By Michael J. Gelfand, Esq. / Published December 2022
Living in Florida has many benefits, but it also has perils—hurricanes and large storms with driving rain. Wind and water have caused and will continue to create significant property damage. Adequate property insurance can help protect against devastating financial loss. Two recent Florida appellate decisions show the perils when you do not know what your policy covers or when you do not comply with the term of the coverage in a timely manner.
Recently, a Florida appellate court ruled that because a homeowner waited two years before reporting a property damage claim to her insurer, the insurer was unable to adequately determine what caused the damage. The facts in Perez v. Citizens Property Insurance Corp., 47 Fla. L. Weekly D 1451 (Fla. 3rd DCA, July 6, 2022), indicate that two years after Hurricane Irma struck South Florida, the home-owner filed a claim with Citizens Property Insurance Corporation. The homeowner claimed she undertook water mitigation services, patching the roof and replacing walls and fixtures. Citizens requested repair receipts, but the homeowner not only failed to turn over any receipts but also did not provide a sworn proof of loss. As a result Citizens denied the claim.
The homeowner sued Citizens for breach of contract. The homeowner’s investigator opined that “the severe storm event that occurred on/or about the reported date of loss was the probable storm event that caused the documented roof damage.” Nevertheless, the trial court granted summary judgment for Citizens, holding that the delay in reporting the claim prejudiced Citizens in its investigation of the loss and precluded Citizens from determining that Hurricane Irma caused the damage.
The Florida appellate court agreed with the trial court decision. The appellate court pointed out that when an insured provides late notice of a loss to the insurer, prejudice to the insurer will be presumed. The court found that the homeowner’s investigator’s report, prepared three years after Hurricane Irma, was not sufficient to rebut the presumption of prejudice to Citizens caused by the delay in reporting the claim because the report was “wholly conclusory.” It was impossible for Citizens to determine whether any current damage to the home was caused by Hurricane Irma.
The homeowner waited over two years to report the claim to Citizens. “Mr. Renne [the insured’s investigator] formed his opinion based solely on his investigation conducted nearly three years after the incident, after repairs had already been conducted on the roof,” the court stated. “This lapse in time, as well as the intervening repairs, rendered Mr. Renne’s opinion wholly conclusory as to whether the current damage was caused by the Hurricane or some other event from the intervening three years.”
The lessons to be taken from this case are important for all property owners, which include Florida condominium and homeowners associations. Property owners must report a claim of damage to their insurer in a timely manner. Failure to report a claim will result in a presumption of prejudice to the insurer, which the insured must rebut.
The longer you wait, the harder it will be to prove what caused the damage to your property. Do not wait to report a claim of damage and SAVE ALL REPAIR RECEIPTS!
In another recent case dealing with insurance coverage, a Florida appellate court ruled that a homeowner’s policy excluded coverage for “tear-out” expenses incurred from water damage. In Herrington v. Certain Underwriters at Lloyd’s London, 47 Fla. L. Weekly D 1394 (Fla. 4th DCA, June 29, 2022), the facts show that a homeowner sustained damage to his home from a water pipe leak. The homeowner’s insurance policy contained an endorsement limiting coverage for water loss at $5,000. The homeowner claimed that the endorsement did not apply to “tear-out” expenses. The trial court rejected the homeowner’s argument, granting judgment for the insurer.
The Florida appellate court agreed with the decision in favor of the insurer. The court pointed out that the endorsement, which limited coverage for water loss at $5,000, specifically provided that “we cover loss caused by the water including the cost of tearing out and replacing any part of a building necessary to repair the system or appliance.”
The court noted that the endorsement also provided: THIS ENDORSEMENT CHANGES THE PROPERTY COVERAGES PROVIDED BY YOUR POLICY. PLEASE READ IT CAREFULLY. Apparently, the homeowner elected to allow this endorsement in return for a lower insurance premium.
In other words, this case shows how important it is to know what damage to buildings and property your insurance policy, including any and all endorsements, will cover. As applied to Florida community associations, you will want to know before a hurricane or large storm hits what repair limitations and limits on replacement coverage are contained in your policy. For any questions, contact your insurance agent or association counsel to help review policies and answer questions.
Michael J. Gelfand, Esq.
Senior Partner, Gelfand & Arpe, P.A.
Michael J. Gelfand, Esq., the senior partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar board certified lawyer in condominium and planned development law and in real estate law, a certified circuit and county civil court mediator, a homeowners association mediator, an arbitrator, and parliamentarian. He is a past chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at email@example.com or (561) 655-6224.