Florida Condominium Hurricane/Storm Insurance Claims – Which Statute of Limitations is Applicable to my Property Loss?

Florida Condo Hurricane Damage Insurnance Claims_fightsforyou.netSo your a South Florida Homeowner who just sustained property damage as a result of a Hurricane or severe windstorm, you make a claim to your insurance company, and they either delay your claim, provide a low offer or estimate, or they deny your claim all together. As a result, you reach out to a Miami Hurricane and Storm insurance claim lawyer, asking how long do you have to file a lawsuit for breach of your insurance contract.  The answer is not so clear, although the cases referenced below suggest the statute that applies is the one in effect at the time that the policy was executed (which seemingly would be prior to the date of the loss).

As I discussed in my previous post regarding the changes in Florida law in 2011, the statute of limitations and statutory notice requirements changed for property damage and/or Hurricane/windstorm losses that occurred after May 17, 2011.  According to the current version of 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 went into effect, under §95.11(2)(b) a Florida homeowner could bring a lawsuit within five years from the date the last element of their breach of insurance contract cause of action accrued, ie., at the time the insurance company wrongfully denied the claim (via a denial letter) or when an undervalued/low-ball estimate was given.  Sometimes, a denied claim could have occurred over five years after the loss, wherein under the old statute, you could still file a breach of contract claim against your property insurer so long as it was filed within five years of the breach.

After the statute of limitations law changed in 2011, a number of lawsuits have been filed since then wherein the suit was filed more than five years after the property damage occurred.  In these suits, the insurance company moved to dismiss the claim based on an argument that the the new statute applied, ie., the one which says a lawsuit must be filed within five years of the Hurricane loss. However, in these cases, the court concluded that the new statute would not apply retroactively, and thus for storm losses such as Hurricanes Katrina, Wilma, Jeanne, Charlie and Frances, the statute that applied was §95.11(2)(b) (statute in effect at the time the applicable policy was executed) which provided that suit for breach of an insurance contract was to be brought within five years of the breach.

The most recent case to come out is Olear Organization, Inc. v. North Pointe Ins. Co., 2012 WL 5471789 (M.D. Fla. November 9, 2012).  In this case, an Orlando, Florida, homeowner sustained property damaged by Hurricane Charley on August 13, 2004, as well as by Hurricane Frances on September 5, 2004. The insurance company acknowledged coverage for both Hurricanes, and made partial payments under each claim under separate claim numbers. The plaintiff homeowner, however, claimed that two policy limits are available for two separate losses and that the defendant insurer has breached the policy by failing to pay for all of the losses. The homeowner thus brought suit for declaratory relief, breach of contract, etc. The insurance company moved to dismiss the Hurricane claims based on the fact that these claims were brought more than five years after the loss, ie., under the current limitations period applicable to property damage losses. The Middle District of Florida ruled that Florida Statute §95.11(2)(e), which now requires suits to be brought within five years of the date of loss (ie., the date a Hurricane strikes), was enacted on May 17, 2011, and is not to be applied retroactively. The Middle District noted that the statute to apply was the one in effect at the time the applicable policy was executed, ie., the policy in effect at the time of the loss.  See, e.g., Menendez v. Progressive Exp. Ins. Co., Inc., 35 So.3d 873, 876 (Fla. 2010)(“We look at the date the insurance policy was issued and not the date that the suit was filed or the accident occurred, because `the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.'”).  The Middle District based its decision off a couple previous decisions, one of which was a Southern District Court decision named West Palm Gardens Villas Condominium Ass’n, Inc. v. Aspen Specialty Ins. Co., 2012 WL 3017083 (S.D. Fla. June 25, 2012).

In West Palm Gardens Villas Condominium Association, the condominium sustained property damage in Hurricane Wilma.  After the insurance company felt that the damage was below the condo’s deductible, the condominium association disputed that the damages were below their deductible and invoked the insurance policy’s appraisal clause in order to resolve the apparent disagreement over the actual amount of the loss. The appraisal clause allegedly requires Aspen to take certain actions in compliance with the clause within twenty days of its invocation in order to finalize the appraisal process, which Aspen allegedly failed to do. Specifically, West Palm alleged that Aspen failed to name its appraiser and proceed with the appraisal process, all allegedly in breach of the Policy. The condo association subsequently brought suit for declaratory relief and breach of the insurance contract,  alleging that Aspen failed to comply with the appraisal process and that they denied coverage for the loss on October 13, 2011. Of note, the suit was brought on October 31, 2011, within five years of the alleged breach of contract.  The insurance company claimed that the claims were barred by the current statute of limitations applicable to property loss claims, namely Florida Statute §95.11(2)(e), which requires lawsuits to be brought within five years of the loss. The Southern District held that Florida Statute §95.11(2)(e) does not apply retroactively, and that §95.11(2)(b) applied at the time of this loss (which required suits to be brought within five years of the breach of contract).

Moral of the Story: Whether you are a homeowner that lives in Ocala, Delray Beach, Vero Beach, Stuart, Boynton Beach, Naples, Port Charlotte, Venice, New Port Richie, Clearwater, Punta Gorda, Fort Pierce or an area within Miami, Fort Lauderdale or Palm Beach, after a Hurricane, windstorm or other property damage loss (does not matter if it is fire, sinkhole, lighting, electrical, etc.) that occurs after May 17, 2011, if your policy of insurance was executed after that date, know that you only have five years from the date of loss to file a lawsuit.  If your policy of insurance was executed/issued prior to May 17, 2011, no matter when your loss occurs,  it appears that Florida Statute §95.11(2)(b) would be applicable, thus providing a five year statute of limitations from the date of breach of the insurance policy.  

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