Premature Suit Bars Recovery Under the Policy

Oct 30, 2016


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.

About the Author

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.

Premature Suit Bars Recovery Under the Policy

The Third District upheld summary judgment in favor of the insurer because the insureds filed suit before submitting a compliant sworn proof of loss. The appellate court cited to well-established Florida law holding that an insured’s failure to comply with a condition precedent to suit relieved the insurer of its duties under the policy.

Reddy v. State Farm Florida Ins. Co. (3d DCA Nov. 23, 2016)

The holding in this case is particularly interesting since the underlying motions reveal that State Farm afforded coverage for the claim and issued payment to the insureds. State Farm argued the payment did not waive its right to assert the insureds’ failure to comp

Damages Awarded for Negligent Procurement of an Insurance Policy

The 4th DCA reinstated a jury verdict in favor of an insured who sued his insurance broker for negligent procurement of an international general liability/worker’s compensation insurance policy that was issued to the wrong corporate entity. A jury verdict was entered in favor of the plaintiff/insured, but set aside by the trial judge after. The broker argued that the plaintiff failed to prove what damages would have been covered had the insurance been properly obtained. The appellate court reversed the trial court and reinstated the verdict finding the plaintiff submitted sufficient evidence to support the jury’s verdict.

Gelsomino v. ACE American Ins. Co. (4th DCA Nov. 9, 2016)

  • The opinion does not directly address the type of evidence required for the plaintiff to prove what benefits the policy would have covered had it been properly obtained–here, the plaintiff did not present expert testimony on this issue.
  • If an issue in the case is whether the damages under a properly procured policy would have been covered, it should be affirmatively asserted as a defense and proven at trial.

Mock Depo Skills Training with CE Credits for Adjusters

Did you know that our litigation attorneys can visit your company and provide your claims adjusters with valuable deposition skills training? Not only that, we are certified Florida DFS instructors, which means adjusters can earn CE credit from attending a Colodny Fass seminar.

Our deposition skills presentations include preparation tips, strategies for answering various types of difficult questions, deposition do’s and don’ts, real-life examples and mock depos.
Contact Amy Koltnow at or (954) 492-4010 for more information.

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.

Contact Amy at or (954) 492-4010.