Archives for August 2012

Florida Hurricane/Storm Damage Insurance Claims – How Long Do I Have to Provide Notice to My Insurer Under My Insurance Policy?

Right now down here in South Florida, we are in the middle of Hurricane season, thankfully dodging a bullet down here in Miami with Tropical Storm Isaac.  Nevertheless, we were not so lucky with regards to the 2005 season, wherein Hurricane Katrina and Wilma decided to make a visit, and the 2004 season, wherein Hurricanes Frances and Jeanne decided to strike Florida.  Many homeowners throughout the Miami-Dade, Fort Lauderdale and  Palm Beach areas sustained some form of water, wind or flood damage from these storms, most notably roof and window damage.   As a result, many South Florida homeowners have sought the assistance of a Hurricane/storm damage or homeowners insurance claim lawyer to assist them in recovering moneys to fix their property (given the potential for an insurance company’s low damage estimate), or assist them in an insurance claim dispute regarding coverage under their policy.

A couple of the issues that arise quite frequently and which a homeowner should be aware of, are the notice and sworn proof of loss provisions contained within a property damage insurance policy.   Whether it is a flood, wind or homeowners insurance policy, there typically will be some type of language within the policy that states the insured shall give immediate notice to the insurance company after a loss has been incurred, and that the insured shall submit a sworn proof of loss within a certain amount of days of the loss, say 60 days.  These provisions are typically considered  “post-loss condition precedents,”  given that another provision in the policy will usually say that no action can be brought against the insurance company unless there was compliance with the policy provisions.  Given that the notice and sworn proof of loss provisions must be complied with, in cases where they are not, an insurance company may consider this a material breach of the policy by the insured, thereby allowing the insurance company to deny coverage under the policy.

Several cases have recently been decided which lend some clarity as to the amount of time an insured actually has to provide notice to their insurance company regarding a Hurricane damage claim (per the insurance policy provisions), after they have been the victim of a property damage loss.  In Kroener v. Florida Ins. Guar. Ass’n, 63 So.3d 914 (Fla. 4th DCA 2011), the Fourth District Court of Appeal held on June 22, 2011, that a homeowner who sustained interior and exterior damage (roof leak) from Hurricane Wilma and who notified their insurance company two years and two months after the loss, that this was not “prompt notice” as a matter of law (per the notice requirement in the insurance policy) and therefore barred their claims.

Then on July 18, 2012, the Fourth District decided Kramer v. State Farm Florida Ins. Co., 2012 WL 2913189 (Fla 4th DCA 2012), where a homeowner who sustained roof damage in 2004 from Hurricane Frances and Hurricane Jeanne, didn’t make a claim to their insurance company until May 2009, almost five years from the dates of loss.  The insureds did not immediately notify State Farm of the loss, nor did they submit a sworn proof of loss within 60 days of the loss (per the policy provisions).  State farm denied coverage, and the insured sued them for breach of contract under the insurance policy.  The Court noted that despite the fact that a notice of loss and a sworn proof of loss are conditions precedent to suit (because the policy also included a provision that said no action shall be brought unless there has been compliance with the policy provisions), if the insured breaches the notice provision[s], prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.  In this case, the insured was unable to rebut the presumption of prejudice, as the insured submitted an affidavit from an engineer that essentially said he could not determine the cause of the damage, whether it was from a hurricane or some other cause.  The Kramer court thus dismissed the insureds claim.  Of note, the Kramer court noted their prior decision in Kroener, stating that holding was based upon a record similar to this case, where the insurer argued that it was prejudiced by the insureds’ untimely pre-suit notice of the alleged loss, and the insureds did not come forward with counter-evidence sufficient to reveal a genuine issue as to whether the insurer was prejudiced, ie., one must still go through the analysis of whether the insurance company was prejudiced (ie., unable to determine the cause of loss) by such late notice from their insured.

Then on July 25, 2012, the Fourth District decided Soronson v. State Farm Florida Ins. Co., 2012 WL 3022349 (Fla 4th DCA 2012), where a homeowner sustained roof damage from Hurricane Wilma in 2005, yet did not notify State Farm until February 2009 (3 years 4 months) of the loss, when they filed a lawsuit against them for failing to pay benefits under their insurance policy.  The Court went through the same analysis as in the Kramer case, noting that although the homeowner failed to comply with their pre-suit notice requirements under the policy (both the immediate notice and submitting of the sworn proof of loss within 60 days of the loss), this merely created a presumption of prejudice against the insurer, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.  The homeowner submitted an affidavit that attached “unsworn” engineer reports.  The Court felt these documents were not sufficient to rebut the presumption of prejudice against State Farm in being unable to investigate the loss due to the late notice.  Again, the Soronson court noted their prior decision in Kroener, stating that holding was based upon a record similar to this case, where the was prejudiced by the insureds’ untimely pre-suit notice of the alleged loss, and the insureds did not come forward with counter-evidence sufficient to reveal a genuine issue as to whether the insurer was prejudiced.

Most recently, on August 1, 2012, the Fourth District decided Leben v. State Farm Florida Ins. Co., 2012 WL 3101336 (Fla. 4th DCA 2012), where a homeowner sustained roof damage from Hurricane Wilma in 2005, yet did not notify State Farm until February 2009 (3 years 4 months) of the loss, when they filed a lawsuit against them for failing to pay benefits under their insurance policy.  The Court went through the same analysis as in the Kramer and Soronson cases, noting that although the homeowner failed to comply with their pre-suit notice requirements under the policy (duty to provide  immediate notice), they were able to create an issue of fact as to the rebuttable presumption of prejudice against the insurance company. The homeowner submitted two reports, one from a leak detection company and another from a roofing company, both reports stating they could unequivocally say damage was caused by Hurricane Wilma despite the fact the homeowner made repairs after the storm. The Court felt these documents were sufficient to rebut the presumption of prejudice against State Farm in being unable to investigate the loss due to the late notice, thereby allowing them to go to trial and let a jury determine whether the late notice prejudiced State Farm’s ability to investigate the loss.

All homeowners should note that these cases above are related to Hurricane Wilma losses or before.  For analysis of statute of limitations and statutory notice requirements related to property damage and Hurricane/windstorm losses after May 17, 2011, see my previous post regarding the changes in Florida law in 2011.

Moral of the Story: Whether you are a homeowner that lives in Hollywood, Dania, Weston, Plantation, Aventura, Miami Beach, Bal Harbour, Coral Gables, Kendall, Pinecrest or another area within Miami, Fort Lauderdale or Palm Beach, after a Hurricane or windstorm, make sure to have your property inspected to determine if any damage was caused by the storm, especially the roof and windows.  That way, you will be able to comply with the notice requirements under your insurance policy and hopefully avoid an insurance claim dispute as referenced in the cases above.

Florida Condo Owner Homeowners Insurance Claims – The Condo Above Me (Second Floor Unit Upstairs) Leaked, What Are My Options?

As South Florida Condominium owners know, many things can go wrong to cause water damage (and resultant mold) to their condominium unit.  One of the most common water intrusion events that can occur is when a neighbor’s condominium unit above yours  has a water loss or water leak, which then gets into your unit through the common elements.   Whether you live in Hollywood, Dania, Weston, Plantation, Aventura, Miami Beach, Bal Harbour, Coral Gables, Kendall, Pinecrest or another area within Miami, Fort Lauderdale or Palm Beach, many unit owners are seasonal (ie., snow birds) and are thus not around to maintain their units on a monthly basis.  As such, it is not uncommon, especially during the Summer, for a neighbor’s condominium unit above yours, the unit on the second floor, the unit next to yours (unit to unit), or the unit upstairs, to experience pipe leaks, burst pipes and plumbing, broken water heaters, shower pan leaks, a pipe burst in the washer, failed pipe in the dishwasher, failed toilet seals, toilet tank leaks, window leaks and/or other types of water intrusions and condo water leaks.  Reason being, no one is living in the unit for months on end to fix any problems that may arise.  When these types of losses occur, one may seek out a Florida condominium water damage insurance claim attorney or Florida condo leak lawyer to get some guidance on how to proceed in resolving Florida condo insurance claims of this type.

The first thing the lawyer will likely do is have you put your own homeowners insurance carrier on notice.  While there are certain exclusions in the policy, your insurance company may cover some or all of the damage such as providing payments for temporary/alternative living arrangements (ALE/loss of use), as well as temporary repairs like mold remediation (one has a duty to mitigate their damages).

As for the lawyer’s investigation,  the source of the water intrusion needs to be determined. Reason being, while the unit owner above may bear some responsibility, the Condominium Association may also bear some responsibility.  Thus, the attorney will probably direct his or her investigation as to whether the upstairs water loss originated from a common element or an item that is the responsibility of the unit owner.  A Declaration of Condominium typically classifies a common element (in relation to items which are a unit owners responsibility) as as anything not touching air, ie., everything behind the walls and ceilings minus the coverings.  As for the Florida Statutes,  718.108(1) states that common elements include: (a) The condominium property which is not included within the units; (b) Easements through units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services to units and the common elements; (c) An easement of support in every portion of a unit which contributes to the support of a building; and (d) The property and installations required for the furnishing of utilities and other services to more than one unit or to the common elements.  Items which are not common elements and which would be the responsibility of the second floor unit owner, would include pipes underneath the kitchen or bathroom sinks,  a toilet seal that fails or a water heater that explodes.

Certainly, if it is determined that the unit owner above had been out of the condo unit for months on end and a water leak resulted due to to their failure to maintain the inside of their property, the unit owner above will likely have some responsibility.  In this scenario, hopefully they had homeowners insurance, such that a claim can be made to their insurance company.  Even in this scenario, the condominium association still may bear some responsibility for the damage to your unit.  Where water losses are caused by sudden and unforeseeable events (the condominium association will likely argue this type of event was sudden and unforeseeable), these types of losses are considered casualties.  When a casualty occurs, a condominium association’s insurance could come into play.  Pursuant to the Declaration of Condominium, the Association will have a responsibility to maintain, repair and replace common elements.  Pursuant to Florida Statute 718.113(1), maintenance of the common elements is the responsibility of the association.  As such, if you sustained damage to your drywall or ceilings due to a water leak from the upstairs condominium unit above yours (or your neighbor’s, ie.,unit to unit), the association may be responsible for repairing these, minus the “wall coverings” such as paint or wall paper, which would still be the unit owner’s responsibility.

Another area the Association may bear some responsibility, is whether they inspected the wall crevices to see if any mold is growing due to the water loss.  Since the insides of the walls or ceilings would be considered common elements, if the association failed to make sure that these areas are mold free, and mold growth was exacerbated inside your unit as a result, the association may bear some responsibility.

As you can see, this simple situation can actually turn into a complex legal issue, where the unit owner above and the condominium association may disclaim any liability.   This is the reason it is so important for a South Florida condominium owner to have homeowners insurance to cover losses that may arise.  A homeowners insurance claim can always be made against your own insurance, with the assistance of a homeowners insurance property damage lawyer.

For additional analysis on condo issues and Florida condo insurance claims, see my previous post.