Carrier did not waive late notice defense.

On September 10, 2017, Hurricane Irma purportedly damaged the roof and interior of the Viscas’ home. Approximately 29 months later, the Viscas filed a claim for damages with Security First. The Viscas’ insurance policy stated that the insureds must “[g]ive prompt notice to [Security First],” and further stated that Security First had no duty to provide coverage if the insureds’ failed to comply with a duty which was prejudicial to Security First.

Security First denied the claim because it found the damage was not caused by Hurricane Irma but due to normal wear and tear. While the coverage determination letter failed to cite the untimely notice of loss as a basis of the denial, Security First raised untimely notice as an affirmative defense in its answer to the complaint. During the jury trial, Mr. Visca testified that he did not observe any damage before or immediately after the Irma, but he first noticed a water stain in the dining room about two months after the hurricane. In response, Mr. Visca performed minor repairs to the roof and did not report the claim because he did not believe the small amount of damage warranted a claim. In 2018, about a year and half after first noticing the ceiling stain, Mr. Visca testified he found a second leak in the garage. Again, he went on the roof and made a few repairs, but he did not file a claim. Thereafter, Mr. Visca spoke with a neighbor, a public adjuster, and authorized him to file an insurance claim on his behalf. Inexplicably, the public adjuster filed the claim over a year after their conversation, on February 20, 2020.

The reviewing court first determined that Security First did not waive its untimely notice defense when it failed to include it in the Coverage Determination Letter, because Security First properly raised the defense early in litigation in its answer. Next, the court found that the insureds failed to give proper notice as a matter of law. Notice is prompt if it is given within a reasonable time of the event triggering the insured’s duty to notify. That duty is triggered when a reasonable person, viewing all the facts and information, would conclude that an award implicating the policy is likely. The court pointed out that Florida courts often find that, when the damage is due to a hurricane, the initial discovery of the damage shortly after the storm triggers a duty to notify, irrespective of whether or not the insured believes the damage was severe enough to report. The facts showed that Mr. Visca was on notice of damage after the hurricane when he discovered the second leak and his duty to notify Security First was triggered upon that discovery. The court did not take a position as to whether Mr. Visca was on notice when he discovered the first leak in 2017. 

The court reversed the final judgment for the insureds and remanded for a new trial on the issue of whether the untimely notice was prejudicial to Security First.