The Adjuster

Kroener v. Florida Insurance Guaranty Association, Inc.

Kroener v. Florida Insurance Guaranty Association, Inc., 63 So.3d 914 (Fla. 4th DCA 2011)

Assignees of insureds under a homeowners' insurance policy brought action against FIGA, seeking benefits under the policy for hurricane damage to the residence that the assignees purchased from the insureds. After FIGA made an offer of judgment to the assignees, the circuit court awarded summary judgment to FIGA. The assignees then accepted the offer of judgment and moved to compel enforcement of the settlement. The circuit court denied the motion to compel enforcement, and the assignees appealed. The Fourth District Court of Appeal held that the insureds failed to give insurer “prompt notice” of their claim, as required by the policy, and so the assignees were not entitled to recover benefits from FIGA. Notice was not given until two years and two months after the loss. Additionally, the trial court's award of summary judgment terminated FIGA's pending offer of judgment and precluded the assignees from accepting the offer. Allowing the offer to remain open after entry of summary judgment would frustrate the purpose of the offer of judgment rule to encourage settlement and discourage protracted litigation.

Florida Insurance Guaranty Association, Inc. v. Devon Neighborhood Association, Inc.

Florida Insurance Guaranty Association, Inc. v. Devon Neighborhood Association, Inc., 67 So.3d 187 (Fla. 2011)

The insured made hurricane damage claims under a commercial residential insurance policy issued by an insurer that became insolvent. The circuit court denied FIGA's motion to compel an appraisal of the property damage. FIGA appealed, and the Florida Supreme Court held that there was no clear evidence of legislative intent for the amendments to Florida Statute § 627.7015, which added the requirement that if the insurer fails to give notice of mediation, the insured shall not be required to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action, to apply retroactively. Accordingly, the amendment could not be applied retroactively to the insured's policy.

Sinkhole Trial Court Orders on Constitutionality of Neutral Evaluation

Anderson v. American Strategic Insurance Corporation, Case No.: 51-2011-CA-1136-WS/G (6th Cir. Fla. June 17, 2011); Buitrago v. State Farm Florida Insurance Company, Case. No.: 512011CA1918ES (6th Cir. Fla. August 11, 2011); Appleby v. Royal Palm Insurance Company, Case No.: 11-329-CA (12th Cir. Fla. October 6, 2011)

Circuit Courts held that Florida Statute § 627.7074 (2006), the Neutral Evaluation statute, unconstitutionally encroaches upon the powers of the judiciary, the evidence code, and the insured’s rights to due process. Article II, section 3, of the Florida Constitution prohibits one branch of the government from exercising the powers of another branch. The statute unconstitutionally gives the Department of Financial Services, an executive agency, the power to adopt court rules of practice and procedure – a power that belongs to the judiciary alone. The statute also violates the Evidence Code and the insured’s due process rights by admitting the neutral evaluator’s report without subjecting it to the standards of relevancy, credibility and authentication, which are required of all other evidence admissible in court. Further, the insured is deprived of the opportunity for cross examination.

A Conversation with Attorney Kevin Healey

Q. What exactly is Senate Bill 408 (SB 408)?

A. SB 408 was passed by the Florida legislature in May 2011. It considerably changes many aspects of how insurance claims can and will be handled in Florida. Some of the most significant changes concern the regulation of sinkhole insurance, but the bill also affects other areas, including how public adjusters can operate. Ultimately, it eroded consumer rights under the guise of attracting more insurance companies to Florida. A major problem, though, is that policyholders will be getting a substantially inferior product when purchasing property insurance.

The 2012 Legislative Session Begins on Tuesday, January 10, 2012

Here are some of the pre-filed insurance bills to keep an eye on:

Upcoming Florida Public Adjuster Events

WIND 2010 – 13th Annual WIND Conference: January 30 - February 2, 2012, Buena Vista Palace Hotel, Orlando, Florida

Pending Liquidations and Claims Filing Deadlines

The following property and casualty insurance companies are in liquidation and have upcoming deadlines:

Merlin Law Group is Pleased to Announce Two New Attorneys

Merlin Law Group has recently hired new attorneys to handle the many cases being brought to it by public adjusters throughout Florida.

Merlin Law Group is Pleased to Announce Attorneys Recently Admitted to Practice Law in Additional States

Jeremy Tyler has been admitted to practice in California and Colorado. (Also licensed in Florida). Shaun Marker has been admitted to practice in New York. (Also licensed in Florida). Tina Nicholson has been admitted to practice in Arizona. (Also licensed in Georgia, Alabama, Florida, Mississippi, Tennessee and Texas).

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More Confusion of Florida's Statute of Limitations for Property Insurance Claims

On May 17 of this year, Florida Governor Rick Scott signed into law Senate Bill 408, which, among other things, shortened the statute of limitations for property insurance claims in Florida to five years from the date of the loss. Under the earlier Florida Statutes § 95.11 and § 95.031, the statute of limitations did not expire until five years after a property insurer had breached the insurance policy. The Senate Bill 408 change came roughly five and a half years after Hurricane Wilma destroyed an enormous amount of Florida property, and the change left many questioning whether they could still seek redress for these claims.