Compliance with Policy Conditions After a Denial of Coverage

In Florida, an insurer’s denial of coverage constitutes a waiver of its right to require an insured to comply with policy conditions before filing suit.¹ But, what if insured requests an insurer to reconsider its coverage denial before filing suit? Does the request to reconsider nullify the insurer’s previous denial of coverage requiring the insured to comply with policy conditions never initially invoked or requested?

That was the issue in Castro v. Homeowners Choice Property & Casualty Insurance Company.² There, Homeowners Choice denied coverage for an alleged sinkhole loss based on an engineering report that found no sinkhole activity at the insureds’ residence. Prior to the denial, Homeowners Choice never requested that the insureds file a sworn statement in proof of loss, produce records and documents, or submit to an examination under oath. Four years later, the insureds retained an engineer who determined that the loss was caused by sinkhole activity. The insureds sent the engineering report to Homeowners Choice and requested that it reconsider its prior denial of coverage. Homeowners Choice responded by demanding documents, a sworn proof of loss, and examinations under oath. The insureds sued for breach of insurance contract. Homeowners Choice subsequently moved for summary judgment, arguing that the insureds’ request to reconsider the coverage denial constituted a reopening of the claim that allowed it to require the insureds to comply with the policy’s post-loss conditions precedent to filing suit and that their refusal to comply with those conditions was a willful and material breach of the insurance contract that precluded recovery. The trial court agreed, and entered judgment in favor of Homeowners Choice.

On appeal, the Florida District Court of Appeal reversed the lower court judgment. The court reasoned that when Homeowners Choice denied the insureds’ claim, it foreclosed its right to later assert the failure to comply with the policy’s conditions precedent, leaving the insureds free to sue for breach of the insurance contract at any time within the five-year statute of limitations period. The court rejected Homeowners Choice’s contention that the insureds’ submission of the engineering report and their request to reconsider the claim constituted a reopening of the claim that somehow nullified its previous denial of coverage. The court reasoned that the insurance policy included no reference to or definition of the term “reopened claim.” Nor did it include any language that would inform an insured that an attempt to negotiate a settlement after a denial of coverage would act as a reopening of a claim requiring the insured to comply with policy conditions precedent it never initially invoked or requested.

The Castro decision was cited recently by the Florida District Court of Appeal in Ifergane v. Citizens Property Insurance Corporation.³ Although the court there stated the legal principle articulated in Castro—when an insurance carrier investigates a claim and denies coverage because it concludes that a covered loss has not occurred, the insurance carrier cannot assert the insured’s failure to comply with the policy’s conditions precedent to filing suit as a bar to recovery—it found that an issue of fact existed as to whether a letter constituted a claim denial.

The moral of the story for a Florida policyholder: Be certain your insurer has unequivocally and unconditionally denied any liability upon its insurance policy before deciding not to comply with post-loss conditions precedent. Otherwise, your failure to comply may be a bar to recovery for an otherwise covered loss.
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¹ See, e.g., Hartford Accident & Indem. Co. v. Phelps, 294 So.2d 362 (Fla. 1st DCA 1974).
² Castro v. Homeowners Choice Prop. & Cas. Ins. Co., 228 So.3d 596 (Fla. 2d DCA 2017).
³ Ifergane v. Citizens Prop. Ins. Corp., No. 3D16–1142, 2017 WL 4655059 (Fla. 3d DCA October 18, 2017).