When making a non-flood claim for Hurricane Matthew related damage to your insurer you must comply with the insurance policy’s post loss conditions. This includes the timely filing of a Sworn Proof of Loss form. Generally, Proof of Loss provisions are worded in one of two ways. The first only requires that the proof be filed within sixty days of the insurers written request. The second and much more critical wording provides that the insured must submit the Sworn Proof of Loss, to the insurer, within sixty (60) days from the date of loss. This wording does not require a request from the insurer to trigger compliance with this mandatory post loss policy Condition.

Assuming a South Carolina property was damaged with a date of loss of October 8, 2016, (when most authorities state Hurricane Matthew’s winds first battered the coast), the sixty-day time period for filing a Hurricane Matthew related Sworn Proof of Loss form will expire on, Wednesday, December 7, 2016. This is three days from now.

Unlike neighboring States, South Carolina has failed to order a mandatory extension of time for compliance with post loss conditions. Through Emergency Regulation 69-78, the South Carolina Director of Insurance has ordered that insurers “shall” (meaning must) consider exceptions for insurance contract requirements for those insureds displaced or directly impacted by Hurricane Matthew, including extensions of the proof of loss submission deadlines. This only requires the insurer to consider an extension on a case by case basis and does not require or compel granting an extension. It also puts the burden of making the request on the insured and requires a written agreement by the insurer to protect the insured.

However, this regulation does not require an insurer to provide such an extension and the regulation is vague and open to interpretation. As such it is imperative that an insured or their public adjuster, if one is employed, timely request an extension from the insurer when the proof of loss condition of the policy cannot be complied with. This request should be made in writing and sent by certified mail, return receipt, or similar service so the insured’s request and insurer’s receipt can be tracked and documented. If no request is made or if a written extension is not granted, then compliance with the proof of loss condition must be met. Failure to meet the Proof of Loss condition, may be grounds to deny the claim in its entirety.

South Carolina Specific Statutory and Other Considerations Related to Proof of Loss Requirement:

South Carolina law requires the insurer to provide a blank proof of loss form. However, if the insurer does not timely provide forms, the insured still must substantially comply with the proof of loss condition by submitting written documentation covering the occurrence, character, and extent of the loss for which the claim is made within the time frame required for filing a proof.1

Both Section 14 of Emergency Regulation 69-78 and South Carolina case law make it clear that the insured must provide the insurer with claim related information and cooperate with the insurer in its investigation. This includes making every effort to substantially comply with the policy’s proof of loss required, unless extended in writing by the insurer or through a mandatory extension order from the Department of Insurance. Substantial compliance and the lack thereof is addressed in these two South Carolina cases:

Remember that even if an extension is granted in writing by the insurer, substantial compliance with the sworn proof of loss condition will need to be received before the end of the last day of the extension period.

1 See S.C. Code Ann. § 38-59-10 – When an insurer requires proof of loss the insurer must furnish blank proof of loss forms to insured within 20 days after receiving claim notice; otherwise the insured is deemed compliant with policy’s proof of loss requirements if the insured submits written documentation covering the occurrence, character, and extent of the loss for which the claim is made within the time frame set forth in the policy for proof of loss submission. See also Williams v. S.C. Farm Bureau Mut. Ins. Co., 168 S.E.2d 794, 797 (S.C. 1969) (held that, where insurer did not provide blank proof form, the insured’s initial written claim notice was sufficient substitute for proof of loss submission because it provided information relating to the occurrence, character, and extent of the loss).