New legislation would put higher burden on insured homeowner, not the insurance company, to determine whether sinkhole activity is present.

One of the most material changes proposed in FL House Bill 447 relates to who has to prove the existence of or non-existence of sinkhole activity.  Under current law, the homeowner is entitled to file an insurance claim to determine whether the damages present at the home are covered by the policy.  This is true for all claims, whether sinkhole related or not.

Once the claim is received, the insurance company is required to retain an expert, who provides an opinion regarding the presence of sinkhole activity and provides specific recommendations regarding how to fix the sinkhole property. Note, the insurance company’s engineer can investigate as they see fit, within their professional discretion, and is not obligated to conduct any particular tests, and they are permitted to interpret the information however they want.

The Problem with the New Bill

It simply places a huge monkey on the back of a policyholder.  Specifically, if you, as a homeowner, want to dispute the findings of the original engineering firm, you can hire your own expert.  Even if your expert does more advance testing, provides a more cohesive explanation for the damage, the insurance company gets the benefit of the doubt.  This is because under the proposed statute, any findings of the original engineering firm are “presumed correct.”  Meaning, if the case were to go to a jury, the jury would be told that they must “presume” that the findings of the original engineering firm are correct, even if there are material, significant discrepancies in their findings.

And, if that were not enough, the jury would also place a higher standard of proof on the homeowner, by requiring a higher evidentiary standard for the homeowner.  Rather than spend a bunch of type on this issue, it means that at trial, a homeowner and an insurance company are not treated equally.

Instead, the insurance company is permitted certain presumptions, none of which are available to a homeowner, who must prove their case to a higher degree than the company would under the same situation.  It is simply unfair, and I hope this bill never makes it to the Governor”™s desk.

Please share with us your thoughts on this bill.  Have a burning question you’d like to ask about sinkholes? Let us know.

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