11th Circuit Court of Appeals Holds Plaintiffs Provided Late Notice in First Party Property Breach of Contract Action
By Kelly M. Vogt
In Pierce v. National Specialty Ins. Co., No. 24-12109, 2025 U.S. App. LEXIS 7714 (11th Cir. Apr. 2, 2025), the Eleventh Circuit affirmed summary judgment for the insurer, finding that the plaintiffs failed to provide prompt notice of a property damage claim stemming from a June 2021 pipe burst. Although the plaintiffs observed water damage and cupping in their wood floor shortly after the incident, they did not report the loss until January 2022, after discovering lingering moisture during a flooring refinish. The court ruled that under the policy, the plaintiffs had a duty to notify the insurer “promptly” and that their seven-month delay breached that requirement.
The plaintiffs argued that the insurer waived its prompt notice defense by failing to include it in its initial denial letter or its original answer in state court. However, the Eleventh Circuit rejected these arguments, holding that the plaintiffs had actual notice of the defense and were not prejudiced by its late assertion. The court emphasized that under Federal Rule of Civil Procedure 8(c), a defendant may still raise an affirmative defense if the plaintiff has adequate notice and opportunity to respond.
Finally, the court found the presumption of prejudice to the insurer was not rebutted. Because the plaintiffs had already conducted substantial repairs before contacting the insurer, National Specialty was deprived of the chance to inspect the original damage. That loss of evidence supported the insurer’s denial of coverage. As a result, the Eleventh Circuit affirmed the district court’s judgment in favor of the insurer.
Kelly M. Vogt