Conditions Precedent

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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.
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?

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.…

Continue Reading Insurance Company Has to Have Reasonable Requests Pursuant to the Policy

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.…

Continue Reading Recent Florida Case on Submission of Proof of Loss – Why is There Not a Fact Question for the Jury to Decide?

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)…

Continue Reading Six Month Delay in Reporting Property Damage Claim was not “Prompt Notice” According to Eleventh Circuit

Many moons ago (on October 26, 2012, to be precise), I blogged about compliance with examination conditions. That blog noted conflicting views as to what is required of a policyholder under the policy’s condition for examination under oath (in the property insurance context) or compulsory medical examination (in the health, disability, or long-term care insurance contexts).…

Continue Reading Compliance With Examinations Under Oath – Supreme Court of Florida Authority Hot Off The Press

Last week, my post, Carolina Coverage – Are All These Documents Really Necessary, highlighted the Chavis case, in which the North Carolina Supreme Court ruled the Plaintiffs were justified as a matter of law in refusing to sign an overly broad release for records. But when it comes to producing documents requested by an insurance company, it is important to understand courts focus on whether the request is reasonable.…

Continue Reading Carolina Coverage – Producing records Can Mean Physical Delivery

While working on a case for recovery after hail pummeled a homeowner’s roof, I found a recent case that discussed Texas law regarding Examinations Under Oath (EUO). In this case, the insurer demanded that the EUO be videotaped. When the insured refused to submit to a videotaped EUO, the issue of failing to comply with conditions precedent arose. It was clear in the insurance policy that “no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within two years after the [event].”…

Continue Reading Consequences of Failing to Comply with Request for Examination Under Oath and Submission of Insufficient Proof of Loss in Texas

It is not uncommon these days to see an Examination Under Oath (“EUO”) provision (usually by way of endorsement) that reads along these lines:

You, an ‘insured’ seeking coverage, must submit to recorded statements and examinations under oath, while not in the presence of any other ‘insured’, and sign the same. Also, your representative, including any public adjuster engaged on your behalf, must each submit to recorded statements and examinations under oath, while not in the presence of any other ‘insured’, and sign the same. The legal representative of the insured may always be present under the circumstances described in this condition.

And then “insured” is usually defined like this: “‘Insured’ means you and residents of your household who are: a. Your relatives; or b. Other persons under the age of 21 and in the care of any person named above.”…

Continue Reading Insurance Policy Conditions (a/k/a/ Land Mines): Part 26 – EUOs Continued …Who Can Be Present At Which EUO?