By Hugo V. Alvarez / Published October 2020
Navigating an insurance claim after a significant loss can be frustrating, costly, and time consuming. Associations have an obligation to cooperate with their insurance company fully and completely during the claims process, even in the most daunting of circumstances. Failure to adhere to that duty may result in the denial of an insurance claim even in the face of a catastrophic loss.
It is therefore imperative that associations understand what the insurance company will require of them during the claims handling process, especially as we head toward the peak of hurricane season.
For starters, insurance companies impose a duty on associations to cooperate with the insurance company’s claims process. Failure to cooperate with an insurance company’s investigation of a claim could result in the issuance of a denial of a valid insurance claim.
That typically begs the question, what type of cooperation is required of an association during an insurance company’s investigation? Some examples of those conditions are as follows:
Your insurance policy may impose additional obligations. You should review your insurance policy before a claim is triggered. It is imperative that you review and understand the specific obligations imposed on you by your insurance company when making an insurance claim. If you don’t understand what they are, then you should speak to a claims professional regarding the claims process.
The duty to cooperate with an insurance company’s investigation is intended to permit an insurance company to find out as much about the claim as possible to allow the insurance company to render a decision regarding the claim. If the association fails to cooperate with the insurance company’s investigation, then the insurance company may deny the claim even if the damages are clearly covered and catastrophic. And that means no money even in the face of what should be a covered catastrophic loss.
For example, providing prompt notice of a claim is of vital importance. There are many Florida cases where insureds made claims for property damage years after an event triggered a claim. Now there may be good reasons for the delay in submitting the claim, but the bigger point is simple. Do not delay in making a claim to your insurance company after a loss has been incurred because that delay in calling your insurance company may serve as grounds for the insurance company to deny your claim, especially if you make the claim years after the date of loss. You do not want a valid claim potentially denied because of your failure to promptly notify the insurance company of the claim.
Also, you should allow your insurance company to inspect the property after you have reported a claim. The insurance company will need to see the alleged damage so they can assess and evaluate the nature, scope, and amount of damages. Again, failing to permit an insurance company access to the property could be deemed a failure to cooperate, which might result in the denial of a valid insurance claim.
Provide as much documentation about your claim to the insurance company as requested. For example, if the insurance company wants access to past board meeting minutes or financial reserve ledgers, then make sure that information is provided. If they want photographs or videos, make sure they are provided.
An insurance company may also require that the association sit for examination under oath (EUO) as part of the insurance company’s claims handling
process. An EUO is a sworn statement given by someone who has made a claim due to water damage, wind damage, hurricane damage, roof damage, a lightning strike, or some other form of risk that is insured. Insurance companies typically use this procedure as part of their claims handling process and investigation, but they also employ an EUO if they suspect fraud or if they are considering disputing coverage before going into litigation.
An EUO will certainly be transcribed and could even be video recorded. Whoever sits for an EUO will be sworn to tell the truth. The sworn testimony that is provided will also be used by the insurance company to serve their interest and against you, if possible. If an association fails to sit for an EUO after being requested to do so, then that could be grounds for an insurance company to deny an insurance claim as an insurance company could deem that failure as a breach of the cooperation clause found in the insurance policy. It is generally a good idea to have an attorney present during the EUO.
At the EUO, an insurance company is limited in scope to the types of questions that can be asked. Florida courts have admonished insurance companies when they have attempted to use an EUO to intimidate an insured. Again, having an attorney present may help minimize that risk of intimidation. Nonetheless, the insurance company will no doubt ask questions about your claim history (other insurance claims) and financial history. Most EUOs take several hours, and some could even take several days.
With all of that said, most insurance policies do not permit the filing of a lawsuit until the insurance company has been permitted to complete its investigation. However, some associations have been known to rush to court and file a lawsuit when the conditions may not have been satisfied. Or, the lawsuit may have been filed after a delay in notifying the insurance company of the loss, and the insured otherwise failed to cooperate with the insurance company’s investigation.
Insurance companies typically attack those lawsuits on grounds that the insured association failed to follow the terms and conditions found in the insurance policy prior to filing the lawsuit. The insurance company argues that it was prejudiced by the association’s failure to adhere to its duty to cooperate to the point that the claim must be denied. While Florida law does permit the insured to rebut that alleged presumption of prejudice, the better practice is simply to fully cooperate with the insurance company prior to filing a lawsuit against your insurance company.
You do not want to be in court arguing technicalities contained in the insurance policy, such as whether or not you fully cooperated with an insurance company’s investigation. You would much rather be arguing the nature of the actual loss after fully cooperating with the insurance company’s investigation.
Taking the wrong approach, or simply mishandling your potential insurance claim, could cost you a lot of money, time, and aggravation with respect to any insurance claim that may ultimately be submitted to your insurance company.
To aid you in advance of the claim process, here are some suggestions that you could implement today that will greatly assist you if you must make an insurance claim on a later date.
Taking a proactive approach in implementing a plan that will aid you in the event you have to make a claim will save you time during the claims process and help you ensure compliance with the duties and obligations found in the insurance policy.
Hugo V. Alvarez
Hugo V. Alvarez has successfully worked on a large volume of cases with significant financial exposure. Fortune 500 companies, prominent real estate developers, municipalities, insurance companies, hotels, financial institutions, condominium/homeowners associations, and general contractors have all sought his legal advice and deep local community ties to help get issues resolved. Hugo has been published in the Miami-Daily Business Review, has appeared on CNN and Spanish TV, and is often quoted in leading business periodicals such as the South Florida Business Journal on local legal topics. For more information, contact him at HALVAREZ@beckerlawyers.com or call (305) 262-4433.