IN THE SUPREME COURT OF FLORIDA CASE NO.: SC13-62 THIRD ... › content › ... · IN THE SUPREME COURT OF FLORIDA CASE NO.: SC13-62 THIRD DCACASE NO.: 3D10-1195 HAIM IFERGANE, Petitioner,

IN THE SUPREME COURT OF FLORIDA

CASE NO.: SC13-62THIRD DCA CASE NO.: 3D10-1195

HAIM IFERGANE,

Petitioner,

v.

CITIZENS PROPERTYINSURANCE CORPORATION,

Respondent./

RESPONDENT'S BRIEF ON JURISDICTIONRe: Seeking Discretionary Review from the Third District Court ofAppeal

METHE & ROCKENBACH, P.A.Appellate Counselfor CITIZENS1555 Palm Beach Lakes Blvd.Suite 400West Palm Beach, FL 33401(561)727-3600(561)727-3601 [email protected]

TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................iii

INTRODUCTION .......................................................................1

BACKGROUND ............................................................................1

ARGUMENT..................................................................................4

I. There is no basis for conflict jurisdiction because Haim Ifergane'sprejudice argument was not raised below...............................5

II. Bankers Insurance Co. v. Macias, 475 So.2d 1216 (Fla. 1985).......6

III. Allstate Floridian Insurance Co. v. Farmer, 38 Fla. L.Weekly D75(Fla. 5th DCA Dec. 28, 2012)..............................................7

IV. Whistler's Park, Inc. v. Florida Insurance Guaranty Association, 90So.3d 841 (Fla. 5th DCA 2012).............................................8

V. State Farm Mutual Auto. Insurance Co. v. Curran, 83 So.3d 793(Fla.5th DCA2011).........................................................9

VI. The Third District's opinion in this case does not pass upon aquestion certified to be of great public importance..................10

CONCLUSION..............................................................................10

CERTIFICATE OF COMPLIANCE......................................................11

CERTIFICATE OF SERVICE.............................................................11

11

TABLE OF AUTHORITIES

Cases

Allstate Floridian Ins. Co. v. Farmer,38 Fla. L. Weekly D75 (Fla. 5th DCA Dec. 28, 2012).....................5, 7, 8

Bankers Ins. Co. v. Macias,475 So.2d 1216 (Fla. 1985)....................................................5, 6, 7

Shands Teaching Hosp. and Clinics, Inc. v. Mercury Ins. Co. ofFlorida,97 So.3d 204 (Fla. 2012).............................................................6

State Farm Mut. Auto. Ins. Co. v. Curran,83 So.3d 793 (Fla. 5th DCA 2011)..........................................5, 9, 10

Whistler's Park, Inc. v. Fla. Ins. Guar. Ass'n,90 So.3d 841 (Fla. 5th DCA 2012)............................................5, 8, 9

Other Authorities

Rule ofAppellate Procedure 9.030(a)(2)(A)(iv)..........................................5

Rule ofAppellate Procedure 9.030(a)(2)(A)(v).........................................10

Florida Rule ofAppellate Procedure 9.030(a)(2)(A)(iv) or (v).........................1

Florida Rule ofAppellate Procedure 9.210(a)(2).......................................11

111

INTRODUCTION

Contrary to the assertions of the Petitioner, HAIM IFERGANE (hereinafter

"Mr. Ifergane"), this Court should not accept discretionary jurisdiction pursuant to

Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv) or (v). The Third District

Court of Appeal (hereinafter "Third District") opinion in this case, dated

September 12, 2012, does not expressly and directly conflict with a decision of

another district court of appeal or of this Court on the same question of law, nor did

the Third District pass upon a question certified to be of great public importance.

FACTUAL AND PROCEDURAL HISTORY

The facts and procedural history of this case are laid out in the Third

District's well-reasoned opinion dated September 12, 2012. Specifically, the

opinion states the following, in pertinent part:

In 2004, Haim and Alexandra Ifergane, husband and wife ("Haim" and"Alexandra"), jointly purchased a residential property on Venetian Drive inMiami Beach, Florida ("the Property"). The Property, which the Iferganesintended to renovate before moving in, was insured by Citizens under awind-only dwelling policy. Alexandra was the only named insured on thepolicy.

The applicable provisions of the policy provide:

4. Your Duties After Loss. In case of a loss tocovered property, you must:

b. Take the following steps:(1) Protect the property from further damage; and(2) Make reasonable and necessary repairs to protect theproperty;

1

c. As often as we reasonably require:(1) Show us the damaged property;(2) Provide us with records and documents we requestand permit us to make copies; and(3) Submit to examinations under oath while not in thepresence of any other named insureds and sign the same;

Under the terms of the policy, the terms "you" and"your" referred to both the "named insured" and "thespouse if a resident of the same household."

On October 25, 2005, the Property sustained damage caused byHurricane Wilma. The Iferganes notified Citizens of the loss within a week,and Citizens began its investigation of the claim.

On November 17, 2005, Alexandra filed for divorce from Haim. As partof a marital settlement agreement, Alexandra executed a quit claim deed onApril 4, 2006, assigning to Haim "all the right, title, interest, claim anddemand which [she] has in and to the . . . [Property]" (hereinafter the"Assignment").

Citizens made an initial payment on the Hurricane Wilma claim in theamount of $44,955.08. Thereafter, Citizens became concerned that theProperty had suffered additional damage that was not covered under thepolicy and sought to take examinations under oath ("EUOs") of Haim andAlexandra. Citizens also requested a sworn proof of loss. Citizens sentAlexandra two letters reminding her of the policy exclusions and her duty tomitigate property damage, and reserving its right to deny coverage. Haimcomplied by providing a sworn proof of loss and sitting twice for an EUO.However, Alexandra refused to comply with Citizens' requests that sheattend an EUO, asserting she was not obligated to do so because she hadassigned to Haim all of her rights and interest in the Property.

On March 31, 2008, Citizens notified Alexandra that it could notcomplete its investigation or determine coverage for the claim becauseshe had not appeared at the requested EUOs. The letter indicated that since itwas unclear whether she and Haim were residing in the house together onthe date of loss, and because Citizens had not consented to her assignment of

2

the claim, it could not determine whether Haim was an insured underthe policy.

On April 8, 2008, Haim made a demand under the policy for appraisal. Inresponse, Citizens in May of 2008 filed an action for declaratory judgmentagainst the Iferganes, seeking a determination regarding its coverageobligations. As to Alexandra, Citizens' complaint demanded a declaratoryjudgment as follows: to determine the validity of the Assignment; to declarethat the Assignment does not relieve Alexandra of her policy obligations; todeclare that Alexandra is obligated to appear for an EUO and comply withother policy conditions; "to determine the effect of [Alexandra's] . . . breachof the policy" by failing to appear for an EUO and comply with other policyconditions; to declare that the Iferganes failed to mitigate their damages andmake temporary repairs to the Property, which constituted a breach of thepolicy; and to declare that the Iferganes representation that the Property was"tenant occupied" was a material misrepresentation voiding the policy.

Alexandra moved to dismiss the complaint, claiming that because she hadassigned to Haim "all her rights and interest (including any insuranceclaims) via Quit Claim Deed" to the Property, she was not a party in interest.The motion was denied. Alexandra then moved for summary judgment,requesting that the trial court determine that the Assignment was valid.Citizens also moved for summary judgment, requesting that the trial courtdetermine that Alexandra's failure or refusal to comply with her policyduties constituted a breach of contract precluding recovery under the policyas a matter of law.

Haim filed a cross-motion for partial summary judgment against Citizenson the coverage issue. Haim argued that the undisputed facts established hewas a resident spouse co-insured under the policy, that he had complied withthe policy's post-loss requirements, and that Alexandra's alleged failure tocomply could not be imputed to him, an innocent co-insured, and thereforeno breach of contract had occurred as a matter of law.

In October 2008, the trial court granted Alexandra's motion for partialsummary judgment, finding that "the Iferganes intended to transfer interestin the insurance claim from marital property to Haim Ifergane." The trialcourt's order, however, did not dismiss Alexandra as a party.

3

In March 2009, Citizens filed an amended complaint for declaratoryrelief seeking a declaration as to whether there was a valid and legalassignment of the claim, and if so, whether such assignment relievedAlexandra of her contractual obligations under the policy. The amendedcomplaint alleged no new facts with respect to the validity of theAssignment and contained a prayer for relief identical to that contained inthe original complaint. Alexandra again moved to dismiss based on theAssignment of all her rights to Haim, and additionally based on the fact thatshe never made a claim for insurance proceeds. The trial court grantedAlexandra's motion to dismiss with prejudice.

In addition, Citizens' prior motion for summary judgment relating toAlexandra's policy duties was denied, and Haim's motion for partialsummary judgment as to coverage was granted. Haim then moved to compelappraisal, which was granted. After an appraisal award of $476,594.61 wasreturned, the trial court entered an order of final judgment, confirming theappraisal award (with some stipulated changes), and awarding prejudgmentinterest, costs and attorney's fees. This appeal ensued.

[Opinion, pp.2-6 (emphasis added)].

In its opinion, the Third District correctly held, in pertinent part, that

"Citizens was entitled to an EUO from Alexandra, its named insured, regardless of

the Assignment. Alexandra's refusal to submit to a requested EUO precludes

recovery under the policy, because the EUO stands as a condition precedent to

coverage. ... Accordingly, it was error for the trial court to grant summary

judgment, finding coverage as a matter of law, and to enter final judgment in favor

ofHaim Ifergane." [Opinion, pp.13-14].

ARGUMENT

In his jurisdictional brief, Mr. Ifergane argues that this Court should exercise

its discretionary jurisdiction because the instant case is allegedly in conflict with

4

the following decisions:

a) Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla. 1985)

b) Allstate Floridian Ins. Co. v. Farmer, 38 Fla. L. Weekly D75 (Fla. 5thDCA Dec. 28, 2012)

c) Whistler's Park, Inc. v. Fla. Ins. Guar. Ass'n, 90 So.3d 841 (Fla. 5thDCA 2012)

d) State Farm Mut. Auto. Ins. Co. v. Curran, 83 So.3d 793 (Fla. 5th DCA2011)

[Ifergane's Jurisdictional Brief, pp.7-8].

Further, Mr. Ifergane argues that this Court should exercise its discretionary

jurisdiction because the instant case allegedly presents an issue of great public

importance. [Ifergane's Jurisdictional Brief, pp.8-9]. For the reasons stated below,

none of these arguments have merit and this Court should decline to exercise its

discretionary jurisdiction in the instant case.

L There is no basis for conflict jurisdiction because Haim Ifergane'sprejudice argument was not raised below.

The discretionary jurisdiction of this Court may be sought under Florida

Rule of Appellate Procedure 9.030(a)(2)(A)(iv) to review decisions of district

courts of appeal that "expressly and directly conflict with a decision of another

district court of appeal or of the supreme court on the same question of law."

In his jurisdictional brief, Mr. Ifergane argues that the Third District Court of

Appeal's opinion in this case is in conflict with several decisions of the Fifth

5

District Court ofAppeal and this Court because the Third District did not explicitly

apply a prejudice analysis to Alexandra Ifergane's refusal to submit to a requested

Examination Under Oath ("EUO").

As a threshold matter, this argument is without merit because Mr. Ifergane

failed to preserve any appellate argument regarding prejudice by not including it in

his answer brief filed in the Third District Court of Appeal below. See Shands

Teaching Hosp. and Clinics, Inc. v. Mercury Ins. Co. ofFlorida, 97 So.3d 204, 210

(Fla. 2012) ("[The appellant] did not properly present this argument to the First

District [Court ofAppeal]. We therefore do not address it.").1 In fact, Mr. Ifergane's

answer brief did not even cite any of the decisions that he now claims are in

conflict with the opinion in the instant case. Thus, there is no basis for this Court to

exercise its conflict jurisdiction.

Even if Mr. Ifergane's prejudice argument had been raised in his answer

brief below, there would still be no basis for conflict jurisdiction in this Court

because none of the decisions relied upon by Mr. Ifergane are in express and

direct conflict with the opinion in the instant case on the same question of law.

II. Bankers Insurance Co. v. Macias, 475 So.2d 1216 (Fla. 1985)

In Bankers Insurance Co. v. Macias, 475 So. 2d 1216 (Fla. 1985), this Court

held that "a presumption of prejudice to an insurer arises where an insured fails to

1 A copy of Haim Ifergane's answer brief filed in this case in the Third District Court ofAppeal iscontained in the appendix to this jurisdictional brief.

6

give timely notice of an accident to the insurer." Macias, 475 So.2d at 1217. There

is absolutely nothing in the Third District's opinion in this case that is in conflict

with this holding. The instant opinion does not attempt to negate the presumption

of prejudice in late notice cases, nor does the opinion purport to analyze the effect

of late notice. Instead, this case is about the failure of an insured to submit to an

EUO, not late notice.

Thus, the instant case is not in express and direct conflict with Bankers

Insurance Co. v. Macias, 475 So. 2d 1216 (Fla. 1985) on the same question of law.

III. Allstate Floridian Insurance Co. v. Farmer, 38 Fla. L. Weekly D75 (Fla.5th DCA Dec. 28, 2012)

In Allstate Floridian Insurance Co. v. Farmer, 38 Fla. L. Weekly D75 (Fla.

5th DCA Dec. 28, 2012), the Fifth District Court of Appeal held that "[p]roperly

applying the Macias prejudice presumption rule, the trial court did not err in

allowing the Farmers to prove to the jury that Allstate was not prejudiced by their

failure to substantially comply with the proof of loss condition." There is

absolutely nothing in the Third District's opinion in this case that is in conflict with

this holding. The instant opinion does not attempt to negate the presumption of

prejudice in proof of loss cases, nor does the opinion purport to analyze the effect

of a late proof of loss. Instead, this case is about the failure of an insured to submit

to an EUO, not a late proof of loss.

Moreover, Farmer is not in conflict with the instant case because Farmer is

7

not a summary judgment case. Instead, it is a case that went to trial and was then

appealed after a jury verdict. Conversely, the instant case is a summary judgment

case and thus subject to a very different analysis. Hence, the instant case is not in

express and direct conflict with Allstate Floridian Insurance Co. v. Farmer, 38 Fla.

L. Weekly D75 (Fla. 5th DCA Dec. 28, 2012) on the same question of law.

IV. Whistler's Park, Inc. v. Florida Insurance Guaranty Association, 90 So.3d841 (Fla. 5th DCA 2012)

In Whistler's Park, Inc. v. Florida Insurance Guaranty Association, 90 So.3d

841 (Fla. 5th DCA 2012), the Fifth District Court of Appeal reversed a summary

judgment in favor of the insurer based on violation of the post-loss condition

precedent of submitting to an EUO because the insured offered to submit to an

EUO several times. Whistler 's Park, 90 So.3d at 846. There is absolutely nothing

in the Third District's opinion in this case that is in conflict with this holding.

In the instant case, the Third District's opinion is clear that "Alexandra

refused to comply with Citizens' requests that she attend an EUO, asserting she

was not obligated to do so because she had assigned to Haim all of her rights and

interest in the Property." [Opinion, p.3 (emphasis added)]. Unlike the insured in

Whistler 's Park, Alexandra Ifergane certainly did n_of offer to submit to an EUO.

Thus, the instant case is not in express and direct conflict with Whistler's Park, Inc.

v. Florida Insurance Guaranty Association, 90 So.3d 841 (Fla. 5th DCA 2012) on

the same question of law.

8

V. State Farm MutualAuto. Insurance Co. v. Curran, 83 So.3d 793 (Fla. 5thDCA 2011)

In State Farm Mutual Automobile Insurance Co. v. Curran, 83 So.3d 793

(Fla. 5th DCA 2011), the Fifth District Court of Appeal held that an insured's

failure to submit to a compulsory medical examination ("CME") prior to filing suit

against her uninsured motorist carrier was a breach of the uninsured motorist

policy. Curran, 83 So.2d at 801. However, the court further held that the breach did

not preclude coverage because the insurer did not prove that it was prejudiced by

the insured's failure to submit to a CME prior to filing suit. Id. at 802. There is

absolutely nothing in the Third District's opinion in this case that is in conflict with

the holding in Curran.

The instant opinion does not alter the burden of proof with respect to the

failure to submit to a CME, nor does the opinion purport to analyze the effect of a

failure to submit to a CME. Instead, this case is about the failure of an insured to

submit to an EUO, not a CME. The two cases are fundamentally different because

Curran is an uninsured motorist case while the instant case is a property damage

case. The insurance policies at issue in each case serve different purposes and

contain different language. Thus, the instant case is not in express and direct

conflict with State Farm Mutual Automobile Insurance Co. v. Curran, 83 So.3d

9

793 (Fla. 5th DCA 2011) on the same question of law.2

Moreover, even if there were an express and direct conflict between the

instant case and Curran on the same question of law (which there is not), such

conflict would be negated by this Court's anticipated reversal of Curran.

VL The Third District's opinion in this case does not pass upon a questioncertified to be of great public importance.

The discretionary jurisdiction of this Court may be sought under Florida

Rule of Appellate Procedure 9.030(a)(2)(A)(v) to review decisions of district

courts of appeal that "pass upon a question certified to be of great public

importance" (emphasis added). In the instant case, the Third District did not certify

any questions to be of great public importance. Thus, there is no basis for this

Court to exercise its discretionary jurisdiction pursuant to Rule 9.030(a)(2)(A)(v).

CONCLUSION

This Court should decline to exercise discretionary jurisdiction to review the

well-reasoned opinion of the Third District Court of Appeal in this case because

none of the cases cited by HAIM IFERGANE are expressly and directly in conflict

with the opinion on the same question of law. Further, the Third District did not

pass upon a question certified to be of great public importance.

Note that State Farm Mutual Automobile Insurance Co. v. Curran, 83 So.3d 793 (Fla. 5th DCA2011) is currently on review before this Court in case no. SC12-157. Oral argument was held onOctober 2, 2012 but this Court has not yet issued its decision in Curran.

10

CERTIFICATE OF COMPLIANCE

Counsel for Respondent certifies that the above Jurisdictional Brief has been

prepared in Word, Times New Roman 14 font and complies with the requirements

ofFlorida Rule ofAppellate Procedure 9.210(a)(2).

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of this was served via

email this 14th day of February, 2013, to: Karen Jerome-Smith, Esq. and Robert

C. Groelle, Esq. at [email protected]; [email protected];

and Michael R. Seward, Esq. at [email protected] and

[email protected]. Pursuant to FSC Order No. AOSC04-84, a

true and correct copy was served via email to [email protected].

Kara erard Rockenbach, Esq.Flor a Bar No. 0044903Day Noel, Esq.Florida Bar No. 0688231Methe & Rockenbach, P.A.Appellate Counselfor Citizens1555 Palm Beach Lakes Blvd., Suite 400West Palm Beach, FL 33401(561) 727-3600 telephone(561) 727-3601 [email protected]@[email protected]

11