Can an insurance company require a railing where the building code does not require it?

UPDATED: Oct 1, 2022

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Can an insurance company require a railing where the building code does not require it?

I recently purchased a house which is about 30 years old. It is in Merritt
Island, Florida. There is a beautiful patio on the back of the house. In some
areas, the step off the patio to the backyard is about 28′. In most places, it is
less than that. The building code indicates that there should be a railing if the
drop distance is more than 30′. The insurance company will drop my policy if I
don’t install a railing, despite the fact that it meets building codes. I offered
adding soil and sod to make the drop off distance less, but the insurance company
cannot provide a height number to meet, but it is implied to be something like
15′. Is this legal? Can they apply rules that are stricter than the building
code? Is there any other way to work with the insurance company on this?

Asked on August 23, 2018 under Insurance Law, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Yes, they can do this. Remember: they are NOT obligated to sell you insurance: there is no legal right to or guaranty of insurance, either in general or from this insurer in particular. Insurers only sell insurance when they think they will make money by doing so; they can refuse to sell when they think the risk, and so the chance of them paying (or amount they would pay) is too high. They are free to put any conditions on getting insurance that they want, since they are not required to sell the insurance in the first place. They can go beyond building, etc. codes.
The real question is why do not want to put a railing on? Building code or not, if a guest fell off your patio, because it would likely be seen as unreasonably dangerous to not have a railing on an up-to-28' drop, you would almost certainly lose if sued. Putting a railing on helps protect you from potentially large (e.g. if someone fell and broke their neck or suffered head trauma) lawsuit.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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