Conditions Precedent

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Last week the United States District Court for the Southern District of Indiana granted Travelers Indemnity Company’s Motion for Summary Judgment allowing them to dodge hail damage claims made by policyholder Mapleton at Countryside Condominium Association Inc. (“Mapleton”).1 Mapleton brought suit against Travelers for breach of contract and bad faith following two hailstorms impacting their buildings in June 2016 and April 2017. The hailstorms caused damage to the condominium’s siding estimated at $2.58 million.
Continue Reading Court Finds Hailstorm Claims Made “Unreasonably Late”

Defendant Insureds, Lonergan Law Firm, PLLC, et al. (“Lonergan”), recently appealed to the Fifth Circuit Court of Appeals a Northern District of Texas ruling against it, which found it failed to meet a material condition of the policy by not sending its Notice of Claim (“Notice”) to the Claims Department. Landmark American Insurance Co. (“Landmark”) filed suit against its insureds seeking to avoid liability for coverage by arguing that, even though it received notice via a Claim Supplement during the policy period, the insureds failed to send the notice to the location mandated by the Policy.1…
Continue Reading Notice of Claim: Precatory “Please” Does Not a Mandatory “Shall” Make

In Northgate Country Club Management, LLC v. Philadelphia Indemnity Insurance Company,1 the Honorable Sim Lake, Senior Judge for the United States District Court for the Southern District of Texas, reaffirmed this past week the critical rule that in a FEMA flood case, the requirement for a policyholder to file a proof of loss cannot be waived even by a carrier that participates in a claim. With the hurricane and tropical season upon us along the Gulf Coast, a reminder of this mandatory rule is relevant.
Continue Reading Can the Proof of Loss Requirement Be Waived in a Flood Case?

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…
Continue Reading Are My Children and Their Spouses Required to Submit to an Examination Under Oath for My Property Damage Claim?

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.
Continue Reading Legal Action Against Us Clause

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?
Continue Reading Compliance with Policy Conditions After a Denial of Coverage

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?
Continue Reading Is Substantial Compliance with a Proof of Loss Enough?

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.
Continue Reading Court Upholds Policy Suit Limitations Provision and Holds Appraisal Award Unenforceable for Failure to File a Timely Lawsuit

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.
Continue Reading Proof of Loss: Can an Insurer Deny Coverage and Later Argue the Claim is Barred Because the Insured Did Not Comply with the Proof of Loss Condition?