Plaintiff Maintains Initial Burden of Proof to Establish Causation in Hurricane Irma Claims | Chartwell Law

Florida Law Section 627.70132 allows an insured to file a claim for suspected hurricane damage within three years of the event. However, this law is not a waiver of the insured’s initial burden of proof to determine the cause of the damage as a condition of coverage.

In every belatedly reported allegation by Hurricane Irma, the plaintiff’s bar association argues that the insured have no real burden of proof other than to bring in photos of roof damage. The plaintiff’s bar association argues that if the insurance carrier cannot demonstrate that the roof damage is the result of an exception or exclusion from coverage – an event, the court must determine that all damage is the result of the wind on September 10, 2017 , that occurred three years earlier. This claim contradicts controlling jurisprudence and common sense.

“An” all risk “policy is not an” all loss “policy.” See Fayad v. Clarendon Nat. Ins. Co., 899 So. 2d 1082, 1086 (Fla 2005). As part of an HO-3 replacement cost policy, the insured continues to retain the initial burden of proof in order to provide competent admissible evidence to prove that (1) there is damage to property, (2) which was actually caused by wind on September 10, 2017 See Homeowners Choice Property & Casualty v Maspons, 211 So.3d 1067 (Fla.3d DCA 2017).[1] In Maspons, op. Cit., The court wrote:

“In Florida, the insured must provide evidence of facts that contribute to the positive granting of coverage for an insurance policy. [citation omitted]. In order to cover this burden under property damage insurance, the insured must prove (1) that the damaged or damaged property falls under the “insurance clause” of the policy and (2) the damage claimed falls within one second. “Provisions for covered risks included in each policy. [citation omitted]. Property in this case is indisputably insured property under the Homeowner’s Choice insurance policy. This fulfills the first point of the coverage analysis. It is the second amount of coverage that in this case raises the question of whether the Maspons have suffered a loss which is also covered by the definition of the insurance policy “covered risks”. Only then can compensation be due and only if there is no applicable exclusion from coverage that may apply. ” I would. At 1068-1069.

The Third District has made it clear that the insured must prove that (1) there is damage and (2) that was actually caused by an insured danger. In Maspons (see above), the insured could only prove one of the two necessary predicate elements for the cause of the damage. The Third District therefore came to the conclusion that the insured could not recover. The same legal analysis regarding the insured’s initial burden of proof applies to all insurance claims, including hurricane claims.

According to Maspons (see above), the insurance carrier does not have to prove that the damage was originally caused by an exception or an exclusion from the policy. On the contrary, if the insured cannot meet his initial burden of proof in relation to the threshold question of insurance cover, the burden never shifts to the insurer.[2]

An HO-3 replacement cost policy includes an exception for damage caused by wear and tear and deterioration. However, this exception does not change the initial burden of proof on the insured person. Every day a property (e.g. roof, interior, exterior) ages due to normal wear and tear and deterioration. These effects include, but are not limited to, the thermal expansion and contraction of the materials used in the construction of these areas. The damage caused by wear and tear and deterioration is simply not covered by the policy. As such, this exception to the coverage applies to all damage that was not actually damaged by an insured risk. Based on Maspons (see above), if the insured cannot meet their initial burden of proof, the burden never shifts to the insurance carrier and the court must conclude that the damage is not covered.

At best, when a Hurricane Irma incident is reported for the first time in 2020, the insured can prepare an assessment based on an inspection in 2020 or 2021. Such an expert opinion is limited to a description of the current damage and the conclusion that there has been no comparable wind event since September 10, 2017. It is not enough for a report to (1) identify the damage to the roof and (2) claim that there has been no comparable wind event since Hurricane Irma. These types of reports have already been rejected by the fourth district. See Soronson v State Farm Florida Insurance Company, 96 So.3d 949, 953 (Fla. 4. DCA 2012). In Soronson (see above) the threat was Hurricane Wilma, which occurred on October 24, 2005. The insured first reported the damage in February 2009. An inspection took place. The claim was denied. Lawsuit has been filed. State Farm filed a late defense notice and filed a motion for a summary of the verdict. The insured then submitted an engineering report. The court has issued a summary judgment in State Farm’s favor. On appeal, the Fourth District found that the insured’s evidence consisted of his own affidavit and an engineering report. The report identified the damage and asserted: “No comparable storm events occurred after Hurricane Wilma.” The fourth district came to the conclusion: “Here, the insured have not presented any counter-evidence that was sufficient to a Original- Question of material fact. . . Your affidavit does not provide sufficient counter-evidence to break the presumption of prejudice. ” I would. at 953.

An appraisal by the plaintiff, drawn up three years after the alleged event, is not legally sufficient to ask a question of fact about the cause of the damage. The law in Florida is clear. The plaintiff may not make exhaustive self-serving statements that are formulated in the form of conclusions to raise a question of fact regarding the question of causality. See Progressive Exp. Ins. Co. v. Camillo, 80 So. 3d 394, 399 (Fla. 4. DCA 2012) (“Concluding, self-serving statements formulated in the form of legal conclusions, however, are not sufficient to raise either a question of material facts or the absence of a real problem to prove the material facts. ”) If the insured cannot ask a question of fact regarding the cause of the damage, it only follows that the insured cannot fulfill his initial burden of proof of the cause of the damage – a necessary condition which precedes the coverage.

Effective May 1, 2021, the courts of the state of Florida will follow the standard for summary judgments formulated by the United States Supreme Court. See Regarding Changes to Fla. Rule of Cov. Procedure 1.510, 2020 Fla. LEXIS 2148 (Fla. Sup. Ct. December 21, 2020). Under the new standard, a party who opposes a summary judgment must do more than just produce an opinion and ask a question of fact about the cause of the damage.[3] Nonetheless, it is at their discretion, even without the elevated standard, to make a summary judgment in favor of the insurance carriers who rely on Soronson (see above) and Progressive Exp. Ins. Co., supra.

[1] In the above-mentioned Maspons case, the plaintiff provided a video showing a “break” in the drain pipe (ie the origin of the alleged damage and an insured hazard). The insurance company kept a plumbing company that confirmed a “big hole” in the drain pipe. The court issued a summary judgment in favor of the insured. I would. On appeal, the Third District found that “there was no evidence [any] Water leaking from the pipe had damaged the environment. ” I would. The Third District confirmed that there was no evidence of actual damage. The plaintiff could only prove one of the two necessary predicate elements for the cause of the damage. Because of this, the Third District ordered the court to issue a summary judgment in favor of the homeowner’s choice.

[2] This conclusion is in line with other courts. See also Lafarge Corporation v. Travelers Indemnity Co., 118 F.3d 1511 (Cir. 11, 1997) (“Florida law requires the insured to demonstrate that a claim against him or her is covered by the insurance policy.”); Mejia v. Citizens Prop. Ins. Corp., 161 So. 3d 576 (Fla. 2d DCA 2014) (“An insured person who makes claims under an all-risk policy must prove that the insured property suffered damage while the policy came into force. The burden is then transferred to the insurer in order to prove the cause of the loss was excluded from cover according to the terms of the policy. ”); Citizen Prop. Ins. Corp v. Munoz, 158 So. 3d 671 (Fla. 2d DCA 2014) (“In general, an insured person seeking cover under an all-risk policy must prove that the property was lost during the insurance period. [citation omitted] When the insured bears this initial burden, the burden shifts to the insurer. . . ”.)

[3] The plaintiff’s bar usually cites Garcia v. First Cmty. Ins. Co., 241 So. 3d 254, 257 (Fla. 3d DCA 2018) (“The slightest possibility of the existence of a Original- The question of the material facts precludes the entry of a final summary judgment. “). See also Archer v. Tower Hill Signature Ins. Co., 2021 WL 1115386 (Fla. 4. DCA, March 24, 2021) (Plaintiff produced three affidavits in support of a Hurricane Irma claim: two roof repairs and a public expert. The court wrote, “The insured came not after their burden [of proof] because their affidavits and statements were conclusive. “) Citing Progressive Exp. Ins. Co. v. Camillo, 80 Sun. 3d 394, 399 (Fla. 4. DCA 2012). Under the standard of the Executive Judgment before May 1, 2021, the Fourth Ward in Archer (see above) confirmed that a court can examine an affidavit, report, or both to determine if either has more than “conclusive statements.” “offers – and that” This test is not equivalent to “weighing the evidence” and / or “assessing the credibility of a witness”. This is in line with what the Third District in Garcia has done to determine whether a Original- There was a question of material fact.