The Florida Fourth District Court of Appeals has been busy with late notice Hurricane Wilma cases on appeal. Trial courts within the Fourth District have disposed of these cases, finding as a matter of law that late notice prejudiced insurers. Judges generally decide questions of law, while questions of fact are left for the trier of fact, typically a jury. It is often a reversible error for a judge to take a factual determination away from the jury.

In Leben v. State Farm Florida Insurance Company,1 the policyholders filed an appeal after the trial court granted summary judgment in favor of State Farm. The policyholders sued State Farm for breach of contract after it denied their Hurricane Wilma claim. The Lebens noticed damage to their residence after Hurricane Wilma in 2005, but did not report the loss to State Farm until February 2009. The trial court found that the Lebens failed to comply with the policy’s post-loss conditions by failing to give timely notice of the Wilma loss and granted summary judgment.

The policyholders submitted two expert reports that specifically correlated the damages to their roof to wind forces from Hurricane Wilma. Then State Farm provided an affidavit from an adjuster assigned to handle the claim which noted that State Farm was unable to correlate the damages to Hurricane Wilma because of the late notice.

The Fourth District Court of Appeals remanded the case back to the trial court, holding:

The record contains a question of fact as to whether State Farm was prejudiced by the Lebens’ failure to provide timely notice. While State Farm submitted an affidavit attesting that it could not determine that the damage was caused by Hurricane Wilma, the Lebens submitted two reports from individuals who concluded that Hurricane Wilma had caused the damage. This was sufficient to raise a genuine issue of material fact and defeat State Farm’s motion for summary judgment.

Accordingly, the policyholders will be able to present their case to a six member jury.

1 Leben v. State Farm Florida Ins. Co., No. 4D10-3833 (Fla. 4th DCA August 1, 2012).