How to Comply with the Duty to Mitigate Damages

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

What is the duty to mitigate damages?

In essence, this concept means that you have a responsibility to minimize your damages. Your duty to mitigate damages can arise either explicitly (most insurance contracts will have some language to this effect) or may arise by implication (implied by the law of contracts). In either event, what will be required of you to comply with this responsibility will depend on your specific circumstances. You will not be expected to take extraordinary measures to prevent further damage to your property, but you will be required to take “reasonable” measures so that the loss is minimized. 

What are the consequences of failing to mitigate damages?

The idea behind the concept of the duty to mitigate stems from the belief that your insurer should only cover you for the amount of damages actually caused by the covered event, and not for those damages that could have been averted with ordinary prudence. Insurance companies often utilize this principle as a reason to either deny or minimize the amount of coverage you will receive. If, for example, your insurer believes that you could have prevented further damage to insured property by taking some minimal steps, then they may adjust your recovery so that you only receive the value of the damage up until the time when you failed to take such “reasonable” measure. In other situations, your insurer may claim that it is impossible to determine the extent of the damage caused by the covered event and the damage that occurred as a result of your failure to mitigate the loss. In these cases, the insurer may disavow your entire coverage and refuse to pay anything because they would have to speculate as to the amount actually owed.

Because the term “reasonable” is necessarily circumstantial, and possibly open to interpretation, what will be considered to be “reasonable” in your particular situation will depend on the specific facts of your case. However, certain things should be done to ensure you are complying with your duty to mitigate damages. Although seemingly common sense, many of these issues end up being central points of contention in insurance litigation.

How do you comply with your duty to mitigate damages?

In order to comply with your duty to mitigate you may be required to do such things as: placing a tarp over a leaky roof to prevent further water damage, drying up wet carpets or areas to prevent mold, shutting off a leaky water pipe to prevent further flooding, or covering broken windows to prevent rain from entering. You are not required to put your life in danger.  Document all of your efforts at mitigation via photographs, video, keeping receipts, and maintain contact information for all vendors that assisted in the mitigation.

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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