What is “Prompt” Notice

In Edie Laquer v. Citizens Property Insurance Corporation, 40 FLW D1186, the 3rd DCA reversed a summary judgment in favor of Citizens on the issue of whether the insured had given “prompt” notice of the claim to Citizens.

The insured owns a condo unit insured by Citizens.  In 2005, Hurricane Wilma struck her condo complex.  Wilma caused severe flooding in the insured’s next-door-neighbor’s condo unit.  There was no water damage in the insured unit.  Over three years later the insured notice mold growth on her furniture, fixtures, carpets, linens and draperies.  This was due to the earlier water intrusion to her neighbor’s unit.  The insured reported the loss to Citizens and Citizens denied the claim for failure to give prompt notice.  The insured filed a lawsuit against Citizens for breach of contract.

The Citizens insurance policy requires “prompt” notice of a claim.  However, under Florida law, even if the notice is untimely, an insured can still win if the insurance company was not prejudiced by the late notice.

At the trial court level Citizens argued that giving notice three years after the Hurricane was not “prompt” notice as a matter of law.  The insured argued that she did not become aware of the damage until three years later and gave notice promptly upon learning of the damage.  The trial court agreed with Citizens and granted summary judgment to Citizens on the notice issue.  The case proceeded to trial on the issue of whether Citizens was prejudiced by the late notice.  The jury found in Citizens favor on the prejudice issue.

The insured appealed, and the 3rd DCA reversed.  The 3rd DCA first noted that, generally, whether notice is timely is a factual issue for a jury to determine.  The Court then stated that “damage to Laquer’s unit, or the interior of the wall was not apparent until several years after Hurricane Wilma: no one, including Laquer, her tenant, her housekeeper, and the condominium manage and her agents who regularly visited Laquer’s unit, was able to observe any damage to the wood flooring or walls of the unit prior to September 2008 or was otherwise on notice to further inspect for damage.”

Thus, issues of fact exist concerning when a reasonable and prudent person would believe that a potential claim for damages might exist.  Contrary to Citizens’ contention, the hurricane itself was not necessarily the event that would trigger the notice requirement, given the absence of apparent damage to any of Laquer’s property following the storms.

Based on this, the 3rd reversed and ordered the trial court to hold a jury trial on whether the insured provided timely notice.

The Court then had to determine whether to allow the jury’s prior determination regarding prejudice to stand, or should they reverse on that issue also.  The 3rd reversed on this issue too, holding that:

In this case, however, the issues of ‘prompt’ notice and prejudice cannot be tried separately because both are tied to the factual issue of when Laquer’s duty to provide notice was triggered.  Accordingly, we reverse and remand for a new trial on both legal issues.

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