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Bankers Ins. Co. v. Macias

Supreme Court of Florida
Oct 21, 1985
475 So. 2d 1216 (Fla. 1985)

Summary

holding instead that the insurer is entitled to a presumption of prejudice if the insured "fails to give timely notice" of a claim

Summary of this case from Georgian Am. Alloys v. Axis Ins. Co.

Opinion

No. 65740.

August 29, 1985. Rehearing Denied October 21, 1985.

Appeal from the Circuit Court, Dade County, Leonard M. Rivkind, J.

Richard M. Gale, and Weinstein and Bavly, Miami, for petitioner.

Henry H. Harnage, and Stabinski Funt, Miami, for respondent.


We have for review Macias v. Bankers Insurance Co., 452 So.2d 1020 (Fla. 3d DCA 1984), which expressly and directly conflicts with Tiedtke v. Fidelity Casualty Co., 222 So.2d 206 (Fla. 1969). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The issue here is whether a presumption of prejudice to an insurer arises where an insured fails to give timely notice of an accident to the insurer. We hold that such presumption does arise and quash Macias.

Caridad Macias was injured in an automobile accident on September 7, 1980 while covered by a personal injury protection (PIP) policy issued by Bankers Insurance Company (Bankers). In 1982 Macias sued to have the $8,000 deductible in the PIP policy declared inoperative because the policy had been improperly sold to her when she had no other insurance benefits available. After a nonjury trial, the trial court entered a final judgment in favor of Bankers because Macias had pled and failed to prove that she gave notice of the accident and provided proof of claim to Bankers. The trial court held that this failure to notify created a presumption of prejudice to Bankers, which Macias did not dispel. The district court reversed, holding that "the defense of lack of notice and other breaches of a cooperation clause by an insured require a showing of substantial prejudice to the rights of the insurer." 452 So.2d at 1020-21. We disagree.

The district court has confused the insured's breach of the notice requirement with the insured's breach of a cooperation clause. These contractual duties are imposed on the insured for different reasons and must be considered separately. The notice requirement enables the insurer to conduct a timely and adequate investigation of all circumstances surrounding an accident. 8 Appleman, Insurance Law and Practice § 4731 (1981). The cooperation requirement, on the other hand, arises to prevent fraud and collusion in proceedings to determine liability once notice has been given. Id. at § 4771.

In Florida different presumptions arise depending on which duty has been breached. If the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice. National Gypsum Co. v. Travelers Indemnity Co., 417 So.2d 254 (Fla. 1982); Tiedtke. In a breach of cooperation clause case, however, the insurer must show a material failure to cooperate which substantially prejudiced the insurer. Ramos v. Northwestern Mutual Insurance Co., 336 So.2d 71 (Fla. 1976); American Fire Casualty Co. v. Vliet, 148 Fla. 568, 4 So.2d 862 (1941). We quash Macias because the district court applied the breach of cooperation presumption against the insurer when it should have applied the lack of notice presumption against the insured. To the extent that they conflict with our holding here, we disapprove Donnell v. Industrial Fire Casualty Insurance Co., 439 So.2d 974 (Fla. 3d DCA 1983), and Travelers Insurance Co. v. Jones, 422 So.2d 1000 (Fla. 4th DCA 1982), review denied, 431 So.2d 990 (Fla. 1983).

Macias urges us to abandon the Tiedtke presumption of prejudice rule as out of step with the modern trend requiring the insurer to show substantial prejudice resulting from the lack of notice. See 32 A.L.R.4th 141 (1984). We decline to do so. A notice of accident in most insurance policies is a condition precedent to a claim. It was so designated in the policy in this case. Such a condition can be avoided by a party alleging and showing that the insurance carrier was not prejudiced by noncompliance with the condition. The burden should be on the party seeking an avoidance of a condition precedent. A failure to cooperate clause, on the other hand, sometimes relieves an insurer of liability. A failure to cooperate is a condition subsequent and it is proper to place the burden of showing prejudice on the insurer.

The burden should be on the insured to show lack of prejudice where the insurer has been deprived of the opportunity to investigate the facts and to examine the insured. This rule should apply to claims under a PIP policy just as well as to claims under other policies. Here, the insurer could not evaluate Macias' PIP claims until notified by the declaratory judgment action two years later. Macias should have shown that Bankers suffered no prejudice from this unreasonable delay. She failed to present any evidence on this issue and properly suffered an adverse final judgment.

We also reject Macias' argument that Bankers failed to deny with specificity the allegations that notice had been properly given to Bankers. We find that Bankers' answer sufficiently put compliance with the notice provision of the policy at issue.

Accordingly, we quash Macias and remand for further proceedings consistent with this opinion.

It is so ordered.

BOYD, C.J., and OVERTON, ALDERMAN, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents.


Summaries of

Bankers Ins. Co. v. Macias

Supreme Court of Florida
Oct 21, 1985
475 So. 2d 1216 (Fla. 1985)

holding instead that the insurer is entitled to a presumption of prejudice if the insured "fails to give timely notice" of a claim

Summary of this case from Georgian Am. Alloys v. Axis Ins. Co.

holding that a failure to give notice as required by an insurance contract bars an insured's claim against the insurer only if the insurer suffers prejudice, that prejudice is presumed, and that an insured who fails to give notice thus cannot recover unless the insured proves lack of prejudice

Summary of this case from Coyote Portable Storage, LLC v. Pods Enterprises, Inc.

holding that a presumption of prejudice arises from an insured's failure to give timely notice of a claim and that an insured thus cannot recover unless the insured proves lack of prejudice

Summary of this case from 200 Leslie Condominium Ass'n v. QBE Insurance

holding that a presumption of prejudice arises from an insured's failure to give timely notice of a claim and that an insured thus cannot recover unless the insured proves lack of prejudice

Summary of this case from Garden-Aire Vill. S. Condo. Ass'n, Corp. v. Qbe Ins. Corp.

holding a presumption of prejudice to an insurer arises when the insured breaches a notice provision

Summary of this case from Hamilton v. State Farm Fla. Ins. Co.

holding that “[t]he burden should be on the insured to show lack of prejudice where the insurer has been deprived of the opportunity to investigate the facts and examine the insured”

Summary of this case from State Farm Mut. Auto. Ins. Co. v. Curran

holding that "[t]he burden should be on the insured to show lack of prejudice where the insurer has been deprived of the opportunity to investigate the facts and examine the insured"

Summary of this case from State Farm v. Curran

holding that forfeiture of coverage for violation of notice provision requires showing of prejudice; if insured breaches notice provision, prejudice to insurer will be presumed but may be rebutted by showing that insurer has not been prejudiced by lack of notice

Summary of this case from Nationwide Mut. Fire Ins. v. Beville

upholding judgment for insurer after trial based on insured's failure to give notice of loss; notice is a condition precedent, so burden of establishing lack of prejudice is on insured, who failed to carry burden

Summary of this case from Laine v. Allstate Ins. Co.

quashing lower appellate court's decision because appellate court “applied the breach of cooperation presumption against the insurer when it should have applied lack of notice presumption against the insured.”

Summary of this case from Ramirez v. Scottsdale Ins. Co.

In Bankers Insurance Co. v. Macias, the Court held that a presumption of prejudice arises where an insured fails to give timely notice of an accident to the insurer.

Summary of this case from State Farm Mut. Auto. Ins. Co. v. Curran

In Macias, this Court held that a provision in a PIP policy requiring the insured to give notice of an accident was a condition precedent to a claim instead of a condition subsequent.

Summary of this case from State Farm Mut. Auto. Ins. Co. v. Curran

noting that a showing of prejudice is relevant when an insured breaches a cooperation clause, which is a condition subsequent, or a notice provision

Summary of this case from State Farm Mut. Auto. Ins. Co. v. Curran

In Macias, the Florida Supreme Court established that in a "failure to cooperate" defense case, "the insurer must show a material failure to cooperate which substantially prejudiced the insurer."

Summary of this case from Barthelemy v. Safeco Ins. Co. of Ill.

In Macias, the supreme court examined the effect of an insured's failure to provide notice of loss to an insurer under a PIP policy.

Summary of this case from Allstate Floridian Ins. Co. v. Farmer

In Macias, the supreme court examined the effect of an insured's failure to provide notice of loss to an insurer under a PIP policy.

Summary of this case from Allstate Floridian Ins. Co. v. Farmer

In Macias, the supreme court held that the party bearing the burden of demonstrating prejudice, or the lack thereof, shifts depending on the nature of the contractual duty breached.

Summary of this case from State Farm Mut. Auto. Ins. Co. v. Curran

In Bankers Insurance Co. v. Macias, 475 So. 2d 1216, 1217 (Fla. 1985), the court stated, "The cooperation requirement... arises to prevent fraud and collusion in proceedings to determine liability once notice has been given."Id. at 1217; 16 Richard A. Lord, Williston on Contracts § 49:106 (4th ed. 2000) ("A standard clause in casualty insurance policies provides that the insured's right to indemnification depends on the insured cooperating with the insurer in defending claims.

Summary of this case from State Farm v. Curran

In Macias, the supreme court held that the party bearing the burden of demonstrating prejudice, or the lack thereof, shifts depending on the nature of the contractual duty breached.

Summary of this case from State Farm v. Curran
Case details for

Bankers Ins. Co. v. Macias

Case Details

Full title:BANKERS INSURANCE COMPANY, PETITIONER, v. CARIDAD MACIAS, RESPONDENT

Court:Supreme Court of Florida

Date published: Oct 21, 1985

Citations

475 So. 2d 1216 (Fla. 1985)

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