Citizens then investigated and made a final determination that “the damages reported cannot be attributed to Hurricane Wilma due to the amount of time that has transpired since the purported date of loss to the present date.” Citizens also cited the Slominskis’ failure to comply with post-loss duties, a condition precedent to reimbursement of a claim, pursuant to the policy. The contractual post-loss duties required the Slominskis, in a case of loss to their property, to “[g]ive prompt notice to [Citizens].”Citizens filed a motion for summary judgment alleging the appellants breached their duty by failing to timely report the claim. In support of the motion, Citizens filed various affidavits and depositions including a transcript of the contractor that performed work for the insured. In the deposition of the contractor:
the contractor concluded that the wind damage would not have occurred “without hurricane-force winds,” but admitted that he could not be “100% sure” that the wind damage was caused by Hurricane Wilma, as opposed to Hurricane Frances in 2004. On the other hand, he testified that the direction from which the respective storms hit varied, which formed the basis for his opinion. He admitted that, with regard to water damage, there was “no way to differentiate” one storm from another. However, in his affidavit, the contractor stated: “Based on my expertise and personal knowledge of the Slominski home, I am able to determine that the damages as alleged in the lawsuit against Citizens occurred to the property as a result of Hurricane Wilma."Additionally, "in deposition testimony, the engineer admitted that he was unable to determine exactly when the interior staining or roof damage occurred, but opined only that it was caused by a hurricane."
The Fourth District stated: "In delayed notice cases, “while prejudice to the insurer is presumed, if the insured can demonstrate that the insurer has not been prejudiced thereby, then the insurer will not be relieved of liability merely by a showing that notice was not given ‘as soon as practicable.’” (citations omitted). In this case, the only evidence submitted to rebut the prejudice to the insurer was the affidavit submitted by the contractor and the affidavit submitted by the engineer. However, in both cases, the affidavits conflicted with deposition testimony by the same person stating they could not determine when the damage to the property occurred Therefore, the insurer was prejudiced and the judgment was affirmed.