When your home is damaged by hail, wind, fire or another peril covered by your homeowners’ insurance policy, you typically will depend on your insurance company to help you restore your home to pre-loss condition. However, many homeowners have their claim denied because they fail to comply with post-loss duties imposed under the terms of the policy. The most significant requirements imposed on policyholders by their homeowners’ policy are the duties to provide timely notice of claim and a sworn proof of loss. While failure to fulfill these obligations in a timely manner will not necessarily prevent an insured from obtaining compensation from his or her insurance company, an insured can seriously compromise a claim by failing to comply.
A 4th District Court of Appeals opinion, Kramer v. State Farm Florida Insurance Company, provides the legal analysis that applies when an insurance company denies a claim because of untimely compliance with either of these post-loss duties. The home of the insured was damaged in a hurricane, but the policyholder did not provide notice of the loss until four years after the hurricane. The insured initiated the claim by contacting the insurance company when the roof of the home began to leak. The insurance company denied the claim based on failure to provide timely notice of the claim and proof of loss.
The insured filed a lawsuit for breach of contract. The court acknowledged that the applicable analysis was controlled by the Florida Supreme Court’s decision in Bankers Insurance Co. v. Macias. Under Macias, late notice does not necessarily preclude a policyholder’s right to coverage if the insurer does not suffer prejudice because of the delay. However, late compliance with the notice provision under the policy raises a presumption of prejudice to the insurance carrier. The insurance company conceded that this presumption can be rebutted by establishing that the insurer did not experience prejudice from the lack of notice.
The 4th District Court of Appeals indicated that because the proof of loss and notice of claim were conditions precedent, the burden of proof regarding prejudice falls upon the policyholder. However, the court observed that under the Macias analysis the insured can overcome the presumption of prejudice arising from late compliance with these conditions.
Although this case demonstrates that a policyholder’s right to coverage will not necessarily be forfeited by failure to provide immediate notice of loss or a sworn proof of loss, failure to comply in a timely fashion can jeopardize an insured’s claim. An insured should try to avoid delays in complying with these requirements because this delay typically can make it much more difficult to get a claim covered. An experienced Florida insurance claims attorney can provide assistance by answering your questions, handling communications with your insurance company and negotiating to get your claim paid. When your insurance company acts in bad faith, the attorney might be able to file a legal claim for insurance bad faith.
If you are struggling to get your homeowners’ insurance company to pay your claim, 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 case evaluations. No Recovery, No Lawyer Fees. Call 305-461-1095 or Toll Free 1-866-71-CLAIM.