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Did the 4th District Court of Appeal Make Any Real Change to an Insurer’s “Late Notice” Defense?


A condition precedent to receiving coverage under almost any insurer’s homeowner’s policy is an obligation for the insured to provide reasonably “prompt” notice of any loss. However, most policies never define what constitutes “prompt,” creating a common angle of attack for insureds trying to avail themselves of their delay in reporting a claim.

The Fourth District Court of Appeal just took a new stab at addressing this dispute, and their opinion is one that will likely catch the eyes of insureds, and their attorneys, around the state. But did it really make any impact on the landscape of first party property litigation?

In Restoration Construction, LLC v. Safepoint Insurance Company [1], an insured suffered a water leak under their kitchen sink on January 30 and quickly retained the appellant, a water and mold remediation company. The remediation company began their work under an Assignment of Benefits the very same day. However, the insureds did not end up notifying their insurer of this loss until five days later, on February 4.

The trial court ultimately granted summary judgment in favor of the insurer on the basis that the insureds failed to provide “prompt” notice of the loss, since they obviously knew about the leak on the day they contacted the appellant remediation company, but still waited another five days to notify the insurer. The trial court’s opinion stated that “waiting several days to report the water loss, while at the same time engaging contractors to repair and remediate the water loss, does not amount to providing ‘prompt’ notice of the loss under the circumstances.”

On appeal, the Fourth District Court of Appeal reversed, noting that it took the insurer several more days after they received notice to actually show up at the property and perform their investigation. Citing to their own previous decision [2], they stated that “[n]otice is said to be prompt when it is provided ‘with reasonable dispatch and within a reasonable time in view of all of the facts and circumstances of the particular case.’”

Most importantly, however, the appellate court stated that “we do not wish to create a bright-line rule for when notice to an insurer is no longer ‘prompt.’ In some cases, a five-day delay could clearly prejudice an insurer’s evaluation of a claim.”

From a practical standpoint, this new decision should not change very much in the first party property litigation landscape. However, it will be to an insurer’s benefit to note in an affidavit accompanying a Motion for Summary Judgment all efforts made to coordinate an inspection, if any delay in scheduling same can be attributed to the insured.

Additionally, this opinion will likely not carry anywhere near as much weight in instances where the insured’s reporting of the claim occurred years after the claimed date of loss, as opposed to days. If the insurer can still reasonably claim prejudice, it will ultimately fall to the insured not just to demonstrate that there remains a genuine issue of material fact, but they must also affirmatively rebut the presumption of prejudice in favor of the insurer. [3]

And finally, left unaddressed in the appellate court’s opinion is the separate basis for summary judgment at the trial court level, whether or not the insureds failed to reasonably “show the damaged property.” This remains an entirely valid defense in cases where the insureds remove damaged materials from the property before making same available to the insurer for inspection. [4] For example, where a remediation company performs repairs before a claim is reported to the insurer.

Ultimately, while this Restoration Construction opinion is sure to embolden some insureds in the short term, it is unlikely that it will have any material impact on a properly pled “Late Notice” defense.

[1] Florida 4th DCA Case No. 4D19-3790 (December 9, 2020)

[2] Himmel v. Avatar Prop. & Cas. Ins., 257 So. 3d 488, 492 (Fla. 4th DCA 2018) (quoting Laquer v. Citizens Prop. Ins. Corp., 167 So. 3d 470, 474 (Fla. 3d DCA 2015)).

[3] See, e.g. Adderly v. Hartford Ins. Co. of the Midwest, 2020 U.S. Dist. LEXIS 153287 at *10 (S.D. Fla. 2020) (“Under Florida law, after a presumption of prejudice to the insurer arises, the burden shifts to the insured to show a lack of prejudice. To carry this burden, an insured may present evidence creating a genuine dispute of fact as to: (a) whether better conclusions could have been drawn without the delay in providing notice, (b) whether those conclusions could have been drawn more easily, (c) whether the repairs to the affected areas that took place in the interim would complicate an evaluation of the extent of the damage or the insured’s efforts to mitigate its damages, or (d) whether an investigation conducted immediately following the occurrence would not have disclosed anything materially different from that disclosed by the delayed investigation. Prejudice is properly resolved on summary judgment where an insured fails to present evidence sufficient to rebut the presumption.”) (Internal citations and quotations omitted).

[4] See, e.g. Pierre v. Citizens Prop. Ins. Corp., 282 So. 3d 1032 (Fla. 3d DCA 2019).