Stark v. State Farm Florida Insurance Co.
2012 Fla. App. LEXIS 9941
| Fla. Dist. Ct. App. | 2012Background
- Hurricane Wilma damaged insureds’ South Florida home in Oct 2005; policy deductible for hurricane damage was $9,665; insureds failed to timely notify insurer and reported the claim March 9, 2009; insurer investigator found weathered roof damage with no clear Wilma causation; insureds incurred $300 repairs and claimed FEMA relief; insurer granted summary judgment premised on presumed prejudice from late notice; affidavits from Nicholson and McDonald raised issues about causation and prejudice; appellate court reverses and remands for facts concerning prejudice and admissibility issues
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the insurer prejudiced by late notice? | insureds lacked prejudice proof | late notice presumptively prejudicial | disputed material fact; prejudice not conclusively shown; remand |
| Do Nicholson and McDonald create material facts on prejudice? | affidavits show potential nonprejudice | insurer could still be prejudiced | material facts exist; summary judgment improper |
| Was McDonald’s statement hearsay issue dispositive? | statements admissible as vicarious admission | hearsay problem | statements admissible for proving opportunity to observe storm damage; not dispositive |
Key Cases Cited
- Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla. 1985) (burden on insured to show lack of prejudice where insurer deprived of investigation)
- Beville, 825 So.2d 999 (Fla. 4th DCA 2002) (carrier prejudice required for coverage denial due to notice violation)
- Robinson v. Auto Owners Ins. Co., 718 So.2d 1283 (Fla. 2d DCA 1998) (prejudice presumption not absolute; factual issues remain)
- Gonzalez v. U.S. Fid. & Guar. Co., 441 So.2d 681 (Fla. 3d DCA 1983) (overcoming prejudice is generally an issue of fact)