Miami insurance lawyer

September 15, 2013September 10, 2018

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

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 14, 2010

Florida Homestead Exemption Applies to Insurance Claim Proceeds for Homestead Property

In Quiroga v. Citizens Property Insurance Corporation, 35 Fla. L. Weekly D767a (Fla. 3DCA 2010), the Florida Third District Court of Appeal invalidated an attorney’s charging lien for unpaid legal fees that was asserted against the collected proceeds of an insurance claim for a former client. In short, the attorney’s were able to collect monies from an insurance company for unpaid damages to the former client’s home. After collecting those proceeds, the former client fired the attorneys and refused to pay any legal fees while claiming that the law firm could not deduct such fees from the insurance proceeds because they were homestead protected. The Third District agreed with the former client holding that the homestead exemption that applies to homestead property also applies to the insurance proceeds for the protected homestead property and a client could not waive such an exemption even by entering into a fee agreement with a lawyer.