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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.

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