Tender of Payment by Insurance Company Does Not Constitute a Waiver

Because failure to provide a sworn proof of loss can have devastating consequences, homeowners who have their residence damaged by a covered peril need to comply with their post-loss policy obligations.  A policyholder generally must submit a sworn proof of loss within sixty days.  The harsh consequences of the failure to provide a proof of loss can lead to creative arguments to get around this requirement.  Sometimes the presumption of prejudice to the insurer that arises from failure to comply with this “condition precedent” can be overcome with evidence.  In other cases, an insured might raise other arguments to mitigate the impact of failing to file a sworn proof of loss.

In the recent case of Rodrigo v. State Farm Florida Insurance Company, the insured appealed a motion for summary judgment arguing that the insurance carrier waived the proof of loss requirement by tendering payment.  The homeowner's damage occurred when a dead neighbor’s body decomposed and leaked bodily fluids that penetrated the walls of the insured’s condo.  The policyholder claimed the damage was covered because the gases of the decomposing body caused an “explosion” of the body.  The insured claimed this qualified as a covered “explosion” under the policy.

The insurer prevailed on a motion for summary judgment in the trial court based on the failure of the insured to provide a sworn proof of loss.  The trial court also rejected the contention that the decomposing body constituted an “explosion” within the meaning of the term as used in the policy.  The homeowners policy required the insured to file a sworn proof of loss within sixty days of the loss.  Although the insured submitted bills and receipts, there was no dispute that a formal sworn proof of loss was not presented to the insured.

The insurer’s adjuster hired a contractor who conducted an inspection and furnished an estimate of damages.  The insurer tendered payment to the insured in the amount of the estimate, but the insured rejected the check.  When the insured filed a lawsuit, the insured contended that the tender of payment constituted a waiver of the requirement that the insured furnish a sworn proof of loss.  The appellate court pointed out that the insured’s furnishing of bills, estimates, invoices and other documents did not provide a substitute for a sworn proof of loss. 

The appellate court agreed with the trial judge that the tender of payment did not constitute a waiver of the requirement.  According to the court, “[i]nvestigating any loss or claim under the policy or engaging in negotiations looking toward a possible settlement of any such claim or loss” [citations omitted] does not constitute a waiver.  The tender of payment based on the insurer’s estimate of damages was considered to be in the nature of negotiations.

The appellate court also rejected the claim that the loss was caused by “explosion”, which was a covered peril under the policy.  The court reasoned that it is black letter law that the policy must be construed according to the plain language of the policy.  According to the court, the insured was required to prove the term “explosion” included a decomposing body that expanded and leaked bodily fluids, and the insured could not justify the unusual use of the word in this context.

If you have questions about your Florida property damage claim, we are here to help.  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.

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