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A headline in Law360 caught my consideration: $13.8M Irma Coverage Suit Shot Down Again By Fla. Court.1 The case concerned a legislation agency that was responding to these incessant and unending requests by insurance coverage firm counsel relating to a hurricane condominium loss. These insurance coverage firm counsel-led investigations can linger longer than it takes to file and full your entire ensuing lawsuit. So, the factual state of affairs main as much as a policyholder’s legislation agency not submitting a lawsuit earlier than the five-year anniversary of a hurricane isn’t as unusual as many would suppose.
The legislation agency representing the condominium exchanged quite a few letters with the legislation agency representing the insurer months earlier than the five-year anniversary of the hurricane. We connect a number of within the footnotes under.2
The Law360 article famous, partly:
The dispute stems from Oceania’s declare for $15 million in injury to its high-rise constructing from Hurricane Irma, which was topic to a roughly $1.3 million deductible, in line with filings within the case. The insurers denied the declare in November 2021, and Oceania despatched every a discover of intent to enter litigation roughly 10 months later, filings present.
Oceania engaged with the insurers in pre-suit procedures earlier than submitting its grievance in early October, although the five-year statute of limitations on Irma claims lapsed in mid-September, in line with filings within the case. The insurers moved to dismiss the go well with in December.
The affiliation claimed it needs to be allowed the safety of a 10-day protected harbor provision and argued that equitable estoppel and equitable tolling ought to apply to the statute of limitations. However, Judge Scola disagreed, discovering the supply can’t be utilized retroactively and Oceania didn’t present it relied on any statements by the insurers in failing to fulfill the deadline.
He held that the affiliation may have prevented the issue if it hadn’t ‘waited until the last moment to pursue its claim,’ having allowed 9 months to go between the declare denial and its notices with out clarification.
The court docket’s order3 denying reconsideration famous the next:
In its order granting the Defendants’ joint movement to dismiss, the Court concluded that Oceania’s grievance was time-barred as a result of it was filed after the working of the relevant statute of limitations. To attain that conclusion, the Court thought of, and rejected, three separate arguments raised by Oceania for why the statute of limitations on its declare needs to be tolled. Oceania now argues that the Defendants’ joint reply in assist of their movement to dismiss inaccurately represented the interactions between the events within the months main as much as the working of the statute of limitations, such that the occasions that really unfolded assist the tolling arguments beforehand rejected by the Court. Critically, nevertheless, Oceania fails to offer any justification by any means for ready till now to offer the extra data on which its movement for reconsideration relies upon.
Oceania assist its movement for reconsideration by asserting myriad further information and offering at least 9 (9) new reveals to indicate that it was not sitting on its “proverbial hands” whereas the statute of limitations ran on its declare. But Oceania doesn’t give any the reason why it couldn’t have raised this proof earlier than the Court issued its choice on the Defendants’ movement to dismiss. To that time, all the new supplies supplied by Oceania seem to have been created nicely earlier than the events’ briefing on the movement to dismiss was underway, with the newest such doc dated September 13, 2022. In addition, all the supplies have been both drafted by, or despatched to, Oceania’s counsel, so there isn’t a cause to imagine that Oceania didn’t have entry to the data till lately. Moreover, to the extent Oceania means that it couldn’t adequately tackle the Defendants’ model of occasions as a result of it was solely set forth of their reply in assist of dismissal, Oceania may have, however did not, transfer the Court for go away to file a sur-reply. Thus, the thrust of Oceania’s movement is that the Court ought to rethink arguments it already rejected due to proof that Oceania, with none justification, failed to offer earlier than the entry of the Court’s order.
This failure to file a lawsuit occurred to a legislation agency. For policyholders making an attempt to signify themselves and public adjusters making an attempt to fulfill all of the investigative requests of the insurance coverage firm, the rule relating to statute of limitations is that this—don’t wait till the final minute. The matter needs to be referred to a reliable legislation agency, which then ought to both file a lawsuit or acquire a legitimate extension to take action.
Thought For The Day
“Chip, always remember that safe is better than sorry.”
1 Riley Murdock. $13.8M Irma Coverage Suit Shot Down Again By Fla. Court. Law360 (June 6, 2023). Available on-line (requires subscription) at: https://www.law360.com/insurance/articles/1688075/-13-8m-irma-coverage-suit-shot-down-again-by-fla-court
2 OceaniaIII Condominium Assoc. v. Westchester Surplus Lines Ins. Co., No. 22-23681, [Exhibits 1, 2, 5, 7, 9 to Doc 33 Motion for Reconsideration] (S.D. Fla.).