Professional Liability

On February 20, 2020, the defendant was notified of the plaintiffs’ September 10, 2017, Hurricane Irma claim. The policy stated the defendant had no duty to provide coverage if the insureds failed to “give prompt notice” after the loss. During the claims process, the defendant denied the claim based on exclusionary language, but did not cite untimely notice of the loss as an additional basis for the denial. 

The plaintiffs testified at trial they did not notice any damage immediately after Irma, but in November 2017 and again in late 2018, they did notice water stains on their ceilings. They did not file claims and repaired the affected areas themselves. At the close of evidence, the defendant moved for a directed verdict on the issue of untimely notice. However, the lower court denied the motion, finding factual issues remained as to both prompt notice and prejudice. The jury found in favor of the plaintiffs and, further, found that they gave prompt notice. The defendant renewed its motion for directed verdict and, in the alternative, moved for a new trial. The lower court denied these motions.

The Fourth District Court of Appeal first examined if the defendant waived its untimely notice defense. The plaintiffs argued the defendant waived the defense as it denied their claim under a policy exclusion without raising untimely notice of prejudice in its coverage decision. The district court disagreed with the argument. First, it examined the coverage letter and reasoned, by “denying a claim based on a policy exclusion, a property insurer asserts the claim falls entirely outside of the policy’s scope. As such, the insurer’s conduct does not clearly demonstrate an intent to otherwise relinquish its contractual right to prompt notice of the loss, as necessary to support an implied waiver.”

Next, the district court turned to whether the plaintiffs provided prompt notice of the alleged loss. Florida courts have interpreted “prompt and other comparable phrases” to mean notice should be provided with reasonable dispatch and within a reasonable time. As such, the courts must look to surrounding circumstances to determine if the notice of the claim was prompt. In cases where the alleged property damage was caused by a hurricane, Florida courts have concluded that the insured’s initial discovery of that damage triggered the duty to notify, at least when the damage first appeared shortly after the storm. Delay in notifying the insurer of an alleged claim because the insured believed the damage was not severe enough to justify the claim is not sufficient. 

The district court concluded: “Because Mr. Visca’s duty to notify was triggered upon hid discovery of the roof damage in 2018, and he concededly failed to provide notice until February 2020, well over a year later, notice was not prompt as a matter of law, and Security First was entitled to a directed verdict on that discrete issue.”

Based on its ruling, and because the jury did not reach the issue of prejudice, the Fourth District Court of Appeals reversed the final judgment and remanded for a new trial on whether the plaintiff’s untimely notice prejudiced the defendant as there are genuine disputes of fact remaining as to whether the plaintiffs’ untimely notice of their loss caused prejudice to the defendant. 

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_{Case Law Alerts, 3rd Quarter, July 2024 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2024 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}