U.S. District Court for the Southern District of Florida Grants Summary Judgment in Favor of Insurer on Late-Notice Hurricane Ian Claim

On May 21, 2024, in Bonsignore v. QBE Specialty Ins. Co., Case No. 1:23-CV-23812-PCH, the U.S. District Court for the Southern District of Florida granted an insurer summary judgment on a late-notice property insurance claim, ruling that an insured’s untimely notice prejudiced the insurer as a matter of law.

QBE Specialty issued an “all-risk” property insurance policy to the plaintiff, Nena Bonsignore, which covered the property that the plaintiff would later allege was damaged by water infiltrations from Hurricane Ian. The policy contained a condition to coverage that required the plaintiff to provide notice to the insurer or the insurance agent within 72 hours after the plaintiff knew or should have known about the loss or damage to the property.

The plaintiff alleged that the damage occurred on September 28, 2022. One day later, on September 29, 2022, the plaintiff’s daughter notified the plaintiff that the property had sustained damage during the hurricane. The plaintiff did not report the damage to the defendant until forty days had passed, on November 8, 2022.

QBE Specialty sent an insurance adjuster to inspect the plaintiff’s property before making a preliminary coverage determination. The defendant also sent a professional engineer to conduct an in-person causation and cost-of-repair evaluation to the property, during which the engineer determined that the damage to the property was, at least in part, related to property damage that predated Hurricane Ian, including the roof, as evidenced by historical aerial imagery.

The engineer did not inspect the property in the condition it was in immediately following Hurricane Ian; this was significant, as the post-hurricane repairs made to the property caused further distress to the roof.

The defendant sent its coverage determination letter declining to extend coverage because the total amount of covered damage was below the plaintiff’s deductible. The plaintiff initiated suit against the defendant.

The defendant filed its motion for summary judgment, asserting that the policy’s existing damage exclusion barred coverage; the plaintiff’s late notice of the claim barred coverage; and the plaintiff did not meet the policy’s residency requirement.

The plaintiff filed a response in opposition, asserting that she had met her prima facie burden to show a covered loss; the defendant’s declaration of its corporate representative should be stricken under the best evidence rule; the engineer’s report should be stricken under the business records exception; and the defendant waived the right to claim failure to comply with post-loss duties by denying the claim based on another policy exclusion.

The defendant proceeded to file a reply to the plaintiff’s response, arguing that she had failed to dispute untimely notice or rebut the presumption of prejudice.

The U.S. District Court for the Southern District of Florida heard oral argument pertaining to whether the notice the plaintiff provided was untimely, and if so, whether the defendant was prejudiced.

The plaintiff conceded that notice was untimely but argued that the insurer waived its notice defense by initially denying coverage based upon another exclusion and that the insurer was not prejudiced.

The court rejected both arguments and as to the latter point held that the fact that the insurer was able to make its coverage determination did not sufficiently rebut the presumption that the plaintiff’s untimely notice prejudiced the insurer in its evaluation of the claim.