Even Unknown Insurance Claims Must Be Timely Raised

Claims for Insurance Claim Must be Timely Raised Even if Unknown

Better Look for Potential Damage After any Potential Hazard Event

 

Ian T. Kravitz, Esquire - Malka & Kravitz, PA

In October of 2005, the home of Justin and Selma Soronson ("the Insureds") was hit by land falling Hurricane Wilma. ("the Home"). The Insureds did not notice any damage, nor was damage apparently visible from a reasonable and customary inspection. More than three years later, in 2009, an inspection was performed on the roof of the Home that revealed damage that appeared to be caused by a windstorm event. The Insureds immediately notified their insurance carrier and complied with the insurance policy's requirement for submission of a sworn proof of loss. The insurance company conducted its own inspection, and denied coverage. The insurer claimed that no damage was verified, and the passage of time prior to notice of the claim being made prejudiced the insurance company's ability to properly determine the cause of any such damage. Judgment was entered in favor of the insurance company and an appeal ensued.

The insurance company argued that the Insureds breached the insurance policy that required a sworn proof of loss to be submitted within 60 days after a loss. The insurance company claimed that such a breach caused prejudice to the insurance company making it impossible to determine the true cause of any alleged damage. The Insureds argued instead that they furnished the sworn proof of los immediately upon learning of the damage, and that since Hurricane Wilma, no work had been performed on the roof, and no major wind events had impacted the home. The insurance company protected claiming that the language of the insurance policy was clear as to such a claim being made within 60 days of the loss, and that to allow the Insureds to claim that knowledge of the loss would be an unlawful rewriting of the insurance policy.

While causes of actions for defects and losses generally can be brought within a particular period of time after the same is known or should have been known through a reasonable and customary inspection, the appellate court held that the terms of the insurance policy were clear and unambiguous, and that the Court was not in a position to rewrite such a provision. Since the insurance policy also stated clearly that no suit could be brought until compliance with all of the policy's provisions, the appellate court agreed that the Insured's claim was untimely and barred.

The appellate court stated that the only manner by which the Insureds could overcome such provisions would be to prove that the insurance company had not been prejudiced by the lack of timely notice. This is a tall burden to overcome as Florida law presumes that the insurance company was in fact prejudiced if a policy condition precedent to suit, such as timely notice, has not been met. The Insureds were able to submit evidence that no work had been performed on the roof since Hurricane Wilma and that no comparable windstorm events affected the roof in that time. The appellate court held that this evidence merely amounted to "at best . . .that Hurricane Wilma damaged their roof and that their roof needs to be replaced as a result." The Insureds were not, however, able to provide proof that the insurance company was not prejudiced in its ability to confirm such allegations and to properly assess the claim.

The appellate court affirmed the judgment in favor of the insurance company holding that under the clear and unambiguous terms of the policy, the Insureds breached the policy for failing to provide timely notice of the loss, even though it was undisputed that they did not know, nor had reason to know, of the loss, for over three years. As a result, the burden fell upon the Insureds to prove that the insurance company was not prejudiced by the untimely notice. A burden which was too steep to meet.

The moral of this story is to remind everyone to read their insurance policies carefully, and to obtain legal counsel as to their obligations under any such policy. One never wants to undertake an analysis of their insurance policies after a loss. By then it may very well be too late. Whenever an event occurs that may trigger insurance coverage, a timely inspection of the covered property should be undertaken to preserve your rights.

 

 

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