Recently, I had a discussion regarding "inception of the loss" versus "discovery of a loss" to real property and how this may affect or trigger an insured’s timely notice to an insurance carrier. The issue was if a landlord rents a property out to a tenant and does not know there is damage to the building but reports the damage to the carrier and mitigates the damage as soon as he is aware of the problem, will the landlord’s delayed notice to the carrier negatively impact the conditions of insurance coverage under the policy?


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Is there a specific period of time in which insurance claims must be made before they are barred as a matter of law? In What Has Happened to the Rebuttable Presumption of Prejudice in a Recent Late Notice Case?, Shaun Marker focused on one sentence fragment from the recent Florida case of Kroener v. Florida Ins. Guar. Ass’n, 63 So. 3d 914 (Fla. 4th DCA 2011), which appears to have turned the issue of notice of Florida insurance claims on its ear. That sentence says:

[A]s a matter of law, notice to the insurer of a claim of loss more than two years and two months after the loss occurred was not prompt notice; the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim.


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To make a claim for hurricane damage to property, you must first notify the insurance carrier of the damage. Most policies require the policyholder to provide this notice with some degree of expediency, usually “prompt” notice. Unfortunately, most policies do not define the term “prompt” and different circumstances could lead to varying interpretations of what “prompt” means. When disputes arise over whether notice was prompt, courts are often left to determine what the term means, again with varying results.


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In Late Notice Of The Claim Part 1 — Contrary to The Popular Belief of Insurance Carriers in Florida, Late Notice Is Not Necessarily An Absolute Coverage Defense, I wrote that the late notice defense is not an absolute coverage defense. In that post, I discussed the test the Florida Supreme Court has applied to late reported claims. When an insured fails to give timely notice of a loss, prejudice to the insurer is presumed. Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla. 1985). A court should presume that the insurance company’s investigation into the cause and damages associated with the loss was prejudiced, however, policyholders can rebut that presumption by showing that the insurer was not, in fact, prejudiced by the late notice. Macias, 475 So.2d at 1218.


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Usually, I write about cases involving public adjusters, but here is an interesting case where the insurance company’s adjuster helped the insureds.

Recently, a frequent allegation raised by the insurance companies seems to be “too little…too late.” Insurance policies typically include a condition that requires losses to be promptly reported.

Jeremy Tyler and Shaun Marker have addressed late reporting and late notice issues in great detail in their posts about hurricane losses. This week, I came across a case where the insureds were successful in overcoming the late notice/late discovery defense raised in a water damage claim in Pennsylvania. After reading the case, I reached out to some of the public adjusters in Pennsylvania and I learned a little more.


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I hesitated to write more on late notice of claims, but the issue just keeps coming up. In my research this week, I came across a recent case from the United States District Court for the Southern District of Florida that I thought I would share: Vision I Homeowners Ass’n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp. 2d 1333 (S.D. Fla. 2009).


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As previously noted in the first four posts of the Hurricane Law series discussing Late Notice of Claims, in Florida, if a policyholder does not timely report an insurance claim to the insurance carrier, prejudice to the insurer will be presumed. This presumption may be rebutted by a showing that the insurer was not prejudiced by the late notice. Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla. 1985). If an insurance carrier claims a policyholder breached a cooperation clause however, the insurance carrier “must show a material failure to cooperate which substantially prejudiced the insurer.”


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Continuing on with last week’s post on late notice claims, this week I want to expand on Shaun’s post from last week about the difference between supplemental and reopen claims. Blurring the distinction between the two is an easy way to confuse the issues that may result in the denial of an otherwise valid claim. That is why it is so important to keep the two separate.


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