Florida Property Insurance Mediation: Does a Residential Property Damage Insurance Company Waive Their Insurance Policy Right to Appraisal by Failing to Give Notice to Its Insured of the Property Insurance Mediation Program, Within Five Days of Notice of the Claim?

Florida property damage insurance claim_fightsforyou.netAccording to a recent case out the Third District Court of Appeal, no, provided the property damage insurance carrier does in fact notify their insured of the property insurance mediation program under Florida Statute 627.7015. In Subirats v. Fidelity Nat. Property, 106 So.3d 997 (Fla. 3d DCA 2013), a homeowner had a residential property insurance policy with Fidelity, upon which they presented a claim for water damage to their home due to a plumbing failure. Fidelity notified their insured in writing of their right to participate in mediation, pursuant to section 627.7015 of the Florida Statutes, and after completing their investigation, Fidelity tendered partial payment on the claim. After the fact, the homeowner’s public adjuster notified Fidelity that the insureds were invoking the appraisal provision within the insurance policy and provided the name of their selected appraiser. The homeowner’s appraiser and Fidelity’s appraiser met and agreed to an amount for the remainder of the claim although the homeowner’s appraiser failed to sign the appraisal award — Fidelity advised of the homeowner’s appraiser’s lack of cooperation, and informed them the claim would be considered abandoned if they did not respond. When neither their appraiser nor the homeowner responded, Fidelity closed its claim file.

Thereafter, the homeowner filed a lawsuit for breach of contract (presumably by way of a Florida water leak insurance claim attorney), which the trial court stayed pending completion of an appraisal. The homeowner contended in granting the stay that the trial court erred because Fidelity waived its right to appraisal by failing to notify them of the right to mediation within five days from the date the claim was filed, pursuant to Section 627.7015, Florida Statutes (2009), and Florida Administrative Code Rule 69J–166.031. The Appellate Court disagreed.  The Third District noted that pursuant to §627.7015(7), although a complete failure to give notice excuses an insured from participating in any contractual loss appraisal process, that failure to comply with the department’s administrative rule by providing notice within five days of notice of the claim (ie., Fla. Admin. R. 69J–166.031(4)(a)(1) – “Within five days of the insured filing a first-party claim which falls within the scope of this rule, the insurer shall notify the insured of their right to participate in this program.”) did not waive Fidelity’s right to the insurance contract’s appraisal process.

The Third District further noted that the purpose of the notice provision in section 627.7015, to wit, to prevent an insurer from withholding notification and thereby trapping “an uninformed insured into the very same potentially lengthy and costly appraisal process the statute was meant to guard against,” was not thwarted. In the instant case, Fidelity did not withhold notification or “trap” the homeowner into a lengthy and costly appraisal process — to the contrary, the insurer in this case did notify the homeowner of their right to avail themselves of the statutory mediation program albeit after the five day time frame referenced in Florida’s Administrative Code.

Moral of the Story: if you own a Florida condominium, Florida town home or other type of Florida residential property, should you happen to sustain water or mold damage due to a plumbing leak or other type of water leak, whether you live in Coral Springs, Cooper City, Hallandale, Boca Raton, Homestead, Brickell, South Beach, Key Biscayne, Weston, Pompano Beach, Tamarac, Plantation, West Kendall, Cutler Bay, Palmetto Bay, Doral, Delray, Deerfield Beach or another area within Miami, Fort Lauderdale or Palm Beach, or within Miami-Dade County, Broward County, Palm Beach County or Monroe County (especially Key Largo, Key West or Marathon), know that if your homeowners insurance carrier does not notify you of the Florida Property Insurance Mediation Program at all, that the Florida residential property damage insurance carrier may waive its rights to appraisal under the insurance policy pursuant to §627.7015, to which you as the homeowner can simply file a lawsuit for breach of contract and recover your damages via the court process (given any denial, delay, undervaluing or underpaying of your Florida water damage residential property claim).

Chipped Tile Insurance Claims: Are They Excluded Under My Florida Homeowners Insurance Policy?

Florida Chipped Tile Insurance Claims_fightsforyou.netWhether you live in North Florida, Central Florida or South Florida, “chipped tile” or “broken tile” claims are rampant in this state and in such an abundance, its very similar to the way gold mining was in California during the 1800’s. However, these chipped tile insurance claims took a huge hit earlier this year in a Florida Court decision that likely upset many of the property damage restoration contractors, public adjusters and even some Miami, Florida chipped tile insurance claim attorneys, wherein these chipped or broken tile damage claims makeup a good part of their business. In the case of  Ergas v. Universal Property and Cas. Ins. Co., 114 So.3d 286 (Fla. 4th DCA 2013), the Fourth District Court of Appeal (governs Broward and Palm Beach Counties), ruled that a homeowner who dropped a hammer on their tile floor causing chips or damage to same, that this chipped tile or broken tile damage was excluded under their Florida homeowners insurance policy under the “marring exclusion.”

The insured’s homeowners insurer, Universal Property and Casualty, denied their chipped tile damage claim under the “marring exclusion” within their Florida insurance policy, to which the trial court granted summary judgment to Universal (who argued that the chipped tile constituted “marring” and thus was excluded in the insurance policy) and dismissed the insured’s lawsuit for insurance coverage under their policy.  The policy stated the following: Section I: We insure against risk of direct loss to property … We do not insure, however, for loss: … 2. Caused by: … (e) Any of the following: (1) Wear and tear, marring, deterioration…. Of note, Universal argued that “marring” was not ambiguous because it could mean either a sudden act or one that took place over time….and interpreted the word to mean any damage at any time that made the property less than perfect.  The insured argued that the damage caused by dropping the hammer was sudden and thus came within the coverage of the insurance policy.

The Fourth District noted that the Florida insurance policy at issue was an “all risk policy” that covered all fortuitous losses, although it did not cover all conceivable losses.  The Court further went on to hold that  the “chipped tile” damage caused by the hammer dropping constituted marring and thus was excluded from policy coverage, to which they thus affirmed the final summary judgment entered by the trial court.

Moral of the Story: if you are a South Florida homeowner (whether a townhouse, home, condo, duplex, triplex or the like) and happen to damage, break or chip the tile, marble or granite floors in your residence (could be by dropping a hammer, plate or any other type of object), whether you live in Hollywood, Pensacola, Ocala, Cape Coral, Saint Augustine, Aventura, Miami Beach, Hialeah, Gainsville, Palm Coast, Port St Lucie, Port Orange, West Kendall, Homestead, the Florida Keys, Cutler Ridge, Palmetto Bay, Daytona, Orlando, Tampa, Fort Myers, Naples, Jacksonville, Stuart, Jupiter or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe County, know that you if you hire a Miami, Florida chipped tile insurance claim attorney to handle your denied chipped tile insurance claim, according to this new opinion out of the Fourth District Court of Appeal, you may be fighting an uphill battle given this chipped tile or marble damage could be considered excluded under your Florida Homeowners insurance policy under the “marring” exclusion.

Florida First Party Property Damage Insurance Claim Disputes and Denials- Failing to File a Sworn Proof of Loss Could be Fatal to Your Claim

As a South Florida Homeowner, given that we have so many forms of inclement weather (Hurricanes, tornadoes, Tropical Storms, hail storms, wind storms, downpours/floods, etc.), it is very important to have insurance to combat the significant property damage caused by these occurrences. However, even if you have the necessary insurance, whether a wind, Hurricane, flood or homeowners insurance policy, if you do not comply with the many post-loss obligations under your policy, it will be like having no insurance at all. Some of the post loss obligations (usually considered conditions precedent under your policy given that the policy will say these need to be complied with prior to suit being instituted) will include notifying your insurance company within a certain amount of time of the damage (typically 60 days), they may ask you to sit for an examination under oath (EUO) in order to get some additional support and factual information on your claim, or as is discussed in this article, they may ask you to submit a sworn proof of loss (a statement under oath delineating the amount of damage that occurred, the date of loss, etc.—this is typically taken care of by a public adjuster). When an insured fails to comply with policy provisions such as these in whole or in part, a wind, flood or homeowners insurance carrier may refuse to make payments under the policy, even if the damage is caused by a covered peril.  This will thereby necessitate that one hire a Florida insurance claim lawyer to file a first party property damage lawsuit against their insurer for breach of contract, declaratory relief and/or possibly bad faith.

So, how fatal to a claim is the failing to file a sworn proof of loss before a first party property damage lawsuit is instituted against your insurance company for failure to pay benefits under your policy? Well, case law is not so clear on this subject. In Starling v. Allstate Floridian Ins. Co., 956 So.2d 511 (Fla. 5th DCA 2007), a homeowner retained a fire damage insurance claim lawyer for severe damage that was caused to her home. A breach of contract action was subsequently brought on a property insurance policy claim. Apparently, Allstate Floridian Insurance Company refused to pay benefits under the fire insurance policy because of the homeowner’s failure to timely complete sworn proof-of-loss forms (were required within 60 days of the loss). The Appellate court affirmed the trial court’s entering of summary judgment in favor of Allstate, finding that the homeowner materially breached one of the fire policy’s condition precedents, namely, failing to file a sworn proof of loss — thereby barring a jury trial on the matter. Of note, during the homeowner’s examination under oath (EUO), she testified that she had already mailed in a proof of loss form, and she also brought a partially-completed form to the EUO where it was examined by Allstate’s representative. Moreover, during the EUO, the homeowner explained that she had not yet completed the form because she had not yet been able to calculate the total value of her claim. Given the homeowners attempt to comply with the conditions precedent under her policy, the dissent in Starling cited to the Fourth District Court of Appeal’s decision of Haiman v. Fed. Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001), wherein if “ ‘the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury’ ” on the question of whether “ ‘failure to comply with policy provisions made a prerequisite to suit’ ” constitutes a material breach of the policy so as to preclude recovery from the insurer. The dissent felt that because the homeowner partially complied with the policy requirement, and provided an explanation for her noncompliance, that a question of fact existed as to whether the homeowner materially breached her policy by waiting eight months until after the lawsuit was filed before submitting the final, notarized form.

A more recent decision came out of the Fourth District Court of Appeal (May 2012) in Correa v. Sunshine State Ins. Co., 2012 WL 1859704 (Fla. 4th DCA 2012), wherein they cited to Starling v. Allstate Floridian Ins. Co. (affirming a final summary judgment for the insurer where the insured did not complete a sworn proof-of-loss form before suing the insurer). It is presumed that the homeowner failed to file a sworn proof of loss prior to instituting suit against the Sunshine State Insurance Company, to which the trial court granted summary judgment to the insurer and barred any jury trial from occurring on the property loss. Given the Fourth District’s prior decision in Haiman v. Fed. Ins. Co., it is presumed that the insured did not attempt to cooperate to some degree or provide an explanation for their noncompliance.

Another case that also lends some clarity to this issue is First Home Ins. Co. v. Fleurimond, 36 So.3d 172 (Fla. 3d DCA 2010), wherein a homeowner sustained damage during Hurricane Wilma. The insured submitted a claim, as well as a an additional claim through a public adjuster when additional damage occurred as a result of the initial damage (roof damage allowed water to come in, thereby damaging the interior portion of the home).  When First Home Insurance Company paid less then what the insured felt the full value of the claim was, the insured  retained a Florida Hurricane damage insurance claim attorney and filed suit under the policy, demanding appraisal. The insurer opposed the appraisal demand, saying that the insured had breached his policy obligations — one of which was said to be the failure to provide a sworn proof of loss.  The Third District held that the insured’s failure to file a sworn proof of loss did not bar him from bringing suit against his homeowner’s insurer seeking appraisal of the loss he sustained in a Hurricane, even though the policy required a sworn proof of loss to be filed within 60 days of being requested by the insurer — the insurer never requested a sworn proof of loss prior to the suit being filed.

It will be interesting to see how the recent cases coming out (namely, Soronson v. State Farm Florida Ins. Co., 2012 WL 3022349 (Fla 4th DCA 2012)regarding failure to comply with conditions precedent and what amount of prejudice is created to the insurer, will affect a homeowner who files suit and may not have exactly complied with their post loss obligations under their homeowners insurance policy.

Moral of the Story: Whether you are a homeowner that lives in Orlando, Fort Myers, Naples, Bonita Springs, Port St. Lucie, the Florida Keys, Tampa, St. Petersburg, Cape Coral, Sarasota, Gainesville, Jacksonville or an area within Miami, Fort Lauderdale or Palm Beach, if you sustain roof, tile, marble, window or other types of damage to your home due to a Hurricane, flood, hail storm, windstorm or fire, it is of prime importance to make sure one complies with the various requests of your insurance carrier which may be conditions precedent to securing benefits under the policy.  These requests could be the ones at issue in the cases above, namely, the providing of a sworn proof of loss. A homeowner should actually consult with a Florida Hurricane, storm or property damage insurance claim lawyer to make sure these policy provisions are complied with, thereby reducing the chance of coverage issues being raised.  At the end of the day, these coverage denials (will actually get a denied claim letter from your insurance carrier) and disputes may prevent you from being able to have a jury trial on your first party property damage insurance claim.

For additional analysis on policy conditions precedent and/or post loss obligations, and how failure to comply with same may affect one’s ability to file a first party lawsuit against their insurer, see my previous posts on Florida Hurricane Damage Supplemental Claims and Florida Hurricane Insurance Claims and providing notice of the loss to the insurer.

Florida Hurricane Damage Insurance Claims – Citizens is Immune From First Party Bad Faith Suits

Florida Hurricane Damage Attorney_fightsforyou.netIf you live in South Florida and own a townhouse, condominium, house or other property, and you are insured by Citizens for Hurricane, windstorm, tornado or other storm damage, it appears that Citizens has no incentive to adjust claims in good faith given that they apparently are immune from first party bad faith lawsuits — so says the Fifth District Court of Appeal in the case of Citizens Property Insurance v. La Mer Condominium Association, 37 So.3d 988 (Fla. 5th DCA 2010).

A first party action is when a homeowner brings a claim against their own insurance company for some form of damage to their residence or property, whether it arises out of a Hurricane or other type of storm damage, or it can arise out of a pipe burst, leaky sink or toilet/washer failure.  When the claim is made, the property damage insurer may wrongfully deny your claim, delay and take forever to adjust or investigate the claim, or simply undervalue the claim by paying less than the property damage is worth.  When this occurs, a homeowner will usually hire a Hurricane damage or homeowners insurance claim lawyer to bring a lawsuit against the insurance company for breach of contract and possibly bad faith.

Well, at this time, the law forbids a homeowner from bringing a bad faith lawsuit against Citizens.  In the La Mer Condominium Association case, where the condo association apparently brought a first party bad faith insurance claim for damage arising out of a Hurricane or some other storm, the court cited to its previous decision in Citizens Property Insurance Corp. v. Garfinkel, 25 So.3d 62 (Fla 5th DCA 2009), where they held that Citizens is immune from first-party bad faith claims pursuant to sections 627.351(6)(r)(1) and 624.155(1)(b)(1), Florida Statutes.

Moral of Story:  whether you live 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, your Florida Hurricane damage insurance attorney will not be able to bring a bad faith lawsuit against Citizens.  Clearly, this holding is a shield to Citizens and a dent in the homeowner’s arsenal in making sure their insurance claims are adjusted fairly.

For additional Hurricane damage and bad faith claim analysis, see my previous post. For additional Citizens Insurance claim denial and dispute analysis, see my previous post.

Florida Fire Damage Claim Disputes – A Bad Faith Analysis

As a South Florida homeowner, I know how hot it gets in the summer, wherein we sometimes experience extensive periods of heat, drought and lightning strikes.  These types of conditions can cause wildfires that reach your house or business, or your residence can simply experience an electrical problem or power surge, to which a fire breaks out as a result.  There are also  fires that occur due to arson, an accident (such as a product or appliance malfunction), or even a burglary gone wrong.  After a fire has devastated your home or business, several types of damage can result, including structural damage, water damage, smoke damage, roof damage, melting issues, damage to the building’s plumbing or electric systems, and damage to the personal property inside the structure (such as furniture, office equipment, appliances, clothes, papers, etc.).  A business may also suffer a significant loss of profits due to a business interruption.

When a fire occurs, a home or business owner may seek out the assistance of a fire damage insurance claim lawyer, given that insurance companies commonly look for ways to deny a property damage claim (by claiming fraud or arson), or they fail to pay the full value of the fire damage loss.  If your fire damage claim has been denied, delayed, disputed or evaluated in bad faith by your insurance company, you may have to file a bad faith lawsuit for breach of the insurance contract.

This is the type of situation that was apparent in the case of Talat Enterprises, Inc. v. Aetna Cas. and Sur. Co., 753 So.2d 1278 (Fla. 2000), wherein a restaurant/business owner that sustained fire damage to his business brought a first party bad faith lawsuit against Aetna Insurance Company.  Apparently, after Aetna made an initial payment for damage, the business owner submitted proofs of loss for additional damages, including personal property and loss of business income.  Thereafter, an appraisal award was entered in favor of the business owner, to which Aetna paid the full amount of this award.  Sometime after Aetna’s appraisal award payment, the business owner issued a statutory notification of intent to pursue a bad faith claim against Aetna under section 624.155  of the Florida Statutes.   After the sixty day cure period expired without an additional payment, the business owner filed suit against Aetna, who moved for summary judgment.  Aetna claimed that it was entitled to judgment as a matter of law under section 624.155(2)(d) (states that “[n]o action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.”),  because it paid the underlying contract damages (ie., the appraisal award) within the sixty days from the date that the business owner filed its bad faith notice (they actually paid prior to the sixty day notice). The business owner countered that Aetna was required to pay not only the damages owed under the insurance policy, but also all extra-contractual damages flowing from Aetna’s alleged failure to make a good-faith attempt to settle his claim.

The trial court granted Aetna’s Motion for Summary Judgment, finding that Aetna “ha[d] timely paid ‘the damages’ and ha[d] corrected ‘the circumstances giving rise to the violation’ ” within the meaning of section 624.155(2)(d)., and that Aetna had satisfied the dictates of section 624.155(2)(d) by paying the restaurant owners contractual damages, i.e., the amount awarded via the appraisal award, before the expiration of the sixty-day cure period.  The trial court rejected the business owners reading of the statute as requiring the insurer to pay whatever the insured demands.  The Supreme Court agreed with the Trial Court’s reasoning (was answering a question certified as a matter of great public importance), finding that a bad faith cause of action does not even become ripe until after the 60 day notice requirement expires without any payment of the damages owed under the insurance contract.  In this case, Aetna paid the amounts owed under the insurance policy, preventing a bad faith cause of action under section 624.155 for extra contractual damages.

Moral of Story: If you are a homeowner or business owner that sustains fire damage, and your attorney brings a first party fire damage insurance claim under your insurance policy, whether you live in Miramar, Cutler Bay, Palmetto Bay, Homestead, Key West, Doral, West Kendall, Davie, Sunrise, Miami Springs, Margate, Pembroke Pines or another area within Miami, Fort Lauderdale or Palm Beach, know that if your insurance company pays an appraisal award (ie., the damages owed under the insurance contract), even if you sustain extra contractual damages, a bad faith claim is prohibited under section 624.155 given that the contractual damages have been paid.

Florida Hurricane Damage Supplemental Claims – The Need to Comply With Conditions Under the Policy

It is Hurricane season, and many South Florida Homeowners may sustain some form of damage to their residences.  When this occurs, it is very important to immediately contact your insurance company in order to comply with conditions precedent under your policy.  Reason being, the insurance carriers will deny coverage under the policy if you fail to notify them within a certain amount of time of the damage (typically 60 days), and they may ask you to sit for an examination under oath (EUO) in order to get some additional support and factual information to support your claim.  When an insured fails to comply with the policy provisions, a wind, flood or homeowners insurance carrier will refuse to make payments under the policy, and these may actually be legitimate reasons to deny coverage.

This situation was apparent in the case of Edwards v. State Farm Florida Ins. Co., 64 So.3d 730 (Fla. 3d DCA 2011), where a homeowner sustained roof damage to their residence arising out of Hurricane Frances, one of the major storms of 2004.  Because the damage was within the homeowner’s deductible, State Farm, although admitting coverage, did not make any payment under the policy.  Thereafter, four years later, the homeowner made a supplemental insurance claim via a public adjuster, claiming additional damage as a result of Hurricane Frances.  When State Farm repeatedly requested that the homeowner provide documentation of the claimed loss and submit to an examination under oath, these requests were not complied with.  The insured never submitted to an EUO, nor did he provide sufficient documentation for State Farm to evaluate the supplemental claim.  The insured apparently retained a Miami Hurricane damage insurance dispute lawyer that handles supplemental claims, given that he filed suit for breach of contract after failing to receive benefits under his policy.  The trial court granted summary judgment to State Farm, finding that the policy requirements to submit to an examination under oath (if requested, and must be at a mutually convenient place and time), as well as submit documents that accurately reflect the amount of loss claimed, were conditions precedent that the insured failed to comply with, thus relieving the insurer of its duty to make payments under the policy.  The Third District Court of Appeal affirmed the trial court’s ruling.

Moral of the Story:  Whether you are a homeowner that lives in Hollywood, Dania, Weston, Homestead, Plantation, Aventura, Miami Beach, Bal Harbour, Tamarac, Kendall, Boca Raton or another area within Miami, Fort Lauderdale or Palm Beach, if you sustain roof or other types of damage to your home due to a Hurricane, flood or windstorm, make sure you comply with the various requests of your insurance carrier which may be conditions precedent to securing benefits under the policy.  These requests could be the ones at issue in the case above, namely, a request to sit for an examination under oath, or a request for supportive documentation.  A homeowner should actually consult with a Hurricane damage insurance claim lawyer to make sure these policy provisions are complied with, thereby reducing the chance of coverage issues being raised.

Florida Citizens Homeowners Insurance Claim Disputes – Can I sue Citizens in the County Where I live?

hurricane blown palm treesSouth Florida homeowners still need to worry about Hurricane season, as we have a little more than two months to go.  With the passing of Hurricane Isaac, which was a tropical storm when it hit Florida, some homeowners throughout Miami-Dade, Broward and the Palm Beaches sustained some form of property damage.  Whether it was roof damage from a falling tree, window damage from a projectile, or water damage from the storm surge,  a claim will have to be made with your Hurricane, Windstorm, Flood and/or homeowners insurance company.  As a result, many South Florida homeowners have sought the assistance of a Hurricane/windstorm damage insurance claim lawyer to assist them in recovering insurance proceeds to repair their property, get alternative living expenses for the time it takes to repair the house damage, or assist them in an insurance claim dispute regarding coverage under their policy.

With Citizens being the primary insurer that insures Florida Homeowners against Hurricanes and Windstorms, South Florida homeowners who did sustain damage from Tropical Storm Isaac will likely be making a claim against Citizens in the very near future.  The question is, if Citizens provides a very low estimate or denies coverage under your policy all together, and you file a breach of insurance contract lawsuit in Miami-Dade, Broward or Palm Beach Counties, can Citizens remove the case to Leon County (ie, Tallahassee), given that is where their primary business headquarters reside.

According to the Third District Court of Appeal, they can.  In the recently decided case of Castle Beach Club Condominium, Inc. v. Citizens Property Ins. Corp., 2012 WL 3101528 (Fla. 3d DCA 2012), the Castle Beach Club Condominium sued Citizens Property Insurance Corp. (a state entity), for breach of contract and an appraisal in Miami–Dade Circuit Court. The trial court transferred the case to Leon County based upon Citizens’ assertion of Florida’s common law home venue privilege (Florida common law provides that the state and its agencies or subdivisions enjoy the home venue privilege, ie., venue in a suit against the State, or an agency or subdivision of the State, absent waiver or exception to the privilege, is proper only in the county in which the State, or the agency or subdivision of the State, maintains its principal headquarters).  The Third District Court of Appeal affirmed this decision, holding that Citizens is a state entity protected by the home venue privilege,  no exception to the home venue privilege applied, and Citizens did not waive the privilege.

Moral of the Story: If you are a homeowner that sustains roof  or water damage due to a Hurricane or windstorm, and your lawyer makes a claim against Citizens under your Hurricane/windstorm insurance policy, whether you live in Miramar, Cutler Bay, Palmetto Bay, Homestead, Key West, Doral, West Kendall, Davie, Sunrise, Miami Springs, Margate, Pembroke Pines or another area within Miami, Fort Lauderdale or Palm Beach, know that Citizens can remove the lawsuit to Leon County and force you to litigate hundreds of miles away.

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 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.