Articles Posted in Property Damages

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Our Miami property damage attorneys find that there are many procedural and evidentiary issues that make the process of pursuing a legal claim complicated when your 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 2nd District Court of Appeal of Florida provides an overview of this shifting burden under an “all-risk” homeowner’s policy.

In Citizens Property Insurance Corporation v. Salkey, policyholders filed a sinkhole claim with Citizens.  Under the insured’s 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 in favor of the policyholders in the amount of $542,883, and the insurance carrier appealed the judgment. Continue reading →

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Our Miami-Dade County homeowners coverage attorneys recognize that bad faith claims pose special challenges because the issues of liability and damages must be bifurcated in a separate legal proceeding from the first-party bad faith action.  Fortunately, this does not mean that an insured must obtain a breach of contract verdict or settlement before moving forward with the bad faith lawsuit.  Forms of alternative dispute resolution can constitute a sufficient determination of liability and damages to permit a bad faith action to move forward against recalcitrant homeowners insurers.

In the 2nd District Court of Appeal of Florida case, Hunt v. State Farm Florida Insurance Company, the court considered a bad faith claim brought by a homeowner based on the insurer’s failure to cover a claim related to sinkhole activity.  The trial court granted the insurance company’s motion for summary judgment based on the failure of the policyholder to satisfy a condition precedent before filing a bad faith action and a lack of adequate notice under the civil remedy notice (CRN) statute.  Continue reading →

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Our homeowners insurance claims lawyers understand that many policyholders rely on their insurance agent or an adjuster from the insurance company to determine their rights and potential benefits under their policy.  Although you should contact your insurance agent and promptly notify your insurance company of a claim, your insurer might not always act to protect your best interest.  A fair number of policyholders who suffer devastating financial losses when their homes are damaged by hurricanes, fires, or other perils receive less than they are entitled to under their policies because they do not seek legal advice.

Our insurance property damage lawyers offer the case of Clifton v. Shelter Mutual Insurance Co. as an example of the folly associated with expecting your insurance company or adjuster to aggressively protect your interest.  Although this case is from another state and involves uninsured motorist coverage, the facts related to the insurance company’s handling of the claim provide a cautionary tale for homeowners. Continue reading →

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Although Florida law can be tough on policyholders, our insurance coverage attorneys know that there are statutory provisions that provide important protections to consumers.  A valuable statutory protection under Florida insurance law is referred to as the Valued Policy Law (FVPL) [§627.702, Fla. Stat. (2008)].  The FVPL provides expedited procedures for homeowners (including owners of mobile homes) who experience a total loss.  The FVPL imposes a duty on an insurer to determine the insurable value of a building and specify the value in the policy.  In the event of a total loss (i.e. the cost of repair exceeds the value of the building), the insurer is to pay the value indicated upon which premiums are collected.  While this law does not prevent your homeowners insurer from raising defenses to coverage, the established value often prevents the need for costly and time-consuming litigation when an insured suffers a total loss.

Given the power of this provision, our Miami homeowners coverage lawyers know insurance carriers frequently search for ways to circumvent this protection provided to policyholders.  The 1st District Court of Appeal for Florida considered an insurer’s contention that the appraisal provision in a policy could trump the FVPL in Freeman v. Integrity Insurance Company of Florida.  In Freeman, the policyholders’ residence was badly damaged by vandalism during a burglary.  They notified their insurer of the loss and their assumption of total loss, which would trigger their FVPL rights.  Continue reading →

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Our Miami homeowners insurance coverage lawyers recognize that many people who have a basement in their home are unaware that standard flood insurance policies exclude coverage for damage to their basement.  Some people also have no idea that flood damage to the lower level of their home might not be covered by their policy because of the nuanced definition of the term “basement” under Write-Your-Own policies issued under the National Flood Insurance Program (NFIP).  Because policies must conform to the language and terms dictated by the NFIP, this flaw in the protection of the lower level of homes from flood applies to many policyholders.  Further, our Miami homeowners insurance claims lawyers want policyholders to be aware that flood policies are interpreted narrowly because the program is subsidized by public funds.

The First Circuit opinion in Matusevich v. Middlesex Mutual Assurance Company offers a cautionary tale for those who perform improvements like adding a patio, deck, swimming pool, or similar upgrades to their home.  The insured purchased a Standard Flood Insurance Policy that included an exclusion for coverage of damage to the basement.  Under the policy, a basement was defined as “[a]ny area of the building, including any sunken room or sunken portion of a room, having its floor below ground level (subgrade) on all sides.” Continue reading →

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When a burst pipe damages your living room or a defective water heater, time is of the essence in mitigating the damage.  Failure to properly remove the water can cause long-term structural damage, mold hazards, and other problems.  However, water damage remediation efforts can make the problem worse if qualified professionals do not perform these measures.

When a homeowner lacks the hundreds or thousands of dollars that might be needed to pay for a water remediation service, one available option is the assignment of insurance benefits to a water remediation company. This approach permits the insured to get the damage handled immediately without the need to pay the cost (or full cost) or to wait for the insurer to adjust and pay the claim.

This two-part blog series explains a policyholder’s right to assign their claim following a covered loss in the context of a decision by the Florida 4th District Court of Appeals.  In Part I of this blog, our Miami homeowners insurance claims lawyers review the factual background of the case and rulings by both the trial court and the 4th DCA.  Part II of this blog focuses on the court’s analysis of an insured’s right to assign a post-loss claim despite the presence of a non-assignment clause in the insurance policy. Continue reading →

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A range of remedies exists to resolve homeowners insurance disputes in Florida.  Since the availability of these remedies and venues depends on the facts and circumstances, homeowners should carefully review and analyze their entire policy.  If you are a Florida homeowner, our Florida Homeowners Insurance Attorneys find it is common for a homeowners policy to include a provision for appraisal.  Under Florida law, the extent of the loss is the proper subject of appraisal, but the question of coverage is solely within the purview of judges.  A decision from the Florida 2nd DCA provides insight into what constitutes the scope of issues that can be the subject of appraisal, as well as the types of conduct by the insured that constitutes a waiver.

In Florida Ins. Guaranty Assoc, v. Lustre, the policyholders pursued a sinkhole damage claim.  The insurer retained BCI, an engineering firm, to conduct an inspection and perform testing.  BCI produced a report that indicated the property damage was related to several causes with sinkhole activity among those factors.  The insurer notified the policyholders that the BCI report had been submitted to three contracting firms for bids to stabilize the residence.  The insurer also contacted another company for cosmetic repairs.  The insurer subsequently tendered payment to the policyholders for the actual cash value of the property damage based on an estimate by one of the contractors, Paul Davis Restoration. Continue reading →

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When your home is seriously damaged by a windstorm, fire, or other force of nature, you might end up being displaced from your residence.  Although the repairs associated with many insurance claims occur while homeowners remain in their homes, this may not be a safe or feasible option.  If your home is a total loss or the kitchen is unusable, the only viable option might be to relocate on a temporary basis.

Homeowners who must temporarily move out of their residence will be exposed to living expenses that would not have been incurred without the event that caused the loss.  These extra living expenses can impose a substantial financial burden because homeowners will be “doubling up” on certain expenses, such as housing in the form of both mortgage payments and motel/hotel bills.  These expenses also include such items as the increased cost of dining out if your normal practice is to prepare meals at home.  An insured’s homeowners policy might cover these increased living expenses.  This type of insurance company benefit, referred to as “additional living expenses” (ALE), are not automatic in every case where an insured suffers a loss caused by a covered peril.

Our Miami homeowners insurance lawyers understand the home must be rendered “uninhabitable” for ALE coverage to be triggered.  This term is not necessarily as straightforward as you might assume.  Even if an insured could elect to continue residing in his or her residence, this does not mean that the home is habitable under the terms of a homeowners policy.  While the basic definition of “uninhabitable” is “not fit to live in,” the standard for making this determination typically is based on state, county, or city code standards.  As a general rule, almost every locality requires that the occupants’ basic needs be met for a home to be considered habitable.  When such fundamental services as water, electricity, heat, or plumbing are unavailable, these deficiencies will usually constitute a basis for determining the residence is not habitable. Continue reading →

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Homeowners’ insurance policies universally include a provision that requires an insured to provide notice of loss on a reasonably prompt basis.  This notice requirement often constitutes a condition precedent to payment of a claim.  Insurance carriers frequently assert “late notice” as a basis for denying a claim and as a defense in breach of contract lawsuits.  Policies typically do not establish a specific deadline or time-frame within which notice must be given to a carrier by an insured.  This two-part blog post provides a review of a court decision analyzing when the “prompt notice” provision in a homeowners policy is triggered.  In Part I of this blog, our Miami Hurricane Damage Lawyers provide an overview of the specific facts and circumstances of the case.  Part II reviews the court’s analysis of when the notice provision commences based on the insured’s knowledge of events or damage to the property.

The 3rd DCA of Florida in the case of Laquer v. Citizens Property Insurance Corporation ruled that notice is not necessarily late even when it is provided several years after exposure to the covered peril.  The insured was the owner of a condominium unit that was rented to a tenant at the time of Hurricane Wilma.  Although notice was not provided to the insurance company until three years after the hurricane, the appellate court rejected Citizens’ contention that it was entitled to summary judgment because notice provided after this period was late as a matter of law.  Continue reading →

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The language in a homeowners insurance policy can often 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 authorizing and negating coverage.  However, our Miami homeowners’ insurance claims attorneys understand this rule must be understood in light of the distinction between latent and patent ambiguity.  Patent ambiguity refers to provisions or terms that are conflicting or unclear language within the four corners of the policy.  Because the insurance company drafts the policy, such ambiguities will be construed against the insurance company.  Latent ambiguities involve situations where the policy is clear on its face, but unanticipated facts emerge that render the policy unclear under the circumstances.

The 2nd DCA, 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 homeowners insurance 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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