Shaun Marker – July 1, 2013
The lack of cooperation defense seems to be raised more often than it probably should in first-party property insurance claims. In Florida, and many other states, the insurance carrier has the burden to prove any lack of cooperation by the policyholder in a first-party property insurance claim substantially prejudiced it before any such breach would prevent recovery under the policy.
This is a high burden. So if an insured does not answer all questions during an inspection, but is later questioned under oath, it would seem the carrier would have a difficult time meeting this burden. In reality, not all policies will have a specific provision requiring a policyholder to cooperate with the insurance carrier in its investigation of the claim. The policy duties after loss spell out a policyholder’s specific duties in that situation.
Policies that contain a specific cooperation clause often do not contain descriptive or defining terms to help clarify the policyholder’s duties encompassed by the cooperation clause. There is a reasonableness standard floating around the whole concept, so an insurance carrier could not make an unreasonable request and them claim the policyholder’s failure to cooperate jeopardized recovery.
As you can tell, there are gray areas for interpretation and argument. One thing to remember, though, is if lack of cooperation is raised as a defense, the insurance company usually bears a heavy burden to prevent the policyholder from recovering claim proceeds.