Legal Topics

Insurance — Homeowners — Coverage — Conditions precedent — Post-loss obligations — Prompt notice — Presumption of prejudice to insurer arose when insured reported loss 19 months after discovery of damage to roof eave, insured undertook two failed and undocumented repairs prior to reporting damage, and condition of property worsened over time — Although there may be disputed issues of fact as to whether insurer was prejudiced in determining cause of loss, record forecloses insured’s ability to overcome prejudice to insurer’s ability to evaluate extent of damage — Summary judgment entered in favor of insurer

Apr 14th, 2026 in by admin

Insurance — Homeowners — Coverage — Conditions precedent — Post-loss obligations — Prompt notice — Presumption of prejudice to insurer arose when insured reported loss 19 months after discovery of damage to roof eave, insured undertook two failed and undocumented repairs prior to reporting damage, and condition of property worsened over time — Although there may be disputed issues of fact as to whether insurer was prejudiced in determining cause of loss, record forecloses insured’s ability to overcome prejudice to insurer’s ability to evaluate extent of damage — Summary judgment entered in favor of insurer

ROSA M. GIL, Plaintiff, v. FLORIDA PENINSULA INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2021-018158-CA-01. Section CA06. November 17, 2025. Charles Johnson, Judge. Counsel: Rosie Gil, Your Insurance Attorney, PLLC, for Plaintiff. Oscar Lombana, Salehi Boyer Lavigne Lombana, P.A., for Defendant.CORRECTED ORDERGRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND ENTRY OFFINAL JUDGMENT IN FAVOR OF DEFENDANT

THIS CAUSE came before the Court at hearings held on August 27, 2025, October 8, 2025, and November 6, 2025, on Defendant, Florida Peninsula Insurance Company’s Motion for Final Summary Judgment (hereinafter “Defendant’s Motion”). The Court, having reviewed Defendant’s Motion, Plaintiff’s Response, the pleadings, the evidence submitted by the Parties, the supplemental legal authorities supplied to the Court, and having heard the oral arguments of counsel, Oscar Lombana, Esq. on behalf of Defendant and Rosie Gil, Esq. on behalf of Plaintiff, and being otherwise fully advised in the premises, finds as follows:

I. FINDINGS OF FACT

1. The alleged loss occurred on September 10, 2017 (Hurricane Irma).

2. Plaintiff first observed roof damage and interior staining approximately four to six months later, around February to March 2018. Despite knowing of the damage and undertaking repairs, Plaintiff did not report the claim to Defendant until October 28, 2019, approximately nineteen (19) months after discovery of the damage and more than two years after the storm.

3. In early 2018, Plaintiff hired an unidentified contractor to repair the roof eave, paying in cash with no invoice, receipt, or photographs. Later, Plaintiff hired an unidentified contractor t o repair the interior drywall and paint in the daughter’s bedroom, directly below the repaired eave.

4. Plaintiff kept no receipts, invoices, or photographs and could not identify any contractor who performed the repairs.

5. Plaintiff has not produced any contemporaneous documentation, invoices, or photographs showing the condition of the property immediately after the storm or at the time of her repairs.

6. Plaintiff’s engineer, Al Brizuela, P.E., inspected the property on January 31, 2023, more than five years after the date of loss. He did not view the roof in its original condition and relies primarily on aerial imagery and photographs taken years after the loss. Mr. Brizuela formed his opinion by collecting data and reviewing the following documentation: Elite Adjusters Estimate and Photographs taken on or around the date of reporting of the loss; All State Restoration estimate/invoice and corresponding documentation, November 13, 2019; National Mold Services estimate/invoice and corresponding documentation, January 3, 2020; Florida Peninsula’s Policy with Policy number FPH110901806; property information from the Miami Dade County property appraiser’s office; Hurricane Irma, National Hurricane Center Tropical Cyclone Report, John P. Cangialosi, Andrew S. Latto, and Robbie Berg, National Hurricane Center, 30 Jun 2018; Hurricane Irma Advisory & Graphics Archive, National Hurricane Center; Hurricane Irma 2017 Summary, National Weather Service; ASCE 7-16 Minimum Design Loads and Associated Criteria for Buildings and Other Structures, 06/19/2017; FRSA-TRI Florida High Wind Concrete and Clay Tile Installation Manual — 6th Edition; ASTM C1492-03, Standard Specification for Concrete Roof Tile, 2016; GA-231-2019, Assessing Water Damage to Gypsum Board, Gypsum Association; ANSI/IICRC S520 Standard for Professional Mold Remediation, Third Edition, 2015; ANSI/IICRC S500 Standard and Reference Guide for Professional Water Damage Restoration, Third Edition, 2006; International Conference on Advances in Concrete and Structures by Ying-shu Yuan, Surendra P. Shah, Heng-lin Lu; Florida Building Code, International Code Council, Inc. (ICC), 7th Edition, December 31, 2020; and client photographs.

7. Both Plaintiff and Mr. Brizuela admitted that the damage worsened over time.

8. The Court finds that at least two undocumented repairs were made and failed, the property condition worsened over time, and Defendant was deprived of any opportunity to inspect the property in its original post-loss state.

II. CONCLUSIONS OF LAW

9. Late notice of a claim creates a presumption of prejudice to the insurer under Florida law. See Bankers Ins. Co. v. Macias, 475 So. 2d 1216 (Fla. 1985); 1500 Coral Towers Condo. Ass’n v. Citizens Prop. Ins. Corp., 112 So. 3d 541 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D731b].

10. Once that presumption arises, the insured bears the burden of rebutting it with competent evidence that the insurer’s ability to investigate was not impaired. See Macias, 475 So.2d at 1218.

11. Plaintiff has not presented any competent evidence demonstrating that Defendant could have inspected the property in substantially the same condition as it existed immediately after the loss. Instead, the record confirms that the roof and interior were altered through undocumented repairs and that the condition of the property deteriorated between the time of the storm and the time of notice.

12. The Court finds the reasoning of De La Rosa v. Florida Peninsula Ins. Co., 246 So. 3d 438 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D1116a], directly applicable. As in De La Rosa, while there may be disputed issues of fact as to whether the insurer was prejudiced in determining the cause of the incident, the record forecloses the insured’s ability to overcome the prejudice to the insurer in evaluating the extent of the damage because of the delay in making the claim. Id. at 441.

13. Here, the evidence establishes that the damage worsened over time, the repairs failed, and the insurer was unable to observe the property in its initial condition.

14. Because the evidence shows a nineteen-month delay after discovery of damage, failed and undocumented repairs, and worsening conditions over time, the presumption of prejudice remains unrebutted, and no genuine issue of material fact exists.

WHEREFORE, the Court hereby enters final judgment in favor of Defendant, FLORIDA PENINSULA INSURANCE COMPANY, and against Plaintiff, ROSA M. GIL; the Plaintiff shall take nothing in this action, and the Defendant may go hence without delay; and the Court reserves jurisdiction on Defendant’s entitlement to attorney’s fees and costs pursuant to §768.79, §57.105, and/or §57.041, Fla. Stat. and applicable Florida law.