A headline in Law360 caught my attention: $13.8M Irma Coverage Suit Shot Down Again By Fla. Court.1 The case involved a law firm that was responding to those incessant and never-ending requests by insurance company counsel regarding a hurricane condominium loss. These insurance company counsel-led investigations can linger longer than it takes to file and complete the entire ensuing lawsuit. So, the factual scenario leading up to a policyholder’s law firm not filing a lawsuit before the five-year anniversary of a hurricane is not as uncommon as many would think.
The law firm representing the condominium exchanged numerous letters with the law firm representing the insurer months before the five-year anniversary of the hurricane. We attach a few in the footnotes below.2
The Law360 article noted, in part:
The dispute stems from Oceania’s claim for $15 million in damage to its high-rise building from Hurricane Irma, which was subject to a roughly $1.3 million deductible, according to filings in the case. The insurers denied the claim in November 2021, and Oceania sent each a notice of intent to enter litigation roughly 10 months later, filings show.
Oceania engaged with the insurers in pre-suit procedures before filing its complaint in early October, though the five-year statute of limitations on Irma claims lapsed in mid-September, according to filings in the case. The insurers moved to dismiss the suit in December.
The association claimed it should be allowed the protection of a 10-day safe harbor provision and argued that equitable estoppel and equitable tolling should apply to the statute of limitations. However, Judge Scola disagreed, finding the provision can’t be applied retroactively and Oceania did not show it relied on any statements by the insurers in failing to meet the deadline.
He held that the association could have avoided the problem if it hadn’t ‘waited until the last moment to pursue its claim,’ having allowed nine months to pass between the claim denial and its notices without explanation.
The court’s order3 denying reconsideration noted the following:
In its order granting the Defendants’ joint motion to dismiss, the Court concluded that Oceania’s complaint was time-barred because it was filed after the running of the applicable statute of limitations. To reach that conclusion, the Court considered, and rejected, three separate arguments raised by Oceania for why the statute of limitations on its claim should be tolled. Oceania now argues that the Defendants’ joint reply in support of their motion to dismiss inaccurately represented the interactions between the parties in the months leading up to the running of the statute of limitations, such that the events that actually unfolded support the tolling arguments previously rejected by the Court. Critically, however, Oceania fails to provide any justification whatsoever for waiting until now to provide the additional information on which its motion for reconsideration depends.
Oceania support its motion for reconsideration by asserting myriad additional facts and providing no less than nine (9) new exhibits to show that it was not sitting on its “proverbial hands” while the statute of limitations ran on its claim. But Oceania does not give any reasons why it could not have raised this evidence before the Court issued its decision on the Defendants’ motion to dismiss. To that point, all of the new materials provided by Oceania appear to have been created well before the parties’ briefing on the motion to dismiss was underway, with the latest such document dated September 13, 2022. In addition, all of the materials were either drafted by, or sent to, Oceania’s counsel, so there is no reason to believe that Oceania did not have access to the information until recently. Moreover, to the extent Oceania suggests that it could not adequately address the Defendants’ version of events because it was only set forth in their reply in support of dismissal, Oceania could have, but failed to, move the Court for leave to file a sur-reply. Thus, the thrust of Oceania’s motion is that the Court should reconsider arguments it already rejected because of evidence that Oceania, without any justification, failed to provide before the entry of the Court’s order.
This failure to file a lawsuit happened to a law firm. For policyholders trying to represent themselves and public adjusters trying to meet all the investigative requests of the insurance company, the rule regarding statute of limitations is this—do not wait until the last minute. The matter should be referred to a competent law firm, which then should either file a lawsuit or obtain a valid extension to do so.
Thought For The Day
“Chip, always remember that safe is better than sorry.”
1 Riley Murdock. $13.8M Irma Coverage Suit Shot Down Again By Fla. Court. Law360 (June 6, 2023). Available online (requires subscription) at: https://www.law360.com/insurance/articles/1688075/-13-8m-irma-coverage-suit-shot-down-again-by-fla-court
2 OceaniaIII Condominium Assoc. v. Westchester Surplus Lines Ins. Co., No. 22-23681, [Exhibits 1, 2, 5, 7, 9 to Doc 33 Motion for Reconsideration] (S.D. Fla.).