The Fourth DCA in Slominski v. Citizens Insurance, 37 Fla. L. Weekly D2339, October 3, 2012 determined a summary judgment for the insurer was proper when they established “prejudice”. The insured filed a claim three and one half years post Hurricane Wilma. Citizens denied the claim asserting the damages could not be related to the Hurricane and the policy required “prompt notice” of the loss. The insured presented expert testimony asserting the damage was indeed caused by Hurricane Wilma. The experts in deposition testified they could not determine if the loss was due to Hurricane Wilma or Francis but in affidavit asserted the loss was due solely to Hurricane Wilma. The court held that a subsequent affidavit can’t repudiate one’s own deposition testimony and found no factual evidence the insurer was not prejudiced affirming the trial court’s motion for summary judgment.
Practice tip: I am surprised the Plaintiff’s counsel didn’t mandate a reading and signing of this deposition testimony to change it slightly. Also this case demonstrates why depositions need to be taken – the script and movie often differ greatly.