IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA. Petitioner, S.C. Case No.: SC DCA Case No.: 5D v. L.T. Case No.

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1 Filing # Electronically Filed 04/21/ :09:09 PM RECEIVED, 4/21/ :13:38, John A. Tomasino, Clerk, Supreme Court STATE FARM FLORIDA INSURANCE COMPANY, IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA Petitioner, S.C. Case No.: SC DCA Case No.: 5D v. L.T. Case No.: 2012-CA A MARK HAMILTON, Respondent. / PETITIONER S JURISDICTIONAL BRIEF On Review from the District Court of Appeal, Fifth District, State of Florida Scot E. Samis Fla. Bar No Traub Lieberman Straus & Shrewsberry LLP 360 Central Avenue, 10th Floor Post Office Box 3942 St. Petersburg, Florida (727) telephone (727) facsimile flpleadings@traublieberman.com ssamis@traublieberman.com cbunsa@traublieberman.com

2 TABLE OF CONTENTS Page(s) Table of Citations iii-iv Statement of the Case and Facts 1 Summary of the Argument 2 Jurisdictional Statement 3 Argument 3 Conclusion 7 Certificate of Service 8 Certificate of Compliance 8 ii

3 TABLE OF CITATIONS Cases: Page(s) Amica Mutual Ins. Co. v. Drummond, 970 So. 2d 456, 459 (Fla. 2d DCA 2007) 6 Bankers Ins. Co. v. Macias, 475 So. 2d 1216 (Fla. 1985) 2, 4 City Management Group Corp. v. American Reliance Ins. Co., 528 So. 2d 1299 (Fla. 3d DCA 1988) 6 Collins v. State, 26 So. 3d 1287 (Fla. 2009) 4 Edwards v. State Farm Fla. Ins. Co., 64 So. 3d 730 (Fla. 3d DCA 2011) 6 Ford Motor Company v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981) 5 Goldman v. State Farm Fire General Insurance Company, 660 So. 2d 300 (Fla. 4 th DCA 1995) 6 Hamilton v. State Farm Florida Ins. Co., 39 Fla. L. Weekly D 559 (Fla. 5 th DCA, March 14, 2014) 1, 3 Hamilton v. State Farm Florida Ins. Co., 2013 Fla. App. Lexis (Fla. 5 th DCA November 12, 2013) 1 Kramer v. State Farm Florida Ins. Co., 95 So. 3d 303 (Fla. 4 th DCA 2012) 6 Soronson v. State Farm Florida Ins. Co., 96 So. 3d 949 (Fla. 4 th DCA 2012) 5-6 State Farm Mutual Automobile Insurance Company v. Curran, 2014 Fla. Lexis 980 (Fla. March 13, 2014) 6-7 Steadman v. Liberty Mutual Ins. Co., 932 So. 2d 1034 (Fla. 2006) 3, 4 iii

4 Page(s) Whistler s Park, Inc. v. Florida Ins. Guarantee Association, 90 So. 3d 841 (Fla. 5 th DCA 2012), review granted 123 So. 3d 557 (Fla. 2013) 2, 3 Rules: Page(s) Fla. R. App. P (a)(2)(A)(iv) 3 Other Authority: Page(s) Art. V, Section 3(b)(3), Fla. Const. 3 iv

5 STATEMENT OF THE CASE AND FACTS Petitioner seeks review of the Fifth District Court of Appeal s opinion in Hamilton v. State Farm Florida Ins. Co., 39 Fla. L. Weekly D 559 (Fla. 5 th DCA, March 14, 2014), a copy of which is attached as Appendix Exhibit A. Fla. R. App. P (d). Respondent Hamilton sued Petitioner State Farm for benefits under a homeowner s insurance policy. State Farm s defense was based, in part, on Hamilton s breach of multiple policy conditions. Despite receiving two letters that clearly set forth the relevant policy provisions, Hamilton sued State Farm without providing a Proof of Loss form and without providing his expert report or even advising State Farm that he had obtained an expert. As observed in Judge Berger s dissent, Hamilton failed to overcome, or even address, the presumption of prejudice to State Farm in his affidavits in opposition to the Motion for Summary Judgment, and incorrectly argued that it was State Farm s burden to prove prejudice. The trial court granted summary judgment in favor of State Farm. On appeal, the Fifth District initially issued a per curiam affirmance of the summary judgment. Hamilton v. State Farm Florida Ins. Co., 2013 Fla. App. Lexis (Fla. 5 th DCA November 12, 2013). 1

6 On rehearing, in a 2-1 decision, the Fifth District withdrew the affirmance and ruled that the court was bound by its prior decision in Whistler s Park, Inc. v. Florida Ins. Guarantee Association, 90 So. 3d 841 (Fla. 5 th DCA 2012), review granted 123 So. 3d 557 (Fla. 2013). Based on that decision, the court reversed and remanded the case for further proceedings to determine whether State Farm was prejudiced by Hamilton s alleged breach. Judge Berger dissented, noting that State Farm s prejudice was presumed due to Hamilton s breach of a condition precedent to filing suit, citing this Court s decision in Bankers Ins. Co. v. Macias, 475 So. 2d 1216 (Fla. 1985). Judge Berger went on to observe that Hamilton had failed to overcome, or even address, the presumption of prejudice to State Farm and therefore his argument that State Farm suffered no prejudice was without merit. SUMMARY OF ARGUMENT The Whistler s Park decision, which the Fifth District found dispositive in the case at bar, is currently pending before this Court on conflict review. Discretionary review is appropriate for this reason alone. In addition to the Fifth District s reliance on Whistler s Park, the opinion below also expressly and directly conflicts with this Court s decision in Bankers Ins. Co. v. Macias, 475 So. 2d 1216 (Fla. 1985) as well as multiple district court opinions where insurers were entitled to summary judgment on the issue of 2

7 coverage because insureds had breached conditions precedent and failed to overcome the presumption of prejudice. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the supreme court or another district court of appeal on the same point of law. Art. V, Section 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). The Florida Supreme Court s jurisdiction extends to decisions that are based upon cases currently pending review in the Florida Supreme Court. See, e.g., Steadman v. Liberty Mutual Ins. Co., 932 So. 2d 1034 (Fla. 2006). ARGUMENT I. Discretionary review is appropriate because the Fifth District s decision below is based solely on a case currently under review by the Florida Supreme Court. The Fifth District s decision on rehearing is based solely on its prior decision in Whistler s Park, Inc. v. Florida Ins. Guarantee Association, 90 So. 3d 841 (Fla. 5 th DCA 2012), review granted 123 So. 3d 557 (Fla. 2013). Hamilton v. State Farm Florida Ins. Co., 39 Fla. L. Weekly D 559 (Fla. 5 th DCA, March 14, 2014). 3

8 A decision of a district court that is based on a case pending review in the Florida Supreme Court is subject to discretionary review. See, e.g., Steadman v. Liberty Mutual Ins. Co., 932 So. 2d 1034 (Fla. 2006); Collins v. State, 26 So. 3d 1287 (Fla. 2009). By the district court s own logic, a reversal of Whistler s Park would warrant a reversal of the district court s decision in the case at bar. This alone warrants a review of the present case on its merits. II. The Fifth District s opinion is in express and direct conflict with this Court s decision in Bankers Ins. Co. v. Macias and multiple other decisions where insurers were entitled to summary judgment because insureds breached policy conditions and did not overcome the presumption of prejudice. Discretionary review of the decision below would be appropriate even if it were not based on Whistler s Park. As noted in Judge Berger s dissent, the Fifth District s reversal of the summary judgment below is contrary to this Court s landmark decision in Bankers Ins. Co. v. Macias, 475 So. 2d 1216 (Fla. 1985). In Macias, an insured informed her insurer of an accident claim under a policy two years after the date of the accident. On conflict review, this court found that a presumption of prejudice to an insurer arose where an insured failed to give timely notice of an accident to the insurer, noting, The burden should be on the insured to show lack of prejudice 4

9 where the insurer has been deprived of the opportunity to investigate the facts and to examine the insured. Id. at Here, Hamilton breached multiple policy conditions that deprived State Farm of the ability to investigate the claim. Despite receiving two letters that clearly set forth the relevant policy provisions, Hamilton sued State Farm without providing a proof of loss or his expert report. In fact, these matters - including the fact that Hamilton had retained an expert - were not disclosed to State Farm until several months after suit was filed. As observed by Judge Berger, Hamilton failed to overcome, or even address, the presumption of prejudice to State Farm in his affidavits in opposition to the Motion for Summary Judgment, and incorrectly argued that it was State Farm s burden to prove prejudice. This is in direct and express conflict with Macias. It is not necessary that the district court specifically identify conflicting appellate decisions in order to create conflict jurisdiction. Ford Motor Company v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981). It is sufficient if the discussion of the legal principles which the (district) court applied supplies a sufficient basis for a petition for conflict review. Id. Therefore, even in the absence of the conflict created by the citation to Whistler s Park, this Court would have jurisdiction to review the decision below based on its conflict with Macias and multiple district court decisions applying the Macias rule. See, e.g., Soronson v. State Farm 5

10 Florida Ins. Co., 96 So. 3d 949 (Fla. 4 th DCA 2012) (summary judgment in favor of the insurer affirmed based on untimely submission of a sworn proof of loss and late notice; insureds failed to rebut the presumption of prejudice); Kramer v. State Farm Florida Ins. Co., 95 So. 3d 303 (Fla. 4 th DCA 2012) (summary judgment for insurer upheld where insureds did not submit a sworn proof of loss within 60 days and otherwise comply with policy conditions prior to filing suit); Edwards v. State Farm Fla. Ins. Co., 64 So. 3d 730 (Fla. 3d DCA 2011) (summary judgment affirmed where insured failed to comply with policy conditions requiring production of requested documentation and statements under oath); Amica Mutual Ins. Co. v. Drummond, 970 So. 2d 456, 459 (Fla. 2d DCA 2007) (insurer entitled to judgment as a matter of law where insured failed to appear for EUO and filed suit in violation of suit against us provision); Goldman v. State Farm Fire General Insurance Company, 660 So. 2d 300 (Fla. 4 th DCA 1995) (affirming summary judgment in favor of insurer where insureds failed to satisfy policy conditions requiring examinations under oath); City Management Group Corp. v. American Reliance Ins. Co., 528 So. 2d 1299 (Fla. 3d DCA 1988) (insurer entitled to summary judgment where insured did not overcome presumption of prejudice from violating policy condition requiring prompt notice of claim). Petitioner recognizes this Court s plurality decision in State Farm Mutual Automobile Insurance Company v. Curran, 2014 Fla. Lexis 980 (Fla. March 13, 6

11 2014). However, Curran addressed the distinguishable situation where an insured breaches a duty to attend a compulsory medical examination under an uninsured motorist contract, and distinguished that condition subsequent from conditions precedent to coverage that were the topic of Macias. The cases cited for conflict herein remain good law and the decision at bar is not resolved by the Curran opinion. This point is further illustrated by the fact that Whistler s Park remains pending before this Court after the Curran decision. The issues ruled upon in this matter are of wide-ranging importance and continue to be the subject of litigation throughout the state. Accepting jurisdiction of this case would not only allow the decision below to be corrected, but would assist the bar and litigants alike in clarifying the consequences of withholding or concealing information necessary to adjust insurance claims without the need for court intervention. CONCLUSION For the reasons stated, Petitioner respectfully requests this Honorable Court accept jurisdiction and consider this case on its merits. 7

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been served via e- mail to: Raymond T. Elligett, Jr., Esq., elligett@belawtampa.com, scalise@belawtampa.com; Curt Allen, Esq., callen@butlerpappas.com, eservice@butlerpappas.com; and K.C. Williams, III, Esq., kcw@williamspa.com, eservice@williamspa.com, pleadings@williamspa.com, on this 21 st day of April, Scot E. Samis Fla. Bar No Traub Lieberman Straus & Shrewsberry LLP 360 Central Avenue, 10th Floor Post Office Box 3942 St. Petersburg, Florida (727) telephone (727) facsimile flpleadings@traublieberman.com ssamis@traublieberman.com cbunsa@traublieberman.com CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Jurisdictional Brief satisfies the requirements of Florida Rules of Appellate Procedure 9.100(1) and 9.210(a)(2) and is submitted in Times New Roman 14-point font. Scot E. Samis 8