Wednesday, October 3, 2012

Judgment In Favor Of Insurer For Late Reported Loss Affirmed

In Slominski v. Citizens Property Insurance Corporation (4D10-4372), the Fourth District affirmed the circuit court's summary judgment in favor of the appellee.​ The appellant's filed a lawsuit claiming their property was damaged by Hurricane Wilma on October 24, 2005. Three and a half years after the hurricane, the appellant's filed their claim with Citizens. 
Citizens then  investigated and made a  final  determination that “the  damages  reported  cannot  be attributed  to  Hurricane  Wilma  due to  the  amount  of  time  that  has transpired since the purported date of loss to the present date.” Citizens also  cited  the  Slominskis’  failure  to  comply  with  post-loss  duties,  a condition precedent to reimbursement of a claim, pursuant to the policy. The  contractual  post-loss  duties  required  the  Slominskis,  in  a case  of loss to their property, to “[g]ive prompt notice to [Citizens].”
Citizens filed a motion for summary judgment alleging the appellants breached their duty by failing to timely report the claim. ​In support of the motion, Citizens filed various affidavits and depositions including a transcript of the contractor that performed work for the insured. In the deposition of the contractor:
the  contractor  concluded  that  the  wind  damage would not have occurred “without hurricane-force[] winds,” but admitted that he could not be “100% sure” that the wind damage was caused by Hurricane  Wilma,  as  opposed to  Hurricane  Frances  in  2004.  On  the other  hand, he  testified  that  the  direction  from  which  the  respective storms hit varied, which formed the basis for his opinion.  He admitted that,  with  regard to  water  damage, there  was “no  way to  differentiate” one storm from another.  However, in his affidavit, the contractor stated: “Based on my expertise and personal knowledge of the Slominski home, I am able to determine that the damages as alleged in the lawsuit against Citizens occurred to the property as a result of Hurricane Wilma." 
Additionally, "in  deposition  testimony,  the  engineer  admitted  that  he was  unable  to  determine  exactly  when  the  interior  staining  or  roof damage occurred, but opined only that it was caused by a hurricane."

The Fourth District stated: "In delayed notice cases, “while prejudice to the insurer is presumed, if the insured  can demonstrate that the  insurer has not been  prejudiced thereby,  then the insurer  will not be relieved of  liability merely  by a showing that notice was not given ‘as soon as practicable.’” (citations omitted). In this case, the only evidence submitted to rebut the prejudice to the insurer was the affidavit submitted by the contractor and the affidavit submitted by the engineer. However, in both cases, the affidavits conflicted with deposition testimony by the same person stating they could not determine when the damage to the property occurred  Therefore, the insurer was prejudiced and the judgment was affirmed.


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