How can a policyholder report a loss that the policyholder doesn’t know of? Do any property insurance coverage insurance policies require the policyholder to examine the insured property on a day by day or routine foundation, searching for proof of a loss? Do any property insurance coverage executives climb on their very own roofs and search for injury following a thunderstorm or hailstorm?
But, the insurance coverage firm claims executives will deny claims after a loss and have their insurance coverage firm attorneys argue to judges that policyholders have an obligation to report losses—even when they have no idea of the loss. How can a policyholder try this?
This was the scenario in a case determined this week1 the place a policyholder notified the service as soon as the policyholder knew of the loss. The construction was leased, and the policyholder didn’t know of or discover the loss till the tenant left the construction.
Right here is the courtroom’s evaluation:
Castro contends that the trial courtroom erred in figuring out that, as a matter of regulation, offering discover to Residents greater than two years after the loss couldn’t represent immediate discover. Castro posits that the related focus ought to have been on when Castro turned conscious of the loss and whether or not her actions had been affordable in mild of that consciousness. Castro argues that as a result of she offered an affidavit explaining the delay in reporting the loss, and establishing that she reported it promptly upon discovering it, there stays a real problem whether or not she complied together with her responsibility beneath the coverage to promptly report the loss.
…
It’s undisputed that Castro didn’t present discover of the loss till practically two-and-a-half years after Hurricane Irma.
The courtroom famous the related coverage language:
In case of a loss to lined property, we have now no responsibility to supply protection beneath this Coverage if the failure to adjust to the next duties is prejudicial to us. These duties have to be carried out both by you, an insured searching for protection, or a consultant of both:
1. Give immediate discover to us or your insurance coverage agent.
The courtroom then defined the regulation beneath Florida precedent if discover is late:
[T]he phrase ‘immediate,’ by way of discover, ‘is synonymous with ‘forthwith,’ ‘instant,’ and ‘as quickly as practicable.’ Acknowledged in another way, to fulfill the duty to supply immediate discover, such ‘discover ought to be offered ‘with affordable dispatch and inside an inexpensive time in view of all of the details and circumstances of the actual case.’ The duty to supply discover arises ‘when there was an incidence that ought to lead an inexpensive and prudent man to imagine {that a} declare for damages would come up’ ’ ….Whether or not discover was offered in a immediate method is ordinarily a query for the factfinder…however ‘if the undisputed proof is not going to help a discovering that the insured gave discover to the insurer as quickly as practicable, then a discovering that discover was well timed given is unsupportable.’…
Our resolution in Navarro—additionally arising out of a Hurricane Irma declare– is instructive. In Navarro, the insured filed swimsuit in opposition to Residents for breach of contract, asserting the house wherein he was residing was broken by Hurricane Irma on September 10, 2017. Residents denied the declare as a result of, inter alia, Navarro didn’t present discover of the loss till Might 5, 2020. The trial courtroom granted abstract judgment in favor of Residents, upon a dedication that the insured’s discover to the insurer was not immediate, elevating a presumption of prejudice which Navarro did not rebut. We affirmed, noting the insured’s personal deposition testimony wherein Navarro acknowledged that he seen leaks all through his residence the day after Irma struck; he noticed roof leaks in his home and tried to make repairs roughly a month after the hurricane; he made much more roof repairs, together with changing roof tiles, the next yr; however waited greater than two and a half years to report the declare. Navarro conceded that ‘his solely rationalization for failing to report the damages to Residents was an absence of fluency with the phrases of the coverage.’ We affirmed the ultimate abstract judgment, holding there was no real problem of truth in dispute whether or not Navarro acted ‘with affordable dispatch and inside an inexpensive time.’…
In Laquer….this courtroom held that regardless of a virtually three-year delay in offering discover to Residents, ‘problems with truth exist[ed] regarding when an inexpensive and prudent individual would imagine {that a} potential declare for damages may exist,’ precluding abstract judgment. Particularly, the proof established that ‘injury to Laquer’s unit or the inside of the wall was not obvious till a number of years after Hurricane Wilma: nobody, together with Laquer, her tenant, her housekeeper, and the condominium supervisor and his brokers who repeatedly visited Laquer’s unit, was capable of observe any injury to the wooden flooring or partitions of the unit previous to [the notice date] or was in any other case placed on discover to additional examine for injury.’….The Laquer courtroom did word, nonetheless, that the date the insured found the total extent of the injury was not essentially the triggering date both.
Beneath this regulation, the Florida courts appear to search for a prudent individual customary about when a policyholder would know {that a} potential declare for damages may exist.
Based mostly on that authorized view, the appellate courtroom reversed the trial courtroom and held for the policyholder, making the next conclusion:
On this case, the injury to Castro’s property is alleged to have been prompted in September 2017, however was not reported till February 2020. This passage of time was defined by Castro, who averred that the property was occupied by a tenant throughout that point interval, that the tenant by no means suggested Castro of any injury, and that Castro herself was unaware of any injury to her property till the tenant moved out of the property in February 2020. Castro offered Residents with discover of the loss lower than three weeks after turning into conscious of injury to her property. Given the proof submitted by Castro in opposition to the movement for abstract judgment, and in view of all of the details and circumstances of the actual case, a real problem of disputed truth stays as as to whether Castro gave immediate discover of the loss….
The jury should make that dedication.
Thought For The Day
There’s a distinction between magnificence and attraction. An exquisite girl is one I discover. A captivating girl is one who notices me.
—John Erskine
1 Castro v. Residents Prop. Ins. Corp., No. 3D21-1847 (Fla. 3d DCA June 21, 2023).
