Florida Intentional Misrepresentation Jury Issue in Federal Condominium Hurricane Claim.

   A relatively new Federal Court decision on a Condominium Hurricane Claim may change Florida Insurance Law.  The Federal Court held in that case that the Property Insurance Company's "ninth affirmative defense" involved facts "that could cause a jury to conclude that Plaintiff [Condominium Association] concealed material information regarding its insurance claims."  The Court reached this holding on a record which included these four sets of facts:

   1.  "[E]vidence that Plaintiff waited long periods of time to respond to information requests and failed to show up for an examination under oath regarding its claims," and

   2.  "testimony suggesting that Plaintiff did not actually believe sliding windows and glass doors were covered," and

   3.  "testimony suggesting that some of the damage was not caused by Hurricane Wilma, and"

   4.  "testimony that Plaintiff overstated the amount of damage actually caused by Hurricane Wilma."

Royal Bahamian Ass'n v. QBE Insurance Corp., 2010 WL 4355181 *1 (S.D. Fla. Order of Chief District Judge Moreno October 28, 2010)(authorized password required to access Westlaw).

   If this Opinion is treated as though it was meant to be applied to every Insurance Claim involving similar sets of facts, then this Opinion will have very broad implications.  In that event, it would even likely change the Insurance Law of Florida.  Few if any Insurance Coverage Attorneys in Florida, who have participated in Damages Claims presented under Property Policies by Condominium Associations (and many other kinds of Insurance Claims presented by Policyholders for that matter), have not also experienced Claimants "waiting long periods of time to respond to information requests," or failing to show up for E/U/O's, or not necessarily believing that all of their Damages Claims were covered on the particular Claim.

   If it comes to that, so long as there are reasonable grounds for presenting particular Damages as part of a Claim, it seems to be the Insurance Company's burden and easily met to deny Coverage for particular Damages or parts of a Claim where there are reasonable grounds for denying or contesting Coverage for them.

   Some context is required, it appears.  The U.S. Magistrate Judge's Report and Recommendations provide that context.  The Report and Recommendations are attached to the Westlaw publication of this Order.  (The Report and Recommendations are not paginated in the Westlaw publication, i.e., the pages are not numbered.)

   The mysterious "ninth affirmative defense" was raised by QBE on grounds "that the insurance policy is void because Royal Bahamian fraudulently deceived it by submitting a claim for pre-existing damages, damages it knew were not covered under its policy, and grossly inflating the amount of damage to covered property," according to the Magistrate Judge.  There does not appear to be any particular Policy Provision relied on by QBE in this regard, and at any rate no such Policy Provision is reproduced either in the Opinion or in the Report.  (See first full paragraph under the heading of "QBE's Claim of Concealment, Misrepresentation or Fraud" in the Magistrate Judge's Report and Recommendations.)  Therefore, it is fair to say that the facts do not appear to be so simply summarized as the District Judge's Opinion, quoted above, might lead an unsuspecting observer to conclude.

   Neither is the applicable rule of Florida law so easily summarized as might appear from that Opinion.  The Defendant Property Insurance Company in this case was proceeding under a rule of Florida Insurance Law that where there is a "willful false statement" of a material fact, the Insurance Company is not required to prove "prejudicial reliance" in order to void the Policy under a contract provision allowing it to do so in such event.  To say again, the author has scoured the Westlaw publication of both the District Judge's Opinion and the Magistrate Judge's Report and Recommendations, without finding a quotation from nor identification of any such Policy provision in QBE's Insurance Policy.  Accordingly, it may be that QBE was proceeding under an affirmative claim of fraudulent concealment or the like in order to declare its Policy void in this case.

   In any event, the brief Opinion of the Chief District Judge in this Case is understandably cryptic after reference is made to the Magistrate Judge's Report and Recommendations to which the Opinion was addressed.

 Please Read The Disclaimer.

Comments

[Account Deleted]

Very useful information, Thanks a lot.

http://www.elephant.com/

[ella]

Really with the extreme weather we have been experiencing around the world in the latter few years, it is about time that insurance companies sorted their act out so we can all live in the knowledge that we are covered for an eventuality like a hurricaine.