We recently discussed the Fifth DCA’s ruling in Whistler Park v. FIGA. Thereafter, the Fifth DCA issued another ruling relying on Whistler Park. In sum, and under certain circumstances, one’s failure to submit a sworn proof of loss is not a bar to an insurance claim.
In Hamilton v. State Farm Florida Insurance Company, Florida’s Fifth District Court of Appeal concluded that the facts in the case determined that there was a disputed issue of material fact regarding whether or not State Farm was, in fact, prejudiced by Hamilton’s alleged failure to submit a sworn proof of loss to the insurance company. The Fifth DCA ruled that they would base their findings on Whistler’s Park, Inc. v. Florida Insurance Guaranty Ass’n.
As stated in more detailed in our previous post, the Whistler Park court found that the insurer was not prejudiced by the insured’s failure to comply with conditions precedent prior to filing suit because the insured had expressed a willingness to comply and the insurance company had failed to follow up.
The Fifth DCA seems to be moving in the direction of trying to prevent the “gotcha” litigation tactics that many insurance companies seem to employ. Indeed, the appellate court, in Whistler Park, observed that many insurance companies have, in Florida, lost sight of the true purpose of the EUO and instead engage in gotcha litigation tactics in order to potentially save themselves from paying on valid insurance claims. The court went on to comment that litigating cases in this way seems “more about strategy than truth.”
In the Hamilton case nevertheless, the proof of loss was filed seven months after filing suit. In Hamilton, the court granted the motion for rehearing in favor of the Plaintiff and remanded the case to the trial court to determine if the insurer has been prejudiced or not by the Plaintiff’s failure to submit a sworn proof of loss.