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Timing is Everything – Late Notice and the Presumption of Prejudice in Florida

August 19, 2022

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<p style="text-align: justify;">In <a href="">Perez</a> <em>v. Citizens Property Insurance</em>, 2022 Fla. App. LEXIS 4583, 2022 WL 2444681, 47 Fla. L. Weekly D 1451 (Fla. 3d DCA July 6, 2022) Florida’s Third District Court of Appeal reaffirmed that late notice of a claim is presumptively prejudicial to the insurer and absent evidence refuting that presumption, summary judgment for the carrier is proper.</p>
<p style="text-align: justify;">In September of 2017, Miami, Florida was battered by Hurricane Irma. Two years later, Ms. Perez notified her windstorm carrier, Citizens Insurance, that her home had been damaged.</p>
<p style="text-align: justify;">Ms. Perez claimed to have done mitigation and performed repairs but had no records. After she failed to provide repair records, and a sworn proof of loss, Citizens denied the claim.</p>
<p style="text-align: justify;">Ms. Perez sued, and Citizens moved for summary judgment arguing that its ability to inspect the damage and determine its cause had been fatally prejudiced by the late notice. In opposition, Ms. Perez filed an expert affidavit stating that after inspecting the home, it was the expert’s opinion that Hurricane Irma had caused damage to Ms. Perez’ home.</p>
<p style="text-align: justify;">The trial court found, and the appellate court agreed, that it was impossible for the expert, with no contemporaneous documentation, photos, investigation, etc., and based solely on an inspection conducted three years after the storm and after the damage had been repaired, to opine that Hurricane Irma caused damage to Ms. Perez’ home. The trial court also found, and the appellate court agreed, that an expert’s conclusory affidavit will not overcome the presumptive prejudice caused by late notice.</p>
<p style="text-align: justify;">In the past, Florida has favored insureds when deciding motions for summary judgments based on late notice. Whether this decision indicates a shift in thinking or is merely based on a good set of facts for the insurer remains to be seen.</p>
<p style="text-align: justify;">Thanks to Charles "Chip" George for his contribution to this post. Please contact Chip with any questions.</p>


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