiff 

does not deny, prejudiced Defendant. See Tiedtke, 222 So. 2d at 209; see also Macias, 475 So. 2d 

at 1217 (quashing lower appellate court’s decision because appellate court “applied the breach of 

cooperation presumption against the insurer when it should have applied lack of notice 

presumption against the insured.”). Even were the Court to consider Plaintiff’s argument that 

Plaintiff’s cooperation bars Defendant’s late notice argument, Plaintiff’s cooperation with 

Defendant’s investigation does not (1) create a genuine dispute of material fact as to whether 

Defendant suffered prejudice as to Plaintiff’s late notice nor (2) relieve Plaintiff of his obligation 

to provide prompt notice to Defendant.

3 Plaintiff’s Response and Memorandum of Law in Opposition to Defendant’s Motion for 

Final Summary Judgment includes a contentless section labeled “III. The Affidavit of Cindy 

Sarver should be stricken.” (ECF No. 32, at 12.) In support of that general proposition, Plaintiff 

offers no argument or supporting materials. (Id.) The Court, however, may consider Cindy Sarver’s 

Declaration in support of Defendant’s Motion for Summary Judgment. See Fed. R. Civ. P. 56(c)(4) 

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“[h]ad prompt notice been provided by [Plaintiff], [Defendant] would have been able to draw better 

conclusions regarding the loss, and would have been able to draw those conclusions more easily 

given the passage of time.” (SOMF, Ex. 1 ¶ 10, ECF No. 29-1) Ms. Sarver’s Declaration makes 

something that is already presumed clear on the face of the record: Defendant was prejudiced by 

Plaintiff’s late notice because it was not able to inspect the property closer to the date of loss and 

ascertain whether the damage observed during Mr. Stanley’s inspection was the same as it was 

immediately after Hurricane Irma until after nearly two years following the alleged date of loss.

See PDQ Coolidge, 566 F. App’x at 849–50 (granting summary judgment where plaintiff failed to 

rebut presumption of prejudice against insurer because plaintiff provided “no evidence showing 

that an earlier inspection would not have impacted the investigation.”); see also Lester, 293 So. 2d 

at 86 (“[T]he purpose of a provision for notice and proofs of loss is to enable the insurer to evaluate 

its rights and liabilities, to afford it an opportunity to make a timely investigation, and to prevent 

fraud and imposition upon it.” (citing Ranson, 121 So. 2d at 180). Plaintiff offers no record 

evidence to rebut this presumption; therefore, final summary judgment is properly entered in 

Defendant’s favor. See, e.g., 1500 Coral Towers Condo., 112 So. 3d 541, 544–45 (affirming 

summary judgment in defendant’s favor where plaintiff failed to rebut presumption of prejudice);

(“An affidavit or declaration used to support or oppose a motion must be made on personal 

knowledge, set out facts that would be admissible in evidence, and show that the affiant or 

declarant is competent to testify on the matters stated.”); Cargo Airport Servs. USA, LLC v. 

Transcarga Int’l Airwaus, C.A., Inc., 2017 WL 4898292, at *2 (S.D. Fla. Oct. 27, 2017) (“An

affidavit submitted by a corporate representative in support of summary judgment is properly 

considered when the corporate representative expressly verifies that the matters stated therein are 

based on his personal knowledge gained through the review of business records.”). Here, Ms. 

Sarver is Defendant’s corporate representative and she testified that the declaration was “based 

upon personal knowledge and a review of files which are routinely made and maintained in the 

ordinary course of business and prepared by agents or employees with personal knowledge of their 

contents at or near the events they record.” (SOMF Ex. 1, at 2 ¶ 2, ECF No. 29-1.). Ms. Sarver’s 

testimony may, therefore, be properly considered by the Court. See Fed. R. Civ. P. 56(c)(4).

Case 1:20-cv-22324-JEM Document 41 Entered on FLSD Docket 10/29/2021 Page 14 of 15
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Soronson, 96 So. 3d at 953 (same); PDQ Coolidge Formad, 566 F. App’x at 850 (same); Ro-Ma 

Holdings, 2021 U.S. LEXIS 75860, at *11 (granting defendant summary judgment where plaintiff 

failed to rebut presumption of prejudice).

IV. CONCLUSION

For the foregoing reasons, it is:

ORDERED and ADJUDGED that:

1. Plaintiff’s Statement of Undisputed Fact within his Response and Memorandum of 

Law in Opposition to Defendant’s Motion for Final Summary Judgment, (ECF No. 32, at 1–6), is 

STRICKEN.

2. Defendant’s Motion for Summary Judgment, [ECF No. 24], is GRANTED. 

3. The Trial Period set for Monday, November 8, 2021, is CANCELLED.

4. This case is CLOSED for administrative purposes, and all pending motions are 

DENIED as moot.

5. Final Judgment will be entered by separate order.

DONE AND ORDERED in Chambers at Miami, Florida this 29th day of October, 2021.

__________________________________

JOSE E. MARTINEZ

UNITED STATES DISTRICT JUDGE

Copies provided to:

All Counsel of Record

Case 1:20-cv-22324-JEM Document 41 Entered on FLSD Docket 10/29/2021 Page 15 of 15