Most policies contain a post-loss condition requiring the insured to show the insurer damaged property “as often as [the insurer] reasonably require[s].” It is rare to find a policyholder bothered by the fact that an insurance company over-inspected damages during claim adjustment. Sure, sometimes insurers request one inspection after another in an effort to exhaust an insured out of pursuing a claim; but, more commonly, insurers do not inspect damage enough during claim adjustment and attempt to unwind lackluster claim adjustment inspections with post-denial inspections.
If you happen to be in the minority (someone bothered by multiple inspection requests), here are some things you might consider when deciding whether to permit an insurer to inspect damage for, say, a tenth time: (a) the extent of damage, (b) the insurer’s diligence (or lack) during inspections one through nine, (c) the age of the claim, and (d) how much (if at all) each inspection has burdened you (e.g., interference with work schedule). If you refuse the insurer’s request for a tenth inspection after considering these kinds of things, be mindful your claim may be denied based on a failure to cooperate argument. If so, remain cognizant that the insurer’s failure to cooperate argument can be rebutted with substantial compliance and/or lack of prejudice arguments. Previous posts in this blog series have touched upon substantial compliance and prejudice.
If you happen to be in the majority (someone bothered by an insurer’s post-denial and post-litigation attempt to (re-)inspect the damage “pursuant to” Florida Rule of Civil Procedure 1.350), then you might be interested in hearing a bit about whether the right to inspect lives beyond claim denial and into litigation. In my opinion, the insurer is not entitled to (re-)inspect damage post-denial and post-litigation if the insurer inspected the damage during the claim adjustment or elected not to inspect the damage during the claim adjustment. The insurer’s breach of contract (i.e., denying the claim or lowballing the claim) should excuse the insured from having to subsequently perform a condition (e.g., inspection) of the already breached contract.1 Also, if the insurer has inspected or elected not to inspect the damage during its claim adjustment and denied the claim, the insurer should be estopped from fishing for new bases for claim denial via a post-denial inspection.2
1 See, e.g., 17A Am. Jur. 2d Contracts § 685 (West, Nov. 2012).
2 See Order entered in Rodolfo Reyes and Ivis Perez v. Citizens Prop. Ins. Corp., No. 09-84230-CA-21 (Fla. 11th Cir. Ct., Aug. 8, 2012) (denying Citizens’s Rule 1.350 Motion to Compel Entry Upon Land to re-inspect damage already inspected during the pendency of the claim). See also Am. States Ins. Co. v. McGuire, 510 So. 2d 1227, 1229 (Fla. 1st DCA 1987) (“when an insurer specifies the ground upon which it denies coverage to its insured, and the insured pursues a course of action in reliance on the insurer’s asserted defense, the insurer is estopped to raise a new ground upon which to deny coverage”); Heimer v. Travelers Ins. Co., 400 So. 2d 771, 773 (Fla. 3d DCA 1981) (“courts will not allow the practice of the ‘Catch-22’ or ‘gotcha!’ school of litigation to succeed[;]” i.e., “we will not tolerate a result … which burdens an innocent party … with proving a previously undisputed fact”).