Third District Court of Appeal Rules Affidavit Lacks Evidence Linking Damage to Tropical Storm Eta.

Thomas Bouchard, the appellant, appealed a final summary judgment order entered in favor of Citizens Property Insurance Corp. The sole issue addressed in this appeal was whether the trial court erred in determining that the appellant did not rebut a presumption of prejudice.

This breach of contract case involved allegations of property damage to Bouchard’s home due to Tropical Storm Eta on November 8, 2020. Bouchard noticed water leaking through his roof on the day of the storm but waited until December 22, 2021, over 13 months from the date of loss, to report the damage. In addition, Bouchard failed to submit an estimate until February 16, 2022. After inspecting the property on January 20, 2022, Citizens denied the claim on February 15, 2022, due to Bouchard’s failure to timely report the loss.

After suit was filed, Citizens moved for summary judgment, arguing that due to Bouchard’s delay in reporting the loss, they were presumed prejudiced. In support of rebutting the presumption of prejudice, Bouchard attached a June 2023 affidavit prepared by a licensed engineer stating that Tropical Storm Eta caused the reported damage, but Bouchard failed to attach the engineering report to the affidavit.

At the hearing on Citizens’ motion for summary judgment, the court stated Bouchard “was aware of [the loss] at the time of the storm and he didn’t report it to the insurance company for 13 and a half months . . . as a matter of law, that’s not prompt notice.” Bouchard attempted to rely on the engineering report to rebut Citizens’ presumption of prejudice; however, the report was never provided to the court or opposing counsel. Therefore, the trial court granted Citizens’ motion for summary judgment, concluding Bouchard’s “notice of claim was untimely and that he failed to adequately rebut the presumption of prejudice resulting from the untimely notice.” Bouchard filed the missing engineering report and moved for rehearing, but the trial court entered an order denying the rehearing, concluding the report, like the affidavit, was conclusory.

The Third District Court of Appeal agreed with the trial court that the affidavit simply stated that the claimed damage was caused by Tropical Storm Eta and contained no chain of reasoning to support this conclusion. Further, the district court stated the engineering report “does not address the possibility of alternative causes” or the “likelihood Tropical Storm Eta was responsible for the damage, nor does it explain why the damage was not likely caused by other storm events before or after Eta.” Thus, the court affirmed the trial court’s ruling and concluded the trial court did not err in granting final summary judgment in favor of Citizens. 

_{Legal Update for Florida Coverage & Property Litigation – March 2025 is prepared by Marshall Dennehey to provide information on recent legal 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}