Florida’s Third District Court of Appeal Reverses Summary Judgment In Favor of an Insurer in Late Notice Hurricane Irma Case

By KeiErica A. Baker

Florida’s Third District Court of Appeal recently held that a genuine issue of material fact remains as to whether the insured provided prompt notice of the loss. In Castro v. Citizens Property Insurance Corp., the Third DCA reversed a trial court’s entry of summary judgment in favor of the insurer.

In this late reported Hurricane Irma case, the insured did not notify the insurer of the loss until February 21, 2020. The insured claimed that the property was occupied by a tenant at the time of Hurricane Irma, the tenant never advised the insured of any damage, and the insured was unaware of any damage to the property until the tenant moved out of the property in February 2020. After inspecting the property, the insured denied coverage on the basis that it was presumptively and actually prejudiced in its ability to investigate, evaluate and adjust the claim, given the insured’s delay in providing notice and supporting documentation.

The insurer filed a motion for summary judgment- arguing that the insured’s delay of more than two years in providing notice of the loss prevented the insurer from conducting a proper investigation, it was presumptively prejudiced, and the insured could not rebut the presumption of prejudice since there was no evidence of the property’s condition just after Hurricane Irma in September 2017, a year later in 2018, or even two years later in 2019. The trial court found that the insured failed to give prompt notice of the loss, thus triggering the presumption of prejudice, and that the insured failed to rebut this presumption.

On appeal, the Third DCA found that the insured provided the insurer with notice of the loss less than three weeks after becoming aware of the damage to the property. Thus, a genuine issue of material fact remains as to whether the insured provided prompt notice of the loss. The court also noted that the obligation to provide notice arises “when there has been an occurrence that should lead a reasonable and prudent man to believe that a claim for damages would arise.”