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.