Don’t Let YOUR Property Insurer Argue Untimely Notice Prejudiced Its Rights

Remember, if you sustain a property loss due to a casualty, notify your property insurer.  Don’t remediate the damage and then after-the-fact notify your insurer.  If you do, the insurer will claim the lack of timely notice prejudiced its rights to investigate the claim, and, particularly, prejudiced its rights in determining the cause of the loss, the extent of the loss, and the costs to repair.  If an insurer’s rights are prejudiced, this could result in a forfeiture of otherwise valid coverage under the property insurance policy.

If an insured breaches the notice provision of his homeowner’s insurance policy, “prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” A notice of damage is a pre-condition to a claim.  The insured has the burden to show the lack of prejudice if its insurer lost the opportunity to investigate the facts of the claim.  “Whether the presumption of prejudice to the insurer has been overcome is ‘ordinarily … a separate issue of fact.’ ”  

De La Rosa v. Florida Peninsula Ins. Co., 2018 WL 2246781, *3 (Fla. 4th DCA 2018) (internal citations omitted).  

In De La Rosa, an insured noticed water backing up in his shower and seeping into his bathroom floor.  He contacted a plumbing company to fix the cause of the water back-up.   He later remediated the water damage in his bathroom.  Afterwords, and more than a year after the water back-up, the insured notified his insurer.  Guess what?  You guessed it.  The insurer argued that the untimely notice prejudiced its rights.  Think about it.  The insured notified his insurer long after the cause of loss was fixed and after he remediated the water damage.  The insured engaged an engineer and adjuster to perform an after-the-fact assessment to opine as to the cause of loss and extent of damage but the trial court, as affirmed by the appellate court, held this did not rebut the presumption of prejudice to the insurer.  The insurer was precluded from investigating the extent of the loss, specifically the loss at the time of the incident.  This prevented the insurer from being able to assess the cost of repairs, i.e., its rights were prejudiced. Thus, the insured was not afforded coverage under his property insurance policy. 

Notify your property insurer.  Having your insurer argue it was prejudiced due to untimely notice is an avoidable argument.

Please contact David Adelstein at or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.



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