The Fourth District Court of Appeal handles cases from Palm Beach and Broward county. In addition to Miami-Dade County, those were two of the hardest hit counties when Hurricane Wilma struck South Florida back in 2005.

It should come as no surprise that many insurance companies are still battling with consumers over Hurricane Wilma claims, especially in those hardest hit counties in South Florida. Indeed, our firm continues to be involved in many late notice Hurricane Wilma claims with State Farm and other insurance companies.

At this juncture, many trial court judges are simply granting summary judgments in favor of the insurance company, and against the policy holder/insured. One of the reasons for doing so was the Fourth District Court of Appeal ruling in Kroener v. FIGA, 63 So.3d 914 (Fla. 4th DCA 2011). As we previously discussed, the Kroener ruling determined that “as a matter of law” notice to the insurer of a claim of loss more than two years and two months after the loss occurred was not prompt notice, and that the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim.

Since Kroener was decided, however, the Fourth District Court of Appeal has helped to clarify that ruling and pushed Kroener back to the land of irrelevant.

The latest ruling was handed down on August 1, 2012, by the Fourth District Court of appeal in Leban v. State Farm, 4D10-3833 (Fla. 4th DCA 2012). In Leban, the trial court granted summary judgment in favor of State Farm, reasoning that the Lebans failed to comply with post-loss conditions under the policy, specifically by failing to give timely notice. However, the Fourth District Court of Appeal reversed the trial court’s ruling and remanded the case to the trial court for further proceedings. In other words, the policy holder/insured, will have an opportunity to have their day in court and have a jury decide the issues raised in this case.

In so ruling, the Fourth District Court of Appeal further receded from the Kroener analysis by quoting from Bankers Ins. Co. v. Macias, 475 So.2d 1216, 1218 (Fla. 1985) that an insured’s failure to comply with the insurance policy notice provisions pertaining to the timing of when to “immediately” report an insurance claim and an insured’s failure to provide “immediate” notice in violation of the insurance policy notice provision is not fatal to coverage – “if the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.”

In the Leban case, the Fourth District Court of Appeal explained that the record contained questions of fact as to whether or not State Farm had in fact been prejudiced by the insured’s late notice. While State Farm submitted an affidavit attesting that it could not determine that the damage was caused by Hurricane Wilma, the Lebans submitted two reports from individuals who concluded that Hurricane Wilma had caused the damage. That was sufficient to raise a genuine issue of material fact and defeat State Farm’s motion for summary judgment.

The Lebans will now have their day in court.

We wrote a blog entry back on December 30, 2011, discussing whether or not your insurance claim is barred if you fail to comply with all of the conditions set forth in your insurance policy prior to filing a lawsuit.

One of the most contentious issues involving insurance claims is whether or not the insured actually provided “immediate” notice of the loss to the insurance company. This issue has been playing out throughout the State of Florida with respect to continued litigation stemming from Hurricane Wilma, and other named storms. The insurance companies have aggressively fought these “late notice” claims – both in the court room and in the state house.

In the state house, the insurance companies were able to convince our lawmakers to reduce the statute of limitations from 5 years to 3 years. In other words, Floridians who have their property damaged due to a windstorm or hurricane now have 3 years in which to file their claim with the insurance company as opposed to the 5 years they traditionally had to make a claim.

As for the courts, insurance companies have sought the entry of summary judgment to deprive homeowners of their day in court and in front of a jury. One appellate court even went so far to as conclude that “as a matter of law, notice to the insurer of a claim of loss more than two years and two months after the loss occurred was not prompt notice; the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim.” Kroener v. FIGA, 63 So.3d 914 (4th DCA 2011).

The troublesome part of the Kroener ruling is that it ignored long standing Florida case law that addresses the issue of late notice. Put a different way, Florida law provides that when an insured fails to give timely notice of a loss to its insurer then the insurer is presumed to have been prejudiced. But the insured can rebut that presumption of prejudice by showing that the insurer was not, in fact, prejudiced by the late notice. Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla. 1985). And to repeat, the Kroener case was completely silent on the issue of the rebuttable presumption and it failed to address it in any way whatsoever.

However, a more recent decision from the Fourth District Court of Appeals is more consistent with long standing Florida law regarding the rebuttable presumption in late notice claims. In Stark v. State Farm Insurance Company, No. 4D10-4945 (Fla. 4th DCA June 20, 2012), the appellate court reversed the summary judgment entered in the insurance company’s favor.
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In Stark, the homeowner had a policy of insurance with State Farm that required that the homeowner provide “immediate” notice. Hurricane Wilma caused damage to Mr. and Mrs. Stark’s home. After Hurricane Wilma, Mr. and Mrs. Stark then hired a company to perform the repairs to their home. They also submitted a claim through FEMA. Those efforts were performed because Mr. and Mrs. Stark believed that the total value of their claim would not exceed their deductible with State Farm.

However, over the years the damage continued to get worse and got progressively worse. They consequently reported a claim with State Farm over three years after Hurricane Wilma.

Not surprisingly, State Farm fought the claim on grounds that the claim was not filed “immediately” as required by the insurance policy. The trial court actually granted State Farm’s motion for summary judgment. But the Fourth District Court of Appeal reversed that ruling.

In so doing, the appellate court held that the affidavits on file created a question of fact as to whether the insureds could overcome any presumption of prejudice to State Farm. This is a significant victory for homeowners throughout Florida.