The Fourth District Court of Appeals in Florida recently issued another opinion in a late notice Hurricane Wilma case, Slominski v. Citizens Property Insurance Corporation.1 The Court clarified its previous opinion in Kroener v. FIGA.2 Citizens argued in Slominski that Kroener stands for the proposition that a claim made over two and one-half years after the date of loss is barred as a matter of law due to the late notice.
The Court noted that Kroener involved a situation where the claimants were third-party assignees of the former homeowners’ insurance policy benefits. Prior to the assignment, the former homeowners never made a claim on their policy or notified the insurer of a loss. The Court stated that in Kroener, they relied on the Third District decision in Highlands Insurance Company v. Kravecas,3 in which a third-party buyer attempted to claim benefits under the former owner’s “loss of use” coverage following Hurricane Andrew in 1992. The third-party buyer did not receive any “loss of use” claim from the former owners’ assignment; the former owners “had no unreimbursed loss of use,” since they never lost the use of the property or relocated to another property while repairs were conducted. The Kravecas Court stated that the purpose of “loss of use” coverage is to make whole a displaced homeowner. If the third-party buyer could assert his own claim for loss of use, even though he had never been a resident on the premises, it would be an unwarranted windfall.
The Slominski Court stated:
In both Kroener and Kravecas, the claimant was assigned the right to benefits from a policy held by the original policyholder at the time of the loss event. In both cases, the original policyholders had no unreimbursed losses pending at the time of assignment, and no claim had been made which could be assigned. Therefore, when the assignment occurred, there were no benefits to assign. The third-party claimants had no entitlement to make a claim. Thus, their untimely claim of loss did violate the insurance policy. Therefore, Kroener, which dealt with a third-party’s entitlement to assigned benefits, is not controlling on the issue before us.
It is not everyday that an appellate court distinguishes its earlier holdings and takes time to clearly explain the rationale behind an earlier decision. After reading Slominski, it is clear that the Fourth District Court of Appeal wanted to avoid any misunderstanding that Kroener created a bright line prejudice rule in all delayed notice insurance cases.
1 Slominski v. Citizens Property Ins. Corp., No. 4D10–4372 (Fla. 4th DCA Oct. 2012).
2 Kroener v. Florida Ins. Guar. Ass’n, 63 So.3d 914 (Fla. 4th DCA 2011).
3 Highlands Insurance Co. v. Kravecas, 719 So.2d 320 (Fla. 3d DCA 1998).