Notice provisions in insurance policies require "notice" to the insurance company that there is a loss or a claim. In basic terms, and depending especially upon the type of Policy involved, notice provisions can be liberally construed in favor of effecting coverage, or not. Whether liberally construed or not, provisions for notice of loss are subject to conflict among the Courts. The judicial conflict in question is whether the insurance company can prove, or must be proven to have been prejudiced where the notice is late.
In what appears to be the majority view on this question, breach of the notice of loss provision results in a presumption of prejudice to the insurance company, but the presumption is rebuttable:
If the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.
Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985)(subscription required; first-party case; claim of policyholder to personal injury protection benefits as a result of an auto accident). Note well: After diligent search online, this case was not to be found online in a free web site.
This holding has been followed in a third-party case, or one involving a liability insurance policy provision and a claim against the insured rather than a claim by the insured. Assurance Co. of America v. Lucas Waterproofing Co., 581 F. Supp. 2d 1201, 1207 (S.D. Fla. 2008)(subscription required); download the official Opinion issued by the Court on this issue in this case: Download Assurance v. Lucas Waterproofing Co (S.D. Fla. 2008). at page 8 of the official Opinion..
The conflicting and apparent minority judicial viewpoint on this notice issue is that the insurance company should prove prejudice resulting from an alleged breach of a provision requiring notice of a loss.
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