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Pekar Law, P.A.
An experienced insurance claims lawyer serving the Tampa Bay area and across Florida

June 2015 Archives

Recent Decision Highlights the Necessity of Meeting Claims Deadlines What are the effects of filing a claim for coverage beyond the deadline listed in the policy? Will the insurer still honor my claim if it is just a few days late?

When it comes to insurance policies, understanding the fine print can make a crucial difference in avoiding a claim denial - particularly with regard to filing deadlines. Oftentimes, insurers impose a 30- or 60-day deadline within which a policyholder must file a claim. Failure to meet the deadline can be disastrous for the claimant, as insurance companies are known for holding homeowners to the drop dead time limit without room for error. But how strict is this deadline practically speaking? For instance, many Floridians reside in their homes for just a fraction of the year - and live elsewhere during the blistering summer months. In this scenario, the insured might not be aware of damage to the property until months after it has occurred - and may find the claim time-barred. Fortunately, there may be loopholes available to insureds who are dreading the denial of a high-value claim based on a running of the time limitation. In Florida, there exists a presumption that requiring the insurance company to honor a late notice would be hardship to the company. However, the insured may be able to rebut this presumption with the introduction of evidence to the contrary - and, if successful, may continue with his or her claim. The issue of timely submission of claims is one which can derail a case before it even gets started. Under applicable procedural rules, an insurance company can seek a dismissal of the claim at the summary judgment stage by asserting that there is no factual dispute between the parties. If the insured cannot provide evidence at this early stage that the late notice would not be a hardship to the insurance company, the case will be dismissed and officially time barred. In fact, recently a Florida Court of Appeals reiterated this concept in Marbella Condominium Association Inc. v. Citizens Property Insurance Corporation, which involved the late filing of an insurance claim to Citizens Property Insurance Corp. When the claim was denied, the association initiated an appeal to the trial court, at which point the insurance company moved to dismiss the case on summary judgment - arguing that the deadline was clearly missed, and the condominium could not rebut this presumption in favor of the insurer. The trial court granted the summary judgment, and the ruling was affirmed by the Third District Court of Appeals on February 11, 2015. In the words of the court, "[t]he determination of whether the insured gave timely notice to the insurer is ordinarily a question to be resolved by the jury or trial judge when acting as the trier of the facts.... On the other hand, if the undisputed evidence will not support a finding that the insured gave notice to the insurer as soon as practicable, then a finding that notice was timely given is unsupportable."If you are having difficulty with your property insurer and would like to discuss your rights, please contact Tampa property insurance attorney Jeff Pekar today by calling (813)712-8762.

Judge Overrules Insurer's Summary Judgment Motion; Finds Genuine Issue of Fact What does the concept of 'misrepresentation' mean in the context of a residential insurance policy?

When it comes to civil litigation, most defendants facing possible major exposure to liability will make a preliminary attempt to have the case dismissed early on, citing the procedural hurdle that requires a "genuine issue of material fact." More simply, if all the major facts in a lawsuit are undisputed, a judge is required to dismiss the case on a motion known as "summary judgment." These motions are decided in a light most favorable to the plaintiff, and require a showing that there is essentially nothing to fight over - even if the case makes it to a jury. By contrast, if the court can isolate even one material fact in dispute between the parties, the summary judgment motion must be overruled and the case must proceed to the discovery phase. In a recent property insurance lawsuit known as Mora v. Tower Hill Prime Insurance Company,
Mora v. Tower Hill Prime Ins. Co., 2015 WL 292007, the defendants attempted to request a summary judgment after discovering that the plaintiffs may have known about a "cracking issue" prior to applying for coverage. While the court did not condone the plaintiffs' failure to fully disclose known material defects with the property, it nonetheless gave the green light for the lawsuit to proceed to the fact-finding stage and overruled the company's motion in its entirety.

Florida Bans Insurance Companies from Gouging Loyal Customers Are you the victim of price optimization?

In mid-May, Florida became the fourth state to forbid insurance companies from charging customers who are unlikely to shop around for a better deal more for their coverage. This move is a boon to consumers, the majority of which renew their current policies without looking for a better deal. Charging loyal customers more, known in the industry as "price optimization," is just one of the many tactics insurance companies use to squeeze every nickel they can out of their customers. The companies say they are not doing anything wrong. The law allows a range of fees to be charged to the policy-holders based on how risky insuring them is. The companies claim that they are just charging different rates within the approved band. Regulators, however, think that price optimization treats likelihood to switch providers as part of a consumer's risk profile since the companies consider past renewals, location, the number of insurance companies offering policies in the area where the customer is located, and perceived financial literacy. This is arguably discrimination since it is not based purely on risk. The Consumer Federation of America, or CFA, says customers who don't shop around for lower rates get charged as much as $5 to $10 per month more than customers who get quotes from multiple providers each time their policy is up for renewal. Policy holders in Florida will now join the residents of Maryland, Ohio and California in knowing that they are not going to be punished for being loyal customers. At this point it is unclear exactly what impact this move will have on insurance rates. The companies have some time to file paperwork with the state disclosing past rate optimization and explaining how they are going to end the practice for existing customers. In the meantime, the industry must cease pricing new plans using optimization data. If this news inspires you to shop around for insurance, it is important to make sure you are comparing apples to apples. With this new policy in place, a lower price being offered by a competitor is almost certainly tied to lower coverage, since it is unlikely that one company would rate a person's risk drastically different than another.

Court Denies Insurance Company's Attempt to Avoid Breach of Contract Liability My insurance company is seeking to deny coverage based on a perceived technicality. Is there anything I can do?

When it comes to an insurance policy, the devil is in the details - just ask any of the thousands of Florida plaintiffs awaiting a resolution to their ongoing sinkhole claim. In one recent case out of Hillsborough County, the District Court of Appeal of Florida, Second District overruled an insurance company's attempt to duck liability under a sinkhole policy based on a perceived act of misconduct by the plaintiffs during the litigation process. While the case has yet to be ultimately concluded, the court reasoned that the insurance company could not escape the plaintiff's breach of contract claim by asserting the plaintiffs concealed the results of a neutral evaluation done of the property, and reversed the trial court's summary judgment on the matter.

Ana Signals the Start of Hurricane Season Do you know exactly what your property insurance policy covers?

In early May, Subtropical Storm Ana became the first named storm of the 2015 hurricane season. While Ana did not cause any damage in Florida, it is a good reminder that now is the time to prepare for the coming storm season. It only takes one storm to change your life forever because tropical cyclones, the strongest of which are hurricanes, are one of nature's most powerful and destructive phenomena. Unfortunately, Florida is one of the areas of the world most frequently hit by tropical storms and hurricanes, so it is critical that all Florida residents prepare for each storm season.

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