2 Fla. L. Weekly Supp. 239a
Insurance — Personal injury protection — Insured failed to rebut claim that insurer was prejudiced by three-year delay in filing claim because insurer was unable to obtain employment records which would either confirm or refute insured’s claim that he was not working at delivering pizzas at time he applied for insurance and enable insurer to verify insured’s earnings at time of accident — Judgment denying PIP benefits affirmed
JORGE ENRIQUE DE LA TORRE, Appellant, v. FORTUNE INSURANCE COMPANY, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 93-109AP. Opinion filed April 08, 1994. An appeal from County Court, for Dade County, Florida, Bernard R. Jaffe, Judge. James C. Blecke, for Appellant. Diane H. Tutt, for Appellee.
(Before BERNARD S. SHAPIRO, EUGENE J. FIERRO, and PAUL SIEGEL, JJ.)
(SIEGEL, J.) Jorge Enrique De La Torre appeals a summary judgment denying him PIP benefits under a policy of automobile insurance issued to him by Fortune Insurance Company. De La Torre applied for the insurance on March 23, 1988 and the accident occurred on July 31, 1988. At the time of the accident, De La Torre was delivering pizzas for Casino’s Pizza. De La Torre admitted that he had performed similar work for Casinos prior to March 23, 1988, but claimed that he was not working following surgery on February 21, 1988 until sometime in late May 1988.
De La Torre’s application for no fault benefits did not arrive at Fortune until July 19, 1991, almost three years after the accident. According to Fortune’s brief, the insurance policy required De La Torre to give Fortune notice of any potential claim within a reasonable period of time.
Fortune moved for summary judgment based on the delay in giving Fortune notice of the claim. It filed an employee’s affidavit which recited that Fortune had not been able and would not be able to obtain De La Torre’s employment records because Casino’s is no longer in business. De La Torre countered with the affidavit of the attorney who represented him in a workman’s compensation claim against Casino’s which attached a copy of the order of the Judge of Industrial Claims that adjudicated the amount of De La Torre’s weekly wage at the time of the accident, based upon De La Torre’s testimony and that of his former supervisor.
Fortune received a summary judgment on De La Torre’s claim relying on a presumption of prejudice to the insurer if there is a breach of the notice provision. The presumption can be rebutted by a showing that the insurer has not been prejudiced by lack of notice. Banker’s Insurance Co. v. Macias, 475 So.2d 1216 (Fla. 1985).
There is some evidence in this record of prejudice because Fortune can no longer obtain the original employment records of Casino’s to ascertain the precise amount of De La Torre’s wages at the time of the accident and also to ascertain whether De La Torre lied on his application for insurance in representing that he was not working at the time of the application.
Fortune has the benefit of a presumption of prejudice based upon the late filing of De La Torre’s claim. The prejudice claimed by Fortune is an absence of records from Casino’s Pizza that would enable it to confirm or refute De La Torre’s claim that he was not working on March 23, 1988, when he applied for the insurance, and independent records from Casino’s as to the amount of De La Torre’s earnings at the time of the accident. If there were no information in the record as to whether De La Torre was working on the date of his application and as to the amount of his earnings, Fortune should prevail because of the presumption of prejudice in its favor. There is nothing in the record as to when Casinos terminated doing business and when it stopped keeping the records as to De La Torre’s employment status on March 23, 1988 and his earnings on July 31, 1988.
To resist summary judgment, De La Torre offers the affidavit of his own attorney in the workman’s compensation proceeding and the order of the judge of industrial claims showing that De La Torre and his supervisor testified as to the amount of De La Torre’s earnings. The prejudice claimed by Fortune is not that there is no information on these two key facts, but that because of the delay in filing his claim, De La Torre has prevented Fortune from obtaining records from Casino’s that would either confirm or refute the claims made by De La Torre. De La Torre has offered no information as to when Casino’s stopped keeping the records sought by Fortune and when Casino’s went out of business. Since the record below is silent on these two key facts, De La Torre has not offered enough information to create a genuine issue of material fact with respect to the prejudice suffered by Fortune. Thus Fortune is entitled to prevail on its presumption, even in a summary judgment proceeding, because of a failure to present a genuine issue of material fact to refute that it has been prejudiced by its inability to obtain the records of Casino’s Pizza.
Affirmed. (SHAPIRO, J. and FIERRO, J. Concur.)
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