November 29, 2022

Volume XII, Number 333


November 28, 2022

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Hurricane Warning: Florida and Southeastern US Companies — It is Time to Activate Your Hurricane Preparedness Plan and Review Key Insurance Deadlines

Hurricane Ian is rapidly approaching the west coast of Florida and is expected to make landfall as a Category 4 hurricane near the Tampa area within the coming days. While the exact track is still being determined, there is a chance the storm may also impact insureds in Georgia and South Carolina. Now is the time to activate your disaster plan and ensure that you have your relevant insurance policies in your possession and that you review them for critical deadlines. 

The following are a few steps you can take now to put your business in the best position should you have a hurricane insurance claim:

  1. Gather insurance policies and related insurance records. If a policy was destroyed or is lost, now is the time to contact your insurance company or insurance agent/broker to request a copy. Ensure that you have all relevant policies – particularly in Florida as windstorm coverage and flood coverage may be on separate policy forms.

  2. Activate any internal disaster planning and response teams. Ensure that all critical personnel know what information they should be tracking pre- and post-storm such as spend on mitigation (such as boarding up locations, sandbags, or other steps to minimize losses); debris removal costs; costs over-and-above normal operating costs incurred to re-open as soon as possible or to resume operations as soon as possible, even if at a temporary location; location closure and opening dates; power outage times; distribution/supply chain disruptions; curfews and evacuation orders that impact business operations; and other storm-related data and costs. Businesses should open separate general ledger accounts to track storm-related costs for later submission to the insurer.

  3. Should you believe you suffered property damage or other loss as a result of the storm, determine who at your organization will be providing notice to your property insurer and ensure notice is provided promptly. Policies typically require "prompt notice" or "notice as soon as practicable" and Florida courts have routinely upheld these provisions, oftentimes affirming coverage denials where insureds fail to provide prompt notice after discovering damage. At a minimum, provide written notice of damage to all potentially applicable insurers (windstorm, flood, and property) even if you are unsure whether or not your losses will exceed your deductible. It is certainly better to ensure a timely submission now rather than risk a coverage denial based on late notice years down the line after you later determine the damage you thought was within your deductible was actually far more significant and costly. Further, there will likely be thousands of insurance claims made in Florida alone, so ensure that your claim is made promptly to help expedite your insurer’s review and adjustment of your losses. Notice to the insurer should include the name and address of the insured, the primary contact for insurer communications, the location of the loss, the date and time of the loss, and a brief description of the loss.

  4. Review key deadlines in your insurance policy(ies). Be sure to review the proof of loss deadlines in each potentially applicable policy. If the deadline is short (120 days or less), considering asking your insurer post-storm, in writing, for an extension of that deadline, and preserve evidence of that request. Note, however, that your deadline will not be extended unless you receive written confirmation of the extension from your insurer and a failure to comply with the proof of loss deadline may preclude all coverage under applicable law. Further, review each policy coverage to check for any shorter deadlines. For example, debris removal coverage often has a shorter submission deadline than other policy coverages.

  5. Appropriately document the loss through photos and videos to prove damage and allow your insurer an opportunity to inspect the property as soon as possible.

  6. Ensure that you do what is necessary to secure and mitigate further losses to the property and advise your insurer of same to make sure that your efforts will not interfere with their investigation of the damage. Requesting insurer consent to estimated costs of mitigation efforts now will also expedite your reimbursement of these costs during the claims process.

  7. Make note of your duties under the policy and any applicable policy conditions. Property insurers are entitled to conduct a reasonable investigation of the loss with the cooperation of the insured. Most policies include a section titled “Duties in the Event of Loss,” outlining the insured’s cooperation requirements such as allowing the insurer to physically visit the property and inspect the damage, permitting the insurer to conduct an “examination under oath” (EUO), requiring that the insured provide certain documents or maintenance records, or other tasks. Insureds should consider retaining knowledgeable coverage counsel to help guide them through what the policy does and does not require of them, as well as guiding them through the claims process.

  8. Review the coverages you purchased for lost business income and extra expenses. Note that your business interruption loss coverage may not require damage to your property; rather, it may be triggered by damage to dependent properties or attraction properties — businesses on which you rely to operate or properties that attract business to your property, respectively. Similarly, coverage may be triggered where property damage in the area results in civil authority orders that limit or preclude access to your property or blocked ingress/egress, such as the result of downed trees or debris.

  9. Retain the appropriate experts to assist with preparing your proof of loss. Many commercial property policies provide coverage for claims expenses or loss adjustment expenses — expenses incurred to retain forensic accountants to help quantify your loss and prepare the submission to the insurer, including for business interruption loss. Experienced forensic accountants may be busy post-storm so ensure that you retain one early on to help you adjust your losses from day one.

  10. Stay up to date on orders and pronouncements from your state’s government that may impact your or the insurer’s obligations post-loss. For example, following other major storms, many state insurance departments may issue orders extending renewal deadlines or even claims submission deadlines.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 270

About this Author

Andrea DeField Associate Miami Insurance

Andrea finds risk management, risk transfer, and insurance recovery solutions for public and private companies.

Andrea has dedicated her career to helping clients manage risk and maximize insurance recovery. As part of her counseling practice, Andrea adds value to business deals by advising clients on contractual risk transfer through indemnity, additional insured, and required insurance provisions in contracts. She also helps clients identify and mitigate risk before a loss occurs by conducting insurance due diligence for mergers and acquisitions and by conducting audits of clients...

Walter J. Andrews Insurance Attorney Hunton AK

Walter’s practice focuses on complex insurance litigation, counseling and reinsurance arbitrations and expert witness testimony.

As the head of the firm’s insurance coverage practice, Walter offers clients more than 30 years of experience managing insurance-related issues, including program audits, policy manuscripting, counseling, litigation and arbitration. He works with companies in a diverse range of industries, including financial services, consumer products, food and beverages, chemicals, real estate and municipalities. 

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Lawrence J. Bracken II Insurance Attorney Hunton Andrews Kurth Atlanta, GA & New York, NY

Larry Bracken has more than 30 years of experience litigating and investigating insurance coverage, class action, technology, environmental and commercial matters.

Larry has represented clients in federal and state courts throughout the United States in a broad range of cases, particularly the litigation of insurance coverage disputes, class actions and other cases involving allegations of unfair trade practices, ...

Michael S. Levine Insurance Lawyer Hunton Andrews Kurth

Mike has more than 20 years of experience litigating insurance disputes and advising clients on insurance coverage matters.

Mike Levine is a partner in the firm’s Washington, DC office and a member of the firm’s Insurance Recovery team. Mike’s policyholder representation focuses on:

  • Property damage and business interruption claims, including COVID-19 losses
  • Event cancellation insurance counseling
  • Representations and warranties coverage
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Cary D. Steklof Insurance Litigation Attorney Hunton Andrews Kurth Law Firm Miami, FL

Cary is an experienced litigator and advisor who represents policyholders in all types of insurance coverage and bad faith disputes.

With experience in the areas of insurance litigation, insurer bad faith and unfair insurance practices, Cary D. Steklof concentrates his practice on advising policyholders in connection with director and officer, error and omission, cyber, commercial general liability and commercial property insurance policies. Cary has directed litigation and handled claims across the spectrum of insurance products and has assisted his clients in obtaining tens of...