HOMEOWNER INSURANCE CLAIMS
Table of Contents:
- What are the types of legal cases?
- What happens in civil cases?
- What is the burden of proof in a civil case?
- Who gets to testify in a civil case?
What are the types of legal cases?
Our legal system recognizes two kinds of law cases — civil and criminal. In civil cases, a person who feels wronged — called the “plaintiff” — brings legal action against a perceived wrongdoer to protect the plaintiff’s interests and, if appropriate, to collect damages. The person being sued is called the “defendant.” In a civil case, the person who feels wronged decides whether to bring suit and also decides how much money in damages to seek. In criminal cases, a victim of a crime does not use, but rather the state (plaintiff) sues the person allegedly committing the crime(defendant), and the victim becomes a witness in the case.
What happens in civil cases?
Civil cases often involve a dispute over a contract or what is called a “tort.” A tort has been defined as “[a] civil wrong, other than a breach of contract, for which a remedy maybe obtained, usu. in the form of damages.” Torts can be intentional, such as civil theft, or unintentional, such as a claim for motor vehicle negligence.
In civil cases, if the defendant is found responsible, the court can enter a judgment for money damages, punitive damages, compensation for lost time/wages/income and/or reimbursement for certain costs, maybe even specific performance of something to be done that was not done. The court also can issue injunctions against the defendant restricting the defendant from some activity, and sometimes a court may enter a judgment awarding the plaintiff or the defendant for attorney’s fees. The judge cannot enter a judgment sending the defendant to jail or prison except in unusual cases in which the defendant may have violated a court order.
What is the burden of proof in a civil case?
In a civil case, the person (or a company) who started the lawsuit (plaintiff) has the burden and obligation to prove the case with stronger evidence than the defendant has. This is called the “preponderance of the evidence” standard. In other words, for the plaintiff to win the case, the judge or a jury must believe that the weight of the plaintiff’s evidence is greater than the weight of the defendant’s evidence.
Who gets to testify in a civil case?
In civil cases, any person may be required to testify in court. A plaintiff may call the defendant to testify, among other witnesses, and likewise, the defendant may call the plaintiff to testify.
Table of Contents:
- Legal and Binding Contracts
- Written or oral?
- Understand the Terms
- ‘Cooling-off’ period
- Contract disputes
- Do you need a lawyer?
Legal and Binding Contracts
A contract is an agreement between people or legal entities (such as corporations) in which one party agrees to perform a service or provide goods in exchange for the payment of money or other goods or services.
The formation of a contract is accomplished when there is an offer and acceptance between the contracting parties of the exchange of “consideration” (that is, something of value). This offer and acceptance are sometimes referred to as a “meeting of the minds” or “mutuality of assent.” If the parties have not reached a threshold level of agreement by these standards, then there is no enforceable contract.
However, an agreement, even after an offer and acceptance, is not necessarily a legally binding contract. For instance, one cannot contract for an illegal or impossible act. In addition, in order to enter into a legally binding contract, you must have the capacity or legal ability to enter into that contract. For example, with some exceptions, minors do not have the capacity to enter into a contract.
For a contract to be binding, there also must the exchange of promises to act and/or provide goods, services or money. The act, promises, goods, services and/or money are called “consideration.” In order to have a binding, enforceable contract, there must be an exchange of consideration. In addition, an agreement to do something or pay something can become binding if you act to your detriment while relying on the other party’s promise to perform. Similarly, in some cases, giving up the right to act in reliance on a promise may be sufficient consideration for a binding, legally enforceable contract.
Written or oral?
A binding, legally enforceable contract can be in writing or oral. Oral contracts are agreements that have been spoken, but not written. Depending on the nature of the transaction, certain types of contracts in Florida are required by law to be in writing in order to be enforceable. For example, contracts related to the sale of real estate or contracts that cannot be performed within one year must be in writing. Generally, other than those required by law to be in writing, oral contracts are enforceable in Florida, especially in situations where one party has performed the obligations of the contract.
Written contracts are almost always preferable to oral contracts, because a written document helps eliminate disputes about the terms and conditions of the agreement. Also, oral contracts can be difficult to enforce in a court of law. To avoid disputes and litigation, the best practice is to get an agreement in writing. The written contract will help ensure that all parties understand their rights and obligations under the contract.
However, even a written contract must lay out the agreement between the parties with enough specificity to make it enforceable. Under Florida law, certain types of contracts must also contain the parties’ agreement on specific issues in order to be enforceable. A lawyer can help you determine what needs to be in your written contract to make it a legally binding and enforceable in a Florida court.
Understand the Terms
Contracts can limit rights as to which court a lawsuit may be brought in, they can provide whether the parties to the contract are entitled to a jury, they can allocate the payment of attorney’s fees, and they can provide whether an alternative dispute resolution forum, such as mediation or arbitration, is required.
Written contracts often contain legal terms such as “liquidated damages,” “special damages,” “consequential damages,” “court costs” or “default,” which have meanings that are not generally known to nonlawyers. If one party to a legally binding contract breaches the agreement (breaks the promise under the contract), many of these terms can have a significant effect on the remedies and damages available. A lawyer can help you understand what these terms mean and the consequences of a breach. If you receive a contract and you do not understand all of the terms in it, be sure to consult with an attorney before signing any contract agreement.
Contrary to what many people believe, there is no automatic right to cancel a legally binding contract once there has been a valid offer and acceptance. The right to cancel a contract is called the “right of rescission.” Generally, only certain types of contracts are required to come with a right of rescission.
For example, with some exceptions, Florida law does allow a “cooling-off period” or three-day right to cancel a contract for certain services to be rendered on a continuing basis, or on contracts for the sale of goods or services sold during the course of a “home solicitation sale,” which is a sale that takes place in your home or at a location that is not the main or permanent place of business for the seller, so long as the purchase price is more than $25. You also may be entitled to cancel a contract for future services if you no longer can physically receive the services, or the services are no longer available as originally offered.
If you have any questions about whether you have a three-day right to cancel, contact consumer agency, such as the Attorney General’s Office, the Florida Department of Agriculture and Consumer Services or your local consumer agency.
If a contract provides a right of rescission, then in order to cancel such a contract, you must give written notice of cancellation within the time provided by the contract or bylaw, and it must be in the form required. A lawyer will be able to tell you if a particular contract comes with such a right to cancel and, if so, how to cancel. Be very careful to follow the specific instructions on how to cancel such contracts or your attempt to cancel could be considered invalid.
The breaking or “breach” of a contract can result in one party’s being sued by the other to enforce the contract. You may elect to compel the other party to fill the promise called for by the contract, or to pay money instead of providing the goods or service. If you want to enforce a written contract, you usually are required by law to file the lawsuit within five years of the date the written contract was breached, or four years if it is an oral contract. However, the deadline for filing a lawsuit to enforce a contract may be as little as one year after the agreement was breached.
If you do not sue before the deadline, you will not be permitted to sue later. A lawyer can help you determine what that deadline is for enforcing the contract by filing a lawsuit. In addition, the time frame for filing suit can be extended based upon certain actions of the parties during the contract, such as continued payment.
Some contracts state that any dispute will be decided by arbitration instead of by a judge or jury in a court of law. These “arbitration clauses” are usually valid and binding. Arbitrators are trained in determining the outcome of contractual disputes. Arbitrators receive a fee from the complaining party before hearing the case, and then also are paid for their time as the case progresses. These fees may be more expensive than what it would cost to bring the same case to a court of law, and they may even be more than the amount of money in dispute. You should not sign a contract with an arbitration clause unless you are willing to give up your right to have any dispute related to the contract decided by a judge or jury, and are willing and able to pay the arbitrator’s fees.
If you file suit and prove your case in a court of law or before an arbitrator, a judge may order that you are entitled to recover money or goods from the other party. That order is called a “judgment.” There are various ways to enforce such judgments. A lawyer can help you recover on a judgment if the losing side does not voluntarily pay the judgment. In addition to the damages awarded to the winning party, you generally should be able to recover interest and court costs. Sometimes, even attorney’s fees can be recovered.
Do you need a lawyer?
Because of the complexity of contract law, and the consequences of entering into contracts, the state Supreme Court restricts the drafting of contracts by nonlawyers, although a person may ordinarily draft a simple contract to which he or she is a party without being deemed to be practicing law. Most printed contracts are drafted by lawyers and are designed to protect the client’s rights.
Each year, Florida residents lose money because they do not understand contracts when they enter into them or what to do when the other side breaches the agreement. In many of these cases, the advice of a lawyer would have prevented the loss. Only a qualified lawyer can advise you on whether an agreement is binding and what rights or obligations you may have if there is a breach. Before you enter an agreement requiring the giving or payment of valuable consideration, it is best to have a qualified lawyer review the agreement, detail your obligations under it and explain the consequences of a breach of the agreement. Never sign anything that you are not able to read and understand.
Homeowner Insurance Claims:
Table of Contents:
- Post-loss policy obligations
- Your insurance company’s obligations to you
- Your mortgage company
- Alternative dispute resolution
- Public insurance adjusters
- Attorneys and attorneys’ fees
When you purchase your home, you should consider protecting your asset with property insurance. If you have a mortgage on your property, you will be required to purchase insurance to protect your mortgage company’s security interest. Also, if you live in a condominium or are part of a homeowners’ association, the controlling documents may require you to maintain property insurance.
This online pamphlet will give you a brief overview of the types of coverage your insurance policy may provide, and your rights and obligations under your insurance policy.
Below are several types of coverages that your homeowners’ policy may provide to you. You can confirm how much coverage you have by looking at your policy’s “Declaration “page, which should be located at the beginning of your policy.
Coverage A – Dwelling – Covers physical damage to your home.
Coverage B – Other Structures – Covers damage to other structures or buildings, such as a detached garage, shed, or fence.
Coverage C – Contents/Personal Property – Covers damage to, or loss of personal property. Personal property includes household contents and other personal belongings used, owned or worn by you or your family.
Coverage D – Additional Living Expenses – Covers additional living expenses when incurred. This means that the policy covers the necessary living expenses up to the stated limit, incurred by the insured to continue, as nearly as possible, the normal standard of living when the home cannot be occupied due to a covered loss.
A deductible is a specified amount of money that you must pay before an insurance company will pay a claim. The amount of your deductible can be found on your policy’s “Declaration” page.
Post-loss policy obligations
Below are standard obligations that you have to your insurance company after a loss takes place:
● Give prompt notice of the loss.
● Protect the property from further damage, and make reasonable and necessary repairs to protect the property.
● Keep an accurate record of repairs and expenses regarding the loss.
● Prepare an inventory of damaged personal property with bills and receipts.
● Notify the police and credit card companies in case of a loss by theft.
● Show the damaged property.
● Provide records and documents.
● Submit to an examination under oath.
● Send a sworn proof of loss within 60 days of request.
You must ensure that you satisfy your obligations to your insurance company. If you do not comply with these obligations, you could forfeit coverage for an otherwise covered loss.
Your insurance company’s obligations to you
● Your insurance company must respond to communications from you within 14 days of receipt (Florida Statutes Chapter 627, Section 70131).
● Your insurance company also must pay or deny your claim within 90 days after receiving notice of your claim, unless there are factors beyond its control.
Your mortgage company
If you have a mortgage on your property, your insurance policy and your mortgage contract require that the mortgage company be listed as a payee on any insurance check that is issued to you for your loss. In this situation, you will need to contact your mortgage company directly to confirm its procedure for endorsing an insurance check. Typically, a mortgage company will want some type of confirmation that the repairs to your home have been completed, to protect its security interest in your property.
ALTERNATIVE DISPUTE RESOLUTION
If a dispute arises between you and your insurance company, you may have a right under your policy and Florida law to participate in mediation at your insurance company’s expense through the Department of Financial Services’ mediation program.
Mediation is an informal way to resolve a claims dispute between you and your insurance company. It is a process in which a neutral third party acts to encourage and assist in the resolution of a dispute, without dictating the outcome. Your insurance company must provide a representative with full authority to settle the claim at the mediation conference. The conference should be held at a location near your residence.
You can obtain more information about pre-suit mediation with the DFS by visiting its website.
Most insurance policies contain an appraisal provision allowing the parties to submit a dispute as to the scope and amount of your loss to a neutral third party, or umpire. Unlike mediation, this neutral third party’s decision will be binding on the parties. Typically, you are obligated to pay any person who represents you during the appraisal process, as well as half of the cost of the umpire.
Read your policy’s appraisal provision to confirm your rights and obligations to appraisal.
Public insurance adjusters
A public adjuster is a professional who represents an insured by submitting, adjusting and negotiating an insurance claim with an insurance company. A public adjuster advocates for the insured during the claims process. Aside from attorneys, Florida licensed public adjusters are the only type of claims adjuster that can legally represent the rights of an insured during an insurance claim process. Most public adjusters charge percentage of the settlement.
You can confirm that your public adjuster is licensed by visiting Florida’s Department of Financial Services licensee search page. The Florida Association of Public Insurance Adjusters (FAPIA) is the largest network of licensed public adjusters in Florida; you can go to its website to locate a Florida licensed public adjuster in your area.
Attorneys and attorneys’ fees
If a dispute arises between you and your insurance company, you should consult with a Florida licensed attorney to fully understand your rights and obligations. Florida law will allow you to recoup at least a portion of the attorneys’ fees and litigation costs that you may incur if you are forced to file a lawsuit against your insurance company and obtain a judgment against the insurer (Florida Statutes Chapter 627).
This pamphlet is produced as a public service for consumers by The Florida Bar.
Landlord & Tenant Law:
Rights and Duties of Tenants:
When a person pays rent to live in a house, apartment, condominium or mobile home, the renter becomes a tenant governed by Florida law. It doesn’t matter whether payment is made weekly, monthly or at other regular periods. Also, it doesn’t matter whether the apartment, house, condominium or mobile home is rented from a private person, a corporation or most governmental units. These facts are true even when there is no written “lease” agreement.
A tenant has certain rights and responsibilities under Florida law. These are specified in the Florida Statutes at Part II, Chapter 83, the Florida Residential Landlord Tenant Act. A tenant in federally subsidized rental housing has rights under federal law, as well. If there is no written lease, these laws regulate the tenant’s rights. There also may be a written lease that could affect a tenant’s rights. If there is a written lease, it should be carefully reviewed. The Florida Residential Landlord Tenant Act prevails over what the lease says.
A tenant is entitled to the right of private, peaceful possession of the dwelling. Once rented, the dwelling is the tenant’s to lawfully use. The landlord may enter the dwelling only in order to inspect the premises or to make necessary or agreed upon repairs, but then only if the landlord gives the tenant reasonable notice and comes at a convenient time. If an emergency exists, the requirement for notice may be shortened or waived.
The landlord is required to rent a dwelling that is fit to be lived in. It must have working plumbing, hot water and heating, be structurally sound and have reasonable security, including working and locking doors and windows, and it must be free of pests. The landlord of a single-family home or duplex must install working smoke detectors at the beginning of the lease unless the landlord and tenant agree otherwise in writing. The landlord also must comply with local health, building and safety codes. If the landlord has to make repairs to make the dwelling fit to live in, the landlord must pay.
If the landlord contends that the tenant has violated the rental agreement, the landlord must inform the tenant in writing of the specific problem and give the tenant time to correct the problem – even if the problem is nonpayment of rent – before the landlord can go to court to have the tenant removed. Tenants receiving a nonpayment-of-rent notice should be aware that a landlord may accept part of the rent owed and still evict the tenant. Tenants renting condominiums should be aware that, in certain circumstances, the condominium association may demand that the tenant pay the rent to the association instead of the landlord. Tenants should consult an attorney in this case. If the tenant commits a serious act endangering the property (such as committing a crime on the premises) or fails to correct a problem after written notice from the landlord, the landlord still must go to court to be permitted to evict the tenant. In any court proceeding, tenants have the absolute right to be present, argue their case and be represented by an attorney.
If the landlord requires the tenant to pay a security deposit, the landlord must preserve the deposit during the tenancy. In addition, the landlord must return the full amount of the deposit within 15 days after the tenant leaves the dwelling or give the tenant written notice of why some or all of it won’t be returned within 30 days after the tenant leaves the dwelling. The tenant then has the right to object in writing within 15 days of receipt of the notice. Under some circumstances, the tenant may receive the security deposit plus interest. Before moving out, the tenant must provide the landlord with an address for receipt of the security deposit, or else the tenant may lose the right to object if the landlord claims the right to keep the deposit money.
The tenant has the right, under certain very aggravated circumstances caused by the landlord’s neglect, to withhold rent. This can be done only when the landlord fails to comply with an important responsibility, such as providing a safe and habitable home in compliance with local housing codes. Before rent is withheld, the tenant must give the landlord seven days’ written notice of the problem so the landlord can fix it. Even after withholding rent, the tenant should save the money and seek court permission to spend part of it to do what the landlord should have done. If the tenant does not preserve the money and seek court assistance, the tenant may be evicted for nonpayment of rent.
Finally, the tenant has the right to move out. If there is a written lease, the tenant should read the lease closely to see if it requires up to 60 days’ notice that the tenant does not intend to stay after the lease ends. If there is no written lease, the tenant may move out for no reason by giving written notice of the intent to leave no fewer than seven days before the next rent payment is due, if the rent is paid weekly, or 15 days, if the rent is paid monthly. The tenant may terminate the rental agreement if the landlord has failed to live up to a major obligation, provided the tenant has sent written notice to the landlord seven days before the rent is due (there are some exceptions to the right to move out).
If a landlord loses in court, the landlord may be held liable for any costs and attorney’s fees incurred by the tenant. If the tenant loses in court, the tenant may be liable for the landlord’s costs and attorney’s fees.
A tenant also has responsibilities that, if not observed, can lead to eviction. The tenant must pay the agreed-upon rent and do so on time. The tenant must comply with building, housing and health codes. The tenant must maintain the dwelling without damage, other than ordinary wear and tear, keep the dwelling clean and maintain the plumbing. The tenant must not violate the law or disturb the peace, nor allow guests to do so.
In trying to evict a tenant, a landlord will try to prove that the tenant violated a tenant responsibility. However, the landlord may not seek to evict a tenant in retaliation for legitimate complaints about housing conditions to proper authorities. No eviction can occur until the landlord first gives the tenant notice of the problem and then gets a court order. Without the court order, the landlord has no power to interfere with the tenant. The landlord cannot, for instance, lock a tenant out or cut off a tenant’s utilities. A landlord engaging in this type of prohibited practice may be liable to the tenant for damages in the amount of three months’ rent or actual damages, whichever is higher. The landlord must get a court order of eviction before interfering with the tenant’s occupancy.
If a tenant is served with papers seeking eviction, the tenant should immediately seek legal assistance. The tenant may have legal defenses. For instance, the landlord cannot try to get even with a tenant through eviction when the tenant has not violated tenant responsibilities. To raise defenses in an eviction proceeding, a tenant normally must pay into the court registry past-due rent if any is owed and rent that comes due during the proceeding. A tenant who disputes the amount of rent claimed to be due may ask the court to determine the correct amount, but the tenant must show why the amount is wrong. In an eviction proceeding, a tenant has very little time to respond, so quick action is important.
The landlord can never remove the tenant’s property or lock the tenant out. Only the sheriff’s office may do this, after a court order and writ of possession.
If the rented property is foreclosed upon, you may have rights under federal law to remain in the property under your existing lease. In many cases, tenants who enter into a lease before notice of the foreclosure may remain in the property until the lease term ends. However, if you entered into the lease after notice of the foreclosure or if the purchaser at the foreclosure sale will occupy the property as his or her primary residence, the new owner may give you a 90-day notice of vacate the property. The federal tenant protections described above, including the 90-day notice requirement, do not apply to all tenants. You