Iris Kuhn

The purpose of Section 627.7015, Florida Statutes titled “Alternative procedure for resolution of disputed property insurance claims” is to encourage insurance companies and policyholders to resolve their disagreements regarding disputed property insurance claims without the necessity of litigation or appraisal. The statute requires, in part:

(2) At the time a first-party claim within the scope of this section is filed by the policyholder, the insurer shall notify the policyholder of its right to participate in the mediation program under this section.1
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Florida’s Federal Middle District believes it can.1 After Hurricane Irma struck its commercial building in Port Charlotte, Florida, building owners Etcetera, Etc, Inc., filed an insurance claim under their policy with Evanston Insurance Company (“Evanston”). Evanston began its investigation, and as that was underway Charlotte County also inspected the building and issued a “Notice of Unsafe Building” stating the building “was in danger of collapse.”
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It happens frequently: The insurance company admits the policy covered part of the loss but refuses payment at the time because the amount of the loss falls below the deductible. The insurer then admits the insured also suffered other damages to the property, but denies coverage for this damage for a variety of exclusions or limitations. The insured then files suit. But what happens when the insurer, after it has answered the suit and made a jury demand, invokes the appraisal provision?
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Recently, Florida’s Fifth District Court of Appeal affirmed an order compelling Florida Insurance Guaranty Association (FIGA) to participate in an appraisal of a policyholder’s sinkhole claim.1 The insureds had originally filed suit against Homewise Preferred Insurance Company in 2010, after Homewise denied coverage. But in 2012, FIGA notified the insureds that it was assuming the handling of the claim because Homewise had become insolvent and, for the first time, FIGA admitted that the sinkhole claim was covered under the subject policy.


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In Dike v. Valley Forge Insurance Company,1 U.S. District Judge Lee Rosenthal ruled that the insurer’s compliance with the policy’s claims handling provisions and with provisions of Texas Insurance Code were not conditions precedent for compelling appraisal; and the carrier’s delay in seeking appraisal did not waive insurer’s right to appraisal.


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Insurance applications are important in the insurance marketplace. Applications are part of the risk analysis insurers make in determining whether they will issue a policy. There is exhaustive case law on issues of misrepresentations, ambiguities, and incomplete applications. The issue I want to discuss is whether an insurer can waive its right to deny a claim based on an application misrepresentation.


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As a property insurance attorney in California, I often come upon the situation where insureds consult with me when asked to sign what is known here as a "White Waiver." At the point that a "White Waiver" is brought up, a property owner at issue with an insurer either during the claims stage or during litigation has much to think about before agreeing to sign a "White Wavier." The California Supreme Court found that an insurer may be liable for bad faith conduct which occurs during the litigation between an insured and his or her insurer. It is from this premise the "White Waiver" situation arose.


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Those familiar with Super-storm Sandy claims are aware that FEMA can extend/waive the formal proof of loss requirement within the Standard Flood Insurance Policy (“SFIP”) under the National Flood Insurance Program (“NFIP”). FEMA has extended the proof of loss deadline for Sandy claims until October 29, 2014. But what about flood losses that affect an area smaller than the widespread effects of Sandy? The SFIP requires a proof of loss to be submitted within sixty days from the date of loss, and FEMA may be less likely to issue a formal written extension of time when there is less political pressure surrounding a loss event. FEMA can waive the proof of loss requirement for a particular policyholder, but any waiver must be an express written waiver. There is a recent Florida case involving FEMA’s waiver of the proof of loss requirement.1


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