In a recent case, a federal appeals court held that named insureds’ son and daughter-in-law were required to submit to an examination under oath (“EUO”) because they resided in the insureds’ house, and that their failure to do so precluded recovery on the insurance claim.1
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While the timeframe to file a legal action is generally defined under the Statute of Limitations, in some states an insurance policy can contractually establish a shorter period to file a legal action. In a recent California case, Keller v. Federal Insurance Company,1 the Ninth Circuit upheld a Legal Action Against Us clause, finding the homeowners waited too long to file a lawsuit.
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In Florida, an insurer’s denial of coverage constitutes a waiver of its right to require an insured to comply with policy conditions before filing suit.1 But, what if insured requests an insurer to reconsider its coverage denial before filing suit? Does the request to reconsider nullify the insurer’s previous denial of coverage requiring the insured to comply with policy conditions never initially invoked or requested?
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The purpose of a sworn proof of loss is to enable the insurer to properly investigate the circumstances of a loss while the occurrence is fresh in the minds of the witnesses, to prevent fraud, and to enable it to form an intelligent estimate of its rights and liabilities so it may adequately prepare to defend any claim. But, if that information is not submitted in the form requested by the insurance company, has an insured still complied with the proof of loss requirement?
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This blog has often discussed the importance of carefully reading your insurance policy. It is imperative to know of your rights should your insurance claim become problematic. It is crucial to know the policy’s suit limitation clause as well as your state’s statute of limitations, so you don’t miss the filing deadline. Once this period of time lapses, your right to sue and recover your unpaid or underpaid loss is waived.
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Insurers on occasion deny coverage or make claim decisions based on one ground, and then later, during litigation, seek to avoid liability based upon an entirely new defense theory. Although coverage decision letters regularly throw in boilerplate language seeking to avoid waiving coverage defenses, I was recently asked whether an insurer can deny coverage or refuse to pay additional policy benefits during the claim stage based on one ground, and then later, after litigation has commenced, seek to avoid coverage based on the insured’s alleged failure to fulfill the proof of loss condition. To answer this question, we need to first review some general principles concerning proof of loss.
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Your first reaction to the question in the heading of this article might be an easy and obvious “Yes.” But you might want to reconsider after reading a recent case from Florida’s Fourth District Court of Appeal.1
When submitting a claim to an insurance company, a policyholder has certain obligations that must be followed. The insurance policy contract lists the obligations. The policy document was written by the insurance company and approved (most of the time) by the insurance regulatory agency for the state where the property is located. Insurance contracts are usually “take it or leave it” when it comes to the wording of the provisions. An insured can buy endorsements to the policy, add additional insurance, and change deductibles but the language about the coverage and the explanation of what is excluded is not something an insured can make edits or changes to for the insurance company to consider and make part of the contract.
Florida’s 4th District Court of Appeals (“4th DCA”), recently issued an opinion relating to compliance with post-loss duties in a property insurance case.1 The issue centered on whether the policyholder breached their duties under the insurance contract by not timely submitting a sworn proof of loss. The trial court decided that the policyholder could not recover under the policy because of their untimely submission of a sworn proof of loss. The policyholder appealed that ruling. The 4th DCA affirmed the trial court. We will discuss the reasoning behind the decision.
If an insured fails to provide prompt notice of its property loss, it can often be grounds for denial of coverage. Most policies have a provision that notice be given promptly, immediately, or as soon as practicable. The question then becomes what is “prompt notice”? In PDQ Coolidge Formad, LLC v. Landmark American Insurance Company,1 an insured, PDQ Coolidge Formad, LLC (“PDQ”) owned an apartment complex named Washington Shores in Orlando, Florida. Washington Shores sustained severe roof damage resulting from Tropical Storm Fay on August 20, 2008. Paragraph 3a.(2) of the insured’s Policy provided that in the event of loss or damage, PDQ was required to give Landmark “prompt notice of the loss or damage.” (emphasis added)