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Case Law Alerts

Fourth District Court of Appeal Reversed and Remanded a Final Judgment in Favor of the Insureds Where Prompt Notice Was Not Provided

Security First Insurance Company v. Linda Visca and Silvio Visca, No. 4D2023-0961, June 5, 2024

July 1, 2024

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. 


 

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.

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New Jersey Appellate Division Affirms Recreational Immunity for County Under Landowners' Liability Act

In a recent unpublished decision in Matthew Kuzma, etc. v. Middlesex County Parks Department, et al., the New Jersey Appellate Division affirmed summary judgment in favor of Middlesex County Parks Department, holding that the county was immune from liability under New Jersey's Landowners' Liability Act (LLA), notwithstanding its failure to plead the immunity as an affirmative defense in its answer to the Complaint. The case arose from injuries sustained by fourteen-year-old plaintiff, Matthew Kuzma, while playing basketball at Spring Lake Park in South Plainfield on August 23, 2019. The plaintiff observed a crack in the basketball court before beginning to play but did not consider it dangerous. During the game, his foot became caught in the crack, causing him to fall and suffer a significant ankle injury. The plaintiff alleged that the injury resulted in ongoing physical limitations and deprived him of the opportunity to play collegiate basketball. The plaintiff filed suit alleging that the defendants negligently maintained the basketball court. Although the county did not assert LLA immunity as an affirmative defense in its answers, it later moved for summary judgment on that basis. The plaintiff opposed the motion, arguing that the county had waived the defense by failing to plead it. The county maintained that the plaintiff had received sufficient notice of its intent to rely on the LLA through discovery and therefore suffered no unfair surprise or prejudice. The trial court agreed and granted summary judgment, concluding that the county should be permitted to invoke statutory immunity notwithstanding its failure to formally plead the defense. Relying heavily on the New Jersey Supreme Court's guidance in Arias v. Cnty. of Bergen, holding a county park was subject to the immunity of the LLA, the Appellate Division affirmed, holding that the county's failure to plead LLA immunity did not preclude reliance on the defense under the circumstances presented. The court determined that the plaintiff had received adequate notice of the immunity claim through discovery and that permitting the defense furthered the public-policy objectives embodied in the LLA. In affirming dismissal, the Appellate Division acknowledged the seriousness of the plaintiff's injury and the general societal interest in maintaining parks and recreational facilities in a safe condition. However, the court emphasized that both the legislature and the New Jersey Supreme Court have expressed a clear policy choice to limit liability for public and private landowners who make recreational property available for public use. The decision reinforces the courts' continuing adherence to the Landowners' Liability Act and the principle that recreational lands and facilities should be broadly protected from liability exposure, even in cases involving significant personal injuries.