Florida Insurance Claim Lawyer Blog

Are Insurance Companies Only Insuring You As Long As Nothing Happens? Insurers Go Missing After Catastrophic Losses

Fri, 18 May 2012 14:15:44 -0500

Insurance companies often advertise how easy it is to become an insurance company's customer. But they seldom, if ever, advertise how difficult it is to get an insurance company to pay for a claim, especially if the claim is after a catastrophic loss such as say a Hurricane.

Insurance companies have significantly and methodically decreased their financial responsibility for weather catastrophes like hurricanes and floods in recent years. Indeed, and after an extraordinary year last year for natural disasters, many insurance companies took steps to leave weather challenged states like Florida.

For instance, Allstate informed many of its North Carolina policy holders that would not renew homeowner policies that were not bundled with auto policies. Alfa Mutual Group announced that it would not renew 73,000 Alabama policy holders after tornadoes caused $11 billion dollars of property damage in Alabama last year.

Yet Florida is probably in the worst shape of any state in the country as it is the midst of an on going insurance crises in light of the fact that insurers have been dropping coverage since Hurricane Andrew in 1992. As a result, Florida's premiums average $1,460 per home. That trails only the state of Texas for the average cost of insurance premiums. As a result, the state backed Citiznes Insurance Company has had to step in to cover some 1.5 million property via its publicly funded insurance company as insurers drop more and more homes each and every year. State Farm, for example, stopped writing new homeowner policies in Florida back in 2007.

Today, insurance companies are also offering less insurance coverage for more money. In other words, many policy holders are paying more money for less coverage. While rates have been increasing dramatically, coverages have been hallowed out.

With hurricane season upon us, it is important to check the financial strength of your property insurer. The reason for that is because a major storm could wipe out more than your home - it could wipe out an insurance company too. Not only should you check the financial strength of your insurance company, but you should also check, and understand, the scope of coverages you have purchased.

Have you Started to Get Ready for the 2012 Hurricane Season?

Thu, 17 May 2012 10:56:43 -0500

With Memorial Day right around the corner, many are making plans for the holiday. Some may be going on vacation and some may be planning a BBQ.

But once the holiday weekend is over, we must prepare for the 2012 hurricane season which officially starts on June 1.

Many native South Floridians have been dealing with hurricanes since they were young children and simply brush off hurricane season without preparation. However, must we remind you of the damage caused by Hurricane Andrew or even the more recent Hurricane Wilma, the second worst hurricane in Florida history?

Advanced preparation is vital because right before a storm hits, supermarkets and home improvement stores are jam-packed with last minute shoppers. Waiting until the last minute on important supplies is especially dangerous because items fly off the shelves and you risk being left without necessary supplies. It also important to stock enough supplies to last you through a storm and beyond.

The National Hurricane Center recommends including these items in your hurricane survival kit:

• Water - at least 1 gallon daily per person for 3 to 7 days
• Food - at least enough for 3 to 7 days
• Non-perishable packaged or canned food / juices
• Foods for infants or the elderly
• Snack foods
• Non-electric can opener
• Cooking tools / fuel
• Paper plates / plastic utensils
• Blankets / Pillows, etc.
• Clothing - seasonal / rain gear/ sturdy shoes
• First Aid Kit / Medicines / Prescription Drugs
• Special Items - for babies and the elderly
• Toiletries / Hygiene items / Moisture wipes
• Flashlight / Batteries
• Radio - Battery operated and NOAA weather radio
• Telephones - Fully charged cell phone with extra battery and a traditional (not cordless) telephone set
• Cash (with some small bills) and Credit Cards - Banks and ATMs may not be available for extended periods
• Keys
• Toys, Books and Games
• Important documents - in a waterproof container or watertight resealable plastic bag
insurance, medical records, bank account numbers, Social Security card, etc.
• Tools - keep a set with you during the storm
• Vehicle fuel tanks filled
• Pet care items
• Proper identification / immunization records / medications
• Ample supply of food and water.

Your Property is Damaged, Now You Need to Make an Insurance Claim

Thu, 19 Apr 2012 04:41:08 -0500

You own a property that was blown away by a recent hurricane, and another property that had a significant pipe burst that flooded the whole house. What do you do?

You think you have has insurance coverage to help you cope with the financial devastation for these losses, but you're not sure what to do.

Check Your Insurance Policy for All Conditions and Obligations Necessary to Make a Proper Claim

The first thing you need to do is to track down a copy of the current insurance policy and find out the name of the insurance company. Now that you have the insurance policy, and know the name of the insurance company, you can then begin the process of navigating those two insurance claims.

You need to then immediately notify the insurance company of the claim. Failure to do so promptly may jeopardize the insurance claim, and make the claim process a nightmare for you and your client.

Every insurance policy written in Florida contains numerous conditions that are imposed on the policy holder/insured. The policy holder must adhere to those conditions before the insurance company will make an offer to settle the claim, and before the insured can even file a lawsuit against the insurance company. Those conditions are intended to permit an insurance company to promptly investigate a claim after its occurrence.

The conditions typically involve providing "immediate" notice to an insurance company of the loss. That means you or your client will have to call the insurance company to report the loss as soon as possible.

You will typically need to allow the insurance company an opportunity to inspect the loss and conduct an investigation. If you wait months, or even years, to report the claim to the insurance company, then the insurance company will likely deny the claim on grounds that it was "prejudiced" in its ability to promptly perform an investigation.

You may also be required to sit for an examination under oath, and may also be required to submit a sworn proof of loss. The insurance company should also be afforded the opportunity to inspect the loss as well as photograph/video tape it. Any repairs that may have been made need to be properly documented. Make sure to keep all receipts and photograph of all repairs.

What Happens Next.

The claims process can be an exceedingly frustrating experience. And often times it may even result in litigation against the insurance company. But before that lawsuit is filed, it is imperative that you comply with all of the requests made by the insurance company. The insurance company will likely not make an offer to resolve the claim if their investigation was hindered in any way. Also, a premature rush to the courthouse may also result in a dismissal of the lawsuit if the insurance company can demonstrate that the insured failed to comply and cooperate with the insurance company during its investigation.

Less Active Hurricane Season Predicted for 2012

Sun, 15 Apr 2012 22:50:47 -0500

According to the Colorado State University's Tropical Meteorlogy Project, we should get ready for a less hectic hurricane season this year due as opposed to years past.

They predict that the 2012 hurricane season will be less active than normal. They also predict that this hurricane season will be close to half as active as last year. Last year we saw 19 named storms. Of those storms, 7 of them turned into hurricanes, and 3 of them turned in major hurricanes measured at Cat 3 or stronger.

However, forecasters Philip Klotzbach and William Gray predict the 2012 season, which begins June 1, will have 4 hurricanes, compared with an average of 6.5 hurricanes between 1981 and 2010, and 10 named storms, compared with an average of 12.

The forecasting duo credit a combination of cooler than normal sea surface temperatures in the tropical Atlantic Ocean and an expected return to El Nino warmer than normal surface water conditions in the eastern and central Pacific Ocean for the reduced tropical storm activity.

Although Florida was again spared in the busy 2012 season, one should not their guard down.

Forecasters don't like to make landfall predictions, but they are able to say that certain areas may be more prone to being hit by a hurricane this year. South Florida, Texas, and the Carolinas are being pinpointed as areas where chances of landfall are greater.

It's certainly frightening to hear that South Florida is at great risk year to be struck by a hurricane, even if there are potentially less hurricanes in total this year. We've been spared over the last few years, but hurricanes are a fact of life in South Florida.

Although this often leads us to brush off hurricanes, it's important to be prepared.

One way of ensuring that you're prepared is to make sure to having everything in place to contact your insurance company in the event of a windstorm because all insureds have a duty to immediately notify an insurers of a loss. Whatever you do, and no matter how slight the damage, call your insurer if your home has been damaged by a windstorm.

However, there are times when immediate notice is still not enough because an insurer will treat their policyholder unfairly by wholly denying a valid claim or by not fully covering their insured's loss. Realizing that most people are unaware of their rights, insurers may take advantage of their policyholders.

If you ever find yourself in a situation where you believe that your insurance company is treating you unfairly, don't hesitate to contact Alvarez & Barbara, LLP. We have considerable experience dealing with insurance companies and working to make sure our clients get what they are owed.

Holocaust Profiteering - Insurance Companies Refuse to Pay Life Insurance Policies for those that Died during the Holocaust

Sun, 11 Mar 2012 23:56:28 -0500

The Holocaust took place in Germany from 1933, when Adolf Hitler became Chancellor of Germany, and lasted until the end of WWII in 1945.

During this time, Jews in Europe were subjected to harsh persecution that ultimately led to the systematic murder of 6,000,000 Jews (1.5 million of these being children) and the destruction of 5,000 Jewish communities. These deaths represented two-thirds of European Jewry and one-third of world Jewry. The Jews who died were not casualties of the fighting that ravaged Europe during World War II. Rather, they were the victims of Germany's deliberate and systematic attempt to annihilate the entire Jewish population of Europe.

Many of those that died during the Holocaust had purchased life insurance with such companies like Allianz and others. They paid their premiums to secure said coverage. Yet the death benefit of those policies has never been paid by the insurance companies.

Many of those insurance companies that are refusing to pay the life insurance proceeds actually even went so far as to actually cooperate with the German government during the Holocaust to insure death camps.

It is believed that companies such as Allianz, Generali, AXA and other global insurers wrote almost 900,000 insurance policies in Eastern Europe before the Holocaust. The amount owed on these policies has been estimated at $20 billion.

Yet, after the war ended many of the grieving families that had lost loves ones during the Holocaust submitted claims to the insurance companies. The insurance companies refused to honor the requests. Part of the reason was because many of the families were unable to provide death certificates. However, it is a known fact that the German government never issued any death certificate for those murdered during the Holocaust.

The International Commission on Holocaust Era Insurance Claims (ICHEIC) was established by the National Association of Insurance Commissioners in August 1998 to identify, settle, and pay individual Holocaust era insurance claims at no cost to claimants.

But the ICHEIC did not pay out the full benefits purchased by the life insurance policies. In some cases, they only paid a fraction of what was owed.

Contributions to reparations agreements are not a substitute for addressing the breach of contract that is the failure to pay legitimate claims of policyholders. As such, U.S. lawmakers are pushing through legislation that could potentially permit Holocaust survivors, and their families, the ability to sue for breach of contract, and other viable claims, and seek the full payment of amounts due and owing to the families of the many Holocaust victims and to others who may have viable claims.

Your Insurance Company Denied Your Claim, and You're Mad - Is It Time to Sue Them in Court?

Fri, 09 Mar 2012 17:24:42 -0500

You come home one day from your 14 day vacation in Europe only to discover that your septic tank ruptured. The mess is everywhere, and that rare China your Grandmother gave you on your wedding is smashed as a result of your frustration.

You immediately get on the phone with your insurance agent and your insurance company. But yet they inexplicably deny your claim.

You want to sue the insurance company, and you want justice.

But before you commit to taking your case to court, make sure this is a battle for which you're truly prepared.

Lawsuits can be very costly in terms of time and energy, and they will also take an emotional toll too. So don't enter into litigation lightly. If there is a chance of resolving the dispute amicably, consider that option.

You may never have gone to court before, but insurance companies do it all the time. Their lawyers know the ins and outs of the legal system. So it is important that you do wish to file suit, that you hire an attorney that is familiar with the courthouse and with battling insurance companies on a daily basis.

Here are steps you can take before resting your fate on the scales of justice.

1. Understand your duties and obligations as set forth in your insurance policy.

How do you do that exactly? Well, it may sound so obvious, but the first thing you need to do is to read and completely understand your insurance policy.

Often times insurance companies aggressively defend lawsuits not on the actual merits of the loss, but rather on conditions and obligations that the insured failed to do. It would be very unfortunate to be in such a situation. Especially when you consider that an insurance policy is a contractual relationship that binds both parties to certain obligations.

It is therefore critical that you, the insured, understand each and every one of those conditions. It doesn't matter what your agent told you or what you heard on TV; the rules that must be followed are contained and found within the document you signed and in the insurance policy. And if you failed to follow those rules, and conditions, your lawsuit will likely fail.

If you don't have a copy of your insurance policy, contact your agent. If you don't understand your insurance policy, contact your agent or an attorney to help explain it to you.

2. What are the Odds that you Can Actually Beat the Insurance Company in Court?

Like with every important decision you ever make, you need to balance the pros and cons and perform a cost benefit analysis.

Never go to court unless you believe you have a very good chance of winning. The legal process is too costly to use merely to prove a point or assert your rights. If you file a suit to punish your insurer for things that went wrong during the claims process, you may end up being the one who is punished by wasting time and money.

3. Work with, not against, your insurance company during the claims process.

If your insurance company calls you, call them back. If your insurance company wants to inspect the property, let them do so. If your insurance company wants you to give a sworn statement, hire a lawyer and then make sure to appear for the sworn statement.

And even if you do everything the insurance company asks of you, it is possible that the insurance company will still deny your claim. But if they do, try to resolve the claim one more time before filing suit.

Litigation should be a tool of last resort, not first. Explore all potential settlement options prior to filing suit.

4. Find a lawyer that has experience fighting the insurance companies.

If you decide to go forward with your lawsuit, you may need to find an attorney who will work on a contingency basis, taking his or her pay out of any settlement you win. If you agree to pay your lawyer this way, the fee will be a percentage of whatever is awarded. In highly adversarial insurance disputes, lawsuits can drag on for years, however.

Find an advocate who isn't afraid to go up against the big guys. You need someone who has a track record fighting and winning against the insurance companies.

5. Be patient, lawsuits take time.

Lawsuits often become waiting games. It easily can take a year or more to resolve a case. Attorneys representing insurance companies sometimes use delaying tactics to throw their opponents off their game or build up their own hourly fees. Expect these kinds of legal maneuvers and don't let them shake you.

Tips to Restore Your Hurricane Insurance Discounts

Tue, 17 Jan 2012 06:21:30 -0500

Buying and owning a home, for many of us, is the most significant investment we will make in our lives. It will likely also be one of the costliest ones too.

Therefore, when we make that investment we want to make sure that the investment won't turn sour. It is of paramount importance that the home we purchased is strong and sturdy enough to protect us from a significant hurricane.

South Florida's building codes were significantly re-vamped following Hurricane Andrew in 1992 and tweaked again following the active hurricane seasons in 2004 and 2005. The local building codes were revised to ensure that our homes would remain standing in the event of a hurricane strike.

But these building code advancements did not come without added costs to our homes. In fact, some of the advancements added to the costs of building a home to withstand a hurricane.

As such, our Florida legislators devised a statutory scheme that would permit a home owner to secure discounts for their homeowners insurance coverage if they home met certain criteria.

Indeed, our legislators enacted Florida Statute § 627.711 which requires property insurers to clearly identify and explain discounts available on the policies they sell if a property meets hurricane mitigation requirements.

The State of Florida, however, has discontinued the popular program that aided property owners to secure discounts on their homeowners insurance policy. But many homeowners may still qualify for the discounts even without the state's assistance.

Here are some tips to follow if you think your insurance company revoked legitimate discounts for strengthening your home against hurricanes.

1. Compare Forms. If your first inspection was done prior to 2009, and the second one was done after 2009, then that will likely explain the issue. The forms recently changed.

2. Keep Documentation. Keep copies of all documentation regarding any and all work performed.

3. Contact the Original Inspector. The inspector that performed the original inspection may be able to assist you in securing the discount today.

4. Use a licensed contractor to perform any work required to strengthen your home.

These tips will help you in making your home stronger. This will help you in the event of a significant hurricane striking Florida. If the work is done properly, it may even qualify you for additional insurance discounts on your insurance premium.

So be sure to check with your insurance company and ask them what discounts are applied and how you can go about securing those discounts.

Insurance Companies Profit by Delaying Claims and Shorting Customers

Mon, 16 Jan 2012 06:31:20 -0500

This should come as no surprise. Especially to those of you who have ever had to deal with your insurance company in submitting a claim.

Insurance companies are putting profits before service and people.

Yet despite record profits, reform to many laws pertaining to insurance claims, insurance rates continue to go up for all hard working Floridians.

A recent report reveals the sad state of affairs for many insurance companies.

The report illustrates how the insurance industry is making money by delaying claims and how it has shifted from a service industry to an industry that is driven purely by profit.

Unlike many other businesses, the insurance industry is bound by law to act in good faith with its customers. Because of their protective role in the lives of ordinary citizens, insurers have long operated as semi-public trusts.

But since the mid-1990s, a new profit-hungry model, combined with weak regulation, has upended that ancient social contract.

Claims have been converted into a money-making process for the insurance companies to the detriment of their policy holders. The change started when insurance companies altered their claims handling procedures. Rather than adjusting claims the traditional way, which gave claims managers wide latitude to serve customers, insurers embraced a computer-driven method that produced purposefully low offers to policy holders.

The low offers has had the effect of allowing insurance companies to either settle claims much cheaper or force unnecessary and costly litigation costs for both the insured and the insurance companies.

The objective was to make claims so expensive and so time-consuming that many policy holders would simply just fold, walk away settle for pennies on the dollar as to the actual value of their claim while many lawyers would start refusing to help policy holders in need.

Delay, deny, defend, has become the new battle cry for the insurance industry.

Insurance Companies Engage in Unfair Claims Settlement Practice

Sun, 15 Jan 2012 22:46:55 -0500

Under Florida law, any person may bring a civil action against an insurer when such person is damaged by the insurer's failure to attempt "[i]n good faith to settle claims when, under all circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for his interest." See F. S. Sec. 624.155(1)(b)(1); see also Fla. Std. Jury Instr. (Civ) 3.1.

A. Historical Context & Evolution of Bad Faith Claims

Until the 20th Century, actions for breaches of insurance contracts were treated the same as any other breach of contract action, and damages were generally limited to those contemplated by the parties at the time they entered into the contract. With the passage of time, however, insurance contracts began to be viewed as distinguishable from other types of contracts because they came to "occupy a unique institutional role" in modern society and affected a large number of people whose rates were dependent upon the acts of not only themselves but also the acts of other insureds.

Consequently, courts began to recognize that carriers owed a duty to the insured to act in the insured's best interest rather than their own. In recognition of the fact that courts uniformly have acknowledged that carriers owed their insured a duty of good faith and fair dealing, this duty evolved into the requirement that good faith be exercised or bad faith be avoided.

In Florida, third party bad faith actions were recognized as early as 1938. Florida, however, is in the minority in holding that an action against an insurer for bad faith failure to settle sounds in contract rather than tort. Most states treat such an action as a tort claim or a combination of tort and contract. Third party bad faith claims are recognized under both Florida common law, and Florida statute. First party bad faith claims, however, are entirely a creature of the legislature.

In Florida, there is neither a "set off" defense nor an affirmative defense of comparative bad faith. Similarly, while evidence of negligence may be considered by the jury as it may bear on the question of bad faith, a cause of action based solely on negligence, which does not rise to the level of bad faith, does not lie.

In sum, in determining whether an insurer has "acted fairly and honestly towards its insured and with due regard for his interest," the Florida Supreme Court applies the "totality of the circumstances" standard, and not "fairly debatable" standard. Each case is determined on its own facts, and the question of the insurer's failure to act in good faith with due regard for the interests of the insured is for the jury.

B. Claims Delay

A recent report reveals how insurance companies are profiting from delaying claims. Indeed, the National Association of Insurance Commissioners (NAIC) reported that the highest number of complaints coming from policy holders is unnecessary claim delays and claim denials.

Call us today if you think your insurance company is not handling your claim in bad faith.

Home Insurance Prices Keep Going Up Despite the Decline in Property Values

Tue, 10 Jan 2012 09:39:32 -0500

The past few years has seen the real estate market collapse. Home values have declined by greater than 50% in many markets throughout Florida, and especially here in South Florida.

Yet despite those declining values, many home owners have seen their home insurance rates rise in recent years. Despite the decrease in home values, many insurance companies are requiring homeowners to carry greater values in home insurance than the home is actually worth in today's market.

For instance, a home may be worth say $200,000 in today's market. But many insurance companies, including Citizens, may require that homeowner to purchase insurance regarding the replacement value of that home that is far greater than the home is worth. Such values may even be as high as $300,000 despite the fact that the home is only worth say $200,000 in today's market.

It seems that the insurance companies are greatly exaggerating the cost to replace a home following a disaster. Especially in light of our declining real market.

The only conclusion that can be reached is that insurance companies are using the increased replacement costs values as a back door method to secure greater rate increases above and beyond the rate increases that were already approved just a few months ago. The below news report video discusses that in greater detail.

Not surprisingly, the insurance companies see nothing wrong with requiring home owners to purchase the replacement value coverage for their homes at values that are in some instances twice as much as what the home is actually worth. They deem such rate increases as "necessary and proper."

Of course, the fact that Florida has not been hit by a hurricane in a record 6 straight years did not lessen the need for insurance companies to further raise insurance rates. Their reserves are teetering on dangerously low levels that could spill heartache and frustration for many homeowners should Florida experience another hurricane season like the ones in 2004 and 2005.

Examinations Under Oath Must Take Place at a Mutually Convenient Time and Place as Contemplated by the Insurance Policy

Sun, 08 Jan 2012 22:30:05 -0500

As we have discussed before, most insurance policies have several conditions that the insured must satisfy before an insured can file a lawsuit against the insurance company. One of the most common condition is having the insured sit for what is known as an Examination Under Oath (EUO.)

An EUO is a sworn statement given by someone who has made an insurance claim. Insurance companies typically use this procedure as part of their claims handling process and investigation. But they also employ an EUO if they suspect fraud, or if they are considering disputing coverage before going into litigation.

EUO's could be tape recorded, or even video taped. But it will certainly be transcribed, and you will be sworn to tell the truth. The sworn testimony that you give will also be used by the insurance company to serve their interest, and against you, if possible.

EUO's could also often times be very intimidating. Part of that intimidation may be to employ the use of overly aggressive defense lawyer in an effort to intimidate the insured into dropping their insurance claim.

One of the most common methods used in intimidating an insured is when the lawyer hired by the insurance company insists on conducting the EUO at their office as opposed to a mutually convenient time and place.

This is critical because in the insurance company friendly ruling in Goldman v. State Farm, 660 So.2d 300, (Fla. 4th DCA 1995), the Fourth District Court of Appeal specifically held that an insured's failure to sit for an EUO could jeopardize their insurance claim. But the court also opined that the EUO must take place at, "a mutually convenient time and place as contemplated by the policy."

Therefore, and absent specific language in the insurance policy dictating specifically where the EUO must take place, it is incumbent upon the parties to mutually agree upon the location of the EUO. This is bolstered by the fact that said position was specifically set forth in the Goldman ruling.

Is Your Insurance Claim Barred If You Fail To Comply With All Of The Conditions Set Forth In Your Insurance Policy Prior To Filing a Lawsuit?

Fri, 30 Dec 2011 06:20:23 -0500

Every insurance policy written in Florida contains numerous conditions that are imposed on the policy holder/insured. The policy holder must adhere to those conditions precedent before it can file a lawsuit against the insurance company. Those conditions are present so as to permit an insurance company to properly and timely investigate a claim.

The conditions typically involve providing "immediate" notice to an insurance company of the loss. An insured will typically need to allow the insurance company an opportunity to inspect the loss. The insured may be required to sit for an examination under oath, and may also be required to submit a sworn proof of loss. These are just but a few examples of the many conditions precedent found in an insurance policy.

Sometimes an insured may rush to court and file a lawsuit when the conditions precedent may have not all been satisfied. Or the lawsuit may have been filed after a delay in notifying the insurance company of the loss.

If you are in doubt regarding your legal rights under the insurance policy, or you are in need of assistance with your insurance claim, please feel free to call us today to discuss your claim.

Nonetheless, insurance companies typically attack such lawsuits on grounds that the insured failed to follow all the terms and conditions found in the insurance policy prior to filing the lawsuit.

Under Florida law, where an insured delayed in notifying an insurer of a potential claim, the insured must rebut the presumption that the delay prejudiced the insurer. Tiedtke v. Fid. & Cas. Co. of New York, 222 So.2d 206, 209 (Fla. 1969); XL Ins. America, Inc. v. Ortiz, 673 F. Supp. 2d 1331 (S.D. Fla. 2009); Keenan Hopkins Schmidt and Stowell Contractors, Inc. v. Continental Cas. Co., 653 F. Supp. 2d 1255 (M.D. 2009).

Therefore, Florida law provides that the failure to give timely notice creates a rebuttable presumption of prejudice to the insurer. However, that presumption may be overcome by the introduction of evidence tending to show that the insurer was in fact not prejudiced by the late notice.

Simply stated, although prejudice is presumed, this does not preclude recovery if the insured can show an actual lack of prejudice. National Gypsum Co. v. Travelers Indem. Co., 417 So. 2d 254 (Fla. 1982). Put differently, such presumption that the Defendant was prejudiced is overcome by a showing that the insurer was not deprived of an opportunity to investigate the facts of the incident at issue. Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla. 1985).

In Haiman v. Federal Insurance Co., 798 So.2d 811 (Fla. 4th DCA 2001), the Fourth District Court of Appeal stated:

A total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.

As set forth above, if a policy holder cooperates to "some degree" or "provides an explanation for its noncompliance", then the policy holder's claim may not be barred as a matter of law.

On the other hand, if there was no cooperation of any kind then the claim may be barred all together. Take, for example, the case of Edwards v. State Farm, 64 So.3d 730 (Fla. 3d 2011). In Edwards, the Third District Court of Appeal concluded that: (1) the insurance company made requests for specific, basic documents relating to the loss that were never provided; (2) Edwards knew that, on numerous occasions, the insurance company requested Edwards submit to an examination under oath at a mutually convenient place and time, and he did not; and (3) Edwards never submitted any documents relating to the costs he alleges he expended to repair his roof.

In that case, the Court threw out Edwards's claim for failing to comply with all the conditions precedent, and failing to even cooperate to "some degree" and failing to "provide an explanation for its noncompliance."

Lawsuit Filed Challenging the Constitutionality of Laws Passed by Florida Legislators that Help Insurance Companies Raise the Rates of Homeowners Insurance While Preventing Small Businesses from Competing in the Marketplace to Aid Homeowners in Need

Thu, 29 Dec 2011 11:41:28 -0500

Last year our Florida legislators decided to restrict the ability of many small businesses in the State of Florida from earning a decent wage, and restricting their ability to market their services. Our legislators sided with the insurance companies over hard working Floridians still feeling the effects of the worst recession of our generation.

On the other hand, our legislators made it easier for insurance companies to raise the rates of your homeowners policy despite the unprecedented run of 6 straight years without a hurricane strike in the State of Florida. Indeed, insurance rates are going up for Floridians despite a record 6 Hurricane free years.

Insurance companies are raising rates, and our legislators have made it easier for them to raise rates, because insurance companies have complained for years that public adjusters are simply getting too much money from the insurance companies when they submit a claim as opposed to what they pay when a homeowner submits a claim without the assistance of a public adjuster.

As part of a sweeping law that Florida's legislators passed, public adjusters who represent Citizens policy holders are prohibited from getting paid for their services until Citizens actually makes an offer. The law also limits what public adjusters can charge after that initial offered is received.

Public adjusters are hired by policyholders to prepare, file or complete claims. The new law restricts fees for public adjusters representing Citizens policyholders to 10 percent over the original amount the insurer offered for a claim.

A lawsuit was recently filed challenging that law. One of the reasons for the challenge is that the law in question is vague. It is vague because the law does not define an "original offer." However, Citizens has apparently taken the position it is a written offer after the insurer has adjusted and investigated the claim.

In other words, the law does not permit public adjusters to get paid for performing inherent and necessary tasks until Citizens has made a nebulous, vague and undefined "original offer."

The same law also restricts and caps the fees a public adjuster can charge for their services on claims involving Citizens. But those restrictions on fees do not apply to claims against other insurance companies.

Florida Court of Appeal Affirms the Use of Appraisal in First Party Insurance Claims

Tue, 13 Dec 2011 17:53:51 -0500

Virtually all first-party property insurance policies contain an "appraisal" clause whereby each party, insured, and insurer appoint a "disinterested" or "impartial" appraiser who, in turn, selects an umpire to resolve issues of the amount of loss.

The appraisal process is an alternative dispute resolution intended to resolve disputes without the need for litigation. Indeed, Florida courts have concluded that appraisal clauses are "preferred, as they provide a mechanism for prompt resolution of claims and discourage the filing of needless lawsuits."

A recent case decided by Florida's First District Court of Appeal affirmed the validity of appraisals as an alternative dispute resolution system to avoid unnecessary litigation.

In First Protective Insurance Company v. Erika Hess, the insured filed a claim with her insurance company after her home was burglarized. In response, the insurance company demanded appraisal. The appraisal panel issued an award to the insured, but failed to include an itemization of the personal property and the corresponding values.

As such, the insurance company deducted prior payments and the policy deductible from the amounts awarded while also applying policy limitations for jewelry, cash and other property when calculating the net payment. All of those deductions totaled $78,317.22. As such, and despite an appraisal award of $107,311.58, the insured received a check for only $28,994.36. Not surprisingly, the insured filed a complaint against the insurance company for the difference.

The trial court ruled in the insured's favor. In so ruling, the trial court concluded as follows:

Items such as the deductible and prior payments may be excluded from the amount owed without the Court having to hear extrinsic evidence from the appraisers as to the basis for the award and the reasons for the amounts awarded. The same is not true for deductions based upon special limits of liability. In those cases, the Court would, by necessity, be required to hear testimony from the members of the appraisal panel (and perhaps others who participated in the appraisal process) as to the basis for the award to make these deductions. The Court agrees with Plaintiff that this sort of inquiry behind the appraisal award is not contemplated by the policy, nor permitted by Florida law.

The trial court's ruling was recently affirmed by the First District Court of Appeal. In affirming the trial court, the appellate court concluded that allowing the insurance company to conduct an evidentiary hearing to determine the value of each item would undermine the entire purpose of the alternative dispute resolution of appraisal. After the fact inquiries into an appraisal award would defeat the whole purpose of appraisal and render it meaningless while allowing the insurance companies to flood the court system with lawsuits if they did not agree with the result of the appraisal.

Home Insurance Rates are Rising Despite a Record 6 Hurricane Free Years and Recently Enacted Legislation that was Supposed to Make Insurance More Affordable for Floridians

Thu, 08 Dec 2011 06:32:26 -0500

As we noted in this blog, Governor Rick Scott signed into law a piece of legislation that changes many aspects of property damage claims, and that also makes it easier for insurance companies to raise your property insurance rates in the years to come.

Well, the time has come. Insurance companies are raising your rates.

The rates are going up despite the insurance companies getting their wish list enacted by an insurance friendly Governor to help them make consumer claims more difficult to make, but yet those same insurance companies reap the benefits of higher insurance premiums.

State insurance regulators approved more than two dozen home insurance rate hikes ranging from 6 to 34 percent.

American Integrity Insurance Co. of Florida, which has 102,091 home insurance policies statewide and 13,575 in Broward, Palm Beach and Miami-Dade counties, received 14 percent increases for two types of homeowner insurance policies it offers. Security First Insurance, with 119,205 policies statewide and 21,025 in South Florida, received a 9 percent increase for its homeowners multi-peril policies. And Universal Insurance Co. of North America, which has 81,834 policies statewide and 11,420 in South Florida, received a 12 percent increase for its homeowner property insurance policies.

And then there is Citizens. The sate's insurer of last resort. State regulators approved an average 6 percent statewide rate hike for Citizens Property Insurance's homeowners policies - which include coverage for homes, condominiums and renters - and 9 percent for rental and vacation home policies.

Premiums for most parts of South Florida will increase next year by up to 10 percent. Fortunately, this is significantly lower than the proposed 25% rate increase Citizens was hoping to get.

Why Are Insurance Rates Going Up?

Despite a record 6 straight years without a hurricane strike in Florida, and the passing of sweeping insurance reforms, insurance companies are still raising rates at a blistering pace.

Insurance companies are of course companies driven by profit. They also have to manage their books to ensure that enough money is in reserve in the event a major hurricane does strike Florida.

However, regulators and consumer advocates have said that Florida insurers could bolster their claims-paying reserves during hurricane-free years if they spent less of the premiums they collect on contractors, sometimes affiliated companies, to manage daily operations; if they lowered other overhead costs such as advertising; or issued smaller dividends.