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Hurricane Ian was a devastating storm for southwest Florida. While out in the Gulf of Mexico, it became a high-end category 4 hurricane early on September 28, 2022 and made landfall later that afternoon. The areas where Ian made landfall will likely have little potential for subrogation. There will, however, be opportunities for subrogation along the storm’s path across the state of Florida. Ian tracked across the entire state of Florida (and beyond), leaving extensive property damage in its wake.
Hurricane Andrew in 1992 revealed many weaknesses in the building code applicable to Florida construction. After 1992, the state’s minimum building codes began to change, and in 2002, the first edition of the Florida Building Code was released. Since 2002, the Florida Building Code has continued to evolve, and as currently drafted is designed for construction to withstand certain expected weather related events. It is the Florida Building Code that will drive many post-hurricane subrogation cases in Florida.
Here are some tips for subrogation professionals analyzing subrogation potential associated with Ian property damage claims in Florida. When analyzing subrogation potential following a hurricane, there are a few key items you will want to have at your fingertips. The first is access to a wind speed chart. You can find general wind speed charts online. You will then want to have handy a copy of the Florida Building Code. Note that the property you are reviewing will need to comply with the edition of the Florida Building Code applicable at the time of construction, and not the edition at the time of the hurricane. Below is an example of a wind speed chart in the Florida Building Code for Risk Category IV buildings.
If you determine that the wind speed at the subject location was less than that set forth by the requirements of the Florida Building Code, you will then need to know the age of the structure (or recent repairs) to confirm that the subject work is within Florida’s 10 year statute of repose for construction related matters. However, if the loss is due to a “product” defect, Florida’s statute of repose increases to 12 years.
Should you determine that the wind speed was under that set forth by the Florida Building Code, and the possible defective work was within the time period set forth in the applicable Statute of Repose, you will then want to consider engaging an expert to identify the specific cause of the failure. You will also want to have the expert or handling adjuster inspect the surrounding area to confirm that the area was not hit by a tornado that may not be identified on a general wind speed chart. This can usually be confirmed by lack of damage to neighboring properties. However, to confirm with certainty, you will need to retain the services of a meteorological expert. Understanding that the experts/adjusters may only get one shot at inspecting the property and interviewing the insured due to limited availability and scheduling issues, it is suggested that you prepare a list of questions for each expert/adjuster to obtain answers to during the initial site visit.
It is smart to have a subrogation “check list” for questions to ask the insured should you suspect that the property is located in an area that experienced weather conditions below the Florida Building Code threshold. While every claim is different, some of the things you will want to know and obtain are the same for all properties:
If you are unable to get needed information with regard to the age of property or any recent work, many times you can find valuable information through building departments that utilize an online system.
If you do determine that subrogation potential may exist and you want to place a contractor on notice, you should know that Florida has a “Right to Repair” statute that may impact how your subrogation claim is handled. The requirements are set forth in Chapter 558 of the Florida Statutes. It is recommended that if you find that you may have a possible construction defect subrogation claim, you immediately send the responsible contractor a letter offering the contractor an opportunity to inspect and repair the property as set forth in Chapter 558 of the Florida Statutes. In addition, ask the contractor to provide you with the names of all subcontractors who may have been associated with the potential defective workmanship. Finally, make sure to request the contractor’s liability insurance information pursuant to section 627.4137, Florida Statutes. It is important to send the letter by Certified Mail or by another tracking method to confirm delivery in case the notice letter becomes an issue down the road.
The investigation of a subrogation case arising from a hurricane loss is the same as any other construction defect subrogation claim. However, the volume of claims to triage is much greater, and it will greatly increase the recovery potential the sooner you can separate the claims with no potential from the claims worthy of further investigation.
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