Marbella Condominium Association Inc. v. Citizens Property Insurance Corporation, No. 3D14—1336, 2015 WL 557202 (Fla. 3d DCA Feb. 11, 2015)
Florida’s Third District Court of Appeal affirmed the lower court’s order granting summary judgment for the insurer based upon late notice. Specifically, the court held that the issue of late notice was appropriately raised at the summary judgment stage and the insured failed to present evidence sufficient to rebut the presumption. This opinion follows an opinion from the United States Court of Appeals for the Eleventh Circuit, Yacht Club on the Intracoastal Condominium Association, Inc. v. Lexington Insurance Company, Nos. 13—12486, 13-15581, 13—15842, 2015 WL 106862 (11th Cir. Jan. 8, 2015), which also upheld summary judgment for the insurer based upon late notice.
Prior to these decisions, the issue of whether late notice was appropriate at the summary judgment stage was called into question by Florida’s Second District Court of Appeal in Lobello v. State Farm Florida Insurance Company, 152 So. 3d 595 (Fla. 2d DCA 2014). But even that court acknowledged that summary judgment was appropriate if the evidence was undisputed, stating:
“The determination of whether the insured gave timely notice to the insurer is ordinarily a question to be resolved by the jury or trial judge when acting as the trier of the facts…. On the other hand, if the undisputed evidence will not support a finding that the insured gave notice to the insurer as soon as practicable, then a finding that notice was timely given is unsupportable.”