Insurance Company and Insurance Agent Were Deemed Same Entity Regarding Notice Requirements

In Siguenza v. Citizens Prop. Ins. Corp. (Fla. 3d DCA 2013), the insurer, Citizens, denied a claim based on late notice and insured sued for breach of contract, testifying that she gave prompt notice directly to insurance company.

Citizens contradicted testimony through affidavit, prompting insured to file affidavit clarifying that she gave prompt notice to insurance agent. The court granted summary judgment in insurer’s favor, finding the insured’s subsequent affidavit in contradiction with her testimony. Appellate court reversed, ruling a material question of fact existed regarding timeliness of loss since insured considered the insurance company and the insurance agent to be the same entity and since the policy provided that prompt notice could be given to either one.

Notice Requirements under Florida Statute 627.7015 Did Not Apply Where Insured Initiated Litigation

Am. Integrity Ins. Co. v. Gainey (Fla. 2d DCA 2012)

A claim was brought under a homeowner’s insurance policy for damage caused by a water leak. The insurer issued a check to its insured as partial payment of the damages, indicating that additional funds may be issued following further investigation. The insured responded by filing a sworn proof of loss statement and a breach of contract complaint. The insurer advised its insured that it disagreed with her estimate of loss, provided the statutory notice of mediation under section 527.7015, and then moved to dismiss the complaint, urging the trial court to abate litigation in favor of appraisal.

After a mediation proved unsuccessful, the trial court initially granted the insurer’s request for appraisal. However, the insured successfully moved to enjoin the appraisal and lift the stay of litigation by contending that the insurer had waived its right of appraisal by failing to provide timely notice of mediation under section 627.7015.

The second district reversed, explaining that section 627.7015 merely describes mediation as a viable option before an insured resorts to litigation and that the notice requirement was inapplicable since the insured had first initiated the breach of contract action: “[S]ection 627.7015 permits insureds and insurers to use the mediation process to encourage an inexpensive and speedy resolution of insurance claims prior to commencing the appraisal process, or commencing litigation. Here, because Gainey prematurely commenced litigation against American, we conclude that the notice requirement under section 627.7015(7) does not apply. Accordingly, Gainey cannot rely on the statute to avoid appraisal proceedings where her filing of the lawsuit rendered the statute inapplicable.”

Late Notice of Insurance Claim that was Twenty Nine Months Late Did Not Necessarily Equate to Prejudice

Kings Bay Condo. Ass’n, Inc. v. Citizens Prop. Ins. Corp. (Fla. 4th DCA 2012)

A circuit court entered final summary judgment in favor of an insurer, summarily finding that the insured’s twenty-nine month belated notice of claim barred its claim as a matter of law. The insured appealed and the fourth district reversed and remanded for the court to reconsider the summary judgment motion, emphasizing that belated notice of a claim bars the claim as a matter of law only when the insured fails to come forward with evidence sufficient to reveal a genuine issue as to whether or not the belated notice prejudiced the insurer.

An Insurance Claim That Was Over Three Years Late Was Barred From Recovery

Slominski v. Citizens Prop. Ins. Corp. (Fla. 4th DCA 2012)

Insureds filed a claim with their insurer for wind and water damage purportedly caused by Hurricane Wilma three and a half years prior. The insureds claimed that they delayed filing the claim because they originally believed the damage sustained fell below their policy’s deductible. After an investigation, the claim was denied on the basis that, due to the lapse of time since the purported date of loss, the reported damages could not be attributed to Hurricane Wilma.

After the insureds filed suit, the insurer moved for summary judgment, which was granted on the basis that the insureds’ failure to provide prompt notice of their claim prejudiced the insurer and relieved it of its duty to provide coverage. On appeal, the insureds presented depositions and affidavits of two witnesses. Both affidavits indicated that the damage was caused by Hurricane Wilma, but the depositions, which were taken prior to the affidavits, contradicted those opinions.

The fourth district noted that “a party may not file his or her own affidavit, or that of another, baldly repudiating his or her own deposition testimony to avoid the entry of a summary judgment.” It thus affirmed the trial court, observing that without the affidavits, the insureds failed to meet their burden of proving lack of prejudice to the insurer.