In my October 13, 2012, post, I gave an overview of an ongoing blog topic for me – post-claim / pre-suit insurance policy conditions. In my October 26, 2012, post, I gave some insight on compliance with an insurer’s request for examination. In my November 2, 2012, post, I wrote about proofs of loss. November 9, 2012, was document requests. Today’s topic is claim notice.
Most insurance policies contain language along these lines: “In case of a loss to covered property, you must: Give prompt notice to us, or your producer, who is to give immediate notice to us.” So, what constitutes prompt notice? And is late notice an automatic bar to coverage?
“Prompt notice” means that “notice is to be given within a reasonable time in view of all the facts and circumstances of each particular case. What is ‘reasonable’ depends on the surrounding circumstances of the individual case, and is ordinarily a question of fact.”1
As for compliance with a policy’s “prompt notice” provision, let’s be clear – belated reporting of a claim is a less than ideal way to get the claim adjustment ball rolling. That said, noticing a claim beyond a reasonable time under the surrounding circumstances is not generally an absolute bar to coverage. Before coverage is precluded based on unreasonably late notice, the issue of whether the insurer was prejudiced by the late notice must be analyzed. The initial burden of the prejudice analysis falls on the insured:
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."2
1 Oriole Gardens Condos., III v. Independence Cas. and Sur. Co., No. 11-60294-CIV, 2012 WL 718803 at *9 (S.D. Fla. Mar. 6, 2012) (citing several Florida state court cases).
2 Slominski v. Citizens Prop. Ins. Corp., No. 4D10-4372, 2012 WL 4511322 at *2 (Fla. 4th DCA Oct. 3, 2012) (quoting Tiedtke v. Fid. & Cas. Co. of New York, 222 So. 2d 206, 209 (Fla. 1969)).