The Colorado Supreme Courtroom just lately adopted the discover prejudice rule¹ as famous in Colorado Supreme Courtroom: Late Discover, No Prejudice, No Downside:

The notice-prejudice rule, nonetheless, requires the insurer to show that the delay in notification materially prejudiced its place earlier than it will possibly deny protection based mostly on a late discover. Basically, this rule shifts the main focus from strict adherence to contractual deadlines to a extra equitable consideration of whether or not the insurer was really harmed by the late discover. The notice-prejudice rule beforehand utilized solely to uninsured/underinsured motorist and third-party legal responsibility insurance policies in Colorado.

Following a LinkedIn remark by insurance coverage protection lawyer Steve Badger criticizing the choice, I wrote a response in The Doom and Gloom Assumes a Costume of Plume—The Insurance coverage Trade Must Cease Being So Damaging and Watch Out for Its Clients. On the finish of that put up, I famous:

There’s one other side of the case that may result in wrongful gamesmanship, which I’ll describe in an upcoming put up.

It is crucial for everyone to grasp what the insurance coverage trade and Steve Badger complain about regarding late discover of claims. Steve Badger contends {that a} late discover of declare ought to end in denial moderately than cost as a result of he believes that the observe of submitting claims lengthy after an occasion, comparable to a hurricane or hailstorm, results in gamesmanship within the claims course of, which is usually attributable to roofers and AOB attorneys. The insurance coverage trade’s place is {that a} late discover of injury inherently makes it tougher for insurers to analyze and precisely assess the injury. Accordingly, the “obligation after loss” to carry out the speedy discover of loss is materials and vital from the insurer’s view.

The trade view is that the delay may be exploited by contractors to inflate the price of repairs, and make claims for losses that aren’t attributable to the occasion claimed, which inherently will increase adjustment and claims bills simply to analyze claims not discovered worthy of cost and drives up premiums to pay for elevated severity and frequency of claims in comparison with historic severity and frequency actuarial outcomes. Since I’ve spent fairly a little bit of time with Steve Badger discussing and debating these points, I imagine his place is probably going fashioned by his broader issues in regards to the integrity of the insurance coverage claims course of. In contrast to my observe, the place I see insurance coverage firm claims abuses, insurance coverage protection attorneys work on claims despatched to them by insurers that they imagine are merely unfit. Badger actually reveals examples of those in his public feedback.

My view is {that a} policyholder who makes a declare late ought to be capable of acquire if the late discover has not prejudiced the insurance coverage firm.  My weblog put up supplied an instance, which I imagine occurs on a regular basis as a result of we’ve got represented quite a few policyholders in an analogous situation. Nonetheless, the late discover rule within the fashionable claims period can result in a possible draw back that promotes gamesmanship.

The gamesmanship is way simpler to perform in states which have a protracted statute of limitations and disallow a shortened statute of limitations. Florida is a superb instance of such a state. The end result has led to statutory reforms disastrous for policyholders in response to perceived and precise cases of claims gamesmanship methods.

In Florida, the insurance coverage trade supplied quite a few examples of contractors offering incentives to policyholders to entice the investigation of a potential declare to roofs the place the storm occurred years earlier than. Gross sales groups of roofers had been educated on the right way to method policyholders to make such claims and promising one thing too good to be true—“You don’t have anything to lose, allow us to make the declare for you with an AOB, and let’s see if the insurer pays for the substitute of your roof.  We are going to even discover and rent attorneys to assist out for free of charge to you.”

This situation with AOB attorneys, together with extraordinary gross sales ways by some within the building restoration trade and a five-year statute of limitations, killed the Florida insurance coverage market. Insurance coverage firm claims managers had been besieged with an historic rise within the frequency of late reported property claims. They made new claims processes, which had been way more troublesome for all claimants. Good or unhealthy claims had been caught on this new situation of claims processing. Claims funds had been way more troublesome, and property insurance coverage litigation elevated. I may write a guide on the Florida instance of gamesmanship.

Except you reside below a rock within the property insurance coverage subject, the Florida situation is understood to many. It’s what Badger and the insurance coverage trade concern. That was a part of why I wrote the put up in regards to the trade overreacting to a rule of legislation that appears very equitable to many. Certainly, the bias rule is widespread in most states and has labored with little gamesmanship ever occurring.

I usually remind many within the insurance coverage trade that they’ve this tendency to overreact to at least one case or occasion of fraud. They complain about an occasion of fraud as whether it is regular for everyone to be doing it, and make up statistics that aren’t supported. They appear to be in a jihad towards the individuals buying the insurance coverage product as quickly as they’ve a loss. I said this in Badger Traps and How Contractors Can Keep away from Being Accused of Insurance coverage Fraud:

One of many exceptional features of property insurance coverage declare dealing with is how usually some insurance coverage firms get right into a ‘holy warfare’ about insurance coverage fraud. Each Steve Patrick and Steve Badger will inform anyone that’s listening that neither promotes fraud by the insurance coverage firm, the policyholder, the contractor or the general public adjuster. Certainly, every says fraud needs to be referred to as out regardless of who’s doing it. I’ve actually heard them say the identical factor about fraud in several speeches, in several elements of the nation.

The underside line is that the case permits Colorado policyholders who reported their property loss late a way to nonetheless acquire if the insurer has not been prejudiced. Whereas there may be some elevated probability of some examples of “gamesmanship” that occurred in Florida, Colorado legislation is totally different than Florida. Colorado permits for a shortened statute of limitations and case legislation permitting insurers to particularly stop AOBs of their property insurance coverage insurance policies.

Thought For The Day 

Braveness is resistance to concern, mastery of concern, not absence of concern.

—Mark Twain

¹ Gregory v. Safeco Ins. Co. of Am., 2024 CO 13, — P.3d —, 2024 WL 1040531 (Colo. Mar. 11. 2024).