A headline in Law360 caught my consideration: $13.8M Irma Protection Go well with Shot Down Once more By Fla. Court docket.1 The case concerned a regulation agency that was responding to these incessant and endless requests by insurance coverage firm counsel relating to a hurricane condominium loss. These insurance coverage firm counsel-led investigations can linger longer than it takes to file and full your complete ensuing lawsuit. So, the factual situation main as much as a policyholder’s regulation agency not submitting a lawsuit earlier than the five-year anniversary of a hurricane shouldn’t be as unusual as many would suppose.
The regulation agency representing the condominium exchanged quite a few letters with the regulation agency representing the insurer months earlier than the five-year anniversary of the hurricane. We connect a number of within the footnotes under.2
The Law360 article famous, partly:
The dispute stems from Oceania’s declare for $15 million in injury to its high-rise constructing from Hurricane Irma, which was topic to a roughly $1.3 million deductible, in accordance with filings within the case. The insurers denied the declare in November 2021, and Oceania despatched every a discover of intent to enter litigation roughly 10 months later, filings present.
Oceania engaged with the insurers in pre-suit procedures earlier than submitting its criticism in early October, although the five-year statute of limitations on Irma claims lapsed in mid-September, in accordance with filings within the case. The insurers moved to dismiss the swimsuit in December.
The affiliation claimed it needs to be allowed the safety of a 10-day secure harbor provision and argued that equitable estoppel and equitable tolling ought to apply to the statute of limitations. Nonetheless, Decide Scola disagreed, discovering the availability can’t be utilized retroactively and Oceania didn’t present it relied on any statements by the insurers in failing to fulfill the deadline.
He held that the affiliation might have averted the issue if it hadn’t ‘waited till the final second to pursue its declare,’ having allowed 9 months to cross between the declare denial and its notices with out clarification.
The courtroom’s order3 denying reconsideration famous the next:
In its order granting the Defendants’ joint movement to dismiss, the Court docket concluded that Oceania’s criticism was time-barred as a result of it was filed after the working of the relevant statute of limitations. To achieve that conclusion, the Court docket thought-about, and rejected, three separate arguments raised by Oceania for why the statute of limitations on its declare needs to be tolled. Oceania now argues that the Defendants’ joint reply in help of their movement to dismiss inaccurately represented the interactions between the events within the months main as much as the working of the statute of limitations, such that the occasions that really unfolded help the tolling arguments beforehand rejected by the Court docket. Critically, nonetheless, Oceania fails to supply any justification in anyway for ready till now to supply the extra data on which its movement for reconsideration relies upon.
Oceania help its movement for reconsideration by asserting myriad extra information and offering a minimum of 9 (9) new reveals to indicate that it was not sitting on its “proverbial fingers” whereas the statute of limitations ran on its declare. However Oceania doesn’t give any the reason why it couldn’t have raised this proof earlier than the Court docket issued its determination on the Defendants’ movement to dismiss. To that time, all the new supplies supplied by Oceania seem to have been created effectively earlier than the events’ briefing on the movement to dismiss was underway, with the newest such doc dated September 13, 2022. As well as, all the supplies have been both drafted by, or despatched to, Oceania’s counsel, so there isn’t a purpose to consider that Oceania didn’t have entry to the knowledge till just lately. Furthermore, to the extent Oceania means that it couldn’t adequately deal with the Defendants’ model of occasions as a result of it was solely set forth of their reply in help of dismissal, Oceania might have, however did not, transfer the Court docket for go away to file a sur-reply. Thus, the thrust of Oceania’s movement is that the Court docket ought to rethink arguments it already rejected due to proof that Oceania, with none justification, failed to supply earlier than the entry of the Court docket’s order.
This failure to file a lawsuit occurred to a regulation agency. For policyholders attempting to signify themselves and public adjusters attempting to fulfill all of the investigative requests of the insurance coverage firm, the rule relating to statute of limitations is that this—don’t wait till the final minute. The matter needs to be referred to a reliable regulation agency, which then ought to both file a lawsuit or get hold of a sound extension to take action.
Thought For The Day
“Chip, all the time keep in mind that secure is healthier than sorry.”
—Alice Merlin
1 Riley Murdock. $13.8M Irma Protection Go well with Shot Down Once more By Fla. Court docket. Law360 (June 6, 2023). Accessible on-line (requires subscription) at: https://www.law360.com/insurance coverage/articles/1688075/-13-8m-irma-coverage-suit-shot-down-again-by-fla-court
2 OceaniaIII Condominium Assoc. v. Westchester Surplus Traces Ins. Co., No. 22-23681, [Exhibits 1, 2, 5, 7, 9 to Doc 33 Motion for Reconsideration] (S.D. Fla.).
