Florida’s Circuit Split on Expert Opinions Reveals a Decade-Long Divide

Where an insured does not fulfill his or her contractual duty to provide prompt notice and an insurer claims it was prejudiced as a result, Florida courts apply a two-step analysis to determine the impact of the notice.

Courts determine whether (1) the insured’s notice was late as a matter of law, and (2) the insured can rebut a resulting presumption of prejudice that is afforded to the insurer. While this framework is firmly established in the state’s jurisprudence, two District Courts of Appeal recently took diverging approaches to the second step of the analysis. Each relied on its own precedent, which in turn reflected the same difference of opinion.

The Fourth District Court of Appeal’s Shapiro v. First Protective Ins. Co., No. 4D22-1133 (Fla. 4th DCA Mar. 29, 2023) and the Third District Court of Appeal’s Perez v. Citizens Prop. Ins. Corp., 343 So. 3d 140 (Fla. Dist. Ct. App. 2022) both dealt with Hurricane Irma claims that were reported over two years after the Hurricane hit the state on September 10, 2017 (‘DOL’), and only after several rounds of repairs.1 Under such facts, both claims were deemed to be late as a matter of law, and both courts afforded the insurers a presumption of prejudice.

To rebut the presumption, both the Shapiro and Perez insureds offered opinions from their engineers. Neither expert used evidence from or near the time of the date of loss. Instead, both experts formed their opinions using mainly their own inspections which were conducted long after the dates of loss, and after repairs had been performed.