Defects in Civil Remedy Notice Must be Raised by Insurer in its Response

Oct 31, 2020


Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recently recognized as the Insurance Litigation Department of the Year in South Florida by the Daily Business Review.


Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on representing insurance companies in complex insurance litigation and counseling insurers on claims resolution. She has represented insurers in connection with property damage and first-party coverage litigation, claims of “bad faith,” high-risk exposures, class actions and multi-district litigation.

For more information about Ms. Koltnow, click here.


Defects in Civil Remedy Notice Must be Raised by Insurer in its Response

A homeowner filed a civil remedy notice (CRN), but misidentified the name of the insurer in the notice. The insurer responded to the CRN but did not specifically state the notice was deficient because the insurer’s name was misidentified. The insurer paid additional amounts after the expiration of the 60-day cure period and the homeowner sued the insurer for bad faith. The trial court dismissed the bad faith complaint because the homeowner did not identify the correct entity and, therefore, failed to strictly comply with the statutory requirements. The appellate court reversed and held that any defects in the CRN must be raised by the insurer in response to the CRN or it is deemed waived. Bay v. United Services Automobile Association, 4th DCA (October 21, 2020).

  • Carefully and critically review a CRN for statutory compliance.
  • An insurer’s response to the CRN must expressly raise all statutory defects – a general statement that the CRN “lacks specificity” does not preserve an argument in a subsequent bad faith suit that the notice was deficient.

Insurer did not breach the policy if insured did not submit a supplemental claim prior to filing suit

A homeowner reported a claim for damage to his condominium unit following Hurricane Irma. The insurer adjusted the loss and paid the actual cash value of the claim, less the deductible and depreciation, and notified the homeowner that he was eligible to recover the depreciation value “as work is performed and expenses incurred.” The homeowner advised the insurer that he received a proposal that was higher than the insurer’s estimate. The insurer requested the homeowner forward the proposal. The homeowner did not submit the proposal but instead filed suit for breach of contract alleging that the insurer “underpaid the claim,” and “materially breached the Policy by failing to pay all of the benefits due and owing.” The insurer filed a motion for summary judgment arguing the homeowner did not submit a “supplemental claim” nor provide the insurer with a separate estimate prior to filing suit. The homeowner argued the insurer breached the policy first by failing to issue payment for at least the actual cash value of the loss. The trial judge granted summary judgment in the insurer’s favor. The appellate court affirmed and held that before filing suit, the homeowner was obligated to file a supplemental claim setting forth those damages he sought in excess of what the insurance company had already paid. Goldberg v. Universal Prop. & Cas. Ins. Co., 4th DCA (Sept. 9, 2020).


  • The outcome was based on policy language requiring an insured to notify the insurer of a “supplemental claim” caused by windstorm or hurricane within 3 years of the storm making landfall and defined a “supplemental claim” or “reopened claim” consistent with the statutory definition.
  • The court distinguished this holding from prior cases and reasoned that an insurer should not be deemed to have breached the contract where it accepted coverage and paid the only estimate it received of the actual cash value of the loss.
  • Look closely at your covered Irma claims in suit to see if a competing estimate was provided before suit was filed.