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WHAT IS THE BURDEN OF PROOF IN DELAYED NOTICE CASES?

One area of Florida insurance law that has become highly contested is the insurance company tactic of raising “delayed notice” as a defense. Often times a home owner (insured) will make a claim under their policy sometime after the event in question has happened. Examples of a homeowner waiting to file a claim occurred can often happen in Florida sinkhole and hurricane cases.

When there has been a delay in contacting the insurance company, the defense (insurance company) may raise the defense of delayed notice. Under this defense, the insurance company will argue that the insureds breached a post loss policy condition by failing to promptly notify the insurance company. The insurance company will argue that the breach and the delayed notice prejudiced the insurer’s ability to timely investigate the matter within a reasonable time from after the loss. If successful, the insurer tries to establish that this prejudice then relieves the insurer of its duty to provide coverage for the particular loss.

Florida law provides that “while prejudice to the insurer is presumed, if the insured can demonstrate that the insurer has not been prejudiced”, by the delayed notice, “then the insurer will not be relieved of liability merely by a showing that notice was not given as soon as practible”. Tiedtke v. Fid & Cas. Co. of N.Y., 222 So.2d 206, 209 (Fla. 1969). Thus, in Florida insurance cases, the burden in a delayed notice case shifts back to the policyholder to provide or rebut the allegation that the insurance company has been prejudiced by the delayed notice.

As a general rule, it is always best to timely report any loss to the insurance company in order to avoid providing the insurance company a basis to deny a claim based on a delayed notice provision. However, if you believe your insurance company has wrongfully denied your claim, and they are using a delayed notice defense, I recommend that you contact an attorney to investigate your claim and analyze whether the insurer was actually prejudiced.

If you have a question regarding a Florida insurance claim we welcome you to contact Robert Sparks Attorneys for a free claim evaluation. Our firm has a division dedicated to representing policyholders with representation based on a contingency fee, meaning there is typically no out of pocket cost associated to the client.

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