In 1500 Coral Towers Condominium Association v. Citizens Property Insurance Corporation, 3D12-132 (Fla. 3DCA 2013), the Florida Third District Court of Appeal, held that when a claimant/insured fails to give timely notice of a claim to the insurance company, the insurance company will be presumed to have been prejudiced by the late notice and the burden then shifts to the claimant/insured to prove that there was no prejudice to the insurance company by the late notice.
Insurance Claim Notice – Use it or Lose it
This Florida insurance claim dealt with property damages to a condominium from Hurricane Wilma in 2005. The condominium association did not report the claim to the insurance company until 2010 for the first time. The admitted reason for not reporting the claim to the insurance company was that the condominium association was not sure that the damages from the storm would exceed the deductible under the insurance policy. The condominium association did file a lawsuit for the claim prior to the expiration of the statute of limitations. Notwithstanding, the insurance company sought summary judgment in its favor on the grounds that the association breached the insurance policy by giving late notice. The Florida Third District Court of Appeal affirmed the trial court’s granting of summary judgment in favor of the insurance company. The appellate court stated that a Florida insured must give notice of the loss without waiting for the full extent of the damages to be apparent when there is a prompt notice provision in the insurance policy. Failure to give prompt notice such as in this case results in a presumption that the insurance company was prejudiced by the late notice. Prejudice is presumed on the basis that the insurance company will have a difficult or impossible time to investigate and defend itself given the long passage of time since evidence and witnesses may no longer be available.
Failure to Prove Lack of Prejudice – Game Over
In order to avoid a finding that a claimant/insured breached the insurance policy when late notice is given, the claimant/insured must prove that there is no prejudice to the insurance company. The law in Florida is clear in that once the presumption of prejudice is established, the burden shifts to the claimant/insured to prove there was no prejudice. Proving a lack of prejudice requires facts, evidence and testimony, not conclusory statements that there was no prejudice. In this case, the condominium association did not offer any proof other than a statement from an engineer that there was no prejudice. As such, the appellate court agreed with the trial court assessment that the condominium association failed to meet its burden with respect to proving no prejudice.
The Game Plan Going Forward
As is evident from this case, if you have a Florida insurance claim, give notice of that claim to the insurance company immediately. Do not wait to see whether it will meet your deductible. Do not wait to report the claim until you obtain numerous repair estimates to your satisfaction. Do not wait until you have hired an engineer, lawyer, or for the stars to allign to file that claim. And certainly do not lull yourself into a false sense of confidence that you have five-years to file a claim and lawsuit. The longer you wait to file your insurarnce claim the greater the peril you bestow upon yourself.
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