SIMILAR NOTICE CONDITIONS INTERPRETED BASED ON THE ACTUAL POLICY LANGUAGE BEFORE THE COURTS DECIDING THE LATE NOTICE ISSUE:
- Notice condition (from Slominski v. Citizens Prop. Ins. Corp., 99 So. 3d 973, 974 (Fla. 4th DCA October 3, 2012)):
The contractual post-loss duties required the Slominskis, in a case of loss to their property, to “[g]ive prompt notice to [Citizens].”
HELD: Summary Judgment for Insurance Carrier of No Coverage due to Late Notice of a Property Claim.
Florida law: Rebuttable Presumption of Prejudice from Late Notice.
Here Late Notice Presumption not rebutted.
The Policyholders argued that they believed that the cost of repairing the damage would not exceed their deductible as their justification for allegedly late reporting of their claim.
Their argument was supported by Affidavits from a Contractor and an Engineer. (Therein lies a tale, as they say. The Affidavits came after their Depositions were taken and contradicted their Deposition Testimony. Or would have, if the Trial Judge had not stricken the Affidavits and refused to consider them.)
- Notice condition (from Pfeffer v. Harleysville Grp., Inc., 2012 WL 5392933 (2d Cir. November 6, 2012)):
Policy: provide “prompt notice of the loss or damage.”
HELD: Summary Judgment for Insurance Carrier of No Coverage due to Late Notice of a Property Claim.
There, too, the Court rejected the legally insufficient contention that Late Notice could be justified by a belief that there was no Coverage, therefore the Policyholder(s) did not timely report their Coverage claim.
BUT THE REASON FOR DECISION IN THE SECOND CIRCUIT WAS THAT THE INSURANCE POLICY CAN (AND THERE, DID) CONTAIN LANGUAGE THAT TRUMPS SUBSTANTIVE LAW:
The policy in that case provided in addition that Notice was a condition precedent to making any claim under the policy.
Otherwise, the New York law of Late Notice appears to be like Florida's, resulting in a rebuttable presumption of prejudice, and is certainly more favorable the Court pointed out, than the policy provision that notice is an explicit "condition precedent".
This article is posted from a Seminar presented on the subject of "Forensic Examination of Insurance Policies: Conditions and Exclusions," on Wednesday, December 19, 2012 to the Orange County Bar Association in Orlando, Florida.
Merry Christmas and Happy Holidays to All in 2012, and a Happy New Year to All in the year to come!
Please Read The Disclaimer.
Comments