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District Court of Appeal of Florida, Sixth District.


Case No. 6D23-464

Decided: May 26, 2023

John H. Pelzer, of Greenspoon Marder LLP, Fort Lauderdale, for Appellant. Andrew A. Labbe, of Groelle & Salmon, P.A., Tampa, for Appellee.

Appellant, Lloyd C. Bensen (“Bensen”), appeals the trial court's order that granted a motion for summary judgment filed by Appellee, Privilege Underwriters Reciprocal Exchange (“Privilege”), and dismissed the cause below with prejudice.1 We reverse the trial court's order and remand for further proceedings.

Factual Background and Procedural History

Bensen purchased a homeowners insurance policy from Privilege for his home located in Naples, Florida. The policy was valid from October 10, 2016 through October 10, 2017.

Hurricane Irma hit Southwest Florida in September 2017. After the hurricane, Bensen did not immediately observe any windstorm damage to his home. Eighteen months later, in March of 2019, Bensen noticed a smell in one of his bedrooms and discovered unfamiliar stains on the interior wall and exterior wall, and one light brown stain on the room's ceiling. Bensen called two roofing companies, Atlantis Roofing and Roman Roofing (“Roman”), to inspect the damage and provide estimates. Bensen hired Roman to perform the needed repairs to the roof in May of 2019 for the price of $3,500. A month later, Bensen discovered that his roof was still leaking. Roman returned to the home, found another hole further up the roof line, repaired the hole, and did not charge Bensen for the repair.

In August of 2019, Bensen smelled mold in the home's front bedroom and hired a company called iMold to test and remediate the mold. Roman made additional repairs to the roof around that same time.

On September 6, 2019, Bensen contacted Privilege about the roof leaks and interior damage to his home. Privilege assigned this matter claim number 362. Four days later, on September 10, 2019, Privilege's adjuster, Tina Taylor (“Taylor”), inspected the property with a representative of iMold. Taylor's inspection revealed a roof leak which Taylor determined was from wear and tear. Privilege issued payment to Bensen for the interior damages and mold remediation. Privilege denied coverage for repairs to the roof because the damages were the result of wear and tear, lack of maintenance, and design and construction defects that were not covered by the insurance policy.

In December 2019, Bensen hired a painter to paint his living room. The painter noticed water damage at the seam of the drywall and notified Bensen. Bensen again called Roman, and Clint Nix (“Nix”), the estimator who gave the original Roman estimate, came out to review the roof. Nix noticed lifted tiles from what he determined was wind damage from a hurricane and told Bensen that his whole roof would need to be replaced. The prior repairs Roman performed over the front bedroom did not impair Nix in viewing the remainder of the roof and observing wind damage. Nix provided Bensen with a repair estimate on January 3, 2020.

On January 8, 2020, five days after receiving the repair estimate from Nix, Bensen reported the roof damage to Privilege, who assigned the matter claim number 414. On January 10, 2020, Privilege tasked Axiom Engineering, Inc. (“Axiom”) to inspect Bensen's property. Following its inspection, Axiom issued a report concluding, among other things, that there were worn and deteriorated valley flashings due to normal age-related wear and tear, the interior damages were the result of leakage through the worn and deteriorated flashings, and there were no damages to the roof attributable to Hurricane Irma. Privilege subsequently notified Bensen that it was denying coverage for claim 414 as it related to the roof. In its letter to Bensen denying coverage, Privilege noted the fact that Bensen first provided notice to Privilege of damages related to Hurricane Irma more than two years after the hurricane occurred and that repairs had been made to Bensen's roof in the intervening time. Privilege asserted that the late notice of the claim and the prior repairs to the roof substantially prejudiced its ability to complete an inspection of Bensen's property to evaluate the claim.

After Privilege denied this claim, Bensen filed suit against Privilege for breach of the insurance policy. During the litigation, Bensen hired Professional Engineer Daniel Moss (“Moss”) to perform an inspection of the roof. In an affidavit submitted by Bensen in opposition to Privilege's motion for summary judgment, Moss testified that he detected “easily observable damage consistent with wind in the form of cracked and broken tiles, loosened and displaced tiles, pulled fasteners, and signs of uplift, and chatter breakage patterns.” While Moss observed some recently performed temporary repairs to the roof, “[g]iven the condition of the home, the limited scope of temporary repairs performed to the roof, and the photos and materials available, [Moss] was able to confidently make a determination regarding the cause and nature of the damages.” Moss reached the conclusion that the damages to the roof were caused by Hurricane Irma. Moss recommended that the roof be replaced in its entirety.

Privilege filed a Motion for Summary Judgment based on, among other things, failure to provide prompt notice of the claim as required by the insurance policy. The trial court granted the motion and dismissed the case with prejudice. This appealed followed.

Legal Standard

We review the trial court's order granting a motion for summary judgment de novo. Brevard Cnty. v. Waters Mark Dev. Enters., LC, 350 So. 3d 395, 399 (Fla. 5th DCA 2022), reh'g denied (Nov. 8, 2022). “[S]ummary judgment is appropriate where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. at 398. “[A]n issue of fact is ‘genuine’ only if a reasonable jury could return a verdict for the nonmoving party.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotations omitted)). “A fact is ‘material’ if the fact could affect the outcome of the lawsuit under the governing law.” Id.

“The moving party bears the initial burden of identifying those portions of the record demonstrating the lack of a genuinely disputed issue of material fact.” Waters Mark Dev., 350 So. 3d at 398. “If the movant does so, then the burden shifts to the non-moving party to demonstrate that there are genuine factual disputes that preclude judgment as a matter of law.” Id. “To satisfy its burden, the non-moving party must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. (quoting Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (internal quotations omitted)). “To do so, the non-moving party must go beyond the pleadings and ‘identify affirmative evidence’ that creates a genuine dispute of material fact.” Id. (quoting Crawford–El v. Britton, 523 U.S. 574, 600 (1998)).

“In determining whether a genuine dispute of material fact exists, the court must view the evidence and draw all factual inferences therefrom in a light most favorable to the non-moving party and must resolve any reasonable doubts in that party's favor.” Waters Mark Dev., 350 So. 3d at 398. “Summary judgment should only be granted where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Id. at 398-99 (quoting Matsushita, 475 U.S. at 587 (internal quotations omitted)).

Privilege's Motion for Summary Judgment

The insurance policy purchased by Bensen from Privilege contained the following provision:

In the event of a loss for which coverage may be provided under this policy, you․must․[g]ive prompt notice to us or our agent, except that a claim, supplemental claim or reopened claim for loss or damage caused by hurricane or other windstorm must be given to us in accordance with the terms of this policy within three years after the hurricane first made landfall or a windstorm other than hurricane caused the covered damage․Any initial, supplemental or reopened claim for loss or damage caused by hurricane or other windstorm is barred if notice of the claim in accordance with this Paragraph is not provided.

“The failure of an insured to give a timely notice of loss in contravention of a policy provision is a legal basis for the denial of recovery under the policy.” Cordero v. Fla. Ins. Guar. Ass'n, 354 So. 3d 1150, 1153 (Fla. 2d DCA 2023) (quoting LoBello v. State Farm Fla. Ins., 152 So. 3d 595, 599 (Fla. 2d DCA 2014)).

“Prompt” is not defined in the policy issued by Privilege to Bensen. “It is well settled, however, that ‘prompt’ and other comparable phrases, like ‘immediate’ and ‘as soon as practicable,’ do not require instantaneous notice.” Laquer v. Citizens Prop. Ins., 167 So. 3d 470, 474 (Fla. 3d DCA 2015) (quoting Cont'l Cas. Co. v. Shoffstall, 198 So. 2d 654, 656 (Fla. 2d DCA 1967)). “Instead, Florida courts have interpreted these phrases to mean that notice should be provided with reasonable dispatch and within a reasonable time in view of all of the facts and circumstances of the particular case.” Id. (quoting Yacht Club on the Intracoastal Condo. Ass'n. v. Lexington Ins., 599 F. App'x. 875, 879 (11th Cir. 2015) (internal quotations omitted)). “[T]he duty to provide notice arises when a reasonable person, viewing all available facts and information, would conclude that an award implicating the policy is likely.” Cordero, 354 So. 3d at 1153 (quoting LoBello, 152 So. 3d at 599); see also Navarro v. Citizens Prop. Ins., 353 So. 3d 1276, 1279–80 (Fla. 3d DCA 2023); Laquer, 167 So. 3d at 474 (“Notice is necessary when there has been an occurrence that should lead a reasonable and prudent person to believe that a claim for damages would arise.” (quoting Ideal Mut. Ins. v. Waldrep, 400 So. 2d 782, 785 (Fla. 3d DCA 1981) (internal quotations omitted))).

The Supreme Court of Florida has set forth a two-step process to determine whether an insurance company may deny an insured's claim on the ground that the insured failed to give the insurance company timely notice of the claim as required by an insurance policy. See Bankers Ins. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985). “The first step in the analysis is to determine whether or not the notice was timely given.” LoBello, 152 So. 3d at 599. If the notice was timely given, then the analysis concludes at the first step. Id. If the notice was not timely, then the second step is to determine whether the insurance company suffered prejudice as a result of the untimely notice. Id. At the second stage of the analysis, prejudice to the insurer is presumed. Id. If notice was not timely, the burden of overcoming the presumption of prejudice is on the insured. Id. However, the insured may rebut the presumption of prejudice by showing that the insurer was not prejudiced by the lack of timely notice. Id. “If the insured is unable to overcome the presumption of prejudice, then the insurer will prevail on a defense of untimely notice.” Id.

In this case, Bensen contends that the trial court erred by: (1) failing to follow the two-step process set forth above by skipping the first step and failing to make a determination as to whether the notice was timely; (2) granting summary judgment in favor of Privilege on the issue of whether Bensen provided prompt notice; and (3) granting summary judgment in favor of Privilege on the issue of whether Bensen overcame the presumption of prejudice that arose as a result of Bensen's failure to provide the insurance company with prompt notice of the claim.

As an initial matter, we reject Bensen's argument that the trial court failed to follow the two-step process required by the Florida Supreme Court's precedent. The trial court's order granting Privilege's motion for summary judgment explicitly found that there was no genuine issue of material fact that Bensen did not provide prompt notice of his claim to Privilege. The trial court supported that conclusion of law with specific findings of fact. Therefore, the trial court properly followed the two-step process required by Florida Supreme Court precedent.

Whether the trial court's conclusion can be squared with the record in this case is another matter. We find that it cannot.

“[W]hether an insured has given ‘prompt’ notice is generally a question of fact for the jury.” Guzman v. S. Fid. Ins., 332 So. 3d 67, 70-71 (Fla. 2d DCA 2021) (citing LoBello, 152 So. 3d at 599-600 (“All of the Florida cases bearing upon the question of the requirement of notice being given to the insurer seem to be uniform in the proposition that what is a reasonable time depends upon the surrounding circumstances and is ordinarily a question of fact for the jury․The determination of whether the insured gave timely notice to the insurer is ordinarily a question to be resolved by the jury or the trial judge when acting as the trier of the facts.”)).

In this case, there was disputed evidence regarding whether a reasonable person in Bensen's position would have concluded that he had a claim under his insurance policy any time significantly earlier than when Bensen gave notice to Privilege of the claim. Bensen submitted an affidavit in which he testified that he did not learn that the damage to his roof was the result of Hurricane Irma until January 2020. Prior to January 2020, none of the multiple persons knowledgeable about roofs that inspected Bensen's roof concluded that the damage to the roof resulted from Hurricane Irma. There is no evidence that, prior to January 2020, anyone told Bensen that the damage to his roof may have been caused by Hurricane Irma. Privilege's own adjuster inspected Bensen's roof in September 2019 and observed damages that she attributed to wear and tear. She did not cite any damage that she attributed to a hurricane, nor did any of the other persons that inspected the roof prior to January 2020.

Privilege places great emphasis on the fact that Bensen was aware of damage to his home as early as March 2019. Privilege points to the multiple repairs made to the home between March 2019 and January 2020 when Bensen ultimately gave notice to Privilege of the claim for damage resulting from Hurricane Irma. However, the fact that Bensen's home was damaged does not speak to whether that damage was the result of some cause covered by his insurance policy, which like all insurance policies, did not cover wear and tear. The question is not whether Bensen was aware of damage to his home, but whether a reasonable person would have been aware that Bensen had a claim implicating his insurance policy. On that issue, the evidence was disputed. See Cordero, 354 So. 3d at 1154 (“Absent any evidence that the supposed triggering event would cause a reasonable insured to believe a policy award was likely, [the insurance company] was not entitled to summary judgment on the issue of untimely notice.”).

Privilege relies on cases involving prompt notice provisions in which courts found that insureds did not give their insurance company timely notice after learning of damage to their property. However, in each of those cases, there was no dispute that the insured was aware that the cause of the damage was of a type covered by the insurance policy. See 1500 Coral Towers Condo. Ass'n. v. Citizens Prop. Ins., 112 So. 3d 541, 543 (Fla. 3d DCA 2013) (Insured had knowledge of damage covered by the insurance policy but waited to notify the insurer because the insured questioned whether the amount of damages would exceed the policy deductible); Kramer v. State Farm Fla. Ins., 95 So. 3d 303, 304 (Fla. 4th DCA 2012) (Insureds were aware of damage caused by a hurricane but did not give notice to the insurer because insureds believed that the amount of damages was below their deductible); Tamiami Condo. Warehouse Plaza Ass'n. v. Markel Am. Ins., 19-CV-21289, 2020 WL 1692177, at *2 (S.D. Fla. Feb. 24, 2020) (Insured “was aware of damage caused by Hurricane Irma in close proximity to the time of the occurrence of Hurricane Irma” but waited seven months to notify the insurance company).

While Bensen was indisputably aware of damage to his roof as early as March 2019, unlike in the cases relied upon by Privilege, Bensen denies being aware that the damage was the result of a cause covered by his insurance policy, as opposed to being caused by wear and tear, and there was conflicting evidence regarding whether his belief was reasonable. For this reason, the trial court erred by granting Privilege's motion for summary judgment.


The trial court's order granting Privilege's motion for summary judgment and dismissing the case below with prejudice is reversed and this case is remanded to the trial court for further proceedings. Because we determine that there is a genuine dispute of fact regarding whether Bensen gave timely notice to Privilege as required by the insurance policy, we do not reach the issue of whether the trial court erred by granting summary judgment on the issue of whether Privilege suffered prejudice as a result of the lack of timely notice.



1.   This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.


SASSO, M.L., Associate Judge, concurs. TRAVER, C.J., concurs in result only.

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Docket No: Case No. 6D23-464

Decided: May 26, 2023

Court: District Court of Appeal of Florida, Sixth District.

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