The court denied the insurer's motion for summary judgment on admittedly late notice because prejudice to the insured remained an issue of fact. Guzman v. Scottsdale Ins. Co., 2021 U.S. Dist. LEXIS 219625 (S.D. Fla. Nov. 15, 2021).
The insured first noticed water leaking into his kitchen from the roof during Hurricane Irma on September 10, 2017. Various attempts were made by the insured to fix the leak, but none were successful. After the hurricane, the roof continued to leak whenever it rained. Notice was finally given to Scottsdale, the insurer, on April 19, 2020.
Scottsdale retained structural engineer Nazario Ramirez, who inspected the property twice. He also had photographs of the rapids. Ramirez denied being prejudiced during his inspections. Based on the pictures aerial photography and weather research, he determined that the damage was caused by underlayment failing, which could have resulted from age and deterioration or poor construction. When Scottsdale's corporate representative was deposed, he testified that Ramirez was able to determine the cause of the damage to the roof.
The insured claimed roof damage amounted to $244,141.09. Scottsdale determined the hurricane only caused damage to some roof tiles. The insured sued and Scottsdale moved for summary judgment, arguing the late notice had caused prejudice and barred the claim.
Under Florida law, when notice was untimely, prejudice to the insurer was presumed, but the presumption was rebuttable. The insured argued that a genuine issue of material fact remained as to prejudice. The court agreed. Ramirez denied being prejudiced during his two inspections. He was retained to opine on the cause of damage as well as the scope of damage. He was able to reach a final conclusion based on pictures, aerial photography, and weather research. He determined that Hurricane Irma did not damage the roof except for three missing rake cap tiles and any water intrusion resulted from a failed underlayment, which resulted from age or poor construction. Summary judgment was inappropriate.