LoBello v. State Farm Florida Insurance Company, ___ So. 3d ___, 39 Fla. L. Weekly D1273 (Fla. 2d DCA June 18, 2014)
The insureds waited four years to report a sinkhole claim to their insurer because they thought the cracking they initially observed was the result of normal settlement. When the insurer denied coverage based on late notice, the insureds sued for breach of contract based upon the failure to pay and the “failure to conduct an appropriate sinkhole investigation.” The trial court denied the insurer’s first motion for summary judgment based on late notice because of the existence of genuine issues of material fact and granted the insureds’ motion for partial summary judgment based upon the failure to conduct an appropriate sinkhole investigation. The trial court denied the insurer’s motion for reconsideration and a second motion for summary judgment based on late notice; however, the trial court granted the insurer’s third motion for summary judgment based on late notice with no explanation other than its citation to two cases relied upon by the insurer. The appellate court reversed. Although a trial court may always reconsider its interlocutory rulings before final judgment is entered, the trial court in this case never vacated its partial summary judgment for the insured or its earlier order against the insurer denying summary judgment because of the existence of genuine issues of material fact. In addition, the trial court misplaced its reliance upon the cases cited by the insurer. Contrary to the insurer’s argument in the trial court, Kroener v. Florida Insurance Guaranty Association, 63 So. 3d 914 (Fla. 4th DCA 2011), does not establish that if notice is sufficiently late, prejudice need not be considered. The case did not create a bright line rule vitiating coverage if notice is not given within two years after the loss. Hochberg v. Thomas Carter Painting, Inc., 63 So. 2d 861 (Fla. 3d DCA 2011), which dealt with the commencement of the statute of limitations on an owners’ claims against subcontractors, failed to undermine the trial court’s undisturbed, initial ruling that a genuine issue of material fact existed when the insureds “should have known that they might have a claim under their policy.” Furthermore, the trial court “was obligated to follow the applicable decisions of the supreme court” and its own district court of appeal even if a conflicting decision from another district was more recent.