KINGS BAY CONDOMINIUM ASSOCIATION, INC., APPELLANT,
v.
CITIZENS PROPERTY INSURANCE CORPORATION, APPELLEE
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Kings Bay Condominium Association appealed a summary judgment dismissing its insurance claim against Citizens Property Insurance Corporation based on untimely notice of loss. The Fourth District Court of Appeal reversed, holding that untimely notice does not automatically bar a claim as a matter of law; instead, the insurer must show it was prejudiced by the delay, and the insured may rebut any presumed prejudice.
Untimely notice of loss does not automatically bar an insurance claim as a matter of law. Although notice of loss is a condition precedent to suit, the insured may avoid the condition by showing that the insurer was not prejudiced by the untimely notice. While prejudice is presumed from the insured's breach of the notice provision, the insured may rebut this presumption by presenting evidence that the insurer suffered no prejudice.
[1] A notice of loss provision in an insurance policy can be avoided if the insured alleges and shows that the insurance carrier was not prejudiced by noncompliance with the…
[2] When an insured breaches an insurance policy's notice provision, prejudice to the insurer is presumed, but this presumption may be rebutted by a showing that the insurer…
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Join FLexlaw to unlock all legal intelligence“[A]s a matter of law, notice to the insurer of a claim of loss more than two years and two months after the loss occurred was not prompt notice; the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim.”
The language from Kroener that the circuit court relied upon to grant summary judgment
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Join FLexlaw to unlock all legal intelligenceKings Bay Condominium Association filed a claim with Citizens Property Insurance Corporation approximately twenty-nine months after the alleged loss o…
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The insured appeals the circuit court’s final summary judgment in the insurer’s favor. The insured argues the court erred in finding that the insured’s untimely notice of claim, served twenty-nine months after the alleged loss, barred its claim as a matter of law. We agree with the insured and reverse.
The circuit court based its judgment on the following language from this court’s opinion in Kroener v. Florida Insurance Guaranty Ass’n, 63 So.3d 914 (Fla. 4th DCA 2011): “[A]s a matter of law, notice to the insurer of a claim of loss more than two years and two months after the loss occurred was not prompt notice; the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim.” Id. at 916.
The circuit court’s understandable reliance on Kroener ultimately was misplaced. At the time the circuit court rendered its judgment, it did not have the benefit of our later opinions in Kramer v. State Farm Florida Insurance Co., 95 So.3d 303 (Fla. 4th DCA 2012), and Soronson v. State Farm, Florida Insurance Co., 96 So.3d 949 (Fla. 4th DCA 2012). In both of those opinions, we held:
Despite the fact that a notice of loss and a sworn proof of loss are conditions precedent to suit ... our supreme court long has held that “[s]uch a condition can be avoided by a party alleging and showing that the insurance carrier was not prejudiced by noncompliance with the condition.” [Bankers Ins. Co. v. Macias, 475 So.2d 1216, 1218 (Fla.1985) ]. In other words, “[i]f the insured breaches the notice provision, 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.” Id. (citations omitted).
Kramer, 95 So.3d at 306; accord Soronson, 96 So.3d at 952-53. We then clarified Kroener as follows:
[Kroener ] was based upon a record similar to this case, where the insurer argued that it was prejudiced by the insureds’ untimely pre-suit notice of the alleged loss, and the insureds did not come forward with counterevidence sufficient to reveal a genuine issue as to whether the insurer was prejudiced. Kroener should not be interpreted as having deviated from the prejudice analysis described in Bankers.
Kramer, 95 So.3d at 307 n. 1; accord Soronson, 96 So.3d at 953 n. 1.
Here, because of the circuit court’s reliance on Kroener before our clarification in Kramer and Soronson, the court did not engage in the prejudice analysis described in Bankers. Therefore, we remand for the court to reconsider the insurer’s motion for summary judgment and the insured’s response for that purpose.
Reversed and remanded for proceedings consistent with this opinion.
MAY, C.J., and DAMOORGIAN, J„ concur.
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LoBELLO v. State Farm Fla. Ins. Co., 152 So. 3d 595 (Fla. 2d DCA 2014)…sis required by the supreme court’s decision in Macias and numerous other reported Florida cases. The Fourth District has issued multiple opinions correcting this misinterpretation of Kroener. See Kings Bay Condo. Ass’n v. Citizens Prop. Ins. Corp., 102 So. 3d 732, 733 (Fla. 4th DCA 2012); Soronson, 96 So. 3d at 953 n. 1; Kramer v. State Farm Fla. Ins. Co., 95 So. 3d 303, 307 n. 1 (Fla. 4th DCA 2012); see also Hope v. Citizens Prop. Ins. Corp., 114 So. 3d 457, 459 (Fla. 3d DCA 2013) (citing to the Fourth Dist…
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Hope v. Citizens Prop. Ins. Corp., 114 So. 3d 457 (Fla. 3d DCA 2013)…resumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” Id. at 1218; accord Stark v. State Farm Fla. Ins. Co., 95 So. 3d 285 (Fla. 4th DCA 2012); Kings Bay Condo. Ass’n v. Citizens Prop. Ins. Corp., 102 So. 3d 732, 733 (Fla. 4th DCA 2012); Kramer v. State Farm Fla. Ins. Co., 95 So. 3d 303, 306 (Fla. 4th DCA 2012); Soronson v. State Farm Fla. Ins. Co., 96 So. 3d 949, 952-53 (Fla. 4th DCA 2012). Once the presumption of prejudice is raised in favor of the insure…
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Nat'l R.R. Passenger Corp. v. Steadfast Ins. Co. (M.D. Fla. 2022)…lar period of time beyond which notice cannot be considered ‘prompt.’” Yacht Club on the Intracoastal Condo. Ass’n, Inc. v. Lexington Ins. Co., 599 F. App’x 875, 879 (11th Cir. 2015) (citing Kings Bay Condo. Ass’n, Inc. v. Citizens Prop. Ins. Corp., 102 So. 3d 732 (Fla. 4th DCA 2012)). Rather, because the reasonableness and promptness of the notice necessarily relies on the facts and circumstances in any given case, Florida courts have found that notice several years after an occurrence may be considered “pro…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bankers Ins. Co. v. MacIas, 475 So. 2d 1216 (Fla. 1985)
- Kramer v. State Farm Fla. Ins. Co., 95 So. 3d 303 (Fla. 4th DCA 2012)
- Marie-Eve Kroener and Kent Kroener v. Fla. Ins. Guar. Ass'n (Figa) as successor in interest to Atl. Preferred Ins. Co., Inc., 63 So. 3d 914 (Fla. 4th DCA 2011)
- Justin and Selma Soronson v. State Farm Fla. Ins. Co., 96 So. 3d 949 (Fla. 4th DCA 2012)
- Johns v. City OF Sanford & Johns E. Co., Inc., 96 So. 3d 949 (Fla. 1st DCA 2012)