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Don’t Delay in Reporting Your Insurance Claims

insurance_claim_form-resized-600.pngWe have previously discussed the frequent litigation of late notice claims and their impact on property owners. Florida court decisions indicate that the best way to place your claim in the best possible light with the insurance company is to immediately notify them of your loss.

However, and for a number of different reasons, “immediate” notice is not always possible. Therefore, and in situations where “immediate” notice is not provided, insurance companies all too often take the position that they have been “prejudiced” by the insured’s failure to provide “immediate” or “prompt” notice of the claim. The nature of that “prejudice” is often the source of much contention in litigation.

Florida courts have been churning out decisions on “late notice” claims as of late. Part of the reason for the decisions that have been issued is in large part a corrective response to the erroneously decided decision in Kroner v. FIGA, which incorrectly suggested that all claims not reported within two years were barred as a matter of law. The appellate decisions decided since then discussing “late notice” claims have all concluded that each case must be evaluated on its own merits and they have all receded from the Kroner conclusion that such claims are barred as a “matter of law” if not filed within two years.

The newest pronouncement of that analysis is a case decided by the Third District Court of Appeal. In 1500 Coral Towers Condominium Ass’n, Inc. v. Citizens, Feb. 6, 2013 WL 440554, the Condo Ass’n notified Citizens of damage to the property five years after the damage was sustained to the property during Hurricane Wilma. The Ass’n was unsure whether the damage sustained would exceed their deductible, and waited to fully assess the damages before notifying their insurers.

The court concluded that a two-step analysis was required. The Court had to determine: (1) if the Ass’n gave timely notice of the damage; and (2) whether Citizens was prejudiced by the late notice. In 1500 Coral Towers, the Court of Appeals agreed that the Ass’n failed to give timely notice. However, they disagreed with the trial court’s decision to grant the summary judgment in favor of Citizens, and sent the case back to the trial court for further proceedings.

The appellate court reasoned that whether or not a delay in the filing of timely notice prejudiced Citizens’ ability to appropriately investigate the claim was a factual question, and was therefore inappropriate for summary judgment. The reason being is that all factual questions are left to a jury to determine. Therefore Citizens was not entitled to a judgment as a matter of law while factual questions remained unanswered.
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While this is no doubt a victory for the Ass’n, it is also reminds us that when in doubt report the claim. While the Ass’n may have been attempting to be prudent, their prudence may still end up costing them a lot of money. Even though the appellate court remanded the case back to the trial court for further proceedings, there is no guarantee that a jury will agree with their position that the insurance company was NOT prejudiced with their delayed reporting.

Consequently, you should always promptly notify your insurance company immediately of any damage that you feel may be covered under your insurance policy in order to protect yourself from losing available insurance coverage by waiting too long to report the loss because the insurance company will invariably use that delay to your detriment. When in doubt – don’t delay.

Please do not hesitate to contact our office to discuss your insurance claim needs.

Florida Courts Further Clarifies The Burden of Proof All Parties Must Satisfy when Litigating Late Notice Insurance Claims

AUTO INSURANCE TERMS PICT.jpgLate notice claims have become a very litigious issue for property owners and insurance companies recently. This is particularly true since the Fourth District Court of Appeal receded from its ruling in Kroener v. FIGA, 63 So.3d 914 (Fla. 4th DCA 2011).

Since that ruling, our appellate courts have clarified what an insurance company must demonstrate in order to have an insured’s claim dismissed as a result of the insured’s failure to provide prompt notice of the loss.

The first thing that is learned from these line of cases is that all insureds should position their claim in the best possible light with the insurance company. The best way to do that is to immediately notify the insurance company of the loss upon its occurrence. Contact our office today if you are in doubt of your options with respect to your claim.

The second thing that is learned with respect to these claims, and how the law is evolving, is that the courts must take a case by case approach. Each case will present a different set of facts. And depending on the facts presented will dictate the outcome. This is a far from cry from the erroneous ruling rendered in Kroener v. FIGA which suggested that claims not reported within 2 years were barred as a matter of law regardless of the underlying facts leading up to the loss.

The latest pronouncements on this issue came from the Fourth District Court of Appeal as well as the United State District Court for the Southern District of Florida.

In Slominsk v. Citzens, 2012 WL 4511322, (Fla. 4th DCA 2012), the appellate court affirmed the granting of the summary judgment in favor of the insurance company, Citizens. It did so because the appellate court reviewed the affidavits and testimony on file and ultimately concluded that the record evidence did not rebut the presumption of prejudice to Citizens given the late notice reporting. In Slominsk, as contracted with the Stark case that we recently discussed, the issue ultimately turned on an evidentiary basis. Affidavits filed were contradicted by deposition testimony which permitted the insurance company, Citizens, to carry their burden. But the bigger significance of the Slominsk is not the actual result rendered, but rather the analysis as the analysis is consistent with Stark and further erodes the court’s earlier ruling in Kroner.

However, in Aspen Specialty Insurance Co. v. River Oaks of Palm Beach Homeowner’s Ass’n, 2012 WL 3260398 (S.D. Fla. August 8, 2012), United States District Court for the Southern District of Florida, recently concluded that if the insured cooperates to some degree or provides an explanation for its delayed notice in reporting the claim then a fact question is presented for resolution by a jury. In that case, the court concluded that it was undisputed that the insured did not totally fail to comply with the Post-Loss Provision, and, as such, it would be improper to enter judgment as a matter of law in the insurance company’s favor. In so concluding, the court reasoned that a genuine issue of material fact exists with respect to whether the insured violated its duty to (1) provide prompt and sufficient notice, (2) provide inventories of the damaged and undamaged property, (3) permit the insurance company to inspect the Property to determine the amount of loss or damage, and (4) cooperate during the claim investigation process.

The Fourth District Court of Appeal Issues Another Friendly Opinion for Florida Policy Holders as they Continue to Pump Out Rulings Involving Late Notice Hurricane Wilma Claims

flag-gavel.jpgThe 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.

Victory for Florida Homeowners as a Florida Appellate Court Permits Florida Policy Holders To Have Their Day In Court to Rebut the Presumption of Prejudice in Cases Involving Late Reporting to the Insurance Company

insurance claims alvarez and barbara.gifWe 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.

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