Insurer delay can rescue an association's late hurricane claim, the Fourth DCA held
Insurer delay can rescue an association's late hurricane claim, the Fourth DCA held
2026-09-10 · Florida · Courts
What happened. Florida's Fourth District Court of Appeal reinstated a condominium association's hurricane claim that had been dismissed with prejudice as time-barred, holding that the association had pleaded facts capable of avoiding the five-year limitations period because the insurer's own delay had prevented it from suing in time.
Hypoluxo Mariner's Cay Condominium Association, Inc. v. Underwriters at Lloyd's London, National Fire & Marine Insurance Company, and QBE Specialty Insurance Company, No. 4D2024-2250, was decided on 1 April 2026 (Shepherd, J., with Forst and Klingensmith, JJ.), on appeal from the Palm Beach Circuit Court.1
The mechanism
The association pleaded that it timely reported its Hurricane Irma loss and filed a sworn proof of loss; that Underwriters never made the coverage determination required within 90 days by s. 627.70131(5)(a) as it then stood; and that Underwriters “repeatedly required additional examinations and investigative steps not required under the policy before issuing a coverage decision.”
Because a coverage determination is a condition precedent to suit under s. 627.70152(3)(a), the court accepted that “those delays prevented the Association from initiating litigation before the limitations period expired.”
The sequence is stark: Underwriters denied coverage roughly a month after the five-year period in s. 95.11(2)(e) had run. Suit followed three days later.
The pleading standard
“Even then, dismissal is improper if the complaint suggests the possibility that the plaintiff could allege facts in avoidance of the limitations defense.”
That sentence is the practical holding. A limitations defence is not automatically fatal at the pleading stage where the complaint suggests facts in avoidance — and, importantly, the association's first complaint did not contain them while its amended complaint did.
One question the court deliberately left open
Underwriters argued late in the appeal that s. 95.11(2)(e) is a statute of repose rather than a statute of limitations — a distinction that matters enormously, because equitable doctrines generally cannot extend a repose period. The court declined to reach it via the tipsy coachman doctrine and remanded it for the trial court in the first instance.
That is not a small reservation. If the repose argument succeeds below, much of the practical value of this decision could be narrowed.
What an association still litigating an older storm claim should do
The decision is useful only to a party that has preserved the right facts. Three things follow.
Plead the delay specifically. The court's language is about facts in avoidance, and the association won on its amended complaint rather than its original one. Dates, the proof of loss, each additional examination demanded, each request outside the policy's terms, and the date of the eventual determination — those are the allegations that carried it.
Reconstruct the claim file now. The evidence for this argument lives in correspondence: the notice of loss, the sworn proof of loss, every examination under oath and document demand, and the absence of a determination. An association that has changed managers since the storm may find that file scattered between the prior manager, the public adjuster and counsel.
Do not assume the deadline is the loss date. The interaction of the reporting deadline, the coverage-determination requirement and the limitations period is not intuitive, and it is the interaction — not any single date — that decided this case.
The wider claims-handling context
This is a decision about insurer conduct as much as about limitations. Florida's statutory framework requires a coverage determination within a defined window and makes that determination a precondition to suit. Where an insurer does neither promptly, the framework itself becomes the obstacle to the insured's remedy.
The court's willingness to treat that as a basis for equitable avoidance is the meaningful development. It does not create a general excuse for late filing; it addresses the specific circularity of a statute that says you cannot sue until the insurer acts, combined with a clock that runs whether or not the insurer acts.
Where association insurance sits more broadly this year
Two things have moved in the same direction as this decision and are worth reading with it.
Section 718.111(11)(a) now requires adequate property insurance “regardless of any requirement in the declaration of condominium,” with replacement cost re-established by independent appraisal “at least once every 3 years, at minimum.” An association that has been insuring to a declaration-based figure has a compliance problem independent of any claim.
And on the market side, the Office of Insurance Regulation's statutory Property Insurance Stability Report of 1 July 2026 records that in the condominium unit-owner wind-only segment, Citizens holds 14,340 of 19,240 policies — 74.53 percent — while in condominium unit-owner multiperil the voluntary market holds 98.35 percent. Average condominium unit-owner premiums including wind range by county from $846 in Leon to $2,271 in Collier.2
One caveat that belongs with any citation of that report: s. 627.7154 covers unit owner policies. It does not report association master-policy data, so it cannot answer what happened to the association's own premium.
A related trap in the same area
Associations pursuing claims should note a separate procedural point from another 2026 decision. In assessment litigation, the Second District held in Guerin v. Countryside Imperial Ridge Homeowners Association that “an order determining entitlement to attorney's fees and costs without setting an amount is nonfinal and nonappealable.” The same discipline applies to insurance litigation: a favourable ruling on entitlement is not yet an appealable order, and treating it as one loses the appeal on jurisdiction rather than on merits.
Status and what to watch
The opinion carries the standard notation that it is not final until disposition of a timely filed motion for rehearing, and we have not verified whether rehearing was sought or the mandate issued.
The thing genuinely worth watching is the repose question on remand. If the trial court holds that s. 95.11(2)(e) is a statute of repose immune to equitable avoidance, associations relying on this decision will need a different theory — and the issue would then be squarely positioned for appellate resolution.
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