Third District Court of Appeal

State of Florida

Opinion filed March 10, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D19-1614

Lower Tribunal Nos. 16-1435 & 16-1284

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Celerina Nunez,

Appellant,

vs.

Universal Property & Casualty Insurance Company,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Michael A. 

Hanzman, Judge.

Giasi Law, P.A., and Melissa A. Giasi and Erin M. Berger (Tampa), for 

appellant.

Link & Rockenbach, PA, and Kara Rockenbach Link (West Palm 

Beach); Kelley Kronenberg, and Alison J. Trejo and Jeffrey M. Wank (Fort 

Lauderdale), for appellee.

Before EMAS, C.J., and SCALES and LOBREE, JJ. 

EMAS, C.J.
2

Celerina Nunez (the insured below) appeals the trial court’s order (1) 

granting the motion of Universal Property & Casualty Insurance Company

(the insurer below) for directed verdict on whether Nunez materially 

breached the insurance contract by failing to attend an EUO, and (2) granting 

a new trial, pursuant to our decision in American Integrity Insurance Co. v. 

Estrada, 276 So. 3d 905 (Fla. 3d DCA 2019), to provide Nunez an 

opportunity to show that her “breach of [this] post-loss obligation did not 

prejudice” Universal. For the reasons that follow, we affirm the order 

granting a new trial pursuant to Estrada, but reverse the order directing a 

verdict on whether the insured materially breached the insurance contract. 

Factual and Procedural Background

In April 2015, Nunez reported two water losses occurring days apart: 

one due to a leak in the kitchen, and a second due to a leak in the bathroom. 

The same day these claims were reported, Universal requested that Nunez 

provide a sworn proof of loss. Nunez provided the sworn proof of loss 

seventy-five days later (June 29), claiming $30,000 of damage to the kitchen 

and $20,000 of damage to the bathroom. In the interim, the property was 
3

inspected (on May 7) and Nunez provided an unsworn, recorded statement 

by phone to Universal (on June 17).

1

It is undisputed that, during the investigation of the claims, Universal 

requested Nunez to attend an Examination Under Oath (EUO), and that 

Nunez failed to appear. More specifically, Universal sent two letters (August 

10 and 17, 2015) to Nunez’s attorney requesting to set a date for the EUO. 

When counsel failed to respond, Universal sent a third letter (September 10) 

unilaterally scheduling the EUO for October 1. After Nunez failed to appear

for her EUO, Universal denied both insurance claims based upon such 

failure and upon her failure to provide certain documentation. Nunez sued 

the insurer for breach of the insurance contract.2

Prior to trial, Universal moved for summary judgment on the basis that 

Nunez’s failure to attend the EUO was a material breach of the insurance 

contract precluding recovery. The trial court denied the motion. 

1 These dates are included because Nunez maintained below and on appeal 

that (1) her failure to attend the Examination Under Oath (EUO) “was not 

willful”; (2) Universal was not prejudiced by such failure; and (3) it was 

unreasonable for Universal to demand an EUO because, in all other 

respects, she complied with Universal’s investigation and Universal did not 

request the EUO until August (months after she reported her claims). 

However, and as Universal points out, while the claims were first reported in 

April, Universal did not receive a sworn proof of loss until the end of June.

2 Two separate complaints were filed—one concerning the kitchen leak and 

one concerning the bathroom leak. The cases were consolidated for 

purposes of trial, and resulted in two separate verdicts in Nunez’s favor.
4

At trial, Universal’s primary defense was that, because Nunez had 

failed to sit for an EUO, she forfeited her rights to receive insurance benefits. 

Nunez, in response, generally argued that it was unreasonable for Universal 

to request an EUO 110 days after the claims were reported. Both at the 

close of the plaintiff’s case and at the close of all the evidence, Universal 

raised the issue again, moving for a directed verdict on Nunez’s failure to 

attend the EUO. The trial court denied these motions.

During a conference to discuss jury instructions and verdict forms, the 

parties disagreed on whether and how the jury should be instructed 

regarding Nunez’s failure to attend the EUO. The trial court determined the 

jury would be instructed that if Nunez was able to meet her initial burden, 

i.e., that she “sustained covered losses during the policy period,” “Universal 

must prove by the greater weight of the evidence that [Nunez] failed to 

comply with her obligations under the policy by not providing documentation 

and not appearing for her examination under oath.” Consistent with this 

ruling, and over Universal’s objection, the trial court determined the jury 

would be required to answer the following question in its verdict: 

Did Universal prove by the greater weight of the

evidence that Plaintiff unreasonably failed to 

attend her Examination Under Oath on October 1, 

2015? 

(Emphasis added). 
5

Consistent with the verdict form and jury instructions, the arguments 

during closing centered upon the reasonableness or unreasonableness of 

Nunez’s failure to attend the EUO. Nunez argued that it was unreasonable 

for Universal to request an EUO 110 days after she reported her claims, and

Universal argued that it was reasonable because Universal did not receive 

Nunez’s sworn proof of loss until early July (75 days after she reported the 

claim and approximately thirty days before Universal sent out the first letter 

requesting an EUO). Nunez, on rebuttal, again urged that it was 

unreasonable for Universal to request the EUO 110 days after she reported 

the claim, provided a recorded statement, and Universal inspected the 

property.

The jury returned a verdict in Nunez’s favor on both the kitchen claim 

($15,000) and the bathroom claim ($20,000). Universal moved for a 

judgment notwithstanding the verdict based on Nunez’s failure to attend her 

EUO. The trial court again rejected Universal’s argument explaining that 

(given the totality of the circumstances) the jury did not find Nunez’s failure 

to attend the EUO unreasonable.

Universal filed a renewed motion for directed verdict or, in the 

alternative, motion for new trial. Universal argued (among other things) that 

judgment should have been entered for Universal where it was undisputed 
6

Nunez failed to appear for the EUO (i.e. an EUO “is a condition precedent to 

suit” and a failure to attend is “a material breach of the terms and conditions 

of the insurance contract”); and that the trial court erred “by elevating 

Universal’s burden of proof” to establishing Nunez “unreasonably” failed to 

attend her EUO. In sum, Universal argued that the jury instructions and 

verdict forms were contrary to Florida law and that the verdict was against 

the manifest weight of the evidence. The day before the hearing on the 

renewed motion for directed verdict, this court released its opinion in 

Estrada, 276 So. 3d at 905.

A successor judge presided over the hearing on Universal’s motion. 

The successor judge determined that the jury had not been properly 

instructed, and questioned whether there was “evidence of prejudice” to 

Universal (due to Nunez’s failure to attend the EUO), and whether the fairer

approach would be to grant a new trial “under the construct” of Estrada.

The trial court later entered a detailed order, granting in part 

Universal’s motion for directed verdict and ordering a new trial. It found, 

among other things, that Nunez breached the contract when she failed to 

appear for the EUO, and “the court erred when it placed upon Universal a 

burden of establishing that this breach was ‘unreasonable.’” In directing a 

verdict on the EUO issue and granting a new trial, the trial court reasoned:
7

Given that: (a) Universal’s unpled EUO defense was 

obviously tried by consent[3]

, and (b) considerable 

precedent at the time of trial supported the position 

that a carrier could not avoid payment unless an 

insured’s failure to attend an EUO caused prejudice, 

Plaintiff had an obligation to request a jury instruction 

on this issue, as well as an obligation to request that 

the jury be asked the question of whether Universal 

in fact was prejudiced by its failure to secure an EUO. 

Because it did neither, this avoidance was arguably 

waived, thereby entitling Universal to a directed

verdict. On the other hand, the trial court—without 

hearing any substantive argument—did state on the 

record that ‘there is no prejudice required,” arguably 

making any attempt to request a jury 

instruction/interrogatory futile. On top of that, the 

EUO defense was never pled in the first place and—

as a result— never had to be avoided in a formal 

pleading. Finally, neither party had the benefit of the 

Third District’s [Estrada] decision which exhaustively 

surveyed the law on this point and definitely settled it 

in this district.

In light of these considerations, the trial court concluded “that the more 

appropriate remedy [was] to grant a new trial and direct a verdict in 

Universal’s favor on the discrete issue of whether [Nunez] breached the 

contract by failing to attend an EUO.” The court concluded that, at the new 

trial, the jury would be instructed accordingly. Nunez moved for 

reconsideration arguing primarily that the trial court exceeded its authority as 

3 While the affirmative defense pertaining to post-loss obligations was 

asserted in the bathroom leak cause of action, it was not asserted in the 

kitchen leak cause of action.
8

successor judge by reversing the exact same ruling made by the 

predecessor judge who presided over the trial, without any intervening 

change in circumstances to warrant such an action. The successor judge 

denied the motion, and this appeal followed.

Standard of Review

We apply a hybrid standard of review on appeal from an order granting 

a new trial: 

An order granting a new trial is generally reviewed for 

an abuse of discretion. An erroneous view of the law 

can constitute an abuse of discretion. Moreover, 

appellate courts apply a de novo standard of review 

to a trial court's legal conclusions in an order granting 

a new trial. 

Kratz v. Daou, 299 So. 3d 442, 444 (Fla. 3d DCA 2019) (citations omitted). 

Nunez, on appeal, contends that the trial court “erroneously granted directed 

verdict in favor of [Universal] because there was evidence that [Nunez’s] 

failure to sit for an EUO was not willful and there was no evidence that 

[Universal] was prejudiced,” meaning a new trial on prejudice is 

unnecessary. This contention goes to whether the verdict was supported by 

the evidence and, therefore, the appropriate standard of review is abuse of 

discretion; to the extent the directed verdict and new trial were based on 

legal questions, however, we apply a de novo standard of review.
9

At the same time, because the ruling on the motion for directed verdict 

was made by a successor judge, it “is not entitled to the same deference on 

appeal as the ruling of a presiding judge.” Nat'l Healthcorp Ltd. P'ship v. 

Cascio, 725 So. 2d 1190, 1193 (Fla. 2d DCA 1998); Gemini Inv'rs III, L.P. v. 

Nunez, 78 So. 3d 94, 97 (Fla. 3d DCA 2012) (holding that “while a successor 

judge has the authority to correct any errors in prior interlocutory rulings on 

matters of law, a successor judge should give credence to a predecessor's 

rulings on issues of law. Generally, the rotation of judges from one division 

to another should not be an opportunity to revisit the predecessor's rulings.”) 

(citations omitted); Gen. Hosp. of Greater Miami, Inc. v. Gager, 160 So. 2d 

749, 751 (Fla. 3d DCA 1964) (noting: “[T]he granting of a new trial . . . does 

not come to the appellate court clothed with the same weight as such an 

order entered by the judge who tried the case. This is true because we may 

not say that the trial judge had the great advantage of observing the 

witnesses and the conduct of the trial”) (citing Wolkowsky v. Goodkind, 153 

Fla. 267 (Fla. 1943)).

Discussion
10

Although the successor judge correctly granted the motion for new 

trial, he erred in directing a verdict4 on the question of whether Nunez 

materially breached the contract where the jury was never instructed on the 

issue. We therefore remand for a new trial on whether Nunez materially 

breached the insurance policy by failing to attend the EUO and, if necessary, 

on whether such breach prejudiced Universal. This result is controlled by 

our decision in Estrada which addressed, as an issue of first impression in 

this District, “whether, after a finding has been made that an insured 

materially breached a post-loss policy provision, a further finding must also 

be made that the insured's non-compliance caused prejudice to the insurer.” 

Estrada, 276 So. 3d at 914-15. In that case, Maria Estrada filed an insurance 

4 The predecessor judge’s order denying Universal’s motion for directed 

verdict was an interlocutory order of which the successor judge had the 

“authority” and “obligation” to consider and to correct if it was premised on 

an incorrect interpretation of the law. Otis Elevator Co. v. Gerstein, 612 So. 

2d 659, 659-60 (Fla. 3d DCA 1993) (holding: “[A] successor judge has the 

authority to rule upon a motion for a new trial in a jury case.”); Raymond, 

James & Assocs., Inc. v. Zumstorchen Inv., Ltd., 488 So. 2d 843, 845 (Fla. 

2d DCA 1986) (holding: “[A] successor judge has the obligation to correct 

any error in a prior interlocutory ruling on matters of law.”). See also Atl. 

Coast Line R. Co. v. Boone, 85 So. 2d 834, 840 (Fla. 1956) (recognizing that 

an order denying a motion for directed verdict is “interlocutory in nature”). 

See also Fla. R. Civ. P. 1.480(c) (providing: “A motion for a new trial may be 

joined with [a motion for directed verdict] or a new trial may be requested in 

the alternative. If a verdict was returned, the court may allow the judgment 

to stand or may reopen the judgment and either order a new trial or direct 

the entry of judgment as if the requested verdict had been directed.”)
11

claim due to a home burglary, and the insurer, American Integrity,

commenced an investigation and requested Estrada to comply with several 

post-loss obligations. The claim, however, was denied after Estrada 

allegedly failed to submit to an EUO and provide a sworn proof of loss. Id.

at 907. Estrada filed a breach of contract action upon her claim being denied.

A primary issue at trial was the extent of Estrada’s compliance with her 

post-loss obligations prior to filing her lawsuit. In proving their cases, each 

party presented evidence on whether or not Estrada “substantially complied 

with her post-loss obligations.” Id. at 909. At the close of the evidence, 

Estrada moved for a directed verdict on various affirmative defenses, 

including American Integrity’s defense related to post-loss obligations, 

arguing that “in order for there to be a valid coverage defense with respect 

to an insured’s post-loss obligations in a homeowner’s insurance policy, . . . 

the insurer must plead and prove it was prejudiced by the insured’s noncompliance.” Id. Agreeing with Estrada, the trial court directed a verdict on 

the insurer’s affirmative defenses pertaining to failure to comply with postloss obligations. Because all of American Integrity’s coverage defenses 

were stricken, the only issue left for the jury to consider was the amount of 

damages to award Estrada. Id. After the jury awarded damages for Estrada, 

final judgment was entered, and the insurer appealed.
12

On appeal, we reversed the trial court’s order directing a verdict in 

favor of Estrada, and addressed each party’s burden as it relates to postloss obligations:

[F]or an insurer to successfully establish a coverage 

defense based upon an insured's failure to satisfy 

post-loss obligations such that an insured forfeits 

coverage under a policy, the insurer must plead and 

prove that the insured has materially breached a 

post-loss policy provision. If the insurer establishes 

such a material breach by the insured, the burden 

then shifts to the insured to prove that any breach did 

not prejudice the insurer.

Id. at 912 (emphasis added). We further explained:

[F]or there to be a total forfeiture of coverage under 

a homeowner's insurance policy for failure to comply 

with post-loss obligations (i.e., conditions precedent 

to suit), the insured's breach must be material. See

Drummond, 970 So. 2d at 460 (concluding that the 

insured's failure to comply with a post-loss obligation 

“was a material breach of a condition precedent to 

[the insurer's] duty to provide coverage under the 

policy”) (emphasis added); Starling, 956 So. 2d at 

513 (“[A] material breach of an insured's duty to 

comply with a policy's condition precedent relieves 

the insurer of its obligations under the contract.”) 

(emphasis added); Goldman v. State Farm Fire Gen. 

Ins. Co., 660 So. 2d 300, 303 (Fla. 4th DCA 1995) 

(“An insured's refusal to comply with a demand for an 

examination under oath is a willful and material 

breach of an insurance contract which precludes the 

insured from recovery under the policy.”) (emphasis 

added); Stringer v. Fireman's Fund Ins. Co., 622 So. 

2d 145, 146 (Fla. 3d DCA 1993) (“[T]he failure to 

submit to an examination under oath is a material 

breach of the policy which will relieve the insurer of 
13

its liability to pay.” (quoting 13A Couch on Insurance 

2d (Rev. 3d) § 49A:361 at 760 (1982) (footnote 

omitted) (emphasis added))).

Further, while the interpretation of the terms of an 

insurance contract normally presents an issue of law, 

the question of whether certain actions constitute 

compliance with the contract often presents an issue 

of fact. See State Farm Fla. Ins. Co. v. Figueroa, 218 

So. 3d 886, 888 (Fla. 4th DCA 2017) (“Whether an 

insured substantially complied with policy obligations 

is a question of fact.”) (emphasis added); Solano v. 

State Farm Fla. Ins. Co., 155 So. 3d 367, 371 (Fla. 

4th DCA 2014) (“A question of fact remains as to 

whether there was sufficient compliance with the 

cooperation provisions of the policy to provide State 

Farm with adequate information to settle the loss 

claims or go to an appraisal, thus precluding a 

forfeiture of benefits owed to the insureds.”) 

Id. at 914 (emphasis added). 

Importantly, and given that the parties and the trial court in Estrada did 

not have the benefit of our pronouncement on this issue of first impression 

prior to the trial in that case, our reversal was accompanied by an instruction 

that the trial court on remand grant American Integrity leave to amend 

“affirmative defenses alleging Estrada failed to materially satisfy any 

contracted-for post-loss obligations,” id. at 917, and to grant Estrada leave

to file appropriate replies. We further held that, if the insurer thereafter 

established a material breach, the burden would then shift to Estrada to 

establish the insurer was not prejudiced by the breach. Id.
14

The analysis and holding of Estrada are fully applicable here, and lead 

us to the same result. In the instant case, the jury verdict asked: “Did 

Universal prove by the greater weight of the evidence that plaintiff 

unreasonably failed to attend her Examination Under Oath?”5 The jury was 

also instructed that, if Nunez proved by the greater weight of the evidence 

that she sustained covered losses during the covered period, the burden was 

on Universal, who “must prove by the greater weight of the evidence that the 

plaintiff failed to comply with her obligations under the policy” by not 

appearing for her EUO. Nowhere in the verdict form or the jury instructions 

was the jury instructed to consider whether, in light of the evidence 

presented, Universal established that Nunez materially breached the 

contract by failing to appear for her EUO. Nor was there any corollary 

instruction or provision in the verdict form for the jury to consider (assuming 

proof of a material breach) whether Nunez established that Universal was 

not prejudiced by the breach.

5 During oral argument, counsel for Nunez explained that the 

“reasonableness” language was meant to track the insurance policy. But this 

interpretation—that the EUO request must be reasonable—is not consistent 

with the policy’s plain meaning: “In case of a loss to covered property, you 

must see that the following are done: . . . As often as we reasonably 

require: . . . Submit to examination under oath, while not in the presence of 

any other ‘insured,’ and sign the same.” 
15

Consistent with our holding in Estrada, we affirm the trial court’s order 

granting a new trial, but reverse the trial court’s order directing a verdict in 

favor of Universal on the materiality of the breach. Further, and consistent 

with our remand instructions in Estrada (and in light of the fact that the parties 

in this case likewise did not have the benefit of our holding in Estrada at the 

time of trial)6 we remand the cause for a new trial at which the factfinder can

consider and determine whether Universal proved Nunez’s failure to attend 

the EUO was a material breach of the contract and, if so, whether Nunez 

then proved that this material breach did not prejudice Universal. The parties 

should be granted leave to amend the pleadings as appropriate and 

necessary in light of this opinion and Estrada.

Conclusion 

We affirm the trial court’s order granting a new trial, but reverse the 

trial court’s order directing a verdict, and remand for a new trial and for further 

proceedings consistent with this opinion. 

6 In our recent decision in Universal Property & Casualty Ins. Co. v. Horne, 

__ So. 3d __, 46 Fla. L. Weekly D201 (Fla. 3d DCA Jan. 20, 2021), an 

unrelated appeal involving a strikingly similar procedural posture and legal 

issue, we noted: “The opinion in Estrada was released six weeks after the 

jury rendered its verdict below. Thus, neither the parties nor the trial court 

had the benefit thereof at the time of trial.” Id. at *4 n.7. We reversed and 

remanded “for the parties to present their cases under the framework 

established in Estrada.” Id. at *4.