Florida insurance claim denial

May 14, 2014September 10, 2018

Summary Judgment not allowed for Insurance Company if there is some Compliance with Examination Under Oath Requests

In Solano v. State Farm Florida Insurance Company, 4D12-1198 (Fla. 4DCA 2014), a Florida homeowner insurance claim case, the Florida Fourth District Court of Appeal held that it was improper to award summary judgment to an insurance company when the homeowner cooperated to some extent with the requests for an examination under oath.

Here, the insurance company demanded an examination under oath for both owners of the home plus their Florida public adjuster. The husband attended the examination under oath but the Florida public adjuster refused claiming that he could not be compelled to do so. The homeowner and public adjuster provided documentation to support the claim to the insurance company and cooperated with inspection requests.

Regardless, the insurance company moved for summary judgment arguing that the homeowner violated the insurance policy by not cooperating with their investigation and providing a complete and meaningful examination under oath.

Florida Examination Under Oath

An examination under oath is a process allowed under a Florida insurance policy for the insurance company to question the homeowner about a claim. Insurance companies use the examination under oath to investigate the claim, the cause of loss and the extent of the damages claimed. Information gathered from an examination under oath is often used to support a decision by the insurance company to either pay or deny the insurance claim.

When requested, the attendance at an examination under oath by a homeowner is mandatory under the insurance policy. The failure of the homeowner to attend the examination under oath can be a breach of the insurance policy and lead to a denial of the claim.

The Fourth District Court of Appeal required a total failure to comply with an investigation and examination under oath request for summary judgment to be granted to an insurance company. Specifically, when there is some compliance and cooperation with insurance company requests, a question of fact remains whether there is a total failure to cooperate and that prevents summary judgment.

Florida Public Adjusters

Interestingly, the insurance company argued the refusal of the public adjuster’s refusal to attend the examination under oath was a breach of the Florida insurance policy. The public adjuster is not a party to the insurance contract between the insurance company and the homeowner.

Here, the homeowner arranged for the Florida Public Adjuster to attend the examination under oath but he on his own refused to attend. Since the insurance company could not show how the homeowner could compel the public adjuster to attend the examination under oath it was inappropriate to use this as a basis to deny the insurance claim.

Lessons Learned?

Obviously, if you want to be paid for your Florida insurance claim you must attempt to comply with the investigative request of the insurance company. Send the insurance company proof of your loss, including photos, receipts, etc. Permit the inspection of your home when requested by the insurance company. Attend an examination under oath if so requested. It is strongly suggested that you have a Florida attorney present with you during an examination under oath.

You will need to show at least some compliance with the reasonable requests of the insurance company if you do not want your Florida insurance claim denied from the outset. When you are in doubt whether the insurance company’s requests are reasonable or proper, that is the time to consult with a Florida insurance lawyer. In all those instances, please contact us if you, a colleague or family member is in need of help with a Florida insurance lawsuit or requires a Miami insurance lawyer.

Related Topics: Florida insurance law; Florida examination under oath, Florida insurance claim denial, Florida insurance lawsuit, Miami insurance lawyer, Florida insurance lawyer

July 24, 2013

Appraisal Award Satisfies Condition Precedent for Filing Bad Faith Claim Against Insurance Company

Florida Bad Faith Insurance Claims and Appraisal Awards

In Hunt v. State Farm Florida Insurance Company, 38 Fla. L. Weekly D774a (Fla. 2DCA 2013), the Florida Second District Court of Appeal held that an appraisal award in favor of a homeowner satisfied the requirements to bring a bad faith claim against the insurance company for claim delay. In this Florida insurance law case, the trial court dismissed the homeowner’s bad faith lawsuit because the homeowner did not obtain a judgment against the insurance company for breach of contract.

Florida Insurance Bad Faith Claims

A Florida insured, claimant or homeowner may file a separate lawsuit against his or her insurance company for additional damages for bad faith claims handling. By law, a Florida insurance company must act in good faith with Florida homeowners when investigating and adjusting insurance claims. This typically means that an insurance company cannot make representations to the insured or homeowner that are false or engage in tactics to delay or otherwise exhaust a claimant so they give up or agree to settle for less than what they are owed. Before an insured or homeowner can bring a bad faith claim he or she must first obtain a resolution in their favor against the insurance company for benefits owed. Only after the homeowner has received a resolution in his or her favor can he or she then file a separate lawsuit for bad faith damages.

Florida Appraisal Awards

In this case, the Florida homeowner had a sinkhole claim and filed a breach of contract lawsuit against the insurance company when he disagreed with the repair estimate. During the lawsuit, the homeowner also filed a civil remedy notice with the Florida Department of Financial Services that claimed the insurance company was acting in bad faith and delaying his claim. In response, the insurance company moved to dismiss the breach of contract lawsuit and to compel appraisal of the claim. The trial court put the breach of contract case on hold and required that the parties use appraisal to set the amount of loss for the claimed damages.

The Florida appraisal process is a limited procedure whose sole purpose is to determine the amount of damages. Afterwards a trial can then be requested to determine if the insurance company is in fact liable for the claim. During the appraisal process, the insurance company may agree to settle the case if it is pleased with the amount of the appraisal award.

In this particular case, the homeowner was given an appraisal award that set the amount of damages and the insurance company elected to pay it. The payment of the appraisal award essentially ended the breach of contract case. In response, the homeowner dismissed his breach of contract case but then filed a separate lawsuit for bad faith against the insurance company. The insurance company argued that the homeowner could not proceed with a bad faith claim since he dismissed his breach of contract case and never received a final judgment. The trial court agreed with the insurance company and entered summary judgment against the homeowner finding that he failed to satisfy the requirements for bringing a Florida bad faith action.

Appraisal Award is a Resolution Against the Insurance Company

The Florida Second District Court of Appeal reversed the trial court holding that an appraisal award is a resolution against the insurance company. The appellate court recognized that the common resolution obtained against an insurance company prior to bad faith is a final judgment but that is not the only way. For instance, previous Florida case law has established that an arbitration award against an insurance company establishes the validity of the claim and is sufficient for the purposes of making a bad faith claim. An appraisal award operates the same way in that it after payment establishes the validity of the claim and therefore is also sufficient for the purposes of making a bad faith claim.

Lessons Learned

To pursue a bad faith claim against an insurance company, a Florida homeowner will need to either obtain (1) a final judgment against the insurance company for breach of contract; (2) an arbitration award; or (3) an appraisal award that is paid by the insurance company. In this case, substance prevailed over format.

Related Topics: Florida insurance lawyer, Miami insurance lawyer, Florida insurance claim, Florida insurance claim denial, Florida Bad Faith claims, Florida Appraisal Process, Florida Appraisal Awards

June 12, 2013September 10, 2018

Reporting Insurance Claim Four Years After the Fact is Untimely and Presumed Prejudice to Insurer

In Hope v. Citizens Property Insurance Corporation, No. 3D11-3147, (Fla. 3DCA 2013), the Florida Third District Court of Appeal determined that a homeowner’s reporting of a Hurricane Wilma insurance claim four-years after the storm was untimely notice pursuant to the insurance policy and carried with it a presumption of prejudice as to the insurance company’s ability to investigate the claim.

Insurance Claim Late Notice

Hurricane Wilma damaged the homeowner’s property in 2005. For the next four years, the homeowner made his own repairs to the property. In 2009, the homeowner for the first time reported the claim to the insurance company when he could fix all the damages. The insurance company denied the claim for failure to give prompt notice of the claim and because it was unable to determine what damages if any were from the hurricane. The trial court granted the insurance company’s motion for summary judgment holding that notice four years after the alleged loss was, as a matter of law, failure to comply with the insurance policy notice requirements. The trial court did not address the issue of prejudice to the insurer.

Late Notice is a Rebuttable Presumption

The Third District Court affirmed the trial court’s decision as being the right ruling but for the wrong reason. Under Florida insurance law, when late notice is given for an insurance claim, there is a presumption that the late notice prejudices the insurance company’s ability to investigate and adjust the loss. In that case, the insurance claim can be properly denied since the insurance company will be unable to determine what exactly transpired during the claim and is therefore not required to pay for the same. When there is a presumption of prejudice to the insurance company, the burden shifts to the homeowner to establish that the insurance company was not prejudiced by the late notice. The claim is lost If the homeowner cannot prove that there is no prejudice to the insurance company due to the late notice.

In this case, the trial court did not make a ruling as to prejudice but at the same time, the homeowner did not prove that there was no prejudice to the insurance company. Having had the opportunity to prove the lack of prejudice but failing to do so, the Third District Court of Appeal held that the motion for summary judgment was properly granted for the insurance company.

Lessons Learned

Based on this decision and those others recently decided before it, a Florida homeowner must report an insurance claim immediately to the insurance company or risk a denial. Further, a Florida insurance claimant would be best served to refrain from undertaking major repairs on his/her own until at least the insurance company has had the opportunity to view the scene. The insurance company needs the opportunity to review the damages to best determine what the damages are and what caused them. Should you as the homeowner destroy all that evidence by making significant repairs, you have erased the evidence of damages and their cause. Your obligation at the outset should be to (1) notify the insurance company of the claim; (2) make sure that no additional damages are caused to the property for those things you can control; and (3) preserve the scene so the insurer can see the damages and determine their cause.

Related Topics: Florida Insurance Law, Florida insurance claim notice, Florida insurance claim denial, Florida insurance policy