Fourth DCA Agrees – It’s Important To Be Prompt

Annie S. Antos, Esq.

             The Fourth District Court of Appeals (“Fourth DCA”) ruled that the trial court erred in prohibiting Universal Property & Casualty Insurance Company (“Universal”) from claiming that its insured, Thomas J. Yager and Deborah Jo Yager, violated their policy conditions by failing to promptly notify Universal about a roof leak. The Fourth DCA also found that Universal was improperly denied the opportunity to present its defense to the jury, despite the policy requiring that coverage would be contingent upon prompt notification of the loss.

             The Yagers allegedly experienced a roof leak in May of 2020 but failed to inform Universal until August of 2020. Notably, the policyholders themselves did not report the damage; instead, they reported it through a public adjuster.  Following an investigation, Universal afforded coverage for alleged claimed damages within the interior, but it denied coverage for the roof repairs. The Yagers filed suit in Broward County, arguing that they had met all their policy requirements or that Universal had waived any conditions by making partial payment. The trial court granted the Yagers’ Motion for Summary Judgment, concluding that Universal had forfeited its right to enforce the prompt notice clause by investigating the claim and making a partial payment. The jury later awarded the Yagers a verdict, and the trial court entered judgment for nearly $60,000, including interest.

             The policy provisions at the crux of this case, which Universal asserted as affirmative defenses imposed the following on the Yagers:

    1. Your Duties After Loss.  In case of a loss to covered property, we have no duty to provide coverage under this Policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an “insured” seeking coverage, or a representative of either:
      a. Give prompt notice to us or your insurance agent;

    1. Suit Against Us.  No action can be brought unless the policy provisions have been complied with….

             Universal’s argument hinged on the idea that the Yagers’ delay in reporting the claim, coupled with their retention of a third-party adjuster hindered their ability to assess the damages at the time of loss.  Furthermore, Universal challenged the trial court’s handling of the waiver issue, arguing that the waiver must be explicitly raised in a reply to its affirmative defenses.  The Fourth DCA agreed and cited to Florida Rule of Civil Procedure 1.100(a) and 1.10(d) which provide in part as follows:

If an answer or third-party answer contains an affirmative defense and the opposing party seeks to avoid it, the opposing party must file a reply containing the avoidance.  See Universal Prop. & Cas. Ins. Co v. Yager, No. 4D2023-2310 (Fla. 3rd DCA 2025); see also Fl. R. Civ. P. 1.100 (a).

In pleading to a preceding pleading a party shall set forth affirmatively … waiver, and any other matter constituting an avoidance or affirmative defense.  See Universal Prop. & Cas. Ins. Co v. Yager, No. 4D2023-2310 (Fla. 3rd DCA 2025); see also Fl. R. Civ. P. 1.110 (d).

             Furthermore, the Fourth DCA held that partial payments do not prevent an insurer from asserting noncompliance with post-loss duties.  .  See Universal Prop. & Cas. Ins. Co v. Yager, No. 4D2023-2310 (Fla. 3rd. DCA 2025); See also Rodrigo v. State Farm Insurance Co. 144 So.3d 690 (Fla. 4th. DCA 2014) and Universal Property & Casualty Insurance Co. v. Horne 314 So. 3d 688 (Fla. 3rd. DCA 2021).  

             While the Fourth DCA’s decision doesn’t resolve the coverage and post-loss condition disputes, it reinforces the principle that insurers must be given the chance to present valid condition precedent defenses.  The ruling emphasizes the enduring legal significance of “prompt notice” provisions and underscores how insurers can safeguard those defenses even after partial payments have been made.

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