Tag: Florida insurance claim

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Discovery of Insurer’s Claim File not Permitted when Coverage is in Dispute

Florida Insurance Law

Florida Insurance Law

In State Farm Florida Insurance Company v. Meir Aloni, the Florida Fourth District Court of Appeal held that discovery of the insurance company’s claim file including its activity log, emails, notes and photographs was improper when coverage was in dispute.

Insurance Company Claim File

This case involved a claim for roof damage relating to Hurricane Wilma.  The homeowner reported the claim four and half years after the storm and the insurance company was defending the claim on the basis of untimely and late notice.  The homeowner sought documents from the insurance company’s claim file claiming those documents would prove whether the insurance company was prejudiced by any late reporting and that the documents themselves were not privileged or prepared in anticipation of coverage.  The trial court ordered the insurance company to produce certain documents from the claims file and this appeal was taken.

Claims File Work Product Privilege and Exceptions

The Fourth District Court of Appeal found that an insurance company’s claim file is generally work product and is protected from discovery prior to the determination of coverage.  The appellate court noted that there are two exceptions to the work product privilege for the claims file.  First, a party may request the trial court to conduct an in camera inspection of the materials to make sure they meet the specific criteria for privilege.  Secondly, a party may obtain the materials if it shows that they are in need of the materials in preparation of the case and is unable without undue hardship to obtain the equivalent materials by other means.  Since the homeowner did not prove need or inability to obtain similar materials without undue hardship, it would cause irreparable harm to the insurer to produce those materials now.

Related Topics: Florida Insurance Law, Florida Homeowner’s Insurance Claim, Insurance Claims File

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Disputed Prejudice to Insurer for Late Notice Prevents Summary Judgment

Florida Insurance Law Late Notice

Florida Insurance Law Late Notice

In Leben v. State Farm Florida Insurance Company, 37 Fla. L. Weekly D1822a (Fla. 4th DCA 2012), the Florida Fourth District Court of Appeal considered an appeal in which a trial court entered summary judgment in favor of an insurance company against homeowners for a Florida insurance claim.  The trial court entered judgment in favor of the insurance company on the basis that the homeowners failed to timely report their claim to the insurance company.

Florida Insurance Law Prompt Notice Requirement 

Most if not all Florida insurance policies have a requirement that all insurance claims must be reported as soon as possible.  The purpose for requiring timely notice of an insurance claim is to permit the insurance company an opportunity to inspect the damages and to determine the cause of loss as soon as possible.  If too much time passes from the time the damages occur, it may not be possible for the insurance company to determine the cause of loss and whether it is covered under the insurance policy.  If an insurance claim is reported late, there is a presumption that the insurance company has been prejudiced by the late reporting and cannot determine the cause of loss. Denial of an insurance claim is proper if there is late notice of the claim and if the insurance company has been prejudiced by the late reporting.  The presumption that the insurance company was prejudiced can be rebutted by evidence that the lack of timely notice had no impact on the ability of the insurance company to complete its investigation and to determine the cause of loss.

Summary Judgment Not Permitted When Prejudice is Disputed

In this Hurricane Wilma case, the homeowners reported roof damage to their home in 2009 even though the storm was in 2005.  The homeowners had reports from two different roofing companies that concluded the damages were caused by Hurricane Wilma.  The insurance company claimed by way of an affidavit that it could not determine that the damages were caused by Hurricane Wilma because the homeowners failed to timely report their claim.  The Fourth District Court of Appeal reversed the trial court’s summary judgment in favor of the insurance company because it found that the issue of prejudice to the insurance company was in dispute  If there is no prejudice to the insurance company then denial on the basis of late notice would be improper.  The case was ultimately remanded back to the trial court for a trial to determine if the insurance company was in fact prejudiced by the late notice.

Lesson of the Day 

If you have a Florida insurance claim, make sure to report that claim to your insurance company as soon as possible or you risk having your claim denied.  Document your claim by taking plenty of photos for the damages and what appears to you to be the cause of loss.  Keep a written journal of your calls to the insurance company and try to communicate with the insurance company in writing as much as possible.  Finally, if the cause of loss looks to be disputed by the insurance company, get reports from contractors, engineers or other relevant experts as to what caused the damages so you can support your claim later and defeat any defense of prejudice if needed.

 

 Related Topics: Florida Insurance Law, Florida Homeowner Insurance Claim, Florida Insurance Contract, Florida Insurance Claim Denial, Florida Insurance Claim Late Reporting

 

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Assignment of Rights is not an Assignment of Obligations

Florida Insurance Law

Florida Insurance LawIn Citizens Property Insurance Corporation v. Ifergane, 37 Fla. L. Weekly D2205a (Fla. 3d DCA 2012), one of the issues in dispute for this Florida insurance claim was whether a co-insured could recover policy benefits while the named insured failed to cooperate with the investigation of the claim.  

A Failure to Cooperate

In this instance, the named insured assigned all her rights to benefits under the insurance policy to her husband and then afterwards failed to cooperate with the insurance company’s requests for information.  The insurance company denied the claim on the grounds that the named insured failed to cooperate by attending an examination under oath and therefore it did not have to make payment for the claim.  The husband argued that he did cooperate and because of the assignment of rights, it was only his claim and whether or not his wife cooperated was irrelevant.  

Apples and Oranges

The Third District Court of Appeal held that pursuant to Florida insurance law, a spouse as a named insured could assign all rights to benefits under the policy to her husband but she could not assign her obligations under the policy.  As such, the wife’s failure to attend an examination under oath (EUO) as required by the insurance policy was a breach of the insurance policy that precluded recovery under the insurance policy for the husband.  The lesson learned here is that all insureds must cooperate with the reasonable requests of the insurance company or risk forfeiting their rights under the insurance policy.

Related Topics: Florida insurance law | Florida homeowner insurance claim | Florida insurance claim payment | Florida insurance policy breach

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