Recently, the Third District Court of Appeals issued an opinion reversing a summary judgment that had been entered in favor of an insurer in a case involving a condominium association’s hurricane damage claim. I wanted to write about the case because it is an interesting ruling related to the topic of an insurer’s late notice of a “supplemental” claim defense, which is a topic that Jeremy Tyler and I have written about previously.
The recent case, King Cole Condo. Assoc., Inc. v. USPlate Glass Ins. Co., 2010 WL 3239179 (Fla. 3d DCA August 18, 2010), involved a condominium association’s claim from Hurricane Wilma. The insurer provided coverage for the association’s plate glass windows and sliding glass doors, as well as coverage for boarding up openings after a covered loss. The association timely reported the Hurricane Wilma claim to the insurer, which authorized the association to retain a glazier of its choice to complete any necessary glass replacements or repairs. The glazier provided the insured with an estimate in the amount of $104,928.48. The insurer paid that estimate in full, but did not inspect the property or the damages claimed.
By letter with the payment, the insurer stated that it had fulfilled its policy obligations related to the damage caused by Hurricane Wilma and invited the association to notify the insurer of any other damages, offering to reopen the claim should the need arise. The letter stated:
This claim is now closed. If you should find any additional damage as a direct result of Hurricane Wilma we will reopen the claim as necessary.
The association had no contact with the insurer for more than two years after the payment. Counsel for the association broke the silence by sending the insurer a letter informing the insurer that it did not adequately compensate the association for the Wilma damages. The additional damages claimed included additional damages to the glass windows and doors and several thousand dollars of board-up costs. When the claim was initially reported to the insurer, the association stated that it had suffered damage and would require reimbursement for board-up repairs and glass replacement.
The association filed the lawsuit before informing the insurer of the amount it was claiming and also without providing the insurer with any information related to the parties’ disagreement over the loss. The insurer argued that the association never presented its “supplemental” claim to the insurer and that it was required to do so before filing the lawsuit. The trial court awarded summary judgment in favor of the insurer on its late notice defense. The association appealed and argued in its brief that it gave appropriate notice to the insurer of its claim for damages and that the claim was re-opened and not a “supplemental” claim. The association asserted that the initial reporting of the claim included all hurricane damages, and further noted that the policy did not define or even mention “supplemental” claims.
The appellate court reversed the trial court’s ruling and held that there were factual questions related to the defenses involving the notice provisions of the insurance policy. Thus, the distinction between a “supplemental” claim and re-opened claim, as it relates to the insurer’s late notice defense, has seemingly been recognized by the Third District Court of Appeals in Florida.