Archives for July 2012

Florida Condominium Owner Insurance Claims – I Have Water Damage In My Condo Unit, What Does the Association’s Insurance Cover?

As South Florida Condominium owners know, many things can go wrong to cause a water loss in their condominium unit.  Whether you live in Miramar, Deerfield Beach, Coconut Creek, Doral, Lauderhill, Margate, Miami Lakes, Pembroke Pines or another area within Miami, Fort Lauderdale or Palm Beach, many units are over thirty years old and so it is not uncommon to experience pipe leaks, burst pipes, broken pipes, broken water heaters, failed toilet seals or even roof and window leaks.  When these types of water intrusions occur, one may seek out a condominium water damage insurance claim lawyer to get some guidance on how to proceed in resolving this property damage loss and perhaps even assert condo water damage claims.

This attorney will probably inquire as to whether the water loss was from a common element (ie., a pipe behind the drywall, a roof leak and/or cracks in the exterior stucco/wall, parts of a unit that are typically considered common elements under one’s Declaration of Condominium), or an item that is the responsibility of the unit owner, such as a toilet that fails or a water heater that explodes.  Usually, a Declaration of Condominium will state that items within a unit that touch air are the responsibility of the unit owner.

Once it is determined where the water intrusion originated from, the next big question is typically whether the water loss was the result of the negligence of the condominium association in failing to maintain the common elements.  If the water damage is determined to be caused by this (ie., water penetrated an exterior wall or its stucco, a roof leak, a common air conditioning stack fails, a common sewage pipe backs up or fails, a common pipe or plumbing fixture fails, etc.), the association could be responsible for the water damage and resulting mold that may occur.  On the other hand, many times, there are water intrusion losses caused by sudden and unforeseeable events such as Hurricanes or other wind storms, tornado’s, or possibly even a neighbors condo (or condo unit above yours) wherein a relatively new water heater simply explodes due to a faulty seal.  These types of losses are considered casualties.  When a casualty occurs, both the condominium and unit owner’s insurance could come into play.

As for a condominium association’s insurance requirements, Florida Statute §718.111(11)(f), states that a property insurance policy issued or renewed on or after January 1, 2009, for the purpose of protecting the condominium must provide primary coverage for:

1. All portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications.

2. All alterations or additions made to the condominium property or association property pursuant to s. 718.113(2).

3. The coverage must exclude all personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit. Such property and any insurance thereupon is the responsibility of the unit owner.

Pursuant to this statute, because drywall is not specifically excluded, that would be the responsibility of the association under its insurance policy, minus the “wall coverings” such as paint or wall paper, which would still be the unit owner’s responsibility.

This is the reason it is so important for a condo owner to have homeowners insurance to cover losses caused by a casualty, just in case damaged portions of the unit are not covered by an association’s insurance policy.

For additional analysis of condo water damage claims, see my other post.

Florida Property Damage Insurance Claims – How Long Do I Have to File a Lawsuit or Provide Notice of a Claim?

So you are a South Florida homeowner living in Coral Springs, Cooper City, Hallandale, Boca Raton, Homestead, Key Biscayne, Pompano Beach, Tamarac, Wilton Manors, Hialeah or another area within Miami, Fort Lauderdale or Palm Beach, and one day you come home to a flooded condominium or house. Your furniture is soaked, your walls have started growing toxic mold, and the home has become uninhabitable due to the significant water damage.  Thinking that you may have to file a property damage insurance claim with your homeowners insurance company, you contact a Miami, Florida Water Damage lawyer to get some information on how to file a claim.   The South Florida lawyer asks you if this was a sudden water loss from a burst pipe or water heater, was the water and property damage due to the recent Hurricane and windstorm that just occurred, or was the water damage due to normal wear and tear.  You tell the attorney that your not sure, it may have been from a roof leak.

The next question this Miami, Florida property damage insurance claim attorney asks you is how long ago did this water damage loss occur.  The reason the lawyer would ask you that is because of the changes in the law (specifically, the statue of limitations to bring a property insurance lawsuit for losses occurring on or after May 17, 2011, is now five years from the date of loss) with the governor’s signing of Senate Bill 408 (2011).  Some of the notable changes that went into effect with this bill include the following:

  • Florida Statute §95.11(2)(e): if you sustain a property loss on or after May 17, 2011, the Statute of Limitations for filing lawsuits on all property insurance claims (for breach of insurance contracts) is five (5) years from the date of the property loss.  Before this law was changed, a Florida homeowner could bring a lawsuit within five years from the date the insurance company breached the insurance contract (ie., a wrongful denial of a claim via a denial letter or an improper/lowball estimate).
  • Florida Statute §626.854(11)(a): compensation to a public adjuster for a reopened or supplemental claim may not exceed twenty (20) percent of the reopened or supplemental claim payment.
  • Florida Statute §626.854(15):  a public adjuster must ensure prompt notice of property loss claims submitted to an insurer, the public adjuster’s contract is to be provided to the insurer, the property is to be available for inspection of the loss or damage by the insurance company, and the insurance company is to be given an opportunity to interview the insured directly about the loss and claim. The insurer also must be allowed to obtain necessary information to investigate and respond to the claim.
  • Florida Statute §627.70132: a claim, supplemental claim, or reopened claim under an insurance policy that provides property insurance for loss or damage caused by the peril of a windstorm or hurricane is barred unless notice of the claim, supplemental claim, or reopened claim (ie, reporting the claim to the insurance company) was given to the insurer within three (3) years after the hurricane first made landfall or the windstorm caused the covered damage. The term “supplemental claim” or “reopened claim” means any additional claim for recovery from the insurer for losses from the same hurricane or windstorm which the insurer has previously adjusted pursuant to the initial claim.  Prior to this law change effective June 1, 2011, an insured had five years to report a claim.
  • Florida Statute §627.351(6): for any claim filed under a Citizens Property Insurance Policy as of May 17, 2011, a public adjuster may not charge, agree to, or accept any compensation or fee greater than ten (10) percent of the additional amount actually paid over the amount that was originally offered by the corporation for any one claim.  This appears to limit the ability of a public adjuster to get involved on a Citizens property loss claim until after the homeowner has made a claim and been offered property insurance loss proceeds.  This does not limit the ability of a Miami, Florida Hurricane and Windstorm damage insurance claim lawyer from getting involved from the beginning, however.
  • Florida Statute §627.7011(3)(a): as to losses for which a dwelling (house structure) is insured on the basis of replacement costs, the insurance company must initially pay at least the actual cash value of the insured loss, minus any applicable deductible. However,the insurer shall pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred. If a total loss of a dwelling occurs, the insurance company is to pay the replacement cost coverage without reservation or holdback of any depreciation in value  pursuant to section 627.702.   As such, if work is contracted for but not done, and therefore, expenses are not incurred, the insurance company will not issue a check to their insured.
  • Florida Statute §627.706(5): any claim brought on or after May 17, 2011, including, but not limited to, initial, supplemental, and reopened claims under an insurance policy that provides sinkhole coverage, is barred unless notice of the claim was given to the insurance company within two (2) years after the policyholder knew or reasonably should have known about the sinkhole loss.

As you can see, these changes in the law (most of them taking place on May 17, 2011), will affect the ability of policy holders to bring Florida property damage insurance suits and claims, and public adjusters will be significantly affected, especially for claims on a Citizens Insurance policy.

Florida Homeowners Insurance Claims – HO-2 v. HO-3 v. HO-4 v. HO-6 v. HO-8, Insurance Policies Oh My

When living in South Florida, it is more important than ever for a homeowner or renter/tenant to secure insurance for the many different hazards that may affect one’s property.  After all, we are especially susceptible to tropical storms and Hurricanes in the Miami, Fort Lauderdale and Palm Beach areas.  Yet, even though we have not experienced a Hurricane in quite some time, having homeowners or renters  insurance can provide peace of mind given the many other perils which may occur and that can destroy one’s property, including fires, electrical surges, floods, sinkholes, tornadoes, lightning strikes, vandalism, theft, and/or sudden water losses from a burst pipe, faulty/broken plumbing or a failed seal in a water heater.

Whether your a single family homeowner that may have an HO-2, HO-3 (also know as an “All Risks” policy) or HO-8 policy, a condo owner that has an HO-6 policy, or a tenant/renter that has a an HO-4 policy, if you sustain a property loss (structure and/or personal property) and require a Miami, Florida, Hurricane or property damage insurance claim lawyer, there are legal issues an insurance company may raise depending on the type of policy you have,  and that you scratch your head and say, what is that.  Some of these issues may include the following:

    1. Actual Cash Value:  if a policy provides for actual cash value as opposed to replacement cost, this would be the amount of money it would  cost to purchase a similar item in like condition and quality in today’s market place, ie, the market value of the property that takes into consideration depreciation.  An example of depreciation is say carpet or other types of flooring that has a useful life of say 10 years but at the time of loss was 5 years old, the market value of the carpet would be less than the replacement cost, as the market value would take into consideration this wear and tear over the years and reduce the value of the property.
    2. Replacement Cost: if a policy provides for the replacement cost of damaged property, this would be the amount of money it would take to purchase the same type of property of like kind and quality in today’s market place.
    3. Alternative Living Expenses: also known as ALE, alternative living expenses may include the reasonable expenses incurred to relocate for the time it takes to repair an uninhabitable property, such as staying in a hotel for days or weeks,  excess food expenses above what one normally would spend, transportation expenses in case you need to travel greater distances than normal, and storage expenses, just to name a few.  It is important to save your receipts in order to prove that these expenses were actually incurred.
    4. Loss of Use: an interchangeable term with alternative living expenses (ALE) on a Miami, Florida, homeowners insurance policy, loss of use damages are paid when a homeowner incurs excess expenses during the time it takes to repair an uninhabitable property.
    5. Deductible: the amount of money the policy holder must pay out of pocket before the insurance company will start paying from your insurance coverage.  For instance, a Miami, Florida, homeowner may have a $5,000 deductible on a windstorm policy, and when a Hurricane damage insurance claim is made, if the property damage claim is adjusted at $15,000, the insurance company will pay you a net of $10,000, ie., minus the $5,000 deductible.
    6. Exclusion: within a homeowner’s policy, there will be certain provisions called exclusions that an insurance company may cite to in order to deny a claim.  Common exclusions cited in a homeowner’s insurance policy could include mold (given that is it something that grows over time), flood (you would need to purchase a separate flood policy), landslides/sinkholes (ie, earth movement), neglect/wear and tear (policies cover water damage caused by sudden and unexpected losses, such as a burst pipe or a water heater that explodes), a sewer backup, loss caused by intentional destruction, and ordinance/law (such as construction to bring a house up to code), just to name a few.  However, insurance companies typically offer a homeowner the opportunity to purchase coverage that normally would be excluded.

As you can see, whether you are a homeowner/tenant in Coral Springs, Cooper City, Hallandale, Boca Raton, Homestead, Key Biscayne, Weston, Pompano Beach, Tamarac, Wilton Manners, Hialeah or another area within Miami, Fort Lauderdale or Palm Beach, there is a lot to think about when it comes to your insurance policy and potential property damage disputes and claims that may occur.

Florida Wrongful Death Claim – My Mom Was Killed in a Miami Car Accident: What Damages Are Recoverable in Florida for a Wrongful Death?

Unfortunately, everyday on the roadways throughout South Florida, whether in Miami-Dade County, Fort Lauderdale, Palm Beach or Monroe County (to wit, the Florida Keys, including Key Largo, Marathon, Islamorada or Tavernier), family members, friends and co-workers are hurt in accidents due to the fault of another, and sometimes, they are even killed.  These accidents typically involve cars, although they can also involve trucks, motorcycles, scooters, mopeds, and even bicycles.  Not knowing what to do, a surviving relative (ie., a “survivor”) may seek out the assistance of a Miami, Florida, personal injury and accident lawyer, wondering what types of damages may be recoverable when a “wrongful death” occurs.  Well, Florida Statute §768.21 (part of Florida’s Wrongful Death Act) lends some guidance to this question.  According to this statute, the following damages are recoverable for a Florida wrongful death claim or lawsuit:

Survivor:

  1. Each survivor (the loved one’s spouse, children, parents, and, when partly or wholly dependent on the loved one for support or services, any blood relatives and adoptive brothers and sisters) may recover the value of lost support and services from the date of your loved one’s injury to her or his death, and future loss of support and services from the date of death.
  2. The surviving spouse may recover for loss of the loved one’s companionship and protection and for mental pain and suffering from the date of injury.
  3. Minor children (considered under the age of 25) of the loved one, and all children of the loved one if there is no surviving spouse, may recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
  4. Each parent of a deceased minor child may recover for mental pain and suffering from the date of injury, and  each parent of an adult child may recover for mental pain and suffering if there are no other survivors.
  5. Medical or funeral expenses due to the loved one’s injury or death may be recovered by a survivor who has paid them.

Estate:

  1. Medical or funeral expenses due to the loved one’s injury or death (excluding amounts paid by a survivor).
  2. Loss of earnings of the loved one from the date of injury to the date of death.
  3. Loss of the prospective net accumulations of an estate (ie, the loved one’s future earnings), which might reasonably have been expected but for the wrongful death may also be recovered if (1) the loved one’s survivors include a surviving spouse or lineal descendants (ie, children);  or (2) the loved one is not a minor child (ie, 25 and older), there are no lost support and services recoverable by a survivor, and there is a surviving parent.

On a side note, according to Florida Statute section 95.11(4)(d), the statute of limitations (time to bring a lawsuit) for a Florida wrongful death claim arising out of an automobile (whether a driver, passenger, or pedestrian), trucking, scooter, moped, bike, construction, cruise, slip and fall, trip and fall or on the job accident, is two years from the date of incident.

As you can see, these types of cases can be very complex and may require the need for a Florida Keys personal injury and wrongful death lawyer.

Florida Condo Owner Pipe Plumbing Leak Claims – It’s the Rainy Season Down in Miami, Fort Lauderdale and Palm Beach: Be Prepared

It is currently the rainy season down here in South Florida, and nothing is worse than having one of those downpours cause water damage to your house, apartment or condominium.  Whether it is a leak in your roof, flooding due to a flash flood, or even a gutter or burst pipe/plumbing that overflows with water, it is now more important than ever to have flood and/or homeowners insurance to protect you from water intrusions and the resultant water damage loss.  Many times, not only is the structure damaged, but furniture, electronics and other items are frequently ruined.

As such, when one has to bring Florida Condo Owner Pipe Plumbing Leak Claims, it is important to know the types of property damage insurance coverage available, whether flood or homeowners, so that you are protected in a time of crisis.  Reason being, mold is commonly caused by water intrusions, yet one of the most common exclusions that insurance companies cite to in denying a homeowner’s insurance claim is the mold exclusion.  A Miami, Florida, property damage and homeowners insurance claim attorney can help one navigate the muddy waters of the various types of policies, so that the losses and claims that eventually occur can be dealt with.  Whether you live in Miramar, Deerfield Beach, Coconut Creek, Doral, Lauderhill, Margate, Miami Lakes, Pembroke Pines or another area throughout Miami, Fort Lauderdale or Palm Beach, it is certainly better to be informed and prepared than to suffer a non-covered property loss that causes heartache and headaches.

Florida’s New PIP Insurance Law- Florida Legislature Passes Amendment to Section 627.736, the Personal Injury Protection (PIP) Law

Primarily effective January 1, 2013 (some parts are effective earlier), Florida’s new PIP insurance law, section 627.736, will change due to amendment.  The old law allowed up to $10,000 in personal injury protection benefits, including the payment of up to 80% of medical bills (that were reasonable, related and necessary) and 60% of lost wages.  Florida’s new PIP insurance law now provides that in order to get up to the $10,000 in PIP benefits, there must be a determination by a medical physician, osteopathic physician, dentist,  physician’s assistant or registered nurse practitioner, depicting an “emergency medical condition.”  An emergency medical condition is defined under section 627.732(16) as a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:

(a) Serious jeopardy to patient health.

(b) Serious impairment to bodily functions.

(c) Serious dysfunction of any bodily organ or part.

Of note, Florida’s new PIP insurance law requires a finding of an emergency medical condition within fourteen days of the date of accident, or else the PIP benefits are restricted to $2,500. Moreover, if no treatment is received within fourteen days, it appears that personal injury protection benefits are not required to be paid.

Finally, massage therapists and acupuncturists are no longer covered by PIP.

It will be interesting to see how courts will interpret Florida’s new PIP insurance law and the litigation Florida PIP lawyers will be required to bring over differences in interpretation.

Florida Hurricane/Storm Damage Claims – Implied Warranty of Good Faith and Fair Dealing: Does it apply in claim by an Insured Against its Insurer for Failing to Investigate a Hurricane Loss in a Timely Manner?

It does not, so says the Florida Supreme Court in the case of QBE Ins. Corp. v. Chalfonte Condominium Apartment Ass’n, Inc. (May 2012), where Chalfonte Condominium sued their insurance company, QBE, arising out of a property damage loss from Hurricane Wilma.  Chalfonte submitted an estimate of damages to QBE on December 18, 2005, and then submitted a sworn proof of loss to QBE on July 12, 2006.  Not satisfied with QBE’s investigation and processing of its claim, Chalfonte filed suit in the United States District Court for the Southern District of Florida for among other things, breach of contract (breach of the implied warranty of good faith and fair dealing).

The jury found for Chalfonte on all of its claims, including the awarding of moneys for QBE’s breach of the implied warranty of good faith and fair dealing.  QBE would end up appealing the judgement to the Eleventh Circuit Court of Appeals, to which the Eleventh Circuit certified five questions to the Florida Supreme Court, one of which was the following:

Did Florida law recognize a claim for breach of the implied warranty of good faith and fair dealing by an insured against its insurer based on the insurer’s failure to investigate and assess the insured’s claim within a reasonable period of time?

Of note, the Florida Supreme Court recognized that “Florida courts imposed an independent duty on liability insurers to act in good faith when defending insureds against third-party claims,” and recognized a common law cause of action for bad faith within the context of third-party actions.  These  third-party bad-faith actions would involve a claim “in which an insured sues his liability insurance company for bad faith in failing to settle a claim which ultimately results in a third-party judgment against him in excess of the policy limits.”  The Florida Supreme Court then noted section 624.155 of the Florida Statutes (2009), specifically,  section 624.155(1)(b)(1), which created a statutory first-party bad-faith cause of action.    Section 624.155(1)(b)(1) states that “any person may bring a civil action against an insurer when such person is damaged…by the commission of any of the following acts by the insurer..not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests…”

After reviewing the current status of “bad faith” law, the Florida Supreme Court, while acknowledging that “Florida contract law does recognize an implied covenant of good faith and fair dealing in every contract,” concluded that this implied covenant did not create a separate first-party action against an insurance company based on its bad-faith refusal to pay a claim.  Moreover, the Court held that “such first-party claims [by Chalfonte] are actually statutory bad-faith claims that must be brought under section 624.155 of the Florida Statutes.”

Moral of the story:  Florida does not recognize a claim for breach of the implied warranty of good faith and fair dealing by an insured against its insurance company for failing to investigate a hurricane loss, as such a claim is actually a statutory bad-faith claim that must be brought under section 624.155 of the Florida Statutes.  As such, Florida Hurricane/storm damage claims lawyers in Hollywood, Dania, Weston, Plantation, Aventura, Miami Beach, Bal Harbour, Coral Gables, Kendall, Pinecrest or other areas throughout Miami, Fort Lauderdale and Palm Beach, will now have to bring such a claim as a statutory bad-faith claim.