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Nik Sackstein was a senior citizen and longtime homeowner who experienced significant damage to his home when monsoon intensity rains came flowing through his roof and damaged the interior walls of his home.  However, the senior who faithfully paid premiums for years was not concerned because he had homeowner’s insurance through Farmers Insurance.  When Mr. Sackstein submitted his claim, the insurer sent out an adjuster who predictably went up on the roof to investigate the damage.

Property Damage Claims Lawyers Discuss Relationship between Maintenance and Coverage of Claims

However, Mr. Sackstein told a CBS News affiliate that the situation went sideways as soon as the adjuster climbed down from the roof of the house.  The adjuster informed the befuddled homeowner that the roof tiles were all intact, so the damage to the interior of the home must have been caused by leaks resulting from lack of maintenance.  According to the adjuster, pine needles and leaves that had dropped from trees onto the roof worked like a dam causing water to pool on the roof.  Although Mr. Sackstein was able to go up on the roof and easily sweep away the debris, the damage had been done.  His claim was denied because of his alleged failure to perform five minutes of virtually effortless maintenance. Continue reading →

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Most insurance policies include conditions precedent that must be performed for an insured to receive benefits under the policy.  Many policies contain these conditions, including homeowner’s policies. The term “condition precedent” refers to required acts or omissions to be performed by the insured before the insurance carrier has a duty to pay benefits under the policy.  Common examples include the duty to notify the carrier of a loss in a timely fashion and to provide a sworn proof of loss.  Our Florida insurance damage attorneys recently noted a decision by the Florida 2nd District Court of Appeals, Tower Hill Select Insurance Company v. McKee.  Our Miami homeowner’s claims lawyers offer this decision as an example of the importance of understanding these conditions and fulfilling their terms.

South Florida Insurance Claims Lawyers Note Performance of Conditions Impacts Deadlines to Perform

The insured filed a claim with his homeowner’s carrier related to property damage allegedly caused by sinkhole activity.  The insurer retained an engineer who (predictably) concluded that sinkhole activity did not cause the damage to the property.  Based on the engineer’s opinion, the carrier denied coverage for the claim under the policy.  The insured also retained an engineer who determined that sinkhole activity caused the damage to the home.  After the insured’s expert’s submitted his report to the insurance company, the carrier denied coverage.  The insured filed a lawsuit for breach of contract.  The trial court granted summary judgment to the homeowner for $181,317, which included $22,429 in prejudgment interest. Continue reading →

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Homeowners benefit greatly from the right to summon a water mitigation company to remove water from their home after a severe storm without waiting for their insurance company to adjust and pay the claim.  However, the right of an insured to assign post-loss benefits to a loss mitigation contractor is being hotly contested by Florida insurance companies.  Insurers presume that taking on an individual homeowner in an insurance claims dispute presents less of a challenge than taking on a water mitigation company.

Fortunately, a fair number of decisions have favored the right of policyholders to assign their right to proceeds under their policy to obtain services to remedy water damage.  A recent decision from the Florida 2nd District Court of Appeals (2nd DCA) continues this trend, affirming the ability of homeowners to use this effective approach for prompt remediation of water damage.  While our property damage attorneys discuss a single case in this blog post, many other Florida appellate court decisions also have affirmed the right of policyholders to assign post-loss benefits without the consent of the policyholder’s insurance company.

In Bioscience West, Inc. v. Gulfstream Property and Casualty Insurance Co., the insured experienced water damage to her home and hired a water mitigation contractor to perform “emergency water removal and construction services.”  The insured executed a document with the heading “Assignment of Insurance Benefits.”  The document provided as follows: “I hereby assign any and all insurance rights, benefits, and proceeds, pertaining to services …. I hereby authorize direct payment of any benefits or proceeds to my property… as consideration for any repairs ….” Continue reading →

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Many homeowners pursue insurance claims for damage to their home on their own but the technical requirements of pursuing a claim and taking advantage of legal remedies can make this a costly decision.  Florida insurance law involves many hypertechnical procedural and administrative requirements that can derail a valid claim.  These procedural hurdles frequently are compounded by technical minutia inserted into insurance policies that homeowners do not notice as their eyes glaze over while reading page after page of complex legal terminology.  These complex procedural requirements might even be subject to their own timing requirements, which mean that a claim might be denied because the insured’s attempts to satisfy technical requirements are considered untimely.

Miami Homeowner’s Insurance Disputes Attorneys Analyze Timing and Notice Issues

The Florida Fourth District Court of Appeals decision, State Farm Florida Insurance v. Lime Bay Condominium, Inc., provides an example of the importance of timely compliance with the notice requirement associated with the appraisal process.  The insured submitted a claim for replacement of the roof of a condominium complex after damage caused by a hurricane.  The insured submitted an estimate for repair of about $1.5 million.  State Farm conducted several inspections and concluded that the roof needed repair rather than replacement.  The insurer tendered $6,940 to the insured to cover the repairs in September 2006. Continue reading →

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Our Florida homeowner’s insurance attorneys know that there are many procedural and evidentiary issues that make the process of pursuing a legal claim complicated when an insurance carrier denies your claim.  While the law provides remedies and legal venues to pursue your rights, the path to obtaining benefits under a homeowner’s policy can be convoluted and complicated.  One issue that homeowners will have to understand and navigate effectively if they pursue a lawsuit for breach of contract against their insurer is the nature of the shifting burden of proof in a lawsuit involving an insurance claims dispute.  A recent case decided by the Florida Second District Court of Appeals provides an overview of this shifting burden under an “all-risk” homeowner’s policy.

Miami Homeowner’s Property Damage Lawyers Explain the Relative Roles of the Homeowner and Insurance Company in Proving Their Claim Under the Policy

In Citizens Property Insurance Corporation v. Salkey, policyholders filed a sinkhole claim with Citizens.  Under the insureds’ all-risk policy, the property was covered for all perils unless they were expressly excluded.  While the policy specifically excluded sinkhole damage, it also contained an endorsement for “direct physical loss” resulting from sinkhole activity.  The policyholders filed a lawsuit for breach of contract after their sinkhole claim was denied.  The jury reached a verdict for the policyholders of $542,883, and the insurance carrier appealed the judgment. Continue reading →

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Our homeowner’s insurance lawyers understand that the language in a policy often can be difficult to interpret especially in the context of other provisions of the policy.  Ambiguity in a policy generally will be construed to provide coverage when the language is susceptible to conflicting interpretations both authorizing and negating coverage.  However, this rule must be understood in terms of the distinction between latent and patent ambiguity.  Patent ambiguity refers to provisions or terms that are conflicting or unclear in the policy itself.  Because the insurance company drafts the policy, such ambiguities will be construed against the carrier.  Latent ambiguities involve situations where the policy is clear when considered on the policy’s face, but unanticipated facts emerge that render the policy unclear under the specific circumstances.

Experienced Florida Insurance Attorneys Can Exploit Policy Ambiguities

The Florida Second District Court of Appeals in Price v. Castle Key Indemnity Company considered this distinction in reversing summary judgment against an insured.  The court considered whether a loss caused by 195,000 gallons of water over a prolonged period would be considered “seepage.”  The parties to a homeowner’s policy agreed that the massive water loss was caused by a leaking pipe in an upstairs bathroom during an extended absence of the policyholder.  The policy covered “sudden and accidental physical loss to property” subject to the following exclusion: Continue reading →

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Our Florida insurance claims lawyers recognize that insurance coverage is a valuable purchase for families focused on financial security and mitigation of the risk of loss.  However, insurance companies sometimes undermine the value of coverage or otherwise take advantage of consumers by using misleading or deceptive practices.  Common examples of inappropriate practices include overcharging for coverage, misleading consumers about benefits, and lowballing claims.  While these types of bad faith insurance practices are recognizable to most consumers, there are more subtle unfair practices that also are prohibited under Florida law.

While many industries are subject to fair business practices standards, investigations usually arise because of consumer complaints.  By contrast, the insurance industry is a highly regulated industry, so government regulators do not simply wait for complaints.  Government regulators in Florida establish rules for how insurance companies, brokers, and agents communicate and deal with consumers.  All rates and forms also are subject to approval by state regulators. The Florida Office of Insurance Regulation (OIR) will routinely look for potential violations even in the absence of consumer complaints.  The insurance industry like other industries can engage in puffery in promoting their company and products; however, certain practices cross this line.  Because this line can be difficult for a policyholder to pinpoint, you should talk to a top Miami insurance claims attorney. Continue reading →

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Insured homeowners often face greater difficulty in receiving payouts from property damage insurance claims where the claims spring out of multiple perils. Situations may arise where homeowners experience damage to property stemming from a peril that is covered under his or her insurance policy, but further examination reveals that there may be more than one peril that caused the loss. The case below illustrates one approach that Florida courts have taken in handling these types of cases.

In American Home Assurance Co v. Sebo, a homeowner purchased a four-year-old house and obtained an all-risks insurance policy. The policy contained an exclusion for inadequate, faulty, or defective planning. Shortly after the owner bought the home, it began showing signs of water leaks during rainstorms and hurricanes. After several months, the homeowner filed an insurance claim for the water damage, and after investigating the claim, the insurer denied coverage for most of the losses. The company tendered $50,000 for mold coverage but indicated that the rest of the damages to the home, including damages to the windows and doors, were excluded.

The house degraded beyond the point of repair and was demolished. The homeowner filed suit against the sellers, the architect, and the construction company that built the house. She alleged that the architect and construction company negligently built and designed the home and that the sellers engaged in material fraud by failing to disclose the property’s defects. Additionally, the homeowner filed suit against the insurance company and sought for the court to declare that the homeowners’ insurance policy covered all the claimed damages. The case against the insurer went to trial, and the jury decided in the homeowner’s favor. The insurance company appealed. Continue reading →

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Florida state courts, over the last several years, have heard numerous cases dealing with the assignment of benefits by homeowners’ insurance policyholders to third-party entities such as home repair companies without the approval of insurance companies. These entities file suit to recover benefits if the insurance companies fail to pay, either in part or wholly, according to the assigned rights. Florida courts seem to favor the assignability of benefits unless the language of the insurance policies prohibit the assignment, and therefore, insurance companies may be revising their policies to include language to that effect.

In One Call Property Services v. Security First Ins. Co., an insured homeowner, assigned insurance benefits to a third-party company that performed emergency services and property restoration work. The owner had experienced severe water damage on her property and asked the company to perform remediation and water removal, which the company completed. The owner executed the assignment of insurance benefits as payment for the company’s services. However, the insurance firm failed to pay the remediation company adequately for its services, and therefore, the company filed a claim for breach of contract. The insurance company requested for the trial court to dismiss the suit contending that the insurance policy in question had a provision prohibiting assignment of benefits. Consequently, the policy prevented the remediation company from filing a lawsuit as an assignee. The trial court ruled in the insurance company’s favor and dismissed the lawsuit, which the company appealed. Continue reading →

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Timeliness is an important issue when it comes to homeowners’ insurance claims. As with any provision in an insurance policy, parties must ensure that they write timeliness clauses clearly so as to avoid ambiguity, which may lead to litigation. As the case below illustrates, failure to define terms such as what counts as a timely filed claim may be an issue that courts will step in to resolve. In such cases, the court will construe ambiguous provisions against the drafter and make a decision as to timeliness based on a reasonability standard in light of the totality of the circumstances of each case.

In Laquer v. Citizens Property Insurance Corporation, the owner of a condo unit had an insurance policy that provided coverage for damage caused by weather-related events. The policy mandated that the insured provide the insurance company with prompt notice of a claim. A hurricane struck the area where the unit was located and, three years later, the owner notified the insurance company of the growth of mold in the unit. The insurance company denied the claim, citing the owner’s failure to provide prompt notice. The owner sued for breach of the insurance policy. Continue reading →

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