FEBRUARY 2017

Here’s your update on Florida insurance-related legal developments from the Colodny Fass Insurance Litigation Practice.

Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recently recognized as the Insurance Litigation Department of the Year in South Florida by the Daily Business Review.

About the Author

Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on representing insurance companies in complex insurance litigation and counseling insurers on claims resolution. She has represented insurers in connection with property damage and first-party coverage litigation, claims of “bad faith,” high-risk exposures, class actions and multi-district litigation.

For more information about Ms. Koltnow, click here.

Appraisal Not Available for Late-Reported Claim

This case involved a covered re-opened Hurricane Wilma claim. Nearly five years after first reporting the claim, the insureds retained a PA who submitted a damage estimate for $142,733 and demanded an appraisal of the loss. State Farm requested a Sworn Proof of Loss and repair documents. The insureds provided a sworn proof of loss, but did not attach documents supporting their claims. State Farm then requested an EUO. The insureds appeared for their EUOs but did not provide any documentation. After two more requests for documents, State Farm denied coverage. The insureds filed suit and moved to compel appraisal, which the trial court granted. The Third DCA reversed finding that the insureds failed to comply with all their post-loss obligations including immediate notice of the alleged additional damage, failed to protect their property from further damage, failed to keep accurate records of expenses, failed to provide State Farm with requested documents to support their claim and submit a sworn proof of loss within 60 days after the loss.

State Farm Florida Ins. Co. v. Fernandez (Fla. 3d DCA Feb. 15, 2017)

• The threshold standard to obtain appraisal is compliance with all post-loss obligations; the appellate court did not consider the insureds’ failures here to be “substantial compliance.”
• The fight is not over as the case will continue in the trial court over coverage.

Insured’s health issues do not excuse failure to comply with post-loss obligations

The Fourth DCA also reviewed a re-opened Hurricane Wilma claim where the insured submitted an untimely proof of loss before filing suit. The insurer moved for summary judgment and directed verdict on the issue of the insured’s failure to comply with her post-loss obligations under the policy. The insured argued she “substantially complied” and health issues prevented her from timely disputing the insurer’s estimate. The trial court denied both motions and let the case go the jury. The appellate court upheld the trial court’s findings that the insured’s “substantial compliance” and prejudice to the insurer were properly resolved by the jury. However, the appellate court reversed the jury’s verdict against the insurer because evidence of the insured’s health did not excuse her noncompliance or untimely compliance and was improperly introduced at trial.

State Farm v. Figueroa (4th DCA Feb. 8, 2017).

• The appellate court distinguished between when an insured totally fails to comply with a post-loss obligation, where such breach is material and relieves the insurer of its duties under the policy, and when an insured substantially complies with a post-loss obligation, where prejudice is presumed but can be rebutted.
• The dispute here primarily concerned the insured’s late-submitted proof of loss form, but the opinion did not address other post-loss provisions such as the failure to protect the property from further damage. The take-away: Post-loss obligation cases rise and fall on the facts.

For over 40 years, Colodny Fass has represented insurers in complex and high-risk litigation including class actions, bad faith, insurance fraud, multi-jurisdictional cases, coverage matters, and fact-intensive, multi-party lawsuits. The Daily Business Review has recognized Colodny Fass as having the Insurance Litigation Department of the Year in South Florida.

About Amy L. Koltnow

Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on insurance disputes from trial through appeals. She has represented insurance companies in federal and state courts, as well as in mediation and administrative forums. Ms. Koltnow oversees complex litigation matters and has successfully defended numerous class actions and insurance bad faith cases. She is a member of the Claims and Litigation Management Alliance, a national, invitation-only organization committed to furthering high standards of litigation and claims management in pursuit of client defense.

To view Ms. Koltnow’s complete professional biography, click here.

Contact Amy at akoltnow@colodnyfass.com or (954) 492-4010.