Background
Baytree, a condominium association, suffered roof damage from a storm in April two thousand twenty-one but did not notify its insurer, Clear Blue, until nine months later. Clear Blue reserved its rights regarding the late reporting and investigated the claim, finding minimal damage below the deductible. Baytree sued for breach of contract and an appraisal, arguing the insurer waived its notice defense. The district court denied Baytree’s motion for an appraisal and granted summary judgment for Clear Blue, excluding a supplemental expert opinion from Baytree’s case.
The court’s reasoning
The court analyzed the case in three parts. First, it affirmed the denial of the appraisal motion because the insurer had not clearly demonstrated an intent to waive the notice provision, as it had reserved its rights immediately. Second, it affirmed the exclusion of the supplemental expert opinion, ruling it was an untimely new opinion rather than a supplement to the initial report. Third, the court reversed the summary judgment on the breach of contract claim. Under Florida law, while late notice presumes prejudice, the insured may rebut this presumption. The court found that testimony from Clear Blue’s own engineer and adjusters, who stated they could determine the cause and extent of the loss despite the delay, created a genuine issue of material fact for a jury.
Clear Blue’s coverage and appraisal decisions, in other words, were not unconditional.
USCA11 Case: 24-10889 Document: 54-1 Date Filed: 05/21/2026 Page: 14 of 22
What it means going forward
Insurance companies must be careful not to waive notice defenses through their conduct, but they cannot rely on a presumption of prejudice if their own experts testify that the delay did not hinder their ability to investigate or adjust the claim.
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