On June 27, 2011, in What Has Happened To The Rebuttable Presumption Of Prejudice In A Recent Late Notice Case, I discussed how the Florida Fourth District Court of Appeal had issued its opinion in Kroener v. FIGA1 did not discuss the Florida Supreme Court’s rebuttable presumption of prejudice test and held that notice of a loss more than two years two months after the occurrence was not prompt notice and was insufficient to bar the claim.

Recently, Florida’s Fourth District Court of Appeal clarified its opinion from Kroener in the case of Kramer v. State Farm Florida Insurance Company.2 The Court stated:

[W]e clarify our opinion in Kroener v. Florida Insurance Guaranty Ass’n, 63 So.3d 914 (Fla. 4th DCA 2011). There, in affirming a summary judgment for the insurer, we held: “[W]e agree with the trial court’s ruling that, as a matter of law, notice to the insurer of a claim of loss more than two years and two months after the loss occurred was not prompt notice; the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim.” Id. at 916 (citation omitted). That holding was based upon a record similar to this case, where the insurer argued that it was prejudiced by the insureds’ untimely pre-suit notice of the alleged loss, and the insureds did not come forward with counterevidence sufficient to reveal a genuine issue as to whether the insurer was prejudiced. Kroener should not be interpreted as having deviated from the prejudice analysis described in Bankers. (Emphasis Added).

This statement makes it clear that the Kroener opinion was not attempting to deviate from the rebuttable presumption test put forth by the Florida Supreme Court years earlier in late notice cases. Courts analyzing true late notice cases in Florida will review the record to determine whether the policyholder can rebut the presumption of prejudice to the insurer in those cases. There can often be numerous factual issues surrounding a late reported claim, as well as factual issues surrounding potential prejudice to the insurer.

1 Kroener v. Florida Insurance Guaranty Ass’ n, No. 4D09-3604 (Fla. 4th DCA June 22, 2011).

2 Kramer v. State Farm Florida Ins. Co., 2012 WL 2913189 (Fla. 4th DCA July 18, 2012).