A heading in Law 360 caught my attention: $13.8M Irma coverage suit shot down again by Fla. court.1 The case involved a law firm responding to these incessant and never-ending inquiries from insurance company attorneys regarding a condominium hurricane loss. These insurers’ attorney-led investigations can take longer than it takes to file and complete the entire subsequent lawsuit. So the actual scenario that leads to a policyholder’s law firm not filing a lawsuit before the fifth anniversary of a hurricane is not as uncommon as many would think.
The law firm representing the condominium exchanged numerous letters with the law firm representing the insurance company months before the fifth anniversary of the hurricane. We include some in the footnotes below.2
The Law 360 article noted, in part:
The dispute stems from Oceania̵7;s claim for $15 million in damage to its high-rise from Hurricane Irma, which was subject to a deductible of about $1.3 million, according to filings in the case. The insurers denied the claim in November 2021, and Oceania each sent a notice of intent to litigate about 10 months later, filings show.
Oceania cooperated with the insurers in proceedings before the suit filed its complaint in early October, although the five-year statute of limitations for Irma claims expired in mid-September, according to filings in the case. The insurance companies rejected the lawsuit in December.
The association argued that it should be allowed the protection of a 10-day safe harbor provision and argued that equitable estoppel and equitable tolling should apply to the statute of limitations. However, Judge Scola disagreed, finding that the provision cannot be applied retroactively and Oceania did not show that it relied on any statements made by the insurers when they missed the deadline.
He said the association could have avoided the problem if it had not “waited until the last moment to pursue its claim”, having allowed nine months to pass between the rejection of the claim and its no-explanation notices.
Court decision3 denying reconsideration noted the following:
In its decision to grant the defendants’ joint motion to dismiss, the court concluded that Oceania’s complaint was time-barred because it was filed after the applicable statute of limitations had expired. In reaching that conclusion, the court considered and rejected three separate arguments raised by Oceania as to why the statute of limitations on its claims should be reduced. Oceania now argues that the defendants’ joint answer in support of their motion to dismiss misrepresented the interactions between the parties in the months before the statute of limitations ran, so that the events that actually unfolded support the guiding arguments previously rejected by the court. Critically, however, Oceania provides no justification whatsoever for waiting until now to provide the additional information on which its motion for reconsideration depends.
Oceania supports its motion for reconsideration by alleging countless additional facts and providing no less than nine (9) new exhibits to show that it did not sit on its “proverbial hands” while the statute of limitations ran on its claim. But Oceania offers no reason why it could not have produced this evidence before the court ruled on defendants’ motion to dismiss. To that point, all of the new material provided by Oceania appears to have been created long before the parties’ information on the dismissal was in progress, with the most recent document dated September 13, 2022. Furthermore, all of the material was either prepared by, or sent to, Oceania’s counsel, so there is no reason to believe that Oceania did not have access to the information until recently. Furthermore, to the extent that Oceania suggests that it could not adequately address the defendants’ version of events because it was only set forth in their response in support of dismissal, Oceania could have, but failed to, request that the Court obtain leave to submit a response. Therefore, the purpose of Oceania’s motion is for the Court to reconsider arguments it has already rejected based on evidence that Oceania, without any justification, failed to provide before the Court’s decision was entered.
This failure to file a lawsuit happened to a law firm. For policyholders trying to represent themselves and public adjusters trying to meet all investigative requirements from the insurance company, the rule of statute of limitations is this – don’t wait until the last minute. The matter should be referred to a competent law firm, who will then either file suit or obtain a valid extension to do so.
“Chip, always remember better safe than sorry.”
1 Riley Murdock. $13.8M Irma coverage suit shot down again by Fla. court. Law360 (June 6, 2023). Available online (subscription required) at: https://www.law360.com/insurance/articles/1688075/-13-8m-irma-coverage-suit-shot-down-again-by-fla-court
2 OceaniaIII Condominium Assoc. v. Westchester Surplus Lines Ins. Co.No. 22-23681, [Exhibits 1, 2, 5, 7, 9 to Doc 33 Motion for Reconsideration] (S.D. Fla.).
3 Oceania III Condominium Assoc. v. Westchester Surplus Lines Ins. Co., No. 22-23681-CIV (SD Fla. June 12, 2023).