IN THE SUPREME COURT OF FLORIDA CASE NO. SC JUDY RODRIGO, Petitioner, vs. STATE FARM FLORIDA INSURANCE COMPANY, Respondent.

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1 Filing # Electronically Filed 12/23/ :16:21 PM RECEIVED, 12/23/ :18:43, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO. SC JUDY RODRIGO, Petitioner, vs. STATE FARM FLORIDA INSURANCE COMPANY, Respondent. JURISDICTIONAL ANSWER BRIEF OF STATE FARM FLORIDA INSURANCE COMPANY On Appeal from the Fourth Judicial Circuit Palm Beach County, Florida Case No.: CA XXXX MB BUTLER PAPPAS WEIHMULLER KATZ CRAIG LLP ANTHONY J. RUSSO, ESQ. Florida Bar No.: EZEQUIEL LUGO, ESQ. Florida Bar No.: S. Harbour Island Blvd., Suite 500 Tampa, FL Attorneys for State Farm Florida Insurance Company

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 I. The district court s decision does not expressly and directly conflict with any of the five decisions raised by Rodrigo II. A. The Fourth District s decision does not conflict with the plurality opinion from State Farm Mutual Automobile Ins. Co. v. Curran, 135 So. 3d 1071 (Fla. 2014) B. The Fourth District s decision does not conflict with the three cases cited by Rodrigo on the issue of waiver C. The district court s decision does not conflict with Washington National Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013) This Court should not exercise its discretion to accept this case because the Fourth District reached the correct result CONCLUSION...10 CERTIFICATE OF SERVICE...12 CERTIFICATE OF TYPE SIZE & STYLE...13 i

3 TABLE OF AUTHORITIES CASES Aravena v. Miami-Dade Cnty., 928 So. 2d 1163 (Fla. 2006)... 4 Arenas v. Dep t of Highway Safety & Motor Vehicles, 90 So. 3d 828 (Fla. 2d DCA 2012)... 6 Bear v. N.J. Ins. Co., 189 So. 252 (Fla. 1939)...3, 8 Dodi Publ g Co. v. Editorial Am., S.A., 385 So. 2d 1369 (Fla. 1980)... 8 Floridians for a Level Playing Field v. Floridians Against Expanded Gambling, 967 So. 2d 832 (Fla. 2007)... 6 Lincoln Fire Ins. Co. of N.Y. v. Hurst, 150 So. 722 (Fla. 1933)... 3 Llerena v. Lumberman s Mut. Cas. Co., 379 So. 2d 166 (Fla. 3d DCA 1980)...3, 8 Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960)...7, 8 Rodrigo v. State Farm Fla. Ins. Co., 144 So. 3d 690 (Fla. 4th DCA 2014)... passim S. Home Ins. Co. v. Putnal, 49 So. 922 (Fla. 1909)...9, 10 State Farm Mutual Automobile Ins. Co. v. Curran, 135 So. 3d 1071 (Fla. 2014)... passim Tedder v. State, 12 So. 3d 197 (Fla. 2009)... 6 The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431 (Spring 2005)... 5 Washington Nat l Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013)...3, 9 STATUTES (1)(c), Fla. Stat....3, 8 ii

4 OTHER AUTHORITIES Art. V, 3(b)(3), Fla. Const....4, 6 RULES Fla. R. App. P (a)(2)(A)(iv)... 4 iii

5 STATEMENT OF THE CASE AND FACTS State Farm Florida Insurance Company ( State Farm ) insured a condominium unit owned by Judy Rodrigo. Rodrigo v. State Farm Fla. Ins. Co., 144 So. 3d 690, 691 (Fla. 4th DCA 2014). Rodrigo s neighbor s decomposed body leaked bodily fluids that infiltrated the walls and caused damage to Rodrigo s unit. Id. Rodrigo made a claim for damage to her unit, and sent State Farm invoices and lists of damages. Id. However, Rodrigo never filed a sworn proof of loss. Id. The insurance policy placed an affirmative duty on Rodrigo to file a sworn proof of loss within sixty days of the date of loss. Id. at 691, 693. The policy provided that losses would be payable sixty days after State Farm received a sworn proof of loss and either: (1) the parties reached an agreement; (2) a final judgment was entered; or (3) an appraisal award was filed. Id. at 691. During the investigation of the loss, State Farm s adjuster hired a contractor. Id. The contractor inspected Rodrigo s unit and signed an appraisal award. Id. State Farm then tendered payment to Rodrigo for that amount, but denied liability for personal property damage. Id. Rodrigo did not accept the payment. Id. Rodrigo sued State Farm. Id. Rodrigo s complaint asserted two counts. Id. The first count alleged the appraisal was invalid. Id. The second count alleged State Farm had breached the contract by failing to pay Rodrigo s claim, including 1

6 her claim for personal property damage. Id. State Farm s answer alleged that Rodrigo had materially breached conditions precedent before bringing suit. Id. State Farm filed two motions for summary judgment. Id. at One motion was related to Rodrigo s personal property claim. Id. at 691. State Farm argued the policy covered personal property damage only for named perils, and a decomposing body was not a named peril. Id. Rodrigo responded that her claim resulted from an explosion, which was a named peril on the policy. Id. at Rodrigo filed an affidavit from a doctor who attested that the contents of the neighbor s body had explosively expanded and leaked. Id. at 692. The other motion was related to Rodrigo s failure to submit a sworn proof of loss. Id. at 692. State Farm argued that Rodrigo had materially breached the policy by not submitting a proof of loss. Id. State Farm also argued no payment was owed because there had been no agreement, no final judgment, and no valid appraisal award. Id. Rodrigo argued State Farm had waived the sworn proof of loss by tendering payment during the investigation of the claim. Id. The trial court entered final summary judgment for State Farm, and Rodrigo appealed. Id. On appeal, the Fourth District affirmed because Rodrigo did not comply with a condition precedent to suit by failing to file a sworn proof of loss, so State Farm was not obligated to pay. Id. The Fourth District explained that this Court s plurality opinion in State Farm Mutual Automobile Ins. Co. v. Curran, 135 So. 3d 2

7 1071 (Fla. 2014), was limited to uninsured motorist ( UM ) coverage and compulsory medical examinations ( CMEs ), and so was factually distinguishable. Id. The district court also affirmed because, under section (1)(c), Florida Statutes, investigating a loss or engaging in settlement negotiations does not constitute a waiver of the proof of loss requirement. Id. Further, the Fourth District affirmed because the plain and unambiguous meaning of the word explosion did not include a decomposing body s cells explosively expanding and leaking bodily fluids. Id. SUMMARY OF THE ARGUMENT The Fourth District s decision does not conflict with State Farm Mutual Automobile Ins. Co. v. Curran, 135 So. 3d 1071 (Fla. 2014), Llerena v. Lumberman s Mut. Cas. Co., 379 So. 2d 166 (Fla. 3d DCA 1980), Bear v. N.J. Ins. Co., 189 So. 252 (Fla. 1939), Lincoln Fire Ins. Co. of N.Y. v. Hurst, 150 So. 722 (Fla. 1933), or Washington Nat l Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013). The Fourth District never addressed the issues raised in these five cases. Instead, the Fourth District decided this case on the loss payment provision, section (1)(c), Florida Statutes, and the plain language of the policy. Neither the issues nor the facts in the Fourth District s decision are in conflict with Curran, Llerena, Bear, Hurst, or Ruderman. Thus, there is no express and direct conflict on the same question of law, such that there could be conflict jurisdiction. And 3

8 even assuming conflict jurisdiction existed (which it does not), this Court should not exercise that jurisdiction because the Fourth District s decision was correct. ARGUMENT Rodrigo s alleged basis for jurisdiction is express and direct conflict with five different opinions. To demonstrate such a conflict, she must show that the district court s decision expressly and directly conflicts with [the five] decision[s]... on the same question of law. Art. V, 3(b)(3), Fla. Const. In other words, the holdings of the decisions must be irreconcilable. Aravena v. Miami-Dade Cnty., 928 So. 2d 1163, 1166 (Fla. 2006). There must be an actual conflict of controlling, binding precedent. Moreover, this Court s conflict jurisdiction is discretionary. See Fla. R. App. P (a)(2)(A)(iv). Therefore, this Court must decide not only whether conflict exists but, if so, whether to review the case. I. The district court s decision does not expressly and directly conflict with any of the five decisions raised by Rodrigo. A. The Fourth District s decision does not conflict with the plurality opinion from State Farm Mutual Automobile Ins. Co. v. Curran, 135 So. 3d 1071 (Fla. 2014). Rodrigo s first argument is that the Fourth District s decision that the proof of loss requirement in this case was a condition precedent conflicts with Curran. (Pet s Br. 5-7.) Rodrigo s argument is wrong. The main plurality opinion in Curran is not a binding decision under the Florida Constitution. Further, the Fourth District s decision did not announce a rule contrary to Curran and did not 4

9 involve the same controlling facts as Curran. Therefore, Rodrigo cannot show any basis that would support this Court taking jurisdiction to review the Fourth District s decision based on express and direct conflict with Curran. The main opinion in Curran was a plurality opinion that did not garner four concurring votes. Article V, section 3, of the Florida Constitution states that [t]he concurrence of four justices shall be necessary to a decision. In Curran, three justices concurred as to the reasoning expressed in the main opinion. 135 So. 3d at Two justices dissented. Id. at Justice Lewis concurred in result with a written opinion. Id. at And Justice Quince concurred in result without a written opinion. Id. at A concurring in result only opinion indicates agreement only with the decision, that is, the official outcome and result reached, but a refusal to join in the majority s opinion and its reasoning. Harry Lee Anstead et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, (Spring 2005) (footnotes omitted). Such an opinion can constitute the fourth vote necessary to establish a decision under the Florida Constitution, but the effect in such a case is that there is no majority opinion of the Court and thus no precedent beyond the specific facts of the controversy at hand. Id. Thus, a concurrence in result only expresses agreement with the ultimate decision but not the opinion[.] Floridians for a Level Playing Field v. Floridians Against Expanded Gambling, 5

10 967 So. 2d 832, 834 (Fla. 2007) (internal quotations omitted); see Arenas v. Dep t of Highway Safety & Motor Vehicles, 90 So. 3d 828, 834 n.6 (Fla. 2d DCA 2012) (explaining that as a result of Justice Quince s concurring-in-result-only opinion, there is not a clear majority in another case). In Curran, five justices agreed on the answer to the certified question. But those same five justices were split on the reasoning behind that answer. Because the analysis set forth in the main opinion in Curran did not garner a majority vote, that analysis is not a decision of this Court within the meaning of Article V, section 3(b)(3). Cf. Tedder v. State, 12 So. 3d 197, 197 (Fla. 2009) (mem.) (declining to accept jurisdiction because relevant portion of district court opinion did not garner a majority vote). Thus, there can be no direct and express conflict between the Fourth District s opinion and the main plurality opinion in Curran. The Fourth District s decision did not announce a rule contrary to Curran and did not involve the same controlling facts as Curran. The binding rule announced in Curran is that an insured s breach of a CME provision in a UM policy does not result in the forfeiture of insurance benefits unless the insurer pleads and proves prejudice. 135 So. 3d at The Fourth District s decision did not announce a contrary rule. In fact, it could not have done so because this case did not involve a CME or UM policy. Therefore, there is no express and direct conflict because Fourth District s decision did not announce a rule of law 6

11 which conflicts with a rule previously announced by this Court in Curran. Nielsen v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960). Further, Curran did not involve the same controlling facts as the Fourth District s opinion. Curran answered a certified question regarding a CME provision under a UM policy. 135 So. 3d at The Fourth District analyzed the proof of loss and Loss Payment provisions under a property insurance policy. Rodrigo, 144 So. 3d at 693. The Fourth District explained that the policy in this case place[d] an affirmative duty on the insured to provide the sworn proof of loss. Unlike a CME, which is requested by the insurer to substantiate a claim already made by the insured, the sworn proof of loss is a condition precedent. Id. The Fourth District found that the policy and the facts in this case were different from the policy and the facts in Curran. Thus, there is no express and direct conflict because the Fourth District did not apply a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed by this Court [Curran]. Nielsen, 117 So. 2d at 734. Rodrigo also argues that the Fourth District relied on two cases (cited on page 6 of her brief) that conflict with Curran. (Pet s Br. 6-7.) However, there is no daisy-chain conflict as this Court will not assert its conflict jurisdiction based on a citation to a completely separate decision that supposedly conflicts with a third decision. Dodi Publ g Co. v. Editorial Am., S.A., 385 So. 2d 1369, 1369 (Fla. 7

12 1980). Additionally, Rodrigo complains without explanation that the Fourth District s decision conflicts with three cases from the Fifth District. (Pet s Br. 7.) Those three cases are distinguishable because they addressed CMEs, examinations under oath, and other unspecified policy provisions. There is no express and direct conflict with these cases because they involve different facts and different policy provisions. B. The Fourth District s decision does not conflict with the three cases cited by Rodrigo on the issue of waiver. The three cases cited by Rodrigo on page 8 of her brief did not apply the same rule of law to reach a different result under substantially the same facts as in this case. Two of the cases addressed whether an insurer timely demanded appraisal, an issue and point of law irrelevant to the issues in this case. See Bear, 189 So. 252; Llerena, 379 So. 2d 166. And none of the cases cited by Rodrigo analyze the issue of waiver under section (1)(c) or any prior version of that statute. By contrast, the Fourth District s sole ruling on the issue of waiver was based on section (1)(c). Rodrigo, 144 So. 3d at 692. Therefore, there is no express and direct conflict between the Fourth District s decision and any of the three cases cited by Rodrigo. See Nielsen, 117 So. 2d at 734. C. The district court s decision does not conflict with Washington National Ins. Corp. v. Ruderman, 117 So. 3d 943 (Fla. 2013). 8

13 Rodrigo s last argument is that the Fourth District s decision conflicts with Ruderman. In Ruderman, this Court reaffirmed that [w]here the language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written. 117 So. 3d at 948. That is what the Fourth District did when it rejected Rodrigo s arguments based on the plain meaning of the word explosion. Rodrigo, 144 So. 3d at So there is no express and direct conflict because Rodrigo and Ruderman are not irreconcilable. Also, the main opinion in Ruderman was a plurality opinion that did not garner four concurring votes. Three justices concurred in the main opinion, one justice concurred in result, and three justices dissented. 117 So. 3d at 952. Thus, there can be no direct and express conflict between the Fourth District s opinion and the main plurality opinion in Ruderman. II. This Court should not exercise its discretion to accept this case because the Fourth District reached the correct result. The Fourth District reached the correct result under this Court s prior precedent. For example, in S. Home Ins. Co. v. Putnal, 49 So. 922, (Fla. 1909), this Court reversed a jury verdict for a policyholder because, among other things, the policyholder failed to submit to an examination under oath requested pursuant to a fire insurance policy containing a no-action clause. This Court held that a policyholder cannot recover under an insurance policy if the policyholder has failed to comply with a condition precedent to suit. Id. Putnal is 9

14 clear that if a policyholder sues his or her insurer without complying with all conditions precedent, then the policyholder must be held to have done so at his [or her] peril. 49 So. at 933. Putnal applies in the property context unlike Curran. Based on Putnal, the Fourth District reached the correct result. Furthermore, even if any of the alleged conflicts existed, the Fourth District still reached the correct result based on separate, alternative grounds. State Farm did not owe Rodrigo payment under the policy because the contract states that a loss will be payable after: (1) receipt of the proof of loss and (2) an agreement, a final judgment, or an appraisal award. Rodrigo, 144 So. 3d at 691. The district court s opinion stated that [n]one of these events occurred. Id. Rodrigo has never challenged the fact that she had not reached an agreement with State Farm, obtained a final judgment, or secured an appraisal award before she sued State Farm. Therefore, no payment was owed under the policy regardless of Rodrigo s arguments about conflict with any of the cases discussed above. CONCLUSION This Court lacks discretionary jurisdiction to review the decision below because there is no conflict with any of the five cases cited by the Petitioner. Further, the Fourth District s decision was correct, and was supported by additional grounds not affected by any of the alleged conflicts. 10

15 BUTLER PAPPAS WEIHMULLER KATZ CRAIG LLP /s/ Ezequiel Lugo ANTHONY J. RUSSO, ESQ. Florida Bar No.: EZEQUIEL LUGO, ESQ. Florida Bar No.: S. Harbour Island Blvd., Suite 500 Tampa, FL Telephone: (813) Facsimile: (813) Attorneys for State Farm Florida Insurance Company 11

16 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been furnished to via on December 23, Timothy H. Crutchfield, Esq. Mintz Truppman, P.A Sans Souci Blvd. North Miami, Florida tim@mintztruppman.com charles@mintztruppman.com Roy W. Jordan, Jr., Esq. Datura Place, Suite Datura Street West Palm Beach, Florida rjordan@rjordanlaw.com cindi@rjordanlaw.com Counsel for Judy Rodrigo /s/ Ezequiel Lugo EZEQUIEL LUGO, ESQ. 12

17 CERTIFICATE OF TYPE SIZE & STYLE I certify that the type, size, and style utilized in this Brief is14 point Times New Roman. /s/ Ezequiel Lugo EZEQUIEL LUGO, ESQ. 13