Tag Archives: prompt notice

PROVIDING YOUR INSURER PROMPT NOTICE

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Sometimes, when it comes to insurance, you may hear the argument that you breached your insurance policy by failing to provide your insurer with prompt notice as the insurance policy requires.  Well, this is not such an absolute issue.  With that said, you should absolutely provide your insurer with prompt notice of a claim or loss. No legitimate reason not to. But, if you don’t, it is not an absolute get out of jail free card for your insurer, but it does give them a good argument, which you don’t really want to deal with.

In Gulfpoint Construction Co., Inc. v. Westfield Ins. Co., 2024 WL 1759228 (11th Cir. 2024), an insured appealed a trial court’s ruling that found it did not provide prompt notice to its property insurer as the policy required. In this case, notice was provided two years after a loss from a hurricane. The insurer denied coverage and, in doing so, relied on the insured’s failure to provide prompt notice.  Although the trial court agreed, the appellate court found this was a genuine issue of material fact.

“A notice of damage is” often, and is here, “a pre-condition to a claim.” “If an insured breaches the notice provision” of an insurance policy, “prejudice to the insurer will be presumed, but [that presumption] may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” “Whether the presumption of prejudice to the insurer has been overcome is ordinarily” a question of fact, so, to grant summary judgment, the record must “conclusively foreclose the insured’s ability to overcome the presumption of prejudice.  So, for example, in Shapiro v. First Protective Insurance Company, a Florida court found that whether the insureds had overcome the presumption was a fact question because their engineer, “based on his inspection, opined not only that the homeowners’ roof more likely than not had been damaged as a direct result of Hurricane Irma in 2017, but also that this damage still could be observed as late as 2022, five years after Hurricane Irma.”  Conversely, in De La Rosa, “the record foreclose[d] the insured’s ability to overcome the prejudice to the insurer in evaluating the extent of the damage because of the delay in making the claim” because the insurer “would not be able to determine the damage at the time of the incident.”  De La Rosa distinguished Stark on the ground that “even though there may be disputed issues of fact as to whether the insurer was prejudiced in determining the cause of the loss, the facts … show[ed] that the insurer would be prejudiced by the passage of time in investigating the extent of the loss, and thus, the cost of repair.” 

Gulfpoint Construction Co., supra at *5 (internal citations omitted).

Here, the insured had evidence to rebut the insurer’s prejudice argument to make the issue of whether the insured breached the insurance policy by its failure to provide prompt notice a question of fact:

[The insured’s] expert testified that he “was able to formulate [his] opinions” despite reviewing the damage years after the fact, “and was in no way prejudiced by the timing of [the] inspection”—to the contrary, he said, “no other windstorm event occurred at [the property’s] location between the time of Hurricane Irma and [his inspection] which could have resulted in the damage observed to the [Gulfpoint’s] Building and its roof system.” 

Indeed, [the insurer’s] own expert, Shatto, made clear that his investigation was not prejudiced by the passage of time. Asked to explain “how having to inspect that damage almost two years after Irma negatively impacted or limited [his] ability to” determine “the cause of any portion of the damage or rule out other potential competing causes of the same damage,” Shatto said this:

if I were to inspect that roof—if I had inspected that roof hand in hand with the Crowther Roof people [who conducted the inspection and repairs days after the hurricane], my report would have been identical …. I would have found the same partially formed cracks …. my report wouldn’t have changed.

Thus, as in Shapiro, there is plainly evidence from which a jury could infer that [the insurer] did not suffer prejudice in its investigation because of [the insured’s] delay in notifying them.

Gulfpoint Construction Co., supra at *6 (internal citations omitted).

While in this case, the insured lives another day by allowing this to be decided by the trier of fact–the jury–this is an issue that can be taken off the table by merely providing PROMPT NOTICE to your insurer.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

GIVING INSURANCE CARRIER PROMPT NOTICE OF CLAIM TO AVOID “UNTIMELY NOTICE” DEFENSE

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When it comes to giving your insurance carrier notice of claim, I am an advocate of providing that notice as soon as possible, i.e., prompt notice. The reason is to take away the carrier’s argument to deny coverage because you, as the insured, failed to provide it with prompt notice—the “untimely notice” defense. It doesn’t matter whether it is a first party property insurance claim or third-party liability policy claim, provide notice as soon as reasonably possible to take away that “untimely notice” defense.

The “untimely notice” defense was the issue in Benson v. Privilege Underwriters Reciprocal Exchange, 48 Fla.L.Weekly D1085a (Fla. 6th DCA 2023) dealing with a first party property insurance policy.  In this case, eighteen months after Hurricane Irma, the plaintiff noticed a smell and observed brown stains on walls and ceiling in his home. The plaintiff called roofing companies to inspect the damage and perform certain repairs.  However, the plaintiff still noticed the smell so he called a company to test and remediate mold. The plaintiff, then, contacted his property insurer with numerous claims relative to the leaks and damage. Although there was an initial property insurance payment made, the carrier ultimately denied coverage for subsequent claims stating that “the late notice of the claim and the prior repairs to the roof substantially prejudiced its ability to complete an inspection of [plaintiff’s] property to evaluate the claim.” Benson, supra.   The property insurance policy included the following notice language:

In the event of a loss for which coverage may be provided under this policy, you. . .must. . .[g]ive prompt notice to us or our agent, except that a claim, supplemental claim or reopened claim for loss or damage caused by hurricane or other windstorm must be given to us in accordance with the terms of this policy within three years after the hurricane first made landfall or a windstorm other than hurricane caused the covered damage. . .Any initial, supplemental or reopened claim for loss or damage caused by hurricane or other windstorm is barred if notice of the claim in accordance with this Paragraph is not provided.

The plaintiff filed a lawsuit and the property insurance carrier moved for summary judgment based on the “untimely notice” defense, which was granted by the trial court.  This was reversed on appeal.  The Sixth District Court of Appeal provides a good discussion of the “untimely notice” defense and its two-pronged test which can serve beneficial to an insured:

“Prompt” is not defined in the policy issued by [the property insurance carrier] to [the plaintiff]. “It is well settled, however, that ‘prompt’ and other comparable phrases, like ‘immediate’ and ‘as soon as practicable,’ do not require instantaneous notice.”  “Instead, Florida courts have interpreted these phrases to mean that notice should be provided with reasonable dispatch and within a reasonable time in view of all of the facts and circumstances of the particular case.”  “[T]he duty to provide notice arises when a reasonable person, viewing all available facts and information, would conclude that an award implicating the policy is likely.” 

The Supreme Court of Florida has set forth a two-step process to determine whether an insurance company may deny an insured’s claim on the ground that the insured failed to give the insurance company timely notice of the claim as required by an insurance policy.  “The first step in the analysis is to determine whether or not the notice was timely given.”  If the notice was timely given, then the analysis concludes at the first step.  If the notice was not timely, then the second step is to determine whether the insurance company suffered prejudice as a result of the untimely notice.  At the second stage of the analysis, prejudice to the insurer is presumed.  If notice was not timely, the burden of overcoming the presumption of prejudice is on the insured.  However, the insured may rebut the presumption of prejudice by showing that the insurer was not prejudiced by the lack of timely notice.  “If the insured is unable to overcome the presumption of prejudice, then the insurer will prevail on a defense of untimely notice.” 

Benson, supra (internal citations omitted).

A good thing for the plaintiff—the insured—is that whether prompt notice was provided is typically a question of fact for the trier of fact. Benson, supra. It is based on the “reasonable person” standard, underlined above. “In this case, there was disputed evidence regarding whether a reasonable person in [the plaintiff’s] position would have concluded that he had a claim under his insurance policy any time significantly earlier than when [the plaintiff] gave notice to [his property insurance carrier] of the claim.” Benson, supra.

While the two-pronged test can seem beneficial, the reality is this is all avoidable by providing notice as soon as you reasonably can. Because if untimely notice is given and prejudice is presumed, the burden in overcoming the presumption of prejudice will be on you, as the insured, in a completely avoidable scenario.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.