In three recently decided cases Courts applied Florida law to claims based on damage caused by Hurricane Wilma. The results in these cases are instructive, particularly for those concerned with making and responding to Claims under Florida Insurance Law.
The general rules governing the Late Notice Coverage Defense in Florida were outlined in detail in Slominski v. Citizens Property Insurance Corp., 2012 WL 4511322 *2 (Fla. 4th DCA October 3, 2012). In that case, Citizens' Motion for Summary Judgment was granted because the Policyholders did not rebut the presumption of prejudice to Citizens which accrued from the Policyholders' Late Notice. The Policyholders argued that they believed that the cost of repairing the damage would not exceed their deductible as their justification for allegedly late reporting of their claim. Their argument was supported by Affidavits from a Contractor and an Engineer. Slominski v. Citizens Property Insurance Corp., 2012 WL 4511322 *3-*4 (Fla. 4th DCA October 3, 2012).
However, both the Contractor and the Engineer were deposed previously. Their Deposition testimony each contradicted their testimony in their later-filed Affidavits, and this the Court would not permit. The Florida Appellate Court held that the Policyholders "were not entitled to rely upon [the Affidavits] in opposition to summary judgment. Without these affidavits, the [Policyholders] failed to meet their burden of proving lack of prejudice to Citizens." Slominski v. Citizens Property Insurance Corp., 2012 WL 4511322 *4 (Fla. 4th DCA October 3, 2012).
In another Hurricane Wilma case involving Late Notice, a Federal Court applying Florida law presented an outstanding analysis of Florida Statute Section 627.409, Florida's Rescission Statute, and Post-Loss Conditions, in addition to the Judge's masterful discussion of the Late Notice Condition (or Coverage Defense). The Court denied both sides' Motions for Summary Judgment as to Late Notice, because in that case there is a fact issue as to what the Policyholder under a Commercial Property Insurance Policy, a Condominium Association, told its Insurance Company about which buildings in the Condominium complex were damaged by Hurricane Wilma and thus part of the Insurance Claim. Aspen Specialty Insurance Co. v. River Oaks of Palm Beach Homeowner's Ass'n, 2012 WL 3260398 *6 (S.D. Fla. August 8, 2012). Applying the same legal standards, a different Federal Judge in the same District Court in Florida granted the same Property Insurance Company's Motion for Summary Judgment as to "replacement cost claims" because the Florida presumption of prejudice from Late Notice to the Insurance Company was not rebutted on the record of that case. Oriole Gardens Condominium Ass'n I v. Aspen Specialty Insurance Co., 2012 WL 2854331 *4 (S.D. Fla. July 12, 2012).
In something of a change of pace, another recent decision on Late Notice was made under New York Law by a Federal Appeals Court in Pennsylvania. Adding to the change of pace, the Late Notice Defense was raised by a Reinsurer, in the case of Pacific Employers Insurance Co. v. Global Reinsurance Corp. of Am., 2012 WL 3871588 (3d Cir. September 7, 2012). The Clerk's list of the parties' Counsel of Record does not show any Law Firms based in New York representing Pacific Employers, whereas it appears that the lead Law Firm for Global Reinsurance Corporation is from New York, New York. The decision, perhaps not coincidentally, was for Global Reinsurance Corporation under New York Law, which the parties apparently altered in their contract. The Third Circuit panel announced the parties' Reinsurance agreement as to notice, at the beginning of its opinion in this case as follows:
[Under the Reinsurance Certificate notice condition,] PEIC must provide Global with a definitive statement of loss ("DSOL") on a subset of claims or occurrences, specifically those that involve a death, serious injury, or lawsuit. When must PEIC do this? We believe it is promptly after someone reports such a claim or occurrence to it, not promptly after it demands indemnity from Global. If PEIC dawdles, the consequences can be severe. PEIC's compliance with this provision is a condition precedent to Global's duty to reinsure ....
Pacific Employers Insurance Co. v. Global Reinsurance Corp. of Am., 2012 WL 3871588 *1 (3d Cir. September 7, 2012). Applying the contract provision that the parties to this Reinsurance Certificate themselves put in their agreement, the Third Circuit reversed and remanded with instructions for the entry of "a judgment of nonliability" in favor of Global Reinsurance Corporation. Pacific Employers Insurance Co. v. Global Reinsurance Corp. of Am., 2012 WL 3871588 *20 (3d Cir. September 7, 2012).
A rule of conduct resulting from all these decisions, and resulting from others like them, is 'When in doubt, provide notice' to preserve and protect a Claim to Insurance Coverage.
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