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Victory for Florida Homeowners as a Florida Appellate Court Permits Florida Policy Holders To Have Their Day In Court to Rebut the Presumption of Prejudice in Cases Involving Late Reporting to the Insurance Company

insurance claims alvarez and barbara.gifWe wrote a blog entry back on December 30, 2011, discussing whether or not your insurance claim is barred if you fail to comply with all of the conditions set forth in your insurance policy prior to filing a lawsuit.

One of the most contentious issues involving insurance claims is whether or not the insured actually provided “immediate” notice of the loss to the insurance company. This issue has been playing out throughout the State of Florida with respect to continued litigation stemming from Hurricane Wilma, and other named storms. The insurance companies have aggressively fought these “late notice” claims – both in the court room and in the state house.

In the state house, the insurance companies were able to convince our lawmakers to reduce the statute of limitations from 5 years to 3 years. In other words, Floridians who have their property damaged due to a windstorm or hurricane now have 3 years in which to file their claim with the insurance company as opposed to the 5 years they traditionally had to make a claim.

As for the courts, insurance companies have sought the entry of summary judgment to deprive homeowners of their day in court and in front of a jury. One appellate court even went so far to as conclude 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; the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim.” Kroener v. FIGA, 63 So.3d 914 (4th DCA 2011).

The troublesome part of the Kroener ruling is that it ignored long standing Florida case law that addresses the issue of late notice. Put a different way, Florida law provides that when an insured fails to give timely notice of a loss to its insurer then the insurer is presumed to have been prejudiced. But the insured can rebut that presumption of prejudice by showing that the insurer was not, in fact, prejudiced by the late notice. Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla. 1985). And to repeat, the Kroener case was completely silent on the issue of the rebuttable presumption and it failed to address it in any way whatsoever.

However, a more recent decision from the Fourth District Court of Appeals is more consistent with long standing Florida law regarding the rebuttable presumption in late notice claims. In Stark v. State Farm Insurance Company, No. 4D10-4945 (Fla. 4th DCA June 20, 2012), the appellate court reversed the summary judgment entered in the insurance company’s favor.
In Stark, the homeowner had a policy of insurance with State Farm that required that the homeowner provide “immediate” notice. Hurricane Wilma caused damage to Mr. and Mrs. Stark’s home. After Hurricane Wilma, Mr. and Mrs. Stark then hired a company to perform the repairs to their home. They also submitted a claim through FEMA. Those efforts were performed because Mr. and Mrs. Stark believed that the total value of their claim would not exceed their deductible with State Farm.

However, over the years the damage continued to get worse and got progressively worse. They consequently reported a claim with State Farm over three years after Hurricane Wilma.

Not surprisingly, State Farm fought the claim on grounds that the claim was not filed “immediately” as required by the insurance policy. The trial court actually granted State Farm’s motion for summary judgment. But the Fourth District Court of Appeal reversed that ruling.

In so doing, the appellate court held that the affidavits on file created a question of fact as to whether the insureds could overcome any presumption of prejudice to State Farm. This is a significant victory for homeowners throughout Florida.

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