4 Fla. L. Weekly Supp. 788b
Insurance — Automobile — Physical damage — Assistance and cooperation — Where policy did not specifically list the giving of a statement as a condition precedent to filing a lawsuit or give notice to insured that he must deliver a statement prior to legal action, insured at no time prior to filing the suit refused to submit a written or sworn statement, and insured waited on two occasions for insurer’s representative to call him for the requested statement, insured did comply with the cooperation requested in the investigation of his claim — By its own conduct, insurer waived right to assert breach of cooperation clause as defense to coverage
CRUZ E. GUILCAPI, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 96-3203 CC 21. June 4, 1997. Cecilia M. Altonaga, Judge. Counsel: Tony Sirven, for Plaintiff. Albert Moon, for Defendant.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court for a hearing on April 30, 1997, on Defendant, United Automobile Insurance Company’s (hereinafter “United”) Motion for Summary Judgment, and Plaintiff, Cruz E. Guilcapi’s (hereinafter “Guilcapi”) Counter-Motion for Partial Summary Judgment as to Liability. The parties were instructed to submit cross-motions for summary judgment following the pre-trial conference of April 2, 1997, wherein both indicated that the facts of the case were undisputed and that the sole issue remaining was a legal one. After carefully considering the motions and memoranda submitted, the Guilcapi affidavit and deposition testimony, and upon a review of the court file and applicable law, the Court GRANTS Plaintiff’s Counter-Motion for Partial Summary Judgment as to Liability and DENIES Defendant’s Motion for Summary Judgment.
UNDISPUTED MATERIAL FACTS
The parties agree that in 1994 Guilcapi owned a Chevrolet Geo which was insured under an automobile physical damage policy issued by United to Guilcapi. The Policy, which Guilcapi received in the mail, provides in pertinent part as follows:
PAYMENT OF LOSS
We may pay for Loss in money. We may elect to . . . return the damaged or stolen property to You, at the address shown in this Policy. If We return the stolen property, We will pay for any damage to that property which resulted from the theft….
You may not require payment from Us until 30 days after there has been full compliance with all of the terms and conditions of this Policy.
DUTIES AFTER AN ACCIDENT OR LOSS
We must be notified promptly of how, when and where an accident or Loss happened. Notice should also include the names and addresses of any witnesses.
When You are seeking payment for damage to Your covered auto, You must:
1. Take reasonable steps after Loss, at Your expense, to protect Your covered auto from further Loss.
2. Promptly notify the Police if Your covered auto is stolen.
3. Permit Us to inspect and appraise the damaged property before its repair or disposal.
4. Cooperate with Us in all matters.
5. Submit a proof of Loss when required by Us.
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LEGAL ACTION
No legal action may be brought against Us until there has been full compliance with all the terms and conditions of this Policy.
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Cooperation and Assistance
You must cooperate with Us, and, upon Our request, must attend hearings and trials and assist Us in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits….
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(See Policy attached as Exhibit 1 to Cruz E. Guilcapi’s Deposition transcript).
It is undisputed that on or about July 17, 1996, Guilcapi’s 1994 Chevrolet Geo was stolen in New Jersey, while Guilcapi was visiting relatives. Guilcapi reported the theft to his agent, Prestige Insurance, and phoned in a theft report to United on or about July 19, 1996. On July 24, 1996, United mailed Plaintiff an affidavit of theft and Guilcapi completed the same and signed it on August 2, 1996. On August 6, 1996, the vehicle was recovered in a damaged condition in New Jersey and Guilcapi advised United of this on August 7, 1996. On August 8, 1996, Guilcapi executed an authorization for a United representative to retrieve the vehicle from a tow yard in New Jersey. On August 26, 1996, the vehicle was inspected by United’s representative in New Jersey and an estimate was prepared.
Prior to or on September 4, 1996, United’s adjuster had contacted Guilcapi by telephone and asked Guilcapi to be available on September 4, 1996 to be interviewed over the phone concerning the claim. Guilcapi took a day off from work and waited for the phone call, but the call was never received. It was late in the afternoon when a United employee contacted Guilcapi advising that something had happened to the adjuster, and that someone would contact the Plaintiff the following day. The following day, September 5, 1996, United’s representative again failed to telephone Guilcapi, however, a written request for a statement was sent to the Plaintiff. Guilcapi maintains that after not receiving the telephone call on September 4 or 5, 1996, he had no choice but to request that his attorney file the instant lawsuit. The suit was filed on September 9, 1996. United never denied the claim prior to the lawsuit being filed. It was after the suit was filed that Guilcapi received the memo from United requesting him to contact it for a recorded statement. He forwarded the same to his attorney, who advised that the suit had already been filed.
With the preceding undisputed facts, United agrees that Guilcapi complied with the first, second, third and fifth duties required of the insured after an accident or loss, referred to in the quoted text above. The sole issue, according to United, is whether Guilcapi complied with duty number 4, that is, to “[c]ooperate with us in all matters.” United maintains Guilcapi did not on these further undisputed facts: Guilcapi does not know if United had received the estimate of damage prior to the suit being filed; he made no further attempt to contact United after September 4, 1996; and that there was a valid reason for United to want to take his statement as he filled out the Affidavit of Vehicle Theft incorrectly with regard to the purchase price of the car and the amount of his claim. (See pages 61 through 69 of the Guilcapi Deposition transcript).
LEGAL DISCUSSION
Neither party submitted to the Court disputed material facts, that would prevent the granting of summary judgment as to the issue of liability. The sole issue for the Court’s determination, then, is a legal one. According to Guilcapi, there is no evidence that Guilcapi failed to comply with the terms of the insurance policy and it is therefore entitled to a finding of coverage under the policy. According to United, Guilcapi failed to cooperate in the investigation of the claim prior to filing the suit, and cooperation in the investigation is a condition precedent to the filing of the lawsuit.
Initially, the Court observes that the single obligation United maintains Guilcapi failed to comply with involving the insured’s duties after accident or loss, is the generally-worded obligation to “cooperate” with United “in all matters.” From the foregoing undisputed facts, it appears that Guilcapi did everything he could to comply with the policy obligations, short of sitting home for a third day to wait for the ever-elusive phone call from the representative who was to take his statement. The decisional law United relies upon for the entry of a final judgment in its favor is distinguishable and yields a contrary result from that urged.
In Griffin v. Stonewall Insurance Company, 346 So. 2d 97, 98 (Fla. 3d DCA 1977), for example, the insured refused, without reason, on two occasions to submit to a physical examination, despite that very precise obligation being listed in the automobile liability policy in question. Subsequently, the insured identified five doctors he agreed to be examined by, and thereafter sued to recover personal injury protection benefits. Id. In De Ferrari v. Government Employees Insurance Company, 613 So. 2d 101 (Fla. 3d DCA 1993), submission to an I.M.E. was a clearly listed condition precedent to insurance coverage, and, nonetheless, the insured refused to be examined by a physician the insurer had identified, insisting that she be examined by a different specialty. In De Ferrari, summary judgment for the insurer was appropriate because the insured had unreasonably refused to comply with a condition precedent clearly identified in the policy. Id. at 103. See also Candanosa v. U.S. Security Insurance Co., Dade County Circuit Court Appellate Division, Case No. 95-088 (cooperation clause in insurance policy required insured to provide sworn or written statement, and insured refused to do so prior to filing suit).
In the present case, Guilcapi at no time prior to the filing of the suit refused to submit a written or sworn statement. To the contrary, Guilcapi provided all the required notices, and on two occasions waited for United’s representative to call him for the requested statement. Furthermore the policy in question does not specifically list the giving of a statement as a requirement prior to the filing of a lawsuit, or give notice to Guilcapi that he must somehow deliver a statement, with or without United’s participation, prior to initiating legal action.
United places great store on the case of Goldman v. State Farm Fire General Insurance Company, 660 So. 2d 300 (Fla. 4th DCA 1995). That case, too, is distinguishable from the instant one. In Goldman, following a burglary of appellants’ home, appellee sought to have appellants submit to an examination under oath, as was required by the insurance policy. Id. at 301. Appellants received State Farm’s request for an examination, had the examination rescheduled at their request, and subsequently failed to appear for the same prior to filing their lawsuit. Id. at 302. Finding that the policy provision was a condition precedent to the suit, and that appellants’ noncompliance precluded an action on the policy, the reviewing court affirmed a summary judgment in favor of State Farm. Id. at 306.
Again, unlike the case at bar, in Goldman the policy contained a specific requirement that the insured submit to an examination under oath prior to the filing of a lawsuit. No similar condition precedent is contained in the United policy language examined. Moreover, in Goldman no facts were presented showing that appellants had even tried to comply with the policy condition. Here, in contrast, Guilcapi did try on two occasions to comply with the insurer’s request, not specifically contained in the policy, and was only prevented from doing so by the insurer’s failure to send its representative, on two occasions. United’s failure to facilitate Guilcapi’s delivery of a statement, not specifically required by the policy, more closely resembles the insurer’s failure to comply with its insured’s requests for copies of the policy and agreement to give a statement, which resulted in a reversal of a summary judgment in favor of the insurer in Figueroa v. U.S. Security Insurance Company, 664 So. 2d 1130 (Fla. 3d DCA 1996).
Assuming that the “cooperation” clause in the United policy is a condition precedent, as United urges, the Court finds that Guilcapi did comply with the cooperation requested and that it was United’s failure to appear which waives the ability to raise that defense to bar the suit. Cf. Azeem v. Colonial Assurance Co., 96 A.D. 2d 123, 468 N.Y.S. 2d 248, 250 (1983), aff’d, 479 N.Y.S. 2d 216 (insured’s willingness to submit to examination almost one and a half years after first scheduled examination and two years after the fire does not satisfy the contractual obligation of cooperation), cited in Goldman, 660 So. 2d at 306.
Accordingly, the Plaintiff’s Counter-Motion for Partial Summary Judgment is GRANTED and Defendant’s Motion is DENIED.
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