Tag Archives: Vacancy

The “Residence Premises” Defense in Florida Homeowners Insurance Litigation

Overview:

Do you want to know about a defense that Todd Legal, P.A. has helped create – the residence premises defense?  Do you want to know what steps you need to take to evaluate whether a homeowner must reside at the property to have coverage for a homeowners insurance claim?  Read this article, and make sure to read to the end to take advantage of our free Litigation Report offer.

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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 a case I handled resulted in a complete defense result in the Second DCA.  

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

For HO-3 policies, insureds must reside at their property to have coverage for damage to their home; however, I am surprised to find out that not everyone knows about this coverage defense. The defense stems from the typical HO-3 policy’s definition of “residence premises,” and the clause in the building coverages portion of the policy that explains what the insurer covers.

For a property to be a “residence premises,” it must be the property where the insured resides and the property shown in the declarations pages. See Harrington v. Citizens Property Ins. Corp., 54 So. 3d 999 (Fla. 4th DCA 2010). Although the Fourth DCA in Harrington focused on the impact of the definition of an “insured location,” the Court undoubtedly held that the definition of “residence premises” requires the insured to reside at the property. Since 1983, Georgia courts have held that the defense bars coverage for property damage. See Georgia Farm Bureau Mut. Ins. Co. v. Kephart, 439 S.E. 2d 682. New York’s courts have also enforced the defense. See Marshall v. Tower Ins. C. of New York, 44 A.D. 3d 1014 (2007). Further, the Michigan Supreme Court has upheld the use of the defense. Heniser v. Frankenmuth Mut. Ins. Co., 534 S.W. 2d 502 (Mich. 1995).

Although I have not seen any Florida appellate courts rule on the exact issue of the “residence premises” definition precluding coverage for property damage to a rental or unoccupied property, the Harrington case suggests the Florida DCAs would enforce the defense. In fact, every trial court I am aware of has ruled in favor of the insurer when presented with the issue. In addition, it is important to note that insurers have strong arguments that, because the property description is an essential part of the policy’s coverage grants, this is not a defense that an insurer can waive.

Reacting to the Florida appellate authority unfavorable to insurers on the vacancy exclusion, many insurers backed off from evaluating whether insureds needed to reside at a property for there to be coverage. With the trial court momentum in the insurers’ favor, the defense is certainly worth considering and evaluating as early as possible.

*April 30, 2014 Update: Want to Guarantee You Never Miss this Defense Again? Hire Todd Legal, P.A.*

How can you make sure that every adjuster and every attorney past, present, and future check to see if the insured resided at the property? Will an email work?  No. New adjusters and attorneys will never get it. Will a note to the file work?  Come on, give me a break.

But guess what will work?  If you shift your communication and case strategies from out of emails and Word documents and into a web-based project management portal.  Then, you can make sure every adjuster and every attorney on every case is asked whether the plaintiff resided at the property, and you have to go no further than two clicks online to find the answer for your specific case.  I offer innovative services and software that can automatically implement the strategy changes to be consistent with the information in this article.  If you want to know more about how I can help your company or firm ensure that your strategies are up-to-date and complied with by all of your colleagues and vendors, then contact me.  Furthermore, if you want a litigation project manager with a powerful software tool that allows your attorneys to draft top-down approved legal documents in every case with the click of a button, then read more about my services here.

The more you automate these routine tasks, the more time you will have to proactively manage your claims and cases.

Takeaway:

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

If this article did not answer your Florida homeowners insurance claims question, contact us now.