A common issue arising with first-party insurance litigation is when a homeowner alleges her or she did not receive payment of an insurance claim by mail. Insureds, or their assignees, often allege their insurance company never paid a properly submitted, claim because the insureds never received the insurance company’s reimbursement payment by mail. In this instance, the insureds often file suit against their insurance company for non-payment of funds under their homeowners’ policy.
In some first-party cases where the insurance company re-issues a check after the insured or assignee alerts the insurance company of non-receipt of payment by mail, the insured races to the courthouse to file suit to then allege the re-issuance of the reimbursement check from the insurance company is a confession of judgment entitling the insured to attorneys’ fees pursuant to section 627.428, Florida Statutes. However, the insurance company never actually needs to show proof that it mailed the specific check for the insured’s or their assignee’s claim to defeat such an allegation.
In Florida, an organization’s routine business practice can prove the organization’s conduct on a particular occasion conformed with the routine business practice, despite having no direct proof of the conformity on that particular occasion. Evidence of a routine mailing procedure can be used to prove that a check an insured allegedly never received was in fact mailed. At that point, it is presumed that the insurance company followed its routine business practice and that the check was received by the insured. In fact, if an insurance company can prove that it had a routine mailing procedure, the insured then has to prove the routine business practice was not followed on that particular occasion. Proof of an insurance company’s routine business practice can be established by a person who supervised, was sufficiently acquainted with, or had personal knowledge of the routine business practice.
Having an issue with an insured claiming they never received payment by mail for a properly submitted and accepted claim? CSK’s appellate department is available to consult on any legal issue you may have, whether you have had an adverse order entered against you or just have questions.
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Mr. Hunker is a partner in the Fort Lauderdale East Office. He is a Board Certified Specialist in Appellate Practice and serves on the Florida Bar Appellate Board Certification Committee. Mr. Hunker has extensive experience at the appellate and trial[...] Read more