7N THE SUPREME COURT OF FLORIDA

CASE NO: SC 14-1846LTR Case No: 4D12-3410

JUDY RODRIGO,

Appellant/Petitioner,v.

STATE FARM FLORIDAINSURANCE COMPANY,

Appellee/Respondent.

PETITIONER'S CORRECTED JURISDICTIQNAL BRIEF

Attorneys for Appellant

Timothy H. CrutchfieldFla. Bar No: 621617MINTZ TRUPPMAN, P.A.1700 Sans Souci BoulevardNorth Miaini, Florida 33181Tel: (305) 893-5506; Fax: (305) 893-5511Primary Email: tim~mintzti~up~man.comSecondary Email:

charles~mintztru~pman.com

Roy W. Jordan, Jr., Esq.Fla. Bar No. 192872ROY W. JORDAN, JR., P.A.324 Datura St., Ste. 223West Palm Beach, FL 33401Tel: 561-471-5505; Fax:561-478-1498Primary Email: r'oi~ dan cr,i jordanlaw.com

Filing # 20035422 Electronically Filed 10/30/2014 04:06:05 PM

RECEIVED, 10/30/2014 16:08:51, John A. Tomasino, Clerk, Supreme Court

'I'AI3LE OF CONTENTS

TABLE OF AUTHORITIES ii

STATEMENT OF THE CASE AND FACTS 1

SUMMARY OF THE ARGUMENT 3

ARGUMENT ~ 5

I. TIC FOURTH DISTRICT'S DECISION IS IN EXPRESS 5DIRECT CONFLICT WITH STATE FARMv. CURRAN

a. The Fourth District's Decision Refused to Follow this 5Court's Holding as to the.Defintion of "ConditionPrecedent"

b. The Fourth District's Conclusion that a SPOL is a 6Condition Precedent to Suit is Contta~y to the holdingin Curran

II. THE FOURTH DISTRICT'S DECISION IS IN 8EXPRESS DIRECT CONFLICT WITH CASES HOLDINGA SPOL IS WAIVED WHERE INSURER ADMITSLIABILITY IN AN UNGREED AMOUNT

III. THE FOURTH DISTRICT'S DECISION AFFIRMING 9SUMMARY JUDGMENT ON RODRIGO' S PERSONALPROPERTY CLAIM IS IN EXPRESS DIRECT CONFLICTWITH R UDERMAN's REQUIRIV~NT THAT THEREASONABLE CONSTRUCTION FAVORABLE TOINSURED MUST BE APPLIED

CONCLUSION

CERTIFICATE OF SERVICE

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11

CERTIFICATE OF FONT 11

TABLE OF AUTHORITIES

Cases:

Bear v. New.Ie~̂ seylnszcr^ance Co., 189 So. 252 (1939)........ .................4,8

Berkshire Life Insurance Co. v. Adelbe~g, 698 So.2d 828 ..............................10(F1a.1997)

D & SRealty, Inc. v. Ma~kellns. Co., 789 N.W.2d 1, 9-10 (2010) ....................6

Hamilton v. State Farm Flcr. Ins. Co., 39 Fla. L. Weelcly D559 ........................7(Fla. 5th DCA 2014)

K~ame~ v. State Farm Fla. Ins. Co., 95 So.3d 303 (Fla. 4th DCA 2012) .............6,7

Lr'ncoln Fire Ins. Co. of N. Y v. Hzcr°st, 150 So. 722, 724 (Fla. 1933) ....................8

Llerena v. Lumberman's Mutual Cas. Co., 379 So.2d 166 ....... .......................8(Fla 3d DCA 1980)

So~onson v. State Farm Fla. Ins. Co., 96 So.3d 949 ...................................6,7(Fla. 4`~' DCA 2012)

State Farm v. Cu~~°an, 135 So.3d 1071 (Fla. 2014) ..............................3,4,5,6,7

State FaNm Mut. Auto. Ins. Co. v. Curran, 83 So. 3d 793 ...............................7(Fla. 5th DCA 2011) approved, 135 So. 3d 1071 (Fla. 2014).

Washington Nat. Ins. CoNp. v. RZCdet~man, 117 So. 3d 943, 950 (Fla. 2013).......4,10

Whistle's Pa~lc, Inc. v. Florida Ins. Gztar. Assn, 90 So. 3d 841 .......................7(Fla. 5th DCA 2012); Neview granted, 123 So. 3d 557 (Fla. 2013}

Ctatiitac

Fla. Stat. §627.426 (2007) ................................................................4,8

Tt'PAt1 CPC

31 Fla. Jur. 2d Insurance § 2686 (2013) ...................................................5

STATEMENT OF THE CASE AND FACTS1

Petitioner, Judy Rodrigo ("Rodrigo"), seeks review of the Fourth District's

decision in RodNigo v. State Farm, 144 So.3d 690, (Fla. 4th DCA 2014}, which

affirmed summary judgment entered in favor of State Farm Florida Insurance

Company ("State Fa~•m") on litigation arising from Rodrigo's property insurance

claim.

Rodrigo's home {a condominium unit) was damaged under very unfortunate

circumstances. Her neighbor died, and time passed before the body was

discovered. (App. 2.) During that time, the deceased's body "underwent advanced

decomposition" and "the internal contents of her body explosively expanded and

leaked." (App. 3.) The bodily fluids infiltrated the walls into the insured's home

and caused damage. (App. 2.) Ms. Rodrigo made a claim under her property

insurance policy for damage to her home and to her personal property. (App. 1.)

Rodrigo provided State Farm bills, invoices and other documents to prove

her• damages. (App. 4.) State Farm tendered payment for the damage to Rodrigo's

home, but denied liability for personal prope~~ty damage. (App. 2.) 2

I This statement is derived from the Fourth District's decision, attached andreferenced as (App. 1-6). All emphasis is added unless otherwise stated.2 State Farm's "adjuster contacted a contractor, who inspected the unit and signedan appraisal award." This was the amount State Farm tendered as payment. (App.2) A close reading of the facts in the decision reveals that neither of the personsinvolved in the "appraisal" was identified as someone Rodrigo appointed. Rodrigodid not accept the amount State Farm tendered as an "appraisal award." (App. 2.)

1

Rodrigo filed suit alleging State Farm breached its contract by failing to pay

the amount necessary to repair her home and by denying coverage for damaged

personal property. (App. 2.) Although State Farm previously tendered payment for

the damage to Rodrigo's home (App. 2.), it moved for summary judgment

asserting Rodrigo failed to comply with a condition precedent of submitting a

sworn proof of loss form {"SPOL"). {App. 3.} Rodrigo responded that State Farm

waived the SPOL by tendering payment for the damage to her home. (App. 3.) She

also argued that she had provided the documentation needed to prove her damages

by providing bills, estimates, invoices and other documents. (App. 4.). The trial

court held State razor was entitled to summary judgment because Rodrigo did not

submit a SPOL form. (App. 3.)

State Farm also moved for summary judgment on Rodrigo's claim for

personal property damage. The policy covered personal property damage resulting

from named perils. "Explosion" is a named peril. Rodrigo sought coverage under

that provision where "the internal contents of [the deceased's] body explosively

expanded and lealced." (App. 3.) The trial court granted State Farm's motion for

summary judgment (App. 3), and the Fourth District affirmed after concluding the

term "explosion" does not include "the explosive expansion of a decomposing

body." (App. 6.)

2

The Fout-th District also affirmed the summary judgment entered on the

grounds that Rodrigo did not submit a SPOL form. The FauY-~h District concluded:

1) Rodrigo had an affirmative duty to provide a SPOL {App. 5)3; 2) Submission of

a SPOL form is a condition precedent to suit(App. 3-4); 3) An insurer does not

need to show prejudice when the insured breaches a condition precedent to suit;

(App 3); 4) State Fain did not waive the SPOL requirement by tendering payment

in an unagreed amount (App. 4),

SUMMARY OF THE ARGUMENT

As this Court recently held, "A condition precedent is one that is to be

performed before the contract becomes effective." State Farm v. Cu~~an, 13 S

So.3d 1071 (Fla. 2014). In the case below, the Fourth District expressly refused to

apply this definition and held that a post loss obligation that can only be performed

after the policy becomes effective is a condition precedent. The decision below

also conflicts with Cur~an's holding that a policy provision stating an insured

cannot file suit without satisfying all terms of the policy does not turn a condition

subsequent into a condition precedent. Curran, 135 So.2d at 147$-9.

In addition, the decision below severely disrupts the well-established

holding that an insurer waives post-loss obligations by tendering payment in an

3 The Court distinguished this affirmative duty from a duty required to be satisfied uponrequest. The Fourth District thus concluded coverage could be forfeited even if StateFarm never raised any concern about the lack of a SPOL. (App. 5)

K~

unagreed amount. Bear v. New .~ersey Insurance Co., 13 8 Fla. 1098, 189 So. 252

(1939). Section 627.426(1), Fla. Stat. (2007), provides that the ~~`[~C1.99 of "engaging

in negotiations" does not cause a waiver of policy provisions. The Fourth District

has held that the act of "tendering payment" falls under this provision and that an

insurance company thus cannot waive a policy condition by tendering payment.

(App. 4.) In addition to the fact that the act of tendering a payment and the act of

"engaging in negotiations" are very different acts, this holding directly conflicts

with the established law of Florida.

Finally, by selecting a more limited definition of "explosion" over broader

definitions that would apply to a decomposing body exploding or bursting open,

the Fourth District was in express direct conflict with this Court's holding that

where "one reasonable interpretation of the policy provisions would provide

coverage, that is the construction which must be adopted." Washington Nat. Ins.

Copp. v. Ruderman, 117 So. 3d 943, 950 (Fla. 2013).

4

ARGUMENT

Y. THE FOURTH DISTRYCT'S DECISION YS IN EXPRESS DIRECTCONFLICT WITH STATE FARM v.CURRAN

a. The Fourth District's Decision Refused to Follow this Court'sHolding as to the Definition of "Condition Precedent"

In State Farm v. Curran, 135 So.3d 1071 (Fla. 2014}, this Court

unambiguously established the difference between "conditions precedent" and

"conditions subsequent" by holding:

The terms "condition precedent" and "condition subsequent" aredefined as follows in Florida:

A condition precedent is one that is to be performedbefore the contract becomes effective. Conditionssubsequent are those that pertain not to the attachment ofthe risk and the inception of the policy but to the contractof insurance after the risk has attached and during theexistence thereof. A condition subsequent presupposes anabsolute obligation under the policy and provides that thepolicy will become void, or its operation defeated orsuspended, or the insurer relieved wholly or partiallyfrom liability, upon the happening of some event or thedoing or omission of some act.

Curran, 135 So.3d at 1078, quoting 31 Fla. Jur.2d Insurance § 2686 (2013). Noting

that the policy at issue in Curran was an uninsured motorist policy, the Fourth

District declined to apply these definitions in evaluating whether a policy condition

was a condition precedent or a condition subsequent.

The Fourth District erred in concluding that the meaning of these legal terms

vary depending on the type of insurance contract involved in case. Regardless of

5

which type of insurance policy is at issue, the definitions of "condition precedent"

and "condition subsequent" remain the same.

In fact, Curran cited a property insurance case, D & S Realty, Inc. v. Marlcel

.Ins. Co., 789 N.W. 2d 1, 9-10 (2010), expressly fox• the purpose of establishing

examples of conditions precedent. In addition to applying the same definition of

condition precedent to a property insurance claim, D & S Realty gave examples of

conditions precedent and subsequent in the context of health and life insurance

policies. CurNan thus recognized that the definitions apply regardless of the type of

policy involved. The variable between different policies is not in the definitions of

legal terms -- it is in determining how the relevant conditions in each policy are to

be classified when these definitions are applied.

b. The Fourth DistNict's Conclusion that cz SPOL is a Condition

Precedent to Suit is Cont~a~y to the holding in Curran

Instead of following this Court's holding that "[a] ̀ condition precedent' is

one that is to be performed before the contract becomes effective," Curran, 13 5

So.3d at 1078, the Fourth District concluded that a post loss obligation can be a

condition precedent. Relying on this its decisions in Soy°onson v. State FaNn2 Fla.

Ins. Co., 96 So.3d 949 (Fla. 4t'' DCA 2012), and K~ame~ v. State Farm Fla. Ins.

Co., 95 So.3d 303 (Fla. 4th DCA 2012), the Fourth District's decision states: "Proof

of loss is a condition precedent to an insured's suit against an insurer." (App. 3-4.)

However, the Fourth District ovei•loolced two critical points: 1) both Soronson and

C.~

Kramer reached this conclusion based upon the "no action" language within State

Farm's "Suit Against Us" clause, Kramer, 95 So. 3d at 306; Soy°onson, 96 So. 3d at

952; and 2) Czc~~an held that such "Suit Against Us" clauses do not make post loss

obligations "conditions precedent."

In Cur~~an, this Cout-t roundly rejected the argument that the "no action"

language in a "Suit Against Us" clause makes compliance with post-loss

obligations a condition precedent to suit.

[T]he "no action" language in the policy applies to every term of thepolicy, regardless of whether the insui•ed's duties are capable of beingperformed prior to filing an action against the insurer. Consequently,adherence to State Farm's argument would turn every duty,including the duty to assist and cooperate, considered a conditionsubsequent in Mrrcins, into a condition precedent to coverage andsuit. Macias, 475 So.2d at 1218 (failure to cooperate is a conditionsubsequent and it is proper to place the burden of showing prejudiceon the insurer).

Cu~Yan, 135 So.3d at 1078-9. The Fourth District's decision below thus is in -

express direct conflict with Cur~an.In addition, the decision below is in express

direct conflict with the Fifth District's recent decisions in Hamilton v. State F'a~m

Fla. Ins. Co., 39 Fla. L. Weekly D559 (Fla. 5th DCA 2014); Whzstle~'s PaY1~, Inc.

v. Florida Ins. Guar. Assn, 90 So. 3d 841, 846 (Fla. Sth DCA 2012); review

granted, 123 So. 3d 557 (Fla. 2013); State Farm Mut. Auto. Ins. Co. v. Curran, 83

So. 3d 793, 803 (Fla. 5th DCA 2011) approved, 13S So. 3d 1071 (Fla. 2014).

7

II. THE FOURTH DISTRICT'S DECISION IS IN EXPRESS DIRECTCONFLICT WITH CASES HOLDING A SPOL IS WAIVED WHEREINSURER ADMITS LIABILITY IN AN UNGREED AMOUNT

State Farm investigated the loss and tendered payment for the damages to

Rodrigo's home. (App. 2.) Rodrigo filed suit asserting State Farm did not tender

"the amount necessary to repair and remediate her unit." (App. 2.) The dispute

underlying this litigation was not over whether the loss was covered —State Farm

acknowledged coverage by tendering an amount it contended sufficiently

compensated for the loss. The dispute was over how much should have been paid.

"The law is well established that when an insurer admits liability in an

unagreed amount, formal pz~oof of loss is thereby waived." Llerena v.

Lumbermczn's Mutual., 379 So.2d 166 (Fla 3d DCA 1980). See also Bear v. New

..Fersey Ins.138 Fla. 1098, 189 So. 252 (1939) (admission of liability in unagreed

amount waives further policy requirements}; Lincoln Fire Ins. Co. of N.Y v. Hurst,

150 So. 722, 724 (Fla. 1933) (offering payment in settlement of claim and refusing

to pay .more waived proof of loss). In express direct conflict with each of these

decisions, the Fourth District held State Fa~~n did not waive the SPOL where it

admitted liability by tendering an amount asserts sufficiently covered the loss.

Contrary to the cases cited above, the Fourth District concluded that

tendering payment in an unagreed amount does not result in a waiver because

section 627.426(1), Fla. Stat. (2007), provides that the act of engaging in

8

negotiations is not deemed to constitute a waiver of a policy provision. While the

act of negotiating standing alone would not constitute a waiver, the cases cited

above establish that the act of tending payment for an amount that the insured does

not agree to be sufficient does result in a waiver.

III. THE FOURTH DISTRICT'S DECISION AFFIRMING SUMMARYJUDGMENT ON RODRIG~'S PERSONAL PROPERTY CLAIMIS IN EXPRESS DIRECT CONFLICT WITH. RUDERMAN'sREQUIRMENT THAT THE REASONABLE CONSTRUCTIONFAVORABLE TO INSURED MUST BE APPLIED

The policy provided personal property coverage for named perils, including

"Explosion," an undefined term. (App. 5.) State Farm moved for summary on the

personal property claim arguing that a decomposing body was not a named peril.

Rodrigo responded that her claim was under the explosion peril, and she submitted

a physician's affidavit establishing that "the internal contents of [the deceased's]

body explosively expanded." {App. 3.) Nevet-theless, the trial count granted State

Farm's summary judgment motion.

The Fourth District affirmed based on its holding that it was Rodrigo's

burden to prove that the term "explosion" applied and that

...The plain meaning of the term "explosion" does not include adecomposing body's cells explosively expanding, causing leakage ofbodily fluids.

(App 5.) (emphasis added). When it comes to the issue of whether a decomposing

body can explode, State Farm had the burden of establishing that there is not a

D

single reasonable meaning of the word "explosion" that could apply. As this Court

recently held: "where, as here, one reasonable interpretation of the policy

provisions would provide coverage, that is the construction which must be

adopted." Washington Nat. Ins. Corp. v. Ruder°man, 117 So. 3d 943, 950 (Fla.

2013), quoting Berkshire Life Insurance Co. v. Adelbe~g, 698 So.2d 828

(F1a.1997)). Therefore, the only way that State Farm would be entitled to summary

judgment would be if it established that there is no reasonable interpretation of the

word "explosion" that could apply to a body. Despite this well established rule of

construction, the Fourth District affirmed the summary judgment by choosing to

rely on a limited definition of explosion. (App. 6.) Contrary to the Fourth District's

decision, a plain meaning of the term "explosion" can apply to a decomposing

body, be it the bloated body of a beached whale or a human body.

COIeTCLUSION

The Fourth District's decision expressly and directly conflicts with

controlling decisions of this Court on the legal definition of "condition precedent,"

on whether the tender of payment in an unagreed amount waives the SPOL

requirement, and on the requirement that a reasonable interpretation favorable to

the insured must be the interpretation used to resolve an ambiguity. Petitioner

therefore requests the Court to: 1) accept jurisdiction; 2) establish a briefing

schedule on the merits; and 3} quash the Fourth District's decision.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was served on Anthony

Russo, Esq., Butler, Pappas, Weihmuller I{atz Craig, LLP, 777 S. Harbour Island

Blvd., Ste. 500, Tampa, FL 33602, arusso~butlerpa~pas.com;

eservice cr,butleipappas.com by e-mail this 30111 day of October 2014.

M1NTZ TRUPPMAN, P.A.Attorneys for Plaintiffs1700 Sans Souci BoulevardNorth Miarni, FL 33181Telephone: (305) 893-SSQ6Telefacsimile: (305) 893-5511tim cr,mintztrupptnan.com2"a: Charles@mintztruppman.com

By: /s/ Timothy H. CrutchfieldTimothy H. CrutchfieldFlorida BaY- No. 621617

CERTIFICATION OF TYPE SIZE AND FONT

I HEREBY CERTIFY that the type size and font utilized in this briefis New Times Roman, 14 pt.

By:_/s/ Timothy H. CrutchfieldTimothy H. Crutchfield

11

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

JUDY RODRIGO,Appellant,

►+~

STATE FARM FLORIDA INSURANCE COMPANY,

Appellee.

No. 4D 12-3410

[August 20, 2014]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, PalmBeach County; John S. Kastrenakes, Judge; L.T. Case No.502008CA019828XX~~~MB.

Roy W. Jordan, Jr. of Roy W. Jordan, Jr., P.A., West Palm Beach, forappellant.

Anthony J. Russo, Jared M. Krukar and Curt Allen of Butler PappasWeihmuller Katz Craig LLP, Tampa, for appellee.

On Motion for Rehearing,Rehearing En Banc, and For Certification

MAY, J.

We deny the insured's motion for rehearing, rehearing en Banc, and forcertification. We do however withdraw our previously issued opinion andsubstitute this opinion in its place.

An insured appeals an adverse final summary judgment on her claimfor property damage to her condominium, its contents, and relatedexpenses. She argues the trial court erred in entering summary judgmentbecause: (1) the insurer waived a condition precedent, the sworn proof ofloss requirement; and (2) her personal property was covered because the

App.001

damage was caused by a named peril, an "explosion."1 We disagree andaffirm.

The insured's next door neighbor died, and time passed before the bodywas discovered. During that time, the decomposed body leaked bodilyfluids, which infiltrated the walls and the insured's apartment causingdamage. This is the event that gave rise to the insured's claim.

The insurance policy required the insured to file a sworn proof of losswithin 60 days of the date of loss. While the insured sent invoices andlists of damages, no one disputes that she failed to file a sworn proof ofloss. The policy further provided:

Loss Payment. We will adjust all losses with you.... Losswill be payable 60 days after we receive your proof of loss and:

a. reach agreement with you;b. there is an entry of a final judgment; orc. there is a filing of an appraisal award with us.

None of these events occurred. However, the insurer's adjustercontacted a contractor, who inspected the unit and signed an appraisalaward. The insurer then tendered payment to the insured for that amount,but denied liability for personal property damage. The insured did notaccept the payment.

The insured filed atwo-count complaint against the insurer. The firstcount alleged that the appraisal was invalid, and requested the court tomodify or vacate the award, or appoint new appraisers and a neutralumpire for a second appraisal. In the second count, the insured allegedthat the insurer breached its contract by failing ~o pay the owner theamount necessary to repair and remediate her unit, to compensate her fordamage ~o her personal property, and for living expenses.

In its amended answer, the insurer pled that the insured had:

(1) materially breached her duty to satisfy conditionsprecedent;

i The insured raises other issues, which we find lack merit. While we agree withthe insured on the insufficiency of the insurer's affidavits, it does not alter theoutcome of the case. Our decision turns on the plain reading of the insurancepolicy and the agreed upon facts.

App.002

(5) failed to satisfy all policy provisions before bringing legalaction; and

(6) otherwise failed to comply with her contractualobligations.

The insurer moved for partial summary judgment on the issue ofcoverage for personal property damage. While acknowledging that theinsured made a claim for personal property damage, the insurer arguedthe policy covered personal property damage only for named perils, and adecomposing body was not one of them. The insured responded that theclaim resulted from an "explosion," a named peril under the policy. Shesupplied an affidavit of a licensed physician, who attested that thedeceased's body "underwent advanced decomposition" and "the internalcontents of her body explosively expanded and leaked."

T'he insurer also moved for summary judgment on whether the insuredfailed to comply with a condition precedent—submitting a sworn proof ofloss—constituting a material breach of the insurance policy. Because theinsurer and insured never reached an agreement, no final judgment wasentered, and no valid appraisal award existed, there was no coverage forthe claims. The insured responded, in part, that the insurer had waivedthe "sworn proof of loss" requirement by tendering payment to the insured,and that other genuine issues of material fact precluded entry of asummary judgment.

The trial court entered a single final summary judgment for the insurer,finding that the insurer did not waive the condition precedent of a swornproof of loss, there was no coverage, and the damage caused by thedecomposing body did not constitute an "explosion" as a named peril.From this summary judgment, the insured now appeals.

The standard of review governing a trial court's ruling on a motion forsummary judgment based upon the interpretation of an insurance policyis de novo. Chandler v. Geico Indem. Co., 78 So. 3d 1293, 1296 (Fla. 2011).

The insured argues that the trial court erred by entering summaryjudgment because the insurer did nod show that it was prejudiced by theinsured's failure to submit a sworn proof of loss. We disagree.

"[A]n insurer need not show prejudice when the insured breaches acondition precedent to suit." Goldman v. State Farm Fire Gen. Ins. Co., 660So. 2d 300, 303 (Fla. 4th DCA 1995). Proof of loss is a condition precedent

3

App.003

to an insured's suit against an insurer. Soronson v. State Farm Fla. Ins.Co., 96 So. 3d 949, 952 (Fla. 4th DMA 2012); Kramer v. State Fat-m Fla.Ins.. Co., 95 So. 3d 303, 306 (Fla. 4th DCA 2012).

While the insured argued that she provided the insurer with bills,estimates, invoices, and other documents to prove her damages, she failedto file a sworn proof of loss. Therefore, the insured materially breached acondition precedent, and the insurer was not obligated to pay. The trialcourt properly entered summary judgment in the insurer's favor. SeeAmica Mut. Ins. Co. v. Drummond, 970 So. 2d 456, 459-60 (Fla. 2d DCA2007) .

The trial court also correctly found that the insurer did not waive thesworn proof of loss requirement by tendering payment because"[i]nvestigating any loss or claim under any policy or engaging innegotiations looking toward a possible settlement of any such loss or claim"does not consfiitute a waiver of a "sworn proof of loss" requirement.~ 527.426(1)(c), Fla. Stat. (2007) (emphasis added).

Just prior to oral argument, the insured filed a notice of supplementalauthority and argued that the supreme court's recent decision in StateFarm Mutual Automobile Insurance Co. v. Curran, 135 So. 3d 1071 (Fla.2014), rendered the sworn proof of loss a condition subsequent rather thana condition precedent. We disagree as our supreme court limited itsrationale and holding to the unique subject of uninsured motorist coverageand compulsory medical exams. Even if it had not done so, we find theissue in this case vastly different than the one encountered in Curran.

In Cur-t°an, the court held that an insurance policy's requirement of acompulsory medical examination ("CME") was a condition subsequent, nota condition precedent to coverage. In doing so, the court specifically saidthat "a CME provision in the UM coverage context is not a conditionprecedent to coverage and we find that an insured's breach of thisprovision should not result in post-occurrence forfeiture of insurancecoverage without regard to prejudice." Id. at 1079 (emphasis added)(citations omitted).

In reaching this conclusion, a plurality of the court discussed thepurpose of uninsured motorist ("UM") coverage, and "stressed" that suchcoverage was not designed for the benefit of insurers. Id, at 1077. It alsoreviewed the role of CMEs in the process of settling personal injury claims.td. It then rejected the insurer's argument and concluded "that a CMEprovision in the UM context is a post-loss obligation of the insured and isnot a condition precedent to coverage." Id. at 1078.

0

~ •~ 1~~

Unlike the UM policy in Curran, the policy in this case specificallyprovided:

Loss Payment. We will adjust all losses with you. ... Losswill be payable 60 days after we receive your proof of lossand:

a. reach agreement with you;b. there is an entry of a final judgment; orc. there is a filing of an appraisal award with us.

Your Duties After Loss. After a loss ~o which this insurancemay apply, you shall see that the following duties areperformed

d. submit to us, within 60 days after the loss, your signed,sworn proof of loss.

(emphasis added). This places an affirmative duty on the insured toprovide the sworn proof of loss. Unlike a CME, which is requested by theinsurer to substantiate a claim already made by the insured, the swornproof of loss is a condition precedent. For this reason, Curran does notmandate a reversal in this case.

The insured next argues that the trial court erred by entering partialsummary judgment on the personal property claim because there was anissue of material fact as to whether there was an explosion under thepolicy's terms. We disagree.

The policy provided personal property coverage for named perils.Among those named perils was an "explosion." That term was not defined.It is black letter law that "[a]n insurance contract must be construed inaccordance with the plain language of the policy." Harrington v. CitizensProp. Ins. Corp., 54 So. 3d 999, 1001 (Fla. 4th DCA 2010) (quoting TaurusHoldings, Inc. v. U.S. Fid. &Guar. Co., 913 So. 2d 528, 532 (Fla. 2005)). Itwas the insured's burden to prove that the term "explosion" included theexplosive expansion of a decomposing body.

Rather than stretching common sense, the trial court correctly gave theterm "explosion" its "plain and unambiguous meaning as understood by

5

App.005

the `man-on-the-street."'2 Id. at 1001 (citation omitted). The plainmeaning of the term "explosion" does not include a decomposing body'scells explosively expanding, causing leakage of bodily fluids. In short,although novel in her attempt to do so, the insured could not establishthat the decomposing body was tantamount to an explosion.

The trial court correctly entered summary judgment for the insurer. Wetherefore affirm.

Affirr-ned.

GROSS and FORST, JJ., concur.

Not final unti i disposition of timely ~ led mot~eon for rehearing.

2 The Merriam-Webster Dictionary defines "explosion" as "the act or instance ofexploding" and "a large-scale, rapid, or spectacular expansion or bursting out orforth." MERRIAM-WEBSTER: AN ENCYCLOPfEDIA BRITANNICA COMPANY,

http://www.rnerriam-webster.com/dictionary/explosion (last visited Mar. 28,2014).

C~