While we continue to hope that our luck will hold out, Florida is overdue for a hurricane or tropical storm. When disasters like harsh storms cause damage, homeowners typically have many questions about their insurance coverage and about filing a claim. One of the most important steps homeowners must take is to notify their homeowners’ insurance carrier of their claim. Sometimes people delay providing such notice because they assume that the cost to repair the damage will not exceed the deductible amount. This can be a costly mistake, especially if you have not had your property examined by a contractor to evaluate the damage. The case of Slominski v. Citizens Prop. Ins. Corp., 99 So. 3d 973, 974 (Fla. 4th DCA October 3, 2012) demonstrates the challenge for homeowners’ who delay providing notice to their insurance carrier following a loss.
The Slominskis had a home in Palm Beach County when the area was hit by Hurricane Wilma. Although the Slominskis had homeowners’ coverage, they did not file a claim because they made minimal repairs that amounted to $1,500 in damage, which was far less than their deductible of $12,860. Three years after Hurricane Wilma, the Slominskis filed a claim with Citizens for damage to their home caused by wind and water. Citizens conducted an investigation but denied the claim. Citizens indicated that it could not determine that Hurricane Wilma caused the damage due to the duration of time between the storm and the claim. The insurance company also denied the claim because the policyholders failed to perform their post-loss duty of notifying the carrier of the claim.
The court affirmed the established rule that while prejudice to an insurer is presumed in delayed notice cases, the insured can overcome this presumption with evidence that the insurer did not suffer prejudice. In other words, delay alone in providing notice is not sufficient to deny the claim, but the insured has the burden of proof in terms of establishing that the delay did not adversely impact the insurance company. This means that the insured must establish that the insurance company’s ability to investigate the claim was not compromised by the delay between the damage and the notice of claim.
The Slominskis provided affidavits from an engineer and contractor that indicated the insurance company was not prejudiced. The engineer’s affidavit, for example, expressed an opinion that the insurer could still have observed the “classic pattern of windstorm damage” caused by Hurricane Wilma. The engineer also indicated in the affidavit that the insured could convince a jury that noncompliance with the notice provision did not deprive the insurance company of its opportunity to investigate the claim.
Although the court acknowledged that the case was factually similar to others where courts found no prejudice, it distinguished the case because the engineer and contractor made contradictory statements in their prior deposition testimony. In commenting on the contradictory evidence, the court indicated that an affidavit may not be filed that “baldy repudiates” the deposition testimony of the affiant. While a subsequent affidavit that credibly explains deposition testimony can be used to overcome summary judgment, the statements provided by the engineer and contractor in their affidavit amounted to a retraction of their deposition testimony.
This case demonstrates the challenge associated with proving a lack of prejudice when late notice is provided to your homeowners’ insurance carrier. The court will closely scrutinize the evidence and testimony so that any ambiguity regarding the issue of prejudice generally will be resolved in favor of the insurance company. If your property is damaged by a hurricane or other peril, you should seek immediate legal advice about your potential claim from an experienced Florida insurance claims attorney. The decision to delay providing notice to your insurance company can be an extremely costly mistake.
If you have a question about you homeowners’ coverage or claim, you are welcome to contact us to get answers to your questions. My law firm represents policyholders in claims disputes in Miami and throughout Florida. The Law Firm of J.P. Gonzalez-Sirgo, P.A. offers free consultations and case evaluations. No Recovery, No Lawyer Fees. Call 305-461-1095 or Toll Free 1-866-71-CLAIM.