Fifth District Holds Insurers Should Construe Exclusion for Repeated Water Leakage Over 14 Days in Insureds’ Favor
Feb 1, 2018
February 2018
I’m pleased to bring you Florida Insurance Matters, a monthly update on Florida insurance-related legal developments. Please contact me any time with questions or feedback.
Amy L. Koltnow, Esq. | Shareholder, Colodny Fass
akoltnow@colodnyfass.com | (954) 492-4010
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Fifth District Holds Insurers Should Construe Exclusion for Repeated Water Leakage Over 14 Days in Insureds’ Favor
The 5th DCA held the exclusion for damages caused by constant or repeated seepage or leakage of water over 14 days or more is ambiguous and therefore should be construed liberally in favor of the insured to cover losses caused by constant or repeated seepage or leakage of water for 13 days or less.
- The court focused on the wording of the exclusion for losses “caused by” constant or repeated seepage or leakage of water and held it did not clearly and unambiguously exclude all damages regardless of how long the property was exposed to the water.
- Other district courts of appeal (Price – 2d DCA and Hoey – 4th DCA), have interpreted similar exclusionary provisions focusing on the duration of the leak to trigger the exclusion. These decisions arguably give rise to conflicting results among the appellate courts and may lead the way for further judicial review.
- Failure to give prompt notice, vacancy and neglect provisions were not addressed in this case and may be additional provisions that preclude coverage for such losses.
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Restriction on Post-Loss AOBs Requiring Mortgagee’s Consent Unenforceable
In yet another AOB decision, the 5th DCA held that a restriction on post-loss assignments that requires the mortgagee’s consent to the assignment is contrary to Florida law and, therefore, is not an enforceable provision.
- The appellate courts have struck down restrictions on post-loss assignments and have upheld OIR’s refusal to permit policy language that restricts post-loss assignments.
- This issue has yet to be addressed by legislation.
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Amy Koltnow Serves as Expert Attorneys’ Fee Witness for Insurer Who Prevailed Against Homeowner
Trial Judge Adopts Ms. Koltnow’s Expert Opinion in its Entirety
Amy Koltnow recently served as an expert attorney’s fee witness on behalf of an insurer who prevailed in a case brought by an insured.
The insurer obtained a final judgment awarding the insurer attorney’s fees against the plaintiff assignee and its attorney as a sanction for filing a non-meritorious suit. The trial court ordered the parties to submit documents and memoranda in support of and in opposition to the fees claimed.
Ms. Koltnow served as the fee expert witness on behalf of the insurer and assisted the defense counsel in preparing a detailed response to support the fees requested. The parties were ultimately able to reach a settlement of the attorney’s fee issue prior to the hearing.
Ms. Koltnow also served as an expert attorney’s fees witness in a contested fee dispute after the court awarded entitlement to fees to an insured’s assignee. After providing testimony in court, the trial judge adopted the opinion of Ms. Koltnow in its entirety regarding the reasonableness of assignee’s counsel’s fees.
In addition to the firm’s extensive practice in insurance defense, Colodny Fass is available to assist other attorneys by serving in the capacity of expert fee witnesses in disputes regarding attorney’s fees.
Would you like more information? Contact Amy at akoltnow@colodnyfass.com or (954) 492-4010.
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For over 40 years, Colodny Fass has represented insurers in complex and high-risk litigation including class actions, bad faith, insurance fraud, multi-jurisdictional cases, coverage matters, and fact-intensive, multi-party lawsuits. The Daily Business Review has recognized Colodny Fass as having the Insurance Litigation Department of the Year in South Florida.
About Amy L. Koltnow
Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on insurance disputes from trial through appeals. She has represented insurance companies in federal and state courts, as well as in mediation and administrative forums. Ms. Koltnow oversees complex litigation matters and has successfully defended numerous class actions and insurance bad faith cases. She is a member of the Claims and Litigation Management Alliance, a national, invitation-only organization committed to furthering high standards of litigation and claims management in pursuit of client defense.
To view Ms. Koltnow’s complete professional biography, click here.