Every insurance policy written in Florida contains numerous conditions that are imposed on the policy holder/insured. The policy holder must adhere to those conditions precedent before it can file a lawsuit against the insurance company. Those conditions are present so as to permit an insurance company to properly and timely investigate a claim.
The conditions typically involve providing “immediate” notice to an insurance company of the loss. An insured will typically need to allow the insurance company an opportunity to inspect the loss. The insured may be required to sit for an examination under oath, and may also be required to submit a sworn proof of loss. These are just but a few examples of the many conditions precedent found in an insurance policy.
Sometimes an insured may rush to court and file a lawsuit when the conditions precedent may have not all been satisfied. Or the lawsuit may have been filed after a delay in notifying the insurance company of the loss.
Nonetheless, insurance companies typically attack such lawsuits on grounds that the insured failed to follow all the terms and conditions found in the insurance policy prior to filing the lawsuit.
Under Florida law, where an insured delayed in notifying an insurer of a potential claim, the insured must rebut the presumption that the delay prejudiced the insurer. Tiedtke v. Fid. & Cas. Co. of New York, 222 So.2d 206, 209 (Fla. 1969); XL Ins. America, Inc. v. Ortiz, 673 F. Supp. 2d 1331 (S.D. Fla. 2009); Keenan Hopkins Schmidt and Stowell Contractors, Inc. v. Continental Cas. Co., 653 F. Supp. 2d 1255 (M.D. 2009).
Therefore, Florida law provides that the failure to give timely notice creates a rebuttable presumption of prejudice to the insurer. However, that presumption may be overcome by the introduction of evidence tending to show that the insurer was in fact not prejudiced by the late notice.
Simply stated, although prejudice is presumed, this does not preclude recovery if the insured can show an actual lack of prejudice. National Gypsum Co. v. Travelers Indem. Co., 417 So. 2d 254 (Fla. 1982). Put differently, such presumption that the Defendant was prejudiced is overcome by a showing that the insurer was not deprived of an opportunity to investigate the facts of the incident at issue. Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla. 1985).
In Haiman v. Federal Insurance Co., 798 So.2d 811 (Fla. 4th DCA 2001), the Fourth District Court of Appeal stated:
A total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.
As set forth above, if a policy holder cooperates to “some degree” or “provides an explanation for its noncompliance”, then the policy holder’s claim may not be barred as a matter of law.
On the other hand, if there was no cooperation of any kind then the claim may be barred all together. Take, for example, the case of Edwards v. State Farm, 64 So.3d 730 (Fla. 3d 2011). In Edwards, the Third District Court of Appeal concluded that: (1) the insurance company made requests for specific, basic documents relating to the loss that were never provided; (2) Edwards knew that, on numerous occasions, the insurance company requested Edwards submit to an examination under oath at a mutually convenient place and time, and he did not; and (3) Edwards never submitted any documents relating to the costs he alleges he expended to repair his roof.
In that case, the Court threw out Edwards’s claim for failing to comply with all the conditions precedent, and failing to even cooperate to “some degree” and failing to “provide an explanation for its noncompliance.”
In sum, the best practice is ensure strict and complete compliance with all of the insurance policy’s conditions prior to filing a lawsuit. This will allow you to pursue your claim on the merits of your loss as opposed to fighting with the insurance company on issues immaterial to your loss.