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You Have a Duty to Mitigate Losses

Fri Jan 26th, 2018 on     Property Insurance,    

Property insurance policyholders have an obligation to mitigate their losses whether they’re in Florida or any other jurisdiction.  Failure to mitigate such losses can have a myriad negative consequences for the would-be claimant, up to and including a relinquishment of reimbursement rights under the insurance contract.  As such, if you have suffered various property losses for which you are entitled to be paid out, it’s important to consult with an experienced property insurance attorney as soon as is practicable — your attorney will help you identify the steps you can take to ensure that you have expended reasonable mitigation efforts, and that you remain qualified to make a claim for such property losses (pursuant to your coverage plan).

Mitigation Basics

All property insurance policyholders have a duty to mitigate their losses in the wake of some adverse event that causes covered losses.  Though the specific obligations imposed upon the policyholder may differ from plan to plan, as a general rule, policyholders are expected to make reasonable efforts to mitigate losses to the extent possible.

Reasonable mitigation efforts do not require that you exert unlimited efforts in order to prevent further losses.  What is deemed “reasonable” will depend largely on the circumstances.  Exposing yourself to significant harm is not required, nor is the exertion of effort that may confound your abilities.

For example, suppose that a tree has fallen onto your house during hurricane-force winds.  Substantial damage has been caused to your house.  When the tree fell, however, an additional nearby tree was dragged along with it, and is now hanging precariously above an untouched area of your house.  You must make reasonable mitigatory efforts to remove the second tree before it falls, but that does not implicate your direct involvement in the removal of the tree (if you do not have the requisite skill level, equipment, or physical ability to do so).  Reasonable mitigatory efforts may require that you contact a tree removal specialist to do the job — and then, depending on the insurance contract, you can be reimbursed for this expense.

Failure to mitigate could reduce the amount that you are compensated for your losses, if your insurer determines that your failure has led to additional losses (that are covered by the insurance policy at-issue).  They will likely attempt to calculate the losses you have suffered in the event that you had actually exercised reasonable mitigatory efforts and will compensate you only for those losses.

Reimbursement for Mitigation Expenses

Most property insurance policies contain language that — in some way — empowers the policyholder to be reimbursed for their reasonable mitigation efforts.  Generally speaking, when the mitigatory efforts at-issue (and related costs) are expended for the benefit of the insurance company, reasonable expenses may be reimbursed.  In some limited situations, however, the insurance contract may not contain reimbursement language.  Before moving forward with expensive mitigation efforts, it’s important to consult with an attorney and assess the language of the contract to ensure that your efforts will be reimbursed.

It’s worth noting that mitigation expenses will not be reimbursed unless the losses being mitigated are covered by the plan.  For example, if you hire a team of contractors to fix your water pipes, but water damage is not covered by your policy, then the expense will likely not be reimbursed by your insurer.

If you have had your property insurance claim wrongfully denied (or have had your claim undervalued, or payments delayed), then you may be entitled to sue and recover damages against the insurer pursuant to Florida law.  Alternatively, you may be able to simply revise and resubmit your claim (with the aid of an experienced property insurance lawyer) and obtain the sought-after benefits.

Ver Ploeg & Lumpkin is an insurance litigation firm that has represented Florida policyholders in a variety of insurance disputes for over twenty years.  We believe in client-oriented legal advocacy and work closely with our clients to develop personalized strategies that are particular to their case.

Call (305) 577-3996 to schedule a free consultation with an experienced Miami property insurance lawyer here at Ver Ploeg & Lumpkin.

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