In a recent decision, a Federal Judge in Florida held that a "Late Notice" Defense presented questions of Fact to be resolved by a Jury: Download Vision I Homeowners Ass'n v. Aspen Specialty Insurance Co. (S.D. Fla. Opinion Signed December 21, 2009, Filed December 22, 2009), attached Official Slipsheet Opinion at 4-9. In that Case, the Policyholder-Plaintiff is Vision I Homeowners Association. The H.A. sued Aspen Specialty Insurance Company in three counts in that case: One count for Declaratory Judgment, and two counts containing allegations of Breach of Contract.
The Federal Court in this case followed the rule established by Florida State Court decisions which prevails in many American jurisdictions: "Late Notice" is a defense to Coverage, but it affords a rebuttable presumption of prejudice to the Insurance Company which can be overcome by evidence to the contrary. See id. at 9.
In addition, in this new case alleged failure to comply with Policy Conditions respecting Examinations Under Oath ("EUOs") was likewise held to present a question of Fact. Download Vision I Homeowners Ass'n v. Aspen Specialty Insurance Co. (S.D. Fla. Opinion Signed December 21, 2009, Filed December 22, 2009), at 10-12.
In Cases presenting First-Party Bad Faith Claims in addition to Claims for Declaratory Judgment and alleged Breach of Contract, Court across the nation have frequently allowed such Defenses to Bad Faith Claims as well, depending on the facts in the record of course. See generally Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (Second Edition Shepard's/McGraw-Hill; 2009 Supplement West Publishing Company) ยงยง 11.01-11.04 and 11.08, addressing Coverage and Policy Defenses in First-Party Cases, such as the Late Notice and EUO Defenses raised for example in Vision I Homeowners Association, above. In addition, Sections 5.14-5.15 (Settlement Claims), 5.24-5.25 (Wrongful Refusal or Failure to Defend Claims), and 5.49-5.50 (Inadequate Defense Claims) address issues raised by Coverage and Policy Defenses, including Late Notice Defenses, in Third-Party Cases.
A related post concerning this new case can be found on Insurance Claims and Issues Web Log at http://www.abajournal.com/blawg/insurance_claims_and_issues/.
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