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)
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).
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.
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].”
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.”
On October 26, 2012, I touched upon Examinations Under Oath (“EUO”). On June 19, 2009, Chip Merlin also touched upon EUOs. This post expounds upon both posts by responding to pointed questions we recently received in response to Chip’s June 19, 2009, post: (1) Why are some people chosen for EUOs? (2) Should I have an attorney present at the EUO? (3) What type of information is requested? (4) How long after the EUO until I get my check?
This blog post is an extension of my December 14, 2012, post, which addressed damage mitigation provisions and a couple different ways that carriers try to wield the insured’s mitigation efforts against the insured. Here is some more food for thought.
Most policies contain a post-loss condition requiring the insured to show the insurer damaged property “as often as [the insurer] reasonably require[s].” It is rare to find a policyholder bothered by the fact that an insurance company over-inspected damages during claim adjustment. Sure, sometimes insurers request one inspection after another in an effort to exhaust an insured out of pursuing a claim; but, more commonly, insurers do not inspect damage enough during claim adjustment and attempt to unwind lackluster claim adjustment inspections with post-denial inspections.
Continue Reading Insurance Policy Conditions (a/k/a/ Land Mines): Part 7 – Damage Inspection
In my October 13, 2012, post, I gave an overview of an ongoing blog topic for me – post-claim / pre-suit insurance policy conditions. In my October 26, 2012, post, I gave some insight on compliance with an insurer’s request for examination. In my November 2, 2012, post, I wrote about proofs of loss. November 9, 2012, was document requests. Today’s topic is claim notice.
In my October 13, 2012, blog post, I gave an overview of what will be an ongoing blog topic – post-claim / pre-suit insurance policy conditions. Today’s topic is compliance with examination requests. It is clear from the case law that examination policy conditions (e.g., Examination Under Oath (“EUO”) and Compulsory Medical Examination (“CME”) policy conditions) must be strictly complied with in Florida.1 What is not quite clear in Florida, however, is the consequence of failing to comply with an insurer’s examination request.
Continue Reading Insurance Policy Conditions (a/k/a/ Land Mines): Part 2 – Compliance With Examination Conditions