Tag Archives: Prompt Notice

Another New Florida Homeowners Insurance Late Notice Case: Hope and Cunningham v. Citizens Property Insurance Corporation


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*April 30, 2014: There are some other late notice cases that can help you prepare your case.  Check this link to make sure you review all of the late notice cases that have recently came out.*

LATE NOTICE CASE: HOPE & CUNNINGHAM V. CITIZENS

The Third DCA just issued the latest opinion on the late notice defense:

http://www.3dca.flcourts.org/opinions/3D11-3147.pdf

As discussed in Florida Courts on the Prompt Notice Provision and New Late Notice Case, the Florida DCAs have been giving insureds and insurers a lot to work with in terms of evaluating the strengths and weaknesses of a late notice defense.

The Third DCA’s opinion in Hope & Cunningham v. Citizens changes nothing in the current late notice law, but helps to maintain the status quo. The case involved a October, 2005 Hurricane Wilma claim reported to Citizens in 2009.

The Third DCA used the “tipsy coachmen doctrine,”which allows an appellate court to affirm a trial court’s order even if the trial court made the decision for the wrong reason. The trial court granted summary judgment pursuant to the Fourth DCA’s finding in Kroener v. FIGA that the passage of two years alone was sufficient for summary judgment on the defense, without consideration of the facts that might have overcome the presumption of prejudice.

The Third DCA said the trial court should have reviewed the plaintiff’s affidavit, the public adjuster’s report, and the roofer’s estimate to assess whether those could be sufficient to create a question of fact as to whether the plaintiffs could overcome the presumption of prejudice. The Third DCA took up that task and said that, because the evidence was merely conclusory, it did nothing to create a question of fact as to the prejudice. Accordingly, the Third DCA found that the trial court was right for the wrong reasons and Citizens was entitled to summary judgment.

This fits right in the prior analysis. Insureds must produce sufficient evidence to overcome the presumption of prejudice and the people presenting that evidence must stick to their stories. If an insured does not present evidence with specific (not conclusory), unwavering reasons as to why the insurer was not prejudiced, then summary judgment is proper.


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Florida Courts on the Prompt Notice Provision in Homeowners Hurricane Insurance Claims

Overview:

When is it too late to submit an insurance claim for damage to your property?  What examples have homeowners and homeowners insurers learned from?  Where can we look to for guidance when a complicated set of facts leads to some confusion about when a hurricane insurance claim (or other claims) needs to be reported to the insurance company?  Find out these answers and more by reading this article.

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*April 30, 2014 Update: this has been one of the most popular posts on the blog and for good reason.  

I have heard about many carriers having success with this defense, and I have been happy to help them obtain these results.  

Click here to see all of the late notice cases that came out since this post.  

Make sure to read all the way to the end of this post to learn how I propose making sure carriers cheaply guarantee they do not fail to use this defense in any case they have.*

In the past year, the “prompt notice” provision has been the subject of many detailed Florida decisions. As mentioned in yesterday’s post, in Yacht Club v. Lexington the federal court out of Florida’s Southern District made a strong statement by recently holding that, as a matter of law, an insured could not overcome the presumption of prejudice if the accuracy of the insurer’s investigation was jeopardized in any way by the late notice.

As discussed below, after determining the notice was late, the Florida courts spend most of their energy evaluating the evidence to assess whether the insured has anyone willing to say that the delay did not inhibit the insurer in any way from determining the cause of the damage. The common theme is that if that insured’s witness “sticks to his or her story,” Florida courts could hold that a jury issue exists. If the witness shows any doubt during his or her deposition or in the affidavit, then the courts are willing to grant summary judgment.

Below I have outlined the key facts from some of the more recent, relevant holdings.

July 18, 2012

Kramer v. State Farm, 95 So. 3d 303 (Fla. 4th DCA 2012)

Holding: there was no issue of fact as to whether the insurer was prejudiced by the timing of the notice given by the insureds.

Delay: almost 5 years; the dates of loss were the dates of Hurricanes Frances and Jeanne in September of 2004, and a roof leak in 2008, and the insureds did not report the claim until May of 2009.

Evidence failing to overcome summary judgment: an affidavit from the insureds’ engineer stating that the insurer’s expert could determine the cause of the damage, that wind damage and foot traffic were “equally likely” to have caused the damage, and that resetting of tiles prior to the engineer’s inspection did not allow the engineer to assess the full extent of the damages. The Court found that the engineer’s affidavits actually bolstered the insurer’s prejudice argument.

July 25, 2012

Soronson v. State Farm, 96 So. 3d 949 (Fla. 4th DCA 2012)

Holding: there was no issue of fact as to whether the insurer was prejudiced by the timing of the notice given by the insureds.

Delay: approximately 3.5 years; the date of loss was the date of Hurricane Wilma on October 24, 2005, and the insureds did not report the claim until February of 2009.

Evidence failing to overcome summary judgment: an affidavit from the insureds with attached, unsworn engineer reports arguing that they did not make repairs and there have not been any windstorm events since Hurricane Wilma; therefore, the damage had to be caused by Wilma and the roof needed to be repaired in 2005 regardless of what occurred after.

September 7, 2012

Stark v. State Farm Florida Ins. Co., 95 So. 3d 285 (Fla. 4th DCA 2012)

Holding: there was no issue of fact as to whether the insurer was prejudiced by the timing of the notice given by the insureds.

Delay: approximately 3.5 years; the date of loss was the date of Hurricane Wilma on October 24, 2005, and the insureds did not report the claim until March 9, 2009.

Evidence overcoming summary judgment: an affidavit from the insureds’ engineer identifying the ability to, after the report date, determine the cause of loss, and an affidavit from the insureds’ public adjuster stating that the insurer’s adjuster commented that he could identify the cause of the damage.

October 3, 2012

Slominski v. Citizens Property Insurance Corporation, 99 So. 3d 973 (Fla. 4th DCA 2012)

Holding: there was no issue of fact as to whether the insurer was prejudiced by the timing of the notice given by the insureds.

Delay: approximately 3.5 years; the date of loss was the date of Hurricane Wilma on October 24, 2005.

Evidence failing to overcome summary judgment: an affidavit and deposition testimony from the insureds’ contractor stating that he could not be “100% sure” that the wind damage was caused by Wilma as opposed to Hurricane Frances in 2004, and that there was no way to differentiate water damage from one hurricane versus the other. Additionally, the insureds’ engineer had contradictory statements in his testimony versus his affidavit regarding whether he could determine when the staining and roof damage occurred. Ultimately, although the affidavits were similar to the Stark affidavits that supported the 4th DCA’s finding of a question of fact, the deposition testimony by the contractor and engineer contradicted the affidavits and, therefore, could not provide an evidentiary basis to overcome summary judgment.

April 3, 2013

1500 Coral Towers v. Citizens Property Insurance Corporation, 2013 WL 1316416 (Fla. 3d DCA 2013)

Holding: there was no issue of fact as to whether the insurer was prejudiced by the timing of the notice given by the insureds.

Delay: approximately 5 years; the date of loss was the date of Hurricane Wilma on October 24, 2005, and the insured reported the claim on June 29, 2010.

Evidence failing to overcome summary judgment: according to the Court, the closest the insured came to presenting supporting evidence was one of its engineer’s conclusory statements that the late notice did not prejudice the insurer.

Conclusion

With the hurricane claims gone for now, one question is how this applies to other types of claims. I am particularly interested in how these cases apply to claims for sinkhole damage. If an insured reports a sinkhole claim with a date of loss of two years prior to the report date and does not provide any photographs or corroborating witnesses, is there any way for an insurer to hire an expert to make an independent determination as to whether the damage existed during the claimed policy period? The answer is no, and I think this is one of the biggest issues facing Florida insurers today. If the policy coverages have changed since the date of loss (as they often have as a result of the changes to the sinkhole statutes), then isn’t the insurer prejudiced because it could not independently verify which type of coverage applied? The insurer might have had to offer coverage for cracking if the date of loss occurred, say, in 2010, but in 2012 the insurer’s policy might only provide coverage for substantial impairment of the load bearing portions of the property.

Takeaway:

If you want legal forms, templates, guides, and checklists to ensure you “check the box” on properly handling a late notice claim (and save money along the way), please message me.

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New Late Notice Case

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*April 30, 2014 Update: Click here to see all of the late notice cases that came out since this post.*

In Yacht Club on the Intracoastal Condominium Association, Inc. v. Lexington Ins. Co., the Southern District of Florida looked at a few important late notice issues and determined that the insured breached the prompt notice provision as a matter of law.

The insured filed the claim for Hurricane Wilma damages arising on October 24, 2005. The insured argued that it waited to report the claim because it did not understand the extent of the damages until they later manifested. The insured reported the claim on May 21, 2010.

As indicated above, the insured argued that it did not realize the extent of the damages until they later manifested. Consistent with several cases rejecting that argument, the Court did not allow this argument to preclude a summary judgment finding that the insured’s notice was not prompt.

Then came the real issue that has been going different directions in the local Florida DCAs: whether the insured could present a fact issue as to whether it could overcome the presumption of prejudice. The insured presented evidence that its expert could determine that the hurricane caused the damage. Furthermore, the insured presented evidence that even the insurer’s experts issued some conclusions about the damage. Putting them together, the insured argued that the jury should decide whether this evidence is enough to overcome the presumption of prejudice.

The Southern District granted summary judgment for the insurer as a matter of law. The Court acknowledged that some experts reached some conclusions; however, the Court granted summary judgment because the experts undoubtedly would have been able to reach more accurate conclusions if the insured would have promptly reported the damage.

The rationale is powerful and correctly explains why these issues should be for the Court rather than the jury. Simply presenting expert opinions that some conclusions can be drawn should not destroy an insurance company’s right to have a claim reported quicker than 4 and a half years after the hurricane.

Did this Article Answer Your Homeowners Insurance Question?

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