SUAREZ, J.
The Siguenzas appeal the entry of final summary judgment in favor of Citizens Property Insurance in their breach of contract action. We conclude a material question of fact existed regarding notice of the alleged loss and accordingly reverse the order.
The appellant insureds, Mr. and Mrs. Siguenza, claim Hurricane Wilma damaged their residence in October 2005. At that time, the residence was insured under a homeowner's policy issued by Citizens. The insureds claim to have given notice of
The subject insurance policy requires the insureds to give "prompt notice to [Citizens], or [their] producer," of any claim for damages. At deposition, Mrs. Siguenza claimed to have given notice two to four months after the loss. She testified that she reported the loss two times by phone to Citizens Insurance and the representatives she talked to both stated they would get back to her but never did. In support of its summary judgment motion, Citizens submitted an affidavit refuting Mrs. Siguenza's testimony that she gave notice directly to the insurance company. The affidavit states Citizens has no record of telephonic contact from the Siguenzas between the date of Hurricane Wilma and the date the public adjuster filed the claim in January 2009. In response, Mrs. Siguenza filed an affidavit stating she gave notice to the insurance agent that sold her the policy (i.e., producer).
At first glance, there would appear to be a contradiction between Mrs. Siguenza's deposition testimony and her affidavit filed in opposition to Citizens' Motion for Summary Judgment that would permit the trial judge to reject the affidavit and rely on the deposition testimony. See, e.g., Ellison v. Anderson, 74 So.2d 680, 681 (Fla.1954) ("[A] party when met by a Motion for Summary Judgment should not be permitted by his own affidavit ... to baldly repudiate his previous deposition so as to create a jury issue...."). The problem for purposes of summary judgment is that although Mrs. Siguenza stated during deposition that she notified the insurance company, it is clear on the face of the transcript that she considered the insurance company and the insurance agent to be the same entity.
Accordingly, we reverse the final summary judgment and remand for further proceedings.
SALTER, J., concurs.
SCHWARTZ, Senior Judge, dissenting.
As the majority points out, the policy requires the insured to give "prompt notice to Citizens or your producer." Despite Mrs. Siguenza's repetitive, unqualified deposition testimony that she called Citizens,
From this single answer — "[t]hat's the insurance company" — the majority draws the inference that Mrs. Siguenza may have actually meant that she notified the insurance agent, which if true, would be inconsistent with her other deposition testimony, but consistent with her subsequently filed affidavit,
It is clear that when evidence before the court is conflicting or will permit different reasonable inferences, summary judgment is precluded. See Moore v. Morris, 475 So.2d 666 (Fla.1985); Rocamonde v. Marshals of Ma, Inc., 56 So.3d 863 (Fla. 3d DCA 2011); Murciano v. Garcia, 958 So.2d 423 (Fla. 3d DCA 2007). However, it is also true that a party cannot take inconsistent positions in order to avoid that judgment. See Ellison, 74 So.2d at 681. That is what happened here. First of all, Mrs. Siguenza's answer, "[t]hat's the insurance company," does not conflict with her other deposition testimony in such a way that raises a question of material fact as to this issue. If her answer was enough to be considered incongruent with her other deposition testimony, it would have also been enough, standing alone, to defeat summary judgment. The fact that it was not enough is shown by the Siguenzas's decision to file an affidavit prior to the summary judgment hearing specifically (and suddenly) swearing that she called the agent, and only the agent. It is no coincidence that the plaintiffs considered the affidavit necessary to avoid summary judgment only after — during the period between the deposition and the summary judgment hearing — it was conclusively demonstrated, through its records and the testimony of its agents, that nobody called Citizens at all. Thus, the Siguenzas could win only if, despite the total lack of corroborating evidence, Mrs. Siguenza actually (twice) called the agent with no response. So that is what she had to say, and therefore, is what she said.
Second, the majority is not justified in drawing the conclusion from the deposition that Mrs. Siguenza may have called the agent in the first place.
Finally, while Mrs. Siguenza's deposition testimony may or may not be contradictory itself, it is blatantly contradicted by her subsequently filed affidavit. Where there is no credible explanation for discrepancies between earlier and later inconsistent testimony, the latter may not be considered. See Ellison, 74 So.2d at 681 (Fla.1954); Elison v. Goodman, 395 So.2d 1201 (Fla. 3d DCA 1981); see also Arnold v. Dollar Gen. Corp., 632 So.2d 1144 (Fla. 5th DCA 1994) (a party to a lawsuit will not be allowed to baldy repudiate his or her prior deposition testimony by an affidavit executed by that party or by another person so as to create a jury issue without credible explanation in the affidavit or in the record itself). Mrs. Siguenza did not provide any (let alone credible) explanation as to the discrepancy between her earlier deposition testimony and the subsequently filed affidavit regarding which entity she gave notice to about the loss. Even in Soler v. Secondary Holdings, Inc., 771 So.2d 62 (Fla. 3d DCA 2000), where the plaintiff explained that the discrepancies in his testimony were due to the fact that he was "confused" and/or "intimidated" at his earlier deposition, this court found that the trial court properly disregarded his subsequent testimony on the basis that such assertions were unsupportable.
Thus, the evidence did not raise a viable question of material fact that Mrs. Siguenza ever called the agent (or anyone) to report the loss. The court's contrary conclusion represents an endorsement and approval of just the kind of game-playing with the truth the Ellison rule is designed to prevent. I therefore dissent.
A. That's the insurance company.
(Fely Siguenza Dep. 24: 11-14, May 17, 2010.)