Affidavits must be based on personal knowledge, set out facts admissible in evidence, show affiant’s competence to testify on matters stated. Insurer not required to show real prejudice from failure to provide sworn proof of loss, as required by policy.

The trial court granted the insurer’s motion for final summary judgment and considered the affidavit of the corporate representative, as well as the attachment. According to the court, the corporate representative is an individual with knowledge as to the records, which speak for themselves, and the insurer’s practice of keeping records. Additionally, the trial court found that the insurer was not required to show prejudice where the insureds breached a conditions precedent to suit, despite policy language to the contrary.

Florida’s Fourth District Court of Appeals disagreed with the trial court’s analysis, concluding that the trial court should have disregarded the affidavit and the attached documents. The district court noted that the corporate representative’s knowledge was based upon their review of the insurer’s file and that the individual it serves as a corporate representative in litigation actions for the insurer is not enough to show personal knowledge or competency. A general restating of the elements of the hearsay business records exception is not sufficient. See Fla. Stat. § 90.803(6)(a)-(c). 

Therefore, further information of the affiant’s knowledge, including their employment, training or experience that would allow them to have personal knowledge of the facts of the claim as well as the practices of the insurer, is needed in order to show the affiant’s knowledge in the context of summary judgment affidavits. 
 

_{Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2023 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}