Here we go again. Several times in the past insurance carriers have tried to place the burden on insureds here in Florida to prove they have a sinkhole affecting their home before they are provided coverage under the policy. The main point of contention is over language in the statutes that says the opinions of the insurance companies experts are presumed to be correct. Because of this insurance companies argue that the homeowner should have to provide that the report is not correct before receiving coverage. The most famous of these situations was in the case of Warfel v. Universal Insurance. In that case, the judge instructed the jury that the opinions of the experts retained by Universal must be presumed to be correct and that the homeowner had the burden of proving the findings were not correct. The homeowner lost and the case went up on appeal to the Second District Court of Appeals and eventually to the Florida Supreme Court.
The Florida Supreme Court first opined that the statutes referenced had nothing to do with the litigation. They were designed as a framework on how insurance companies should investigate these types of claims, not a legal advantage to one side or the other. The insurance company argued that placing the burden on the homeowners was supported by the “insurance crisis” in Florida. The Supreme Court again noted that unless the statute clearly expressed such a concern over a serious public issue, such as protecting police officer, the courts can not assume otherwise.
Despite this rather clear interpretation of this issue from the almighty Supreme Court, some State level judges are going rogue on this issue. In a trail recently, a Pasco County judge ruled that the homeowner should carry the burden of proving that a sinkhole existed verse the insurance company proving that it didn’t. As a side note, Citizens officials, lawyers and experts were rejoicing over this decision as one part of the impending downfall of all sinkhole claims in Florida. I think this ruling is flat wrong. But then again, judges in several counties have taken a 180 degree turn in the way they handle sinkhole claims over the past year. We have never seen crazier decisions from our judges in those counties than we have in the past several months. The problem is, the carriers will keep testing the limits as long as the judges continue to push the line back. Right now, we do not think there is a limit to how far insurance companies will take these cases, or a limit as to how far the judges will let them take it.