Florida insurance claim – Miamilawyer1.com

September 1, 2017September 10, 2018

8 Tips for Florida Insurance Claims

Having been in the trenches for quite some time as a Miami Insurance Lawyer, here are some useful and simple tips for maximizing the chances of recovery in your Florida insurance claim:

Report Your Claim As Soon As Possible. Florida law and your insurance policy require that you timely report your claim to the insurance company. Make that call as soon as you discover damages. This allows the insurance company to document that you are making a claim right away. That early claim call also gives the insurance company the opportunity to investigate the damages and their cause. You should not wait to call the claim in while you do your own investigation. You will have plenty of time after you make the initial claim call to hire contractors, adjusters, lawyers, and secure estimates, photos, and expert opinions.
Take Pictures and Video. Document your claim by taking pictures and video of the damages. When documenting the damages, be sure to get different perspectives of the damages, both close-up and an overview of the room/location where the damages are located. If you can, be sure to put a time and date stamp on your pictures and video. Remember, the star of your photos and video should be all of the damages, make sure you can actually see them by using proper lighting and distance. Finally but just as important, take pictures and video of the cause of damages while it is happening if possible. That means, if a storm or leaky pipe has caused damages, try to get pictures and video of the storm or of the leaky pipe. If your home was flooded out, get pictures and video of the actual water on the floor.
Make Temporary Repairs to Stop Additional Damage. You will need to mitigate your damages which simply means you need to stop additional damages from taking place. You cannot stand by and let your property become further damaged under you watch if you could have prevented the same. For example, put a tarp on a leaky roof, turn off the water and repair that broken pipe, remove excess water from the home before it damages other areas or causes mold. Taking pictures or video of your temporary repairs will help prove that you did all that you could to stop further damage.
Create a Claim Diary. Since memories fade and to assist you later in recalling the events, create a written diary of what took place during your claim. Create the diary as soon as possible and begin each entry with a date, time, location and the people involved. Your first entry should document when you first observed the damages, what you saw, what you believe caused the damages, and what you did in response to the discovery. Every entry after that should note any further observations, meetings, or conversations regarding your claim.
Obtain Repair Estimates. You will need to know what it will cost for a real licensed contractor to repair your damages. This is needed in order to evaluate whether the insurance company’s estimate is fair and reasonable. Do not assume that the insurance company has your best interests in mind during the claims settlement process. More often than not an insurance company estimate either fails to address all the damages or undervalues the cost of materials or labor for the repairs.
Create a Receipt File. To properly document your damages, you will need to hold on to and produce those receipts you have for the damaged property. The needed receipts could include those you were given for temporary repairs (plumbers), supplies for making repairs, and the original receipts for damaged personal property (furniture, electronics, etc.). In the end it is your burden to prove that you either incurred expenses for repairs or owned property that was damaged so it is very important to have receipts or photos for it all. This is incredibly important when there is a theft or fire claim and you can no longer show the property to the insurance company. A good practice is to make an inventory of your possessions that would include receipts and photos before you even have an insurance claim. Scanning all of this and keeping it digitally in a safe place or online is a good practice.
Respond to Your Insurance Company. You have a duty to assist your insurance company during its investigation of your claim. As such, be sure to return all telephone calls to the insurance company and to open/respond to all of its letters to you. Assist the insurance company with all of their reasonable demands for inspections, interviews, and document requests. If you feel uncomfortable with the requests being made upon you by the insurance company, consult immediately with a Florida insurance lawyer for advice and help. You have the right to have legal counsel and you also have the right to have your lawyer present during any interview, recorded statement, or examination under oath. Further, you have a right to not disclose irrelevant confidential or financial information. Insurance companies can tend to be invasive when it comes to their demands and they sometimes seek tax returns, bank statements, credit card statements and telephone records. These requests must be evaluated by your legal counsel to protect your rights, simply do not refuse to produce and give the insurance company another reason to deny your claim. Ignoring these request will be at your own peril and you really should obtain a Florida insurance lawyer to help you if you feel your privacy rights are being threatened.
Hire a Florida Public Adjuster. From the beginning, a licensed Florida Public Adjuster can give you the confidence and advice for how to proceed with your claim in order to maximize the chances of a proper recovery. A proper recovery means getting paid everything that you are owed in terms of scope (what is covered) and cost (damages). Unless you are a seasoned insurance adjuster or have handled many claims on your own, seek the proper help you need from the start. You would not perform surgery on yourself, so don’t handle an insurance claim for your most prized possession on your own. Only a Florida Public Adjuster can tell you what the proper damages are for your claim. Do not rely upon the insurance company to tell you what you are owed. Figure it out on your own and fight for it.

About the Author: Patrick Russell, Esq., has been a member of The Florida Bar since 1994 and is an experienced Florida insurance lawyer. Patrick started his insurance law practice more than twenty years ago when he represented homeowners and business owners for their Hurricane Andrew insurance claims. The purpose of this article is educational and not for the solicitation of legal services. The goal is to avoid the mistakes learned from the past, specifically those from previous windstorms. Knowledge is power. Information is free. Mistakes are costly. If you would like more tips on how to process your Florida insurance claim, Patrick can be reached at (305) 608-2977 or here.

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

April 9, 2014September 10, 2018

Insurance Company Awarded Attorney’s Fees against Insurance Claimant

In Citizens Property Insurance Corporation v. Perez, 4D12-1412 (Fla. 4DCA 2014), a new Florida insurance law case, the insurance company was seeking attorney’s fees and costs against its policyholder when the policyholder lost a Florida insurance claim lawsuit. The legal basis for attorney’s fees and costs was based on a Proposal for Settlement made under Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442. In the proposal for settlement, the insurance company made a minimal offer of $1,000.00 to which the policyholder rejected. The policyholder argued the insurance company was not entitled to attorney’s fees and costs because the minimal offer was not made in good faith. The Florida Fourth District Court of Appeal held that an insurance company’s minimal offer was in good faith if it had a reasonable basis at the time of the offer to believe its exposure was nominal. The Fourth District Court of Appeal found that the insurance company had a reasonable basis to believe its exposure was nominal and the minimal offer was made in good faith.

Florida Proposal for Settlement

The Florida Proposal for Settlement Statute and Rule is a tool by which an insurance company can seek attorney’s fees and costs against an insurance claimant. Normally in Florida, only the insurance claimant can obtain attorney’s fees if the claimant obtains a final judgment against the insurance company. Florida insurance companies now use the Proposal for Settlement as a sword to intimidate and scare homeowners when they make insurance claims. Almost as a matter of course, insurance companies will file an early Proposal for Settlement in a low amount. The insurance claimant will be at risk for paying attorney’s fees if the claimant cannot obtain a final judgment that exceeds the offer amount by at least twenty-five percent.

Enforcement of a Proposal for Settlement

The enforcement of a Proposal for Settlement requires several factors. First, the Proposal for Settlement must be in writing and in a specific statutory form. Second, the Proposal for Settlement must be clear and unambiguous. Third, the Proposal for Settlement must be made in good faith. Fourth, the Proposal for Settlement must be rejected. Finally, the party that rejected the Proposal for Settlement must have failed to obtain a recovery at least twenty-five percent more than the amount offered.

Good Faith Proposals for Settlement

For the Florida Fourth District Court of Appeal which includes Broward County, the standard for good faith as to a minimal offers is whether it was reasonable at the time of the offer to believe there was nominal exposure in the case. For the neighboring Third District Court of Appeal which includes the counties of Miami-Dade and Monroe, the standard for good faith as to minimal offers is different. For the Third District Court of Appeal, the standard for good faith as to minimal offer only exists when the undisputed record suggests there was no exposure in the case. As it now stands, there are two standards for deciding whether good faith exists for a minimal offer. If you are in Miami-Dade County, a minimal offer will only be made in good faith if the party making that offer has no exposure in the case.

The End Result?

If and until this issue is taken up by the Florida Supreme Court, the analysis of whether an insurance company’s minimal offer in a Proposal for Settlement is in good faith must be weighed depending on where the claim is made. If your claim is in Broward County, you will need to analyze a Proposal for Settlement with a little extra care as your own exposure is now more at risk. Decisions regarding these tools and strategies should always be reviewed by competent and able Florida legal counsel. In all instances, consult with a Florida insurance lawyer for assistance with your Florida insurance claim. Having an insurance claim is bad enough. Having to pay the insurance company attorney’s fees and costs after making your claim is a whole different matter. 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 claim; Florida Proposal for Settlement, Minimal Offers, Florida insurance lawsuit, Miami insurance lawyer; Florida insurance lawyer

September 15, 2013September 10, 2018

Miami Insurance Lawyer

Miami Insurance Lawyer Help

RUSSELL | LAW and Patrick Russell, Esq. a Miami Insurance Lawyer can assist you with Florida property insurance claims. Disputes may arise between an insurance company and its insured over whether a particular claim is covered by the insurance policy or the amount of the damages for the claim. We are available to help you with all of these issues for a Florida homeowner insurance claim (damages due to fire, windstorm, flood) or a Florida business insurance claim (business property damage, inventory theft or destruction).

Florida Insurance Law Defined

Insurance law concerns the contractual relationship between an insurance company and its insured, the policy owner. The insurance policy is a lengthy written document that contains all the provisions, conditions, and exclusions for insurance coverage. The insurance policy is a binding and enforceable legal contract between you and the insurance company. Certain losses may be excluded from coverage and certain acts or a failure to act by a policy owner may result in the denial of an insurance claim by the insurance company. Disputes arise when there is a denial of insurance coverage, a cancellation of an insurance policy, or if there is an improper adjustment or valuation of a claim. If your Florida insurance claim has been denied or if you do not agree with the valuation of your damages, please consult a Miami Insurance Lawyer immediately.

Miami Insurance Lawyer Benefits

We can from start to finish process your insurance claim with the insurance company. Russell Law will analyze the insurance policy, your damages, and the insurance company’s response to determine the best course of action for you. We will organize and timely submit all documentation for your claim to the insurance company. Our office will respond to all inquiries from the insurance company or its adjusters. Should you need to provide a sworn statement, affidavit of damages, or sit for an examination under oath, Patrick Russell, Esq., will prep you for the same and attend any such examinations with you. Should your insurance claim be wrongfully denied, Russell Law will file a breach of contract or a petition for declaratory relief on your behalf to collect what you are owed.

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

May 15, 2013September 10, 2018

Russell Law adds new Florida Insurance Lawyer

We are proud to announce that Miami lawyer Pablo Gonzalez Zepeda, Esq., has joined Russell Law to work in its Florida insurance law practice assisting property owners with their insurance claims. Pablo Gonzalez Zepeda will work on all Florida insurance claim cases including the initial filing of claims, pre-suit claim settlement, examinations under oath, claim denials, insufficient payments, and breach of contract actions.

Mr. Gonzalez Zepeda was admitted to the Florida Bar in 2008 and has a broad spectrum of experience ranging including commercial law, consumer law, family law and real estate. Prior to joining Russell Law, Pablo Gonzalez Zepeda was the managing partner and shareholder of The Law Offices of Ferro, Gonzalez & Associates as well as his own law firm, The Law Offices of Gonzalez Zepeda. Mr. Gonzalez Zepeda is fluent in Spanish and belongs to the American Bar Association, Dade County Bar Association, Hispanic National Bar Association, National Association of Consumer Advocates, and National Association of Consumer Bankruptcy Attorneys.

May 1, 2013September 10, 2018

Lien Claimant Has No Authority to Submit Insurance Claim

In this Florida insurance law case, Great Lakes Reinsurance (U.K.) PLC v. Branham, 38 Fla. L. Weekly D524a (Fla. 3DCA 2013), the Florida Third District Court of Appeal held that a lien claimant against a boat that was damaged did not have authority to bring a claim for the damages and thus the insurer did not breach the insurance contract as it was not required to adjust the claim. Further, the 90-day requirement to investigate, adjust and otherwise settle insurance claims pursuant to Florida Statute 627.70131(5)(a) only applied to residential insurance claims and not property damages such as this involving a boat.

Florida Investigation Adjustment and Settlement of Insurance Claims

Pursuant to Florida law, for residential insurance claims an insurance company is obligated to investigate and settle claims in good faith within 90-days. In this case, a boat was damaged during a hijacking and its owner was killed. A lienor for the boat sought to bring a claim for damages against the insurance company and when that claim was not resolved within 90-days, the lien claimant brought a lawsuit for breach of contract and damages. The lien claimant was not a party to the insurance contract and the rights of the deceased had not been yet assigned to the lien claimant. The trial court ruled in favor of the lien claimant and found that the insurance company had failed to properly adjust the claim and breached the contract by not paying the damages. The Third District Court of Appeal reversed the trial court judgment first determining that the lien claimant had no legal basis to bring the claim as he was not a party to the insurance contract and the rights of the deceased had not yet been assigned to him by the personal representative for the deceased. It then follows that if the lien claimant did not have the authority to bring the insurance claim then the insurance company did not have an obligation to adjust or settle the claim. Further, the 90-day period to investigate, adjust and settle a claim only applies to homeowner residential claims as the Florida Statute specifically refers to insurer to mean residential property insurer and not marine insurer.

Florida Insurance Claim Best Practices

In order to bring an insurance claim and to force the insurer to investigate, adjust and settle the claim, make sure that you have proper standing under the insurance policy to bring the claim. This means you either need to be a party to the insurance policy, a specifically named beneficiary, or have a proper and valid assignment of rights from the policy holder.

Related Topics: Miami Insurance Lawyer, Florida Insurance Claims, Florida Insurance Law

April 17, 2013September 10, 2018

Insured Allowed to Prove No Prejudice in Failure to Submit Sworn Proof of Loss

In Allstate Floridian Insurance Company v. Farmer, 38 Fla. L. Weekly D75a, (Fla. 5DCA 2012), a Florida insurance law case, the Florida Fifth District Court of Appeal held that the trial court did not commit error by allowing the homeowner to prove that the insurance company was not prejudiced by the homeowner’s failure to timely submit a sworn proof of loss for the insurance claim.

Florida Insurance Law: Conditions Precedent

In this case, the homeowner had two unrelated insurance claims within one month of another. The insurance company required that three claims be filed for the two incidents and requested numerous documents, recorded statements, examinations under oath, and a sworn proof of loss. The insurance company received everything but the sworn proof of loss and conceded at trial that it had everything it needed to process the claims. Notwithstanding that fact, the insurance company did not resolve the claims and the homeowner filed a lawsuit. At trial, the insurance company moved for a directed verdict on the basis that the homeowner did not substantially comply with the requirement to submit a sworn proof of loss. The insurance company argued that the homeowner breached the insurance policy by not complying with all conditions precedent including the filing of a sworn proof of loss. Florida law requires at least substantial compliance with conditions precedent in order to recover under an insurance contract.

Florida Sworn Proof of Loss

All insurance policies require a homeowner to submit a sworn proof of loss when requested by the insurance company. The purpose of the sworn proof of loss is to advise the insurance company of the facts of the loss, what was damaged, and the approximate cost of damages. The sworn proof of loss enables the insurance company to complete its investigation of the claim. In this case, the insurance company argued that the failure of the homeowner to submit the sworn proof of loss was a breach of the conditions precedent and therefore it was relieved from having to provide insurance benefits.

Florida Presumption of Prejudice

At trial, the jury found that the homeowner did not substantially comply with submitting a proof of loss form but that there was no prejudice to the insurance company since it apparently had all the other information that it needed in order to complete its investigation. The insurance company argued that the jury should not have been permitted to make the finding of no prejudice and that the case should have been over once it was determined that the homeowner had failed to substantially comply with a policy condition. When there is a failure to comply with conditions of the insurance policy, Florida law provides that there is a presumption of prejudice to the insurance company. The presumption of prejudice is however rebuttable, meaning that the homeowner has the opportunity to prove that there was no prejudice. If the homeowner cannot prove that there was no prejudice, the insurance company prevails and is relieved of any obligation to pay the claim. The reason for this harsh rule is that prejudice means the insurance company did not have the ability to properly investigate the loss and determine either its cause or damages. The appellate court simply applied the foregoing principles and allowed the homeowner the opportunity to prove that even if the homeowner did not give the requested form to the insurance company that it did not affect the investigation and therefore it should not bar the claim.

Florida Insurance Claim Lessons

The lesson to be learned from this case is to not tempt fate. So long as the requests of the insurance company are reasonable and provided for by the insurance policy, the homeowner should make every attempt to timely and reasonably comply with those requests. There is no reason to inject another issue into the case or give the insurance company another reason to get out of paying for an otherwise valid claim.

Related Topics: Miami Insurance Lawyer, Florida insurance law, Florida insurance claim, Florida sworn proof of loss

April 3, 2013September 10, 2018

Late Reporting of Insurance Claim is Presumed Prejudice to Insurer

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.

Related Topics: Florida Insurance Law, Miami Insurance Lawyer,