Unless the terms of a policy run afoul of statutory or case law, they will govern the relationship between the insured and the insurer. This includes responsibilities with regard to loss reporting.
The reporting requirements can vary from policy to policy. This makes it advisable to read the insurance contract upon purchase and after a loss. The words “immediate” and “prompt” are commonly used to establish the reporting parameters.
While policy reporting requirements should not be taken lightly, breaching the policy’s strict language is not always fatal to maintaining coverage. First, case law allows for a consideration of the circumstances. For example, an insured prevented from getting home for an extended period of time after evacuating for a hurricane will be given more time to report a loss than an insured whose AC unit caused water loss.
Even if, however, the notice provision is breached, while prejudice to the insurer will be presumed, it may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice. See National Gypsum Co. v. Travelers Indemnity Co., 417 So.2d 254 (Fla. 1982). See also Nationwide Mut. Fire Ins. Co. v. Beville, 825 So.2d 999, 1004 (Fla. 4th DCA 2002) (“Unless the carrier was prejudiced by the insured’s violation of the notice provision, the carrier could not avoid its duty to provide coverage for the expenses.”). Clearly, the burden is “on the insured to show lack of prejudice where the insurer has been deprived of the opportunity to investigate the facts.” Macias, 475 So.2d at 1218. Whether the presumption of prejudice to the insurer has been overcome is “ordinarily … a separate issue of fact.” Gonzalez v. U.S. Fid. & Guar. Co., 441 So.2d 681, 681 (Fla. 3d DCA 1983). Before the trial court should grant summary judgment, the record on such a motion should “conclusively foreclose[]” the insured’s “ability to overcome the presumption [of prejudice].” Robinson v. Auto Owners Ins. Co., 718 So.2d 1283, 1285 (Fla. 2d DCA 1998).
The lesson to be learned from this blog is that while the insured should make every effort to report a loss timely, the failure to do so does not always prove fatal to bringing a successful claim.
Our law firm accepts property damage cases on a contingency fee basis. This means that harmed property owners can retain our services without having to pay any up-front attorney’s fees or costs.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.