Florida Hurricane Insurance Claims – The Need to Immediately Notify Your Insurance Carrier of the Windstorm Loss Under the Policy

Florida hurricane insurance claims_fightsforyou.netIn one of my previous posts, I discussed 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.  See my post titled Florida Hurricane/Storm Damage Insurance Claims – How Long Do I Have to Provide Notice to My Insurer Under My Insurance Policy?

Recently, another case came out of the Fourth District Court of Appeals (governs the Palm Beach County area) which reinforces the importance of a homeowner’s immediately putting on notice their insurance carrier given the post-loss policy provision obligation that generally requires that the insurer immediately be notified after a Hurricane damage loss.  In Slominski v. Citizens Prop. Ins. Corp., 2012 WL 4511322 (Fla. 4th DCA 2012), a homeowner that sustained damage due to Hurricane Wilma made minimal repairs that came in below their policy’s deductible. Three and a half years later, the homeowner filed a claim with Citizens based on wind and water damage to their home — they waited to file a claim due to their belief that the damage sustained fell below the policy’s deductible. Citizens investigated the claim, whereby they concluded that “the damages reported cannot be attributed to Hurricane Wilma due to the amount of time that has transpired since the purported date of loss to the present date.” Citizens further noted the homeowner’s failure to comply with post-loss duties, a condition precedent to reimbursement of a claim, pursuant to the policy. The policy stated that they were to “[g]ive prompt notice to [Citizens].”

In response to Citizens’ denial of their claim (likely by way of a denial letter), the homeowner apparently sought the assistance of a Palm Beach County Hurricane/storm damage insurance claim lawyer to assist them in recovering moneys to fix their property given the insurance claim dispute regarding coverage under their policy. After suit was filed  filed suit, Citizens moved for summary judgment alleging that the homeowner “breached the post loss policy conditions by failing to promptly notify Citizens of the loss which in turn would have allowed Citizens to timely investigate this matter within a reasonable time frame after the loss,” thus prejudicing Citizens and relieving Citizens of its duty to provide coverage for the loss. The trial court granted Citizens’ motion for summary judgment, to which the Forth District Court of Appeal Affirmed.  The Fourth District noted that in delayed notice cases, “while prejudice to the insurer is presumed, if the insured can demonstrate that the insurer has not been prejudiced thereby, then the insurer will not be relieved of liability merely by a showing that notice was not given ‘as soon as practicable.’ ”  Once delayed notice is raised by the insurance carrier, the burden shifts to “the insured to show lack of prejudice where the insurer has been deprived of the opportunity to investigate the facts.”

In this case, the homeowner submitted affidavits from a contractor and engineer in opposition to Citizens’ motion for summary judgment, although these affidavits apparently contradicted the deposition testimony of the respective individuals (they originally testified that they could not conclusively establish if the damage was caused by Hurricane Wilma, whereas the affidavits did say the damage was caused by Wilma).  As such, the Court rejected the affidavits and ruled for Citizens given the lack of evidence in opposition to their summary judgment.  The Fourth District distinguished this case from Stark v. State Farm Fla. Ins. Co., 95 So.3d 285 (Fla. 4th DCA 2012), another late notice case (notified State Farm about three and a half years after the fact) where the insured submitted affidavits of an engineer and public adjuster indicating that the damage to the insureds’ roof was caused by Hurricane Wilma.  On summary judgment, the trial court ruled that State Farm was “presumed to be prejudiced” by the untimely notice.  The Fourth District reversed, finding that there were issues of fact as to whether State Farm was prejudiced in their inability to investigate the loss.

A case also recently came out of the Southern District of Florida on this “late notice” issue.  In Aspen Speciality Ins. Co. v. River Oaks of Palm Beach Homeowner’s Ass’n, Inc., 2012 WL 3260398 (S.D. Fla. 2012), the Homeowner’s association sustained roof damage due to Hurricane Wilma as a result of wind. They put Aspen on notice fairly quickly, although the loss was apparently below the deductible.  Five years later, Aspen retained a separate adjusting company that adjusted the roof loss at 7.5 million dollars, and later submitted a revised loss estimate at 13.5 million dollars.  After the homeowner’s association filed a declaratory action to determine coverage under the policy, Aspen maintained that they were barred from coverage under the policy for violating the policy’s post-loss provision — namely, to provide prompt notice of the loss or damage, including a description of the property involved; give a description of how, when and where the loss or damage occurred; at Aspen’s request, the insured was to give a complete inventory of the damaged and undamaged property including quantities, costs, values and amount of loss claimed; permit an inspection of the property, books and records; and to cooperate in the investigation or settlement of the claim. The Aspen Court cited to Haiman v. Federal Ins. Co., 798 So.2d 811 (Fla. 4th DCA 2001) for the premise that “[a] total failure to comply with policy provisions … may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.”

This “partial compliance” test seems to be one of the standards a court will look to in deciding whether an insured has breached their post loss obligations under their policy, in addition to analyzing whether the insurer has been prejudiced by late notice of the Hurricane loss (ie., whether the passage of time will prevent the insurance company from analyzing the cause of the loss).

All homeowners should note that these cases above, and the cases discussed in my previous post on this subject, 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 Coral Springs, Cooper City, Hallandale, Boca Raton, Homestead, Key Biscayne, Weston, Pompano Beach, Tamarac, Plantation, Delray, Deerfield Beach or another area within Miami, Fort Lauderdale or Palm Beach, after a Hurricane or windstorm, make sure to immediately inspect your property to determine if any damage was caused by the storm, especially the roof, walls and windows.  In being proactive, you will be able to comply with the post-loss notice and condition precedent requirements under your insurance policy and hopefully avoid an insurance coverage dispute or Hurricane damage insurance lawsuit as referenced in the cases above.

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