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Legal Updates for Florida Coverage and Property Litigation

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

Thomas A. Bouchard, Jr. v. Citizens Prop. Ins. Corp., Fla. 3d DCA, No. 3D12-2202, February 19, 2025

March 1, 2025

by Ashley J. Johns

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.

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On July 23, 2026, the Ohio Supreme Court issued a rare opinion on the binding effect of an appraisal award in a property insurance policy.  The Court in One Church held: A binding appraisal award will not be set aside unless an error is so palpably wrong that it undermines the intent of the agreement, such as corruption or gross mistake, not a mere error of judgment—To plead a claim of mistake with particularity as required by Civ.R. 9(B), facts alleged in a complaint must constitute the elements of mistake—Allegation that additional, hidden damage was discovered after appraisal award failed to state a claim of mistake that could justify setting aside binding appraisal.  The case arose out of a claim brought by One Church against its insurer, Brotherhood Mutual Insurance Company for roof damage from a storm. Pursuant to the terms of the insurance policy, the parties agreed to submit the matter to appraisal. The two appraisers inspected the building, and both appraisers agreed that the damages were $313,271.98. The insurer paid the agreed appraised amount.  Thereafter, the insured submitted a claim for an additional $206,663.09 in damages. The insured argued that these additional damages were not discovered until after the repairs began, and that they should be permitted to submit an additional claim, even though there had already been a binding appraisal of damages. The insurer refused to pay the additional damages, and the insured sued for breach of contract and bad faith.  In the trial court, the insurer moved to dismiss for failure to state a claim, arguing that the binding appraisal award barred any further claims. The insured took the position that additional hidden damages could not be discovered until after the repairs began, and therefore there was a mutual mistake. The trial court dismissed the case on the insurer’s motion, because there was no “evidence of fraud, misfeasance, or mistake”. The Court of Appeals agreed that appraisal awards are generally binding, but noted that an appraisal award can be set aside for fraud or manifest mistake. The Court of Appeals reversed and remanded the case to the trial court, finding that the insured had pled mistake with sufficient particularity. The insurer appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the Court of Appeals, and reinstated the trial court decision dismissing the case for failure to state a claim upon which relief can be granted. The Supreme Court found that since the insured had already demanded appraisal, and the appraisal award was binding, “something more than error of judgement, such as corruption in the arbitrator, or gross mistake” must be pled with particularity, and proven for the insured to override the appraisal award. Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. This emphasizes the fact that there is minimal case law deciding the effect of binding appraisal clauses in property insurance policies, and makes this case all the more significant. A lengthy dissent was written by Justice Fisher, who would have affirmed the Court of Appeals decision reversing and remanding the case for a decision on the merits. Of course, the decision works both ways, and an insurer dissatisfied with a binding appraisal award will likewise be without further recourse absent evidence of corruption, fraud, misfeasance, or manifest mistake, which must be pled with particularity. To constitute manifest mistake, “the mistake must be of such character that the arbitrator or appraiser would have corrected it had it been called to his attention.”  Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970).  The majority opinion does not specifically identify what would have been sufficient to plead mistake with particularity, or if the insured could have amended the complaint to overcome the deficiencies. The dissent argues that this was not really a case alleging mistake, but rather a question of contract interpretation. The insured did not challenge the appraisal, but argued that the hidden damage was not part of the appraisal, and the appraisal only covered the known damages.  However, this argument did not carry the day with the majority.  *Thomas F. Glassman, a shareholder in Marshall Dennehey’s Cincinnati office, filed a brief in the Ohio Supreme Court on behalf of the Ohio Association of Civil Trial Attorneys, in support of the insurer’s position.

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