Hello kids, it's another sun-shiny day in paradise, so let's change the mood by digging deep into the recesses of the bunker, into the cool dark crevices where -- long after the last coffee has been swilled -- we may yet dredge up from the slimy underbelly........The Case of the "Cryptic" Letter:
King Cole v. USPlate:
Insurance claim sj reversed per curium because of material issues of fact on coverage and defenses, ho hum.
Not so fast.
In walks Judge Rothenberg:
On January 13, 2006, in a letter to the insured accompanying the second payment, USPlate indicated a belief that it had fulfilled its policy obligations related to the damage caused by Hurricane Wilma. Nevertheless, the letter invited the insured to notify USPlate of any other damages there may have been, offering to reopen the claim should the need arise. USPlate’s letter specifically stated: “This claim is now closed. If you should find any additional damage as a directresult of Hurricane Wilma we will reopen the claim as necessary.” The insured’s initial response to this letter was more than two years of silence.So the issue is whether this cryptic letter is sufficient "notice" to create an issue a fact.
Finally, on January 29, 2008, counsel for the insured broke that silence by sending USPlate a cryptic letter which asserted that USPlate did “not adequately compensate” the insured. The letter did not provide the amount of compensation that was lacking. The letter did not specify whether the lacking compensation was related to the insured’s principal plate glass damages or to its supplemental “boardup” claims. The letter included no attachments or invoices. Nevertheless, the letter demanded payment of some unknown amount directly to counsel for the insured’s law firm with the law firm as the sole payee. Counsel for the insured, by way of this letter, gave USPlate thirty days to respond.
Less than thirty days later, on February 25, 2008, USPlate responded, asking counsel for the insured to verify that he was authorized to represent the insured and noting that it had “not received any further claim or communication from [the insured]” after paying $104,928.48 more than two years earlier. However,unbeknownst to USPlate, and despite counsel for the insured’s letter providing USPlate with thirty days to respond to its demand for payment of an unspecified amount for unspecified damages, the insured had already filed suit almost three weeks earlier.
The Judge says no:
However, the undisputed facts reveal that the insured opted to file suit before notifying USPlate in any way that it was claiming $179,096.82 in glass replacement and repair costs beyond the $104,928.48 that USPlate had already paid. In fact, as the insured readily admits, it failed to notify USPlate that it had glass damages beyond the $104,928.48 USPlate paid in 2006, or provide USPlate with a single invoice related to this additional amount until after the lawsuit was filed.One question I have is whether the insured served process on the suit when it was filed. Maybe it was filed for statute of limitation purposes and they were waiting to see what the insurer did in response to the letter?
I guess the solution is to be less cryptic, but really what fun is that?