INDOOR ENVIRONMENTAL RESTORATION NOW, INC. A/A/O CARLOS SARMIENTO AND DANILDA BAEZ
v.
CITIZENS PROPERTY INSURANCE CORPORATION
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Indoor Environmental Restoration Now, Inc. and homeowners Carlos Sarmiento and Danilda Baez appealed a summary judgment granted in favor of Citizens Property Insurance Corporation. The court affirmed, holding that the plaintiffs' affidavits were insufficient to rebut the presumption of prejudice arising from their delay in reporting the property damage claim.
The affidavits were legally insufficient to rebut the presumption of prejudice. Conclusory affidavits lacking factual support cannot overcome the presumption of prejudice that arises when an insurer is unable to determine whether claimed damages result from a covered event due to delay in claim reporting.
[1] Orders granting a motion for summary judgment are reviewed de novo.
[2] Affidavits based entirely upon speculation, surmise, and conjecture are legally insufficient to create a disputed issue of fact in opposition to a motion for summary judg…
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Join FLexlaw to unlock all legal intelligence“Affidavits, such as those presented by plaintiff, which are based entirely upon speculation, surmise and conjecture, are inadmissible at trial and legally insufficient to create a disputed issue of fact in opposition to a motion for summary judgment.”
Establishes the legal standard for evaluating affidavits in summary judgment proceedings—they must contain factual support, not mere speculation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe case involves a property damage claim under an insurance policy with Citizens Property Insurance Corporation. The plaintiffs (Sarmiento and Baez) …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM. Affirmed.
See Gidwani v. Roberts, 248 So. 3d 203, 206 (Fla. 3d DCA 2018) (stating that orders granting a motion for summary judgment are reviewed de novo); Gonzalez v. Citizens Prop.
Ins.
Corp., 273 So. 3d 1031, 1037 (Fla. 3d DCA 2019) (“[A]ffidavits, such as those presented by plaintiff, which are based entirely upon speculation, surmise and conjecture, are inadmissible at trial and legally insufficient to create a disputed issue of fact in opposition to a motion for summary judgment.” (quoting Morgan v. Cont'l Cas.
Co., 382 So. 2d 351, 353 (Fla. 3d DCA 1980)); Navarro v. Citizens Prop.
Ins.
Corp., 353 So. 3d 1276, 1280 (Fla. 3d DCA 2023) (“This bare conclusion, however, was bereft of any factual support.
This court has previously held that conclusory affidavits are insufficient 'to rebut the presumption of prejudice . . . where the passage of time has rendered [the insurer] unable to determine exactly what current damage is directly attributable to' a storm.
Accordingly, Navarro failed to adequately counter the presumption of prejudice." (internal citations omitted)); Perez v. Citizens Prop.
Ins.
Corp., 343 So. 3d 140, 141, 144 (Fla. 3d DCA 2022) (“Perez's failure to report her loss for over two years, and only after she had conducted repairs and failed to keep any records of her claimed repair costs, rendered it impossible for Citizens to determine whether the claimed damages were a result of the claimed covered event. . . . [The] affidavit was insufficient to rebut the presumption of prejudice to Citizens resulting from Ms.
Perez's delay in reporting the claim.
The trial court was therefore eminently correct in its decision to grant summary judgment in favor of Citizens."); Laquer v. Citizens Prop.
Ins.
Corp., 167 So. 3d 470, 474-75 (Fla. 3d DCA 2015) (“[D]amage to Laquer's unit or the interior of the wall was not apparent until several years after Hurricane Wilma: no one, including Laquer, her tenant, her housekeeper, and the condominium manager and his agents who regularly visited Laquer's unit, was able to observe any damage to the wood flooring or walls of the unit prior to September 2008 or was otherwise put on notice to further inspect for damage. . . .
Contrary to Laquer's suggestion, her duty to provide notice under the policy was not necessarily triggered when she became aware of the full extent of the damage or when she determined that Hurricane Wilma was the cause of the damage." (emphasis added)); Castro v. Citizens Prop.
Ins.
Corp., 365 So. 3d 1203, 1207 (Fla. 3d DCA 2023) ("This passage of time was explained by Castro, who averred that the property was occupied by a tenant during that time period, that the tenant never advised Castro of any damage, and that Castro herself was unaware of any damage to her property until the tenant moved out of the property in February 2020.” (emphasis added)); Arce v. Citizens Prop.
Ins.
Corp., 388 So. 3d 205, 210 (Fla. 3d DCA 2024), (“Specifically, Mr. Arce's declaration was legally insufficient because it failed to provide any explanation as to why, for nearly three years, he purportedly was unaware that his home had been damaged by Hurricane Irma.”).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Yosvani Gonzalez and Yenisleidy Perez v. Citizens Prop. Ins. Corp., 273 So. 3d 1031 (Fla. 3d DCA 2019)
- Patience R. Morgan v. Cont'l Cas. Co., 382 So. 2d 351 (Fla. 3d DCA 1980)
- Edie Laquer v. Citizens Prop. Ins. Corp., 167 So. 3d 470 (Fla. 3d DCA 2015)
- Yohandy Varona v. SafePoint Ins. Co., 353 So. 3d 1276 (Fla. 3d DCA 2024)
- Gidwani v. Roberts, 248 So. 3d 203 (Fla. 3d DCA 2018)