Balancing the Duty of an Insured to Mitigate Damages and Preserve Evidence Following a Loss

J.P. Gonzalez-Sirgo
Founder of J.P. Gonzalez-Sirgo, P.A.

Many Miami homeowners who experience damage to their residence from a fallen tree, burst waterline or other hazard have never been in a position that they needed to make a claim against their homeowner policy.  This lack of familiarity with the insurance claims process and tactics used by carriers to deny claims often leads to critical errors that compromise a claim.  Two common mistakes that are actually interrelated involve the failure to mitigate damages and the failure to preserve critical evidence of property damage. 

After your residence is damaged by a severe storm or other peril, it is natural to want to repair the damage and clear debris.  Further, most policies impose a duty to mitigate damages so you cannot simply do nothing and allow further damage to occur.  However, there is a delicate balance between mitigating damage and altering or discarding the evidence you will need to prove your claim to an insurance company.  When an insured reports a loss to his or her insurance carrier, it generally is the duty of the insured to prove the loss, which involves preserving evidence to establish the cause of the loss.

If for example a water line coming out of the wall to the bathroom suddenly leaks and floods the bathroom, the natural inclination is to preserve damaged flooring, drywall and carpet.  However, many policyholders would not consider saving the broken part of the plumbing line as a part of the damage.  Although it might seem reasonable to discard a busted piece of pipe and clean up the mess, insurance companies often rely on the lack of ability to inspect the broken pipe or inspect replaced carpet, cabinetry, drywall or flooring to deny claims.

A few steps can reduce the likelihood that an insurance company can exploit your efforts to satisfy these potentially conflicting obligations:

Take Pictures and Video: If you have the ability to take video and pictures, you should assume that there can never be excessive footage or too many pictures.  While preserving the actual damaged drywall or broken water line is advisable, pictures and video can provide valuable additional evidence and may help overcome complaints that missing pieces of debris are unavailable.

Consider Using a Remediation Company: Because you have a contractual obligation to mitigate damages, you should contact a remediation company that can take action to prevent future damage.  However, you need to make clear that you plan to file a claim against your homeowner policy, so the company must preserve evidence of the damage and cause of loss.

Save Components and Debris: If you have the piece of a broken water line or other debris related to the cause of the loss, you should keep this so that the insurance company cannot claim that their inability to examine the item has prejudiced their ability to investigate the claim.

Allow an Adjuster to View the Post-Loss Condition of Premises: While you need to take action to prevent further damage, you should leave the premises in their post-loss condition, at least to the extent possible, until the insurance company’s adjuster has had an opportunity to conduct an investigation.

You can reach Miami Insurance Claims Lawyer J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Attorney Gonzalez-Sirgo directly at [email protected].

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