Carolyn Epstein Obtains Dismissal of AOB Lawsuit Filed by Roofer

Colodny Fass Partner Carolyn Epstein obtained a successful dismissal of a lawsuit filed by a roofer, through an assignment of benefits from the insured, seeking over $100,000 to replace the roof allegedly damaged by a storm.  The insured testified during her Examination Under Oath that she was not sure when the damage occurred because she never lived at the property, she had always resided in New York, and she purchased the residence as a vacation home for her parents.  The roofer later filed a lawsuit alleging the insurer breached the policy by failing to pay benefits for damage due to a storm. 

While reviewing the claim file and the insurer’s underwriting file, Ms. Epstein learned the insured had identified the property as her “primary”, “full-time residence” in the insurance application. The insured also affirmed that she did not own or rent any other property. Since Florida law and the policy exclude coverage based on misrepresentations in the application, the insurer had a basis to rescind the policy. Ms. Epstein counseled the insurer through the process of rescinding the policy and returning the collected premiums to the insured.  Then, in the lawsuit, Ms. Epstein strategically alerted the assignee roofer of the factual circumstances and the reasons why the policy was now void by filing a 57.105 sanction motion. The motion gave plaintiff’s counsel 21 days to dismiss the case or risk monetary sanctions against himself personally, the law firm, and the roofer if they proceeded with the lawsuit and ultimately lost. The assignee roofer and his counsel promptly dismissed the case.

This case is an excellent reminder that a thorough investigation of a claim, including taking an Examination Under Oath and reviewing the insurance application, can sometimes reveal information that, although not initially sought, becomes material and relevant to whether coverage exists.