We 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.
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.