There is a recent case in New York1 regarding the proof of loss requirement — an issue we have discussed in recent posts. The case involved a situation where the carrier denied the fire claim by a deli/grocery store on the basis of fraud and filed a motion requesting the trial court grant judgment in its favor, asserting the policyholder never filed a proof of loss.
In my last several posts, I wrote about proof of loss requirements specific to New York and have focused on several cases that were consolidated into one opinion from New York’s highest appellate court.1 In each of the cases involved in the appeal, an insurance carrier denied coverage because the policyholders allegedly failed to submit the proofs of loss timely.
In the last post on this topic, I explained that New York requires strict compliance for the timely submission of the proof of loss in first-party property insurance cases. Interestingly, the statute that addresses the proof of loss requirement has some language that may supersede this general rule.
Last week, I wrote about the importance of timely submitting the proof of loss in first-party property insurance cases. This is particularly true in the New York, which is known as a “strict compliance” state. That means proofs of loss must be submitted timely according to the terms of the policy. Failure to do so can be an absolute defense to the claim by the insurance carrier. Bright line rules are somewhat rare in the law, so I thought I would write about the topic again to expand the discussion.
Those who handle first-party property insurance claims everyday understand the importance of the proof of loss. Imagine attempting to handle your own first-party property insurance claim and not realizing what potential pitfalls there can be in the claims process. One of these potential pitfalls is timely submitting a proof of loss according to the policy and state law. A proof of loss is a standardized form on which the insured gives information about a claim and the property insured. The general purpose of proof requirements is “to afford the insurer an adequate opportunity for investigation, to prevent fraud and imposition upon it, and to enable it to form an intelligent estimate of its rights and liabilities before it is obligated to pay.”1
Most policyholders usually do not know what to expect when they submit a claim to their insurance company. Some simply expect to fill out a claim form, maybe answer a few questions, and then receive a claim check from the insurer compensating them for the loss. Most policyholders are usually taken back when the insurance company asks for copies of their income tax returns, bank statements, bills, and other financial records. Continue Reading Do I Really Have To Provide My Insurance Company With My Financial Records After A Loss?
Earlier this week I was in New York City to attend a meeting of Plaintiffs’ attorneys represent policyholders in pending Superstorm Sandy cases in the Eastern District of New York (EDNY) federal court. In case you have missed our prior blogs, New York Federal Court Creates Miscellaneous Civil Case for Administration of Hurricane Sandy Claims, and New York’s Eastern District Deciding How to Handle All the Sandy Cases, the EDNY has set up a separate case titled “In re Hurricane Sandy Cases” to administer Superstorm Sandy litigation. Javier Delgado of Merlin Law Group was selected by the EDNY as one of the Liaison Counsel for Plaintiffs in Superstorm Sandy litigation.
I spent the past several weeks discussing the proof of loss requirements in New York. Hopefully, the posts provided insight. A somewhat related issue is notice of a loss, and the requirements under New York law. The second section of the statute I discussed over the last several weeks also addresses notice of loss under certain insurance policies in New York.
As was discussed in my last post, Proof of Loss: Waiver, Part I, if possible you should file a Proof of Loss in the applicable timeframe. Not doing so can cause a myriad of problems and under some policies, National Flood Insurance, for example, can provide the insurer an excuse for denying the claim all together. As previously discussed, however, there are some circumstances in which an insurer may waive the requirement of filing a Proof of Loss. Last week we discussed that express waiver occurs when an insurer explicitly states, either orally or in writing, that the filing of a Proof will not be required. This week we will focus on implied waiver, or waiver which occurs as a result of the actions and/or conduct of the insurer.
As I was watching one of the countless news reports detailing the current mortgage crisis and its effects on homeowners, I began to think of the insurance consequences of homeowners being forced to give up and hand over the keys to their houses. What would happen, I wondered, if a homeowner was to have a covered loss but fail to submit a proof of loss because of a pending foreclosure?