### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

CARLOS DE LA ROSA and FANNY DE LA ROSA
, Appellant s ,

v.

FLORIDA PENINSULA INSURANCE COMPANY
, Appellee

.

No. 4D 17

- 1294

[ May 16, 2018 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; David A. Haimes , Judge; L.T. Case No. CACE 15

- 018784 (08)

.

Dennis N. Urbano of Greenberg Stone & Urbano, Miami, for appellants.

Amy L. Koltnow of Colodny Fass, Sunrise, for appellee.

W ARNER
, J.

Appellant insureds chall enge a final summary judgment for appellee

insurer in a case in volving water intrusion into their home because of a septic tank backup. The trial court concluded that the in sureds had failed to overcome the presumption that the ir failure to t imely report their claim had pr ejudiced the insurer’s investigation. We affirm the summary judgment.

Appellants insured their home with the appellee insurer , Florida Peninsula Insurance Company. The insurance endorsement attached to appellants’ homeowners’ insurance policy provides:

SECTION I

— CONDITIONS

2. Your Duties After Loss 2.a. is replaced by the following:

a

. Give prompt notice to us or our agent;

. . . .

2. Your Duties After Loss 2. f. is replaced by the following:

f. As often as we reasonably require;2 (1) Show us the damaged property;

. . . .

8. Suit Against Us No action can be brought against us; unless:

a. There has been full compliance with all of the terms of this policy; a nd

b. The action is started within 5 years after the date of the

loss.

In April 2014

, appellant husband noticed water backing up in his

master bathroom shower. Water was seeping into the bathroom floor and

sub

- floor under the tile. He realized that water must have been leaking

for some time. He called a plumbing company

, which replaced all of the

drain age system for the septic tank.

In February 2015, appella nt had his master bathroom renovated because of the water damage. The renovations cost $4,000. Appellant

mad e no other repairs to his home.

Appellant made an insurance claim for $22,274 for the alleged damage

to his bathroom in July 2015. The insurer denied the claim, and appellants f iled suit. The insurer alleged as an affirmative defense that the appellants had failed to timely report the claim

, which had prejudiced

the in surer . After discovery, the insurer moved for summary judgment, relying on ap pellant’s deposition, exhibits, and the affidavit of its adjuster.

In his deposition

, appellant testified that he took a long time to report his claim because he was not aware of his rights under his insurance policy. Appellant admitted that all of the repairs to his bathroom were complete prior to the ins urer inspecting his house.

A licensed adjuster

, employed with Florida Peninsula, inspected the appellants’ plumbing leak soon after the claim was filed. In a sworn affidavit, the adjuster stated that “[u]pon [his] inspection, it was evident that all repairs had been made to the bathroom where the water reportedly caused damage and the entire bathroom had been totally renovated.” He could not observe any water damage from the drainage failure because of the renovation. The adjuster reviewed a photograph taken of the master

bedroom before the renovation

, but testified that it did not show any water damage. The adjuster also testified that while appellant had kept several damaged building materials from the water leak, such as old drywall and piping, the items were not preserved and were “kept outside and exposed to the exterior elements for over one year.” The adjuster was unable to3 determine “the cause o r origin” or the “extent or scope” of any of the damage.

Appellant s countered this evidence with their own affidavits. A licensed publ ic adjuste r hired by appellants also conducted an inspection of the property in July 2015. In an affidavit, she testif ied that she “observed water damage to the master bathroom door frame, master bedroom wall and baseboard, master bedroom tile floors, and the bottom kitchen

cabinets.” She inspected the materials from the damaged master bathroom that the appellants retain ed, as well as photographs of the water damage and the appellants’ invoices from t heir plumbing repairs. The adjuster found that the damage to the retained materials “were consistent

with that of a one

- time sudden and accidental waste line backup occurrin g in April of 2014.” She testified that “[ t ] he only possible event that could have caused this type of damage was a one

- time waste line water backup.”

She esti mated the damage as $22,274.45.

In addition, a licensed engineer hired by the appellants insp ected the property in February 2017. He also reviewed the photographs of the master bedroom together with the invoices for the repairs to the property. He testified that he also observed visible water damage in the master bedroom, bathroom

, and underneath the kitchen cabinets. He opined that this was “classic” damage caused by a one

- time wastewater backup

, and stated, “The waste line water back up damages observed during my inspection were clearly evident upon my inspection which was conduc ted in 2017 and would have been evident upon an inspection by the insurer.” As to the damage it caused, he stated that the wastewater would damage

the wall s and floor tiles

, which damage would increase as long as it was

not removed. He advised that the e ntire floor should be examined by an architect to determine the extent of damage and remediation needed. He opined that there were multiple ruptured pipes which caused damage to the structure, but only opening the slab could determine the extent of damage

.

At the summary judgment hearing, appellants conceded that they gave late notice of their claim and that the trial court had to presume that the insurance company’s investigation was prejudiced. Thus, appellants had to present competent evidence to reb ut that presumption. Appellants argued that because their adjuster and engineer disagreed with the opinion of the insurance company ’s adjuster as to whether the cause of the damage could be ascertained, there was an issue of fact. They

contended that the ir experts’ findings were not conclusory.4 The court found that the issue of prejudice was a question of law and that the facts regarding lack of notice and the renovations were not in dispute. The cou rt stated that the insurer may be able to determine c ause and damages, but because of the lack of notice, its “ability to do it [was] certainly hampered.” The court concluded that there may be a genuine issue of fact concerning causation, but the pertinent issues were whether the insurer received timely not ice of the damage and whether appellants rebutted the presumption of prejudice to the company. The court noted how in the licensed engineer’s investigation report

, he found that

, “A determination of the extent of the damage without opening the slab and

pe rforming applicable investigation can only be subjective in nature.” Citing Kramer v. State Farm Fl orida Ins urance Co ., 95 So. 3d 303 (Fla. 4th DCA 2012), the court granted the insurer’s motion for summary judgment, finding that there was no genuine issue of fact regarding the presumed prejudice to the insurer. Appellants now appeal.

This Court reviews de novo a trial court’s grant of summary judgment. Soncoast Cmty. Church of Boca Rat on, Inc. v. Travis Boating Ctr. o f Fla.,

Inc.

, 981 So. 2d 654, 655 (Fla. 4th DCA 2008). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cty. v. Aberd een at Ormond Beach, L.P ., 760 So. 2d 126, 130 (Fla. 2000).

Appellants argue that the court erred in granting summa ry judgment

to the insurer because

, even assuming that appellants gave late notice of their claim, there was an issue of fact regarding whe ther the insurer was prejudiced. Appellants contend that they presented sufficient evidence to rebut the presumption of prejudice.

If an insured breaches the notice provision of his homeowner’s insurance policy, “prejudice to the insurer will be presume d, but may be rebutted by a showing that the insurer has not been prejudiced by the lack

of notice.” Stark v. State Farm Fl a. Ins. Co. , 95 So. 3d 285, 287

- 88 (Fla. 4th DCA 2012) (citing Bankers Ins. Co. v. Macias , 475 So. 2d 1216, 1218 (Fla. 1985)). A no tice of damage is a pre

- condition to a claim. Macias , 475

So. 2d at 1218. The insured has the burden to show the lack of prejudice if its insurer lost the opportunity to investigate the facts of the claim.

Stark , 95 So. 3d at 288. “Whether the presumption of prejudice to the

insurer has been overcome is ‘ ordinarily . . . a separate issue of fact. ’ ” Id

. (citation omitted). Before a court grants summary judgment, “the record on such a motion should ‘conclusively foreclose[]’ the ins ured’s ‘ ability to overcome the presumption [of prejudice]. ’ ” Id. (alteration in original) (citation omitted).5 At the summary judgment hearing, appellants conceded that they gave late notice of their claim and that they had to present evidence to rebut

t he presumption of prejudice to the insurer. Thus, the pertinent issue is whether appellants presented sufficient counterevidence to rebut the presumption of p rejudice from the late notice.

While in this case there may be disputed issues of fact as to wh ether the insurer was prejudiced in determining the cause of the incident, the record forecloses the insured’s ability to overcom e the prejudice to the

insurer in evaluating the extent of the damage b ecause of the delay in making the claim. See Yacht Club on the Intracoastal Condo. Ass’n , Inc. v. Lexington Ins. Co. , 599 Fed. Appx. 875, 8 81

- 82 (11th Cir. 2015). In the insured engineer’s report, he notes that the water damage, particularly to the walls and the flooring system

, would increase with time when the damage was not promptly remedied. Mold, which would occur due to

water intrusion

, would expand over time if damaged surfaces were not replaced. Further, he noted that water escape from pipes under the slab would over time cause structural instability , the full extent of which could not be determined at this point without opening the slab to evaluate how much damage has occurred. In other words, the engineer’s report itself showed that the damage would likely have increased over time. The

insurer was prejudiced by a delay in investigating the claim as it would not be able to determine the damage at the time of the incident. Because

of the l ack of prompt repairs, the counter

- evidence does not overcome the presumption of prejudice. As in Kramer, relie d on by the trial court, the engineer’s report bolsters the insurer’s claim that it has been prejudiced by the delay.

We distinguish Stark v. State Farm Florida Ins urance Co ., 95 So. 3d 285,

287

- 88 (Fla. 4th DCA 2012), the principal case on which appellants rely. There, the insureds hired a company to repair their roof after Hurricane Wilma in 2005, but their roof continued to leak and their home suffered further damage. Id . at 287. They reported their claim over three years

after the storm. Id

. The insurer’s inspector assessed the roof damage, but

because he was unable to determine the time or cause of the loss

, the

insurer claimed that it was prejudiced by the delay. I d

. After the insureds filed suit for breach of contract, the insurer moved for summary judgment.

Id. In response, the insureds filed several affidavits, including those o f an engineer and public adjuste r. Id

. The engineer inspected the property multip le years after the hurricane, and he concluded that there was “a classic pattern of wind damage” and that “[ t ] he only possible event that could have caused this type of damage was Hurricane Wilma.” Id

. The engineer found that the damage “would have been evident” during the insurer’s inspection. Id

. The insureds’ public adjuste r also believed that6 the roof damage was caused by Hurricane Wilma, and he claimed that the insurer’s investigator told him “ that there appeared to be storm damage to

the [insureds’] roof. ” Id

. The trial court granted the insurer’s motion for summary judgment, finding that the insureds did not present sufficient counterevidence to rebut the presumption of prejudice to the insurer. Id

.

On appeal, this Court found a disp uted issue of fact as to whether the insurer was prejudiced by late notice. Id. at 288. The insureds’ adjuster’s affidavit stated that the damage still evident showed classic hurricane damage, and the insurer’s investigator told the insured’s public adju ster that he had observed storm damage. Id

. The counterevidence “suggested

that the insureds could convince a finder of fact that their noncompliance with the notice provision [of their insurance contract] did not prejudice the

insurer by depriving it ‘ o f the opport unity to investigate the facts.’ ” Id

. (alteration added) (footnote omitted) (quoting Macias , 475 So. 2d at 1218).

In this case, however, even though there may be disputed issues of fact as to whether the insurer was prejudiced in determining the cause of the loss, the facts

, even as presented by the insured’s adjuster and engineer

, show that the insurer would be preju diced by the passage of time in investigating the extent of the loss

, and thus

, the cost of repair. The insured did not overcome the presumption of prejudice. See Macias , 475

So. 2d at 1218

. Therefore, the court correctly granted summary judgment.

Affirmed

.

C IKLIN and K LINGENSMITH

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.