Filing Number: 656900
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| Filing Accepted: 11/14/2022 |
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MAJMUNDAR
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First Name |
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DIPAK |
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7090 PENZANCE BLVD |
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FORT MYERS,
FL
33966
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N/A |
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Other |
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MAJMUNDAR |
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First Name |
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DIPAK |
| Policy # * |
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HOH268884 |
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Claim #* |
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HP210892 |
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Attorney is Applicable
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| Insurer Type
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 Authorized Insurer
 Unauthorized Insurer
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| Insurer Name |
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| Insurer Name* |
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HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY
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NAIC Company Code 14407 |
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| Name of individual responsible for violation (if any):*
HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY; UNKNOWN PERSONS WITH KNOWLEDGE IN THE HERITAGE CAT TEAM; ALL MEMBERS OF THE MANAGEMENT COMMITTEE AND/OR MANAGMENT TEAM OF HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY; ALL MEMBERS OF THE MANAGEMENT CO
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| Type of Insurance
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Residential Property & Casualty
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| Reason for Notice
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Claim Denial
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Claim Delay
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Unsatisfactory Settlement Offer
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Unfair Trade Practice
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Statutory provision(s) which the insurer allegedly violated.
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| 624.155(1)(b)(1) |
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Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests.
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| 624.155(1)(b)(3) |
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Except as to liability coverages, failing to promptly settle claims, when the obligation to settle a claim has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage.
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| 626.9541(1)(i)(3)(a) |
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Failing to adopt and implement standards for the proper investigation of claims.
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| 626.9541(1)(i)(3)(b) |
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Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue.
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| 626.9541(1)(i)(3)(c) |
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Failing to acknowledge and act promptly upon communications with respect to claims.
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| 626.9541(1)(i)(3)(f) |
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Failing to promptly provide a reasonable explanation in writing to the insured of the basis in the insurance policy, in relation to the facts or applicable law, for denial of a claim or for the offer of a compromise settlement.
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Specific policy language that is relevant to the violation.
Enter all words or phrases (one at a time) that should be used to filter.
See Subject Policy:
HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY Policy No.: HOH268884
All of the specific policy language contained within Form HPCHO3 DEC1 07 12, including but not limited to:
Policy Number: HOH268884
Effective Dates: From: 05/30/2017 12:01 am To: 05/30/2018 12:01 am
Named Insured: Dipak Majmundar
Insured Location: 7090 Penzance Blvd., Fort Myers, FL 33966-1335, Lee County
Insuring Company: Heritage Property and Casualty Insurance Company
Coverages & Premiums:
A. Dwelling 450000
B. Other Structures 9000
C. Personal Property 180000
D. Loss of Use 45000
Hurricane Deductible: 2% = $9000
Forms and Endorsements:
HPC HOJ 02 14
OIR B1 1670 01 06
OIR B1 1655 02 10
HPCHO3 IDX 07 12
HO 00 03 04 91
HPCHO3 09 SP 08 16
HPCHO 09 DN 07 12
HPCHP 06 CLP 07 12
HPC CGCC 07 12
HPCHO 09 ED 07 12
HPCHO 09 ELE 12 13
HO 04 96 04 91
HPCHO REJ OLR 03 13
HPC PRI 02 14
HPC OLN 03 13
HPC OSLC 07 12
HPCHO 09 OTL 07 12 HPC HDR 01 13
HPC WE 07 12
HPC CE 07 12
HO 03 51 01 06
HO 04 21 10 94
HPC 04 16 07 12
HPCHO 09 OL3 12 12
HPCH03 PPS 12 13P
All of the specific policy language contained within Form HO 00 03 04 91, including but not limited to:
AGREEMENT
We will provide the insurance described in this policy
in return for the premium and compliance with all
applicable provisions of this policy.
DEFINITIONS
In this policy, "you" and "your" refer to the "named
insured" shown in the Declarations and the spouse if a
resident of the same household. "We," "us" and
"our" refer to the Company providing this insurance. In
addition, certain words and phrases are defined as
follows:
. . .
5. "Occurrence" means an accident, including continuous
or repeated exposure to substantially the
same general harmful conditions, which results,
during the policy period, in:
a. "Bodily injury"; or
b. "Property damage."
6. "Property damage" means physical injury to, destruction
of, or loss of use of tangible property.
SECTION I – PROPERTY COVERAGES
COVERAGE A – Dwelling
We cover:
1. The dwelling on the "residence premises" shown in
the Declarations, including structures attached to
the dwelling; and
2. Materials and supplies located on or next to the
"residence premises" used to construct, alter or
repair the dwelling or other structures on the
"residence premises."
COVERAGE B – Other Structures
We cover other structures on the "residence premises"
set apart from the dwelling by clear space. This
includes structures connected to the dwelling by only a
fence, utility line, or similar connection.
COVERAGE C – Personal Property
We cover personal property owned or used by an
"insured" while it is anywhere in the world. At your
request, we will cover personal property owned by:
1. Others while the property is on the part of the
"residence premises" occupied by an "insured";
2. A guest or a "residence employee," while the
property is in any residence occupied by an
"insured."
Our limit of liability for personal property usually
located at an "insured's" residence, other than the
"residence premises," is 10% of the limit of liability for
Coverage C, or $1000, whichever is greater. Personal
property in a newly acquired principal residence is not
subject to this limitation for the 30 days from the time
you begin to move the property there.
Special Limits of Liability. These limits do not increase
the Coverage C limit of liability. The special
limit for each numbered category below is the total
limit for each loss for all property in that category.
COVERAGE D – Loss Of Use
The limit of liability for Coverage D is the total limit
for all the coverages that follow.
1. If a loss covered under this Section makes that
part of the "residence premises" where you reside
not fit to live in, we cover, at your choice, either of
the following. However, if the "residence premises"
is not your principal place of residence, we
will not provide the option under paragraph b. below.
a. Additional Living Expense, meaning any
necessary increase in living expenses incurred
by you so that your household can maintain its
normal standard of living; or
b. Fair Rental Value, meaning the fair rental
value of that part of the "residence premises"
where you reside less any expenses that do
not continue while the premises is not fit to live
in.
Payment under a. or b. will be for the shortest
time required to repair or replace the damage or,
if you permanently relocate, the shortest time required
for your household to settle elsewhere.
ADDITIONAL COVERAGES
1. Debris Removal. We will pay your reasonable
expense for the removal of:
a. Debris of covered property if a Peril Insured
Against that applies to the damaged property
causes the loss; or
b. Ash, dust or particles from a volcanic eruption
that has caused direct loss to a building or
property contained in a building.
This expense is included in the limit of liability that
applies to the damaged property. If the amount to
be paid for the actual damage to the property plus
the debris removal expense is more than the limit
of liability for the damaged property, an additional
5% of that limit of liability is available for debris
removal expense.
We will also pay your reasonable expense, up to
$500, for the removal from the "residence premises"
of:
a. Your tree(s) felled by the peril of Windstorm or
Hail;
b. Your tree(s) felled by the peril of Weight of Ice,
Snow or Sleet; or
c. A neighbor's tree(s) felled by a Peril Insured
Against under Coverage C;
provided the tree(s) damages a covered structure.
The $500 limit is the most we will pay in any one
loss regardless of the number of fallen trees.
2. Reasonable Repairs. In the event that covered
property is damaged by an applicable Peril Insured
Against, we will pay the reasonable cost incurred
by you for necessary measures taken
solely to protect against further damage. If the
measures taken involve repair to other damaged
property, we will pay for those measures only if
that property is covered under this policy and the
damage to that property is caused by an applicable
Peril Insured Against.
3. Trees, Shrubs and Other Plants. We cover
trees, shrubs, plants or lawns, on the "residence
premises," for loss caused by the following Perils
Insured Against: Fire or lightning, Explosion, Riot
or civil commotion, Aircraft, Vehicles not owned or
operated by a resident of the "residence premises,"
Vandalism or malicious mischief or Theft.
We will pay up to 5% of the limit of liability that
applies to the dwelling for all trees, shrubs, plants
or lawns. No more than $500 of this limit will be
available for any one tree, shrub or plant. We do
not cover property grown for "business" purposes.
This coverage is additional insurance.
8. Collapse. We insure for direct physical loss to
covered property involving collapse of a building
or any part of a building caused only by one or
more of the following:
a. Perils Insured Against in COVERAGE C –
PERSONAL PROPERTY. These perils apply
to covered buildings and personal property for
loss insured by this additional coverage;
b. Hidden decay;
c. Hidden insect or vermin damage;
d. Weight of contents, equipment, animals or
people;
e. Weight of rain which collects on a roof; or
f. Use of defective material or methods in construction,
remodeling or renovation if the collapse
occurs during the course of the construction,
remodeling or renovation.
Loss to an awning, fence, patio, pavement,
swimming pool, underground pipe, flue, drain,
cesspool, septic tank, foundation, retaining wall,
bulkhead, pier, wharf or dock is not included under
items b., c., d., e., and f. unless the loss is a direct
result of the collapse of a building.
Collapse does not include settling, cracking,
shrinking, bulging or expansion.
This coverage does not increase the limit of liability
applying to the damaged covered property.
SECTION I – PERILS INSURED AGAINST
COVERAGE A – DWELLING and COVERAGE B –
OTHER STRUCTURES
We insure against risk of direct loss to property described
in Coverages A and B only if that loss is a
physical loss to property. We do not insure, however,
for loss:
. . .
All of the specific policy language contained within Form HPCHO3 09 SP 08 16, including but not limited to:
AGREEMENT is deleted and replaced by the
following:
In reliance on the information you have given us,
we agree to provide the insurance coverages
indicated on the Policy Declarations. In return,
you must pay the premium when due, comply
with the policy terms and conditions, and notify
us within 60 days of any change of title, use or
occupancy of the “residence premises.”
DEFINITIONS
The following definitions are added.
“Hurricane loss” means any loss resulting from
the peril of Windstorm caused by a hurricane
during any period:
a. Beginning when a hurricane watch or
hurricane warning is issued for any
portion of Florida by the National
Hurricane Center of the National
Weather Service;
b. Remaining in effect for as long as
Hurricane conditions exist anywhere in
the State of Florida; and
c. Ending 72 hours after any hurricane
watch or hurricane warning has been
discontinued for all counties of the State
of Florida by the National Hurricane
Center of the National Weather Service.
ADDITIONAL COVERAGES
2. Reasonable repairs is deleted and replaced
by the following.
2. Reasonable Emergency Measures.
a. We will pay up to the greater of $3,000
or 1% of your Coverage A limit of
liability for the reasonable costs
incurred by you for necessary measures
taken solely to protect covered
property from further damage, when
the damage or loss is caused by a Peril
Insured Against.
b. We will not pay more than the amount in
a. above, unless we provide you approval
within 48 hours of your request to us to
exceed the limit in a. above. In such
circumstance, we will pay only up to the
additional amount for the measures we
authorize.
c. If we fail to respond to you within 48
hours of your request to us and the
damage or loss is caused by a Peril
Insured Against, you may exceed the
amount in a. above only up to the cost
incurred by you for the reasonable
emergency measures necessary to
protect the covered property from
further damage.
d. If however, form HO 03 51 or HO 03 52 is
part of your Policy and a covered loss
occurs during a “Hurricane” as described
in HO 03 51 or HO 03 52, the amount we
will pay under this additional coverage is
not limited to the amount in a. above.
e. A reasonable measure under this
Additional Coverage 2. may include a
permanent repair when necessary to
protect the covered property from
further damage or to prevent unwanted
entry to the property. To the degree
reasonably possible, the damaged
property must be retained for us to
inspect.
Under COVERAGE C - PERSONAL PROPERTY,
paragraphs 10., 12. and 15. are deleted and
replaced by the following:
10. Falling or dropped objects.
This peril does not include loss to property
contained in a building unless the roof or an
outside wall of a building is first damaged
by a falling or dropped object. Damage to
the falling or dropped object itself and
property located outside of a building are
not covered.
3. Loss Settlement.
Paragraphs b.(4) and (5) have been deleted and
replaced by the following:
(4) We will initially pay at least the actual
cash value of the insured loss, less any
applicable deductible. We will pay any
remaining amount necessary to
perform such repairs as work is
performed and expenses are incurred.
If a total loss of a building or structure
insured under this policy occurs, we will
pay the replacement cost coverage
without reservation or holdback of any
depreciation in value, subject to policy
limits.
6. Appraisal is deleted and replaced by the
following.
6. Mediation or Appraisal.
a. Mediation. If there is a dispute with
respect to a claim under this policy, you
or we may demand a mediation of the
loss in accordance with the rules
established by the Florida
Department of Financial Services.
(1) Unless you and we agree to mediate
a claim involving a lesser amount; the
loss amount must be $500 or more,
prior to application of the deductible;
or there must be a difference of $500
or more between the loss settlement
amount we offer and the loss
settlement amount that you request.
(2) The settlement in the course of the
mediation is binding only if:
(a) Both parties agree in writing on a
settlement; and,
(b) You have not rescinded the
settlement within 3 business
days after reaching settlement.
(3) You may not rescind the settlement
after cashing or depositing the
settlement check or draft we
provided to you.
(4) We will pay the cost of conducting
any mediation conference except
when you fail to appear at a
conference. That conference will
then be rescheduled upon your
payment of that mediator’s fee for
rescheduled conference.
(5) However, if we fail to appear at a
mediation conference, we will pay:
(a) Your actual cash expenses
incurred while attending the
conference; and
(b) Also pay the mediator’s fee for
the rescheduled conference.
b. Appraisal. If you and we do not agree on
the amount of the loss, including the
amount to repair or replace each item,
the actual cash value, or the replacement
cost, then, on the written demand of
either, each shall select a competent and
impartial appraiser and notify the other
of the appraiser selected within 20 days
of such demand. The appraisers shall
first select a competent and
disinterested umpire; and failing for 15
days to agree upon such umpire, then,
on request of you or the company, such
umpire shall be selected by a judge of a
court of record in the state in which the
property covered is located. The
appraisers shall then resolve the issues
surrounding the amount of the loss,
appraise the loss, stating separately the
actual cash value and replacement cost
of each item, and, failing to agree, shall
submit their differences, only, to the
umpire. An award in writing, so itemized,
of any two of these three, when filed
with the company shall determine the
amount of loss.
Each party will:
(1) Pay its own appraiser; and
(2) Bear the other expenses of the
appraisal and umpire equally.
If, however, we demanded the
mediation in a. above and either party
rejects the mediation results, you are not
required to submit to, or participate in,
any appraisal of the loss as a
precondition to action against us for
failure to pay the loss.
10. Loss Payment is deleted and replaced
by the following:
10. Loss Payment. We will adjust all losses
with you. We will pay you unless some
other person is named in the policy or is
legally entitled to receive payment. Loss
will be paid upon the earliest of the
following:
a. 20 days after we receive your
written proof of loss and reach a
written, executed agreement of
settlement with you according to
the terms of the written agreement;
or
b. Within 60 days of:
(1) There is an entry of a final
judgment or, in the case of an
appeal from such judgment,
within 60 days from and after
the affirmance of the same by
the appellate court; or
(2) Written executed mediation
settlement with you according to
the terms of the written mediation
settlement; or
c. Within 90 days after we receive notice of
an initial claim, “reopened claim” or
“supplemental claim” from you, we will
pay or deny such claim or portion of the
claim unless the failure to pay such claim
or portion of claim is caused by factors
beyond our control which reasonably
prevent such payment.
The following Condition is added.
17. What Law Governs. This policy and any
performance thereunder shall be construed
with and governed by the laws of the State
of Florida.
2. Your Duties After Loss.
2.f.(3) is deleted and replaced by the following:
(3) You or any “insured” under this
policy must submit to examination
under oath and recorded
statements, which may be
videotaped, and which will be at the
location insured if requested by us,
while not in the presence of any
other “insured” and sign the same.
The following is added to 2.f. Your Duties After
Loss.
(4) Your agents, your representatives,
including any public adjusters
engaged on your behalf, and anyone
insured under this policy, other than
an “insured” in (3), must submit to
examination under oath and
recorded statements, which may be
videotaped, and which will be at the
location insured if requested by us,
while not in the presence of any
other “insured” and sign the same.
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Facts and circumstances giving rise to the violation.
Enter all words or phrases (one at a time) that should be used to filter.
Defendant’s failure to pay all amounts due and owing under the Policy to Plaintiff amounts to a material breach, because payment of indemnity proceeds goes to the very essence of the Policy. As stated in Burlington & Rockenbach, P.A. v. Law Offices of E. Clay Parker, 160 So. 3d 955 (Fla. 5th DCA 2015): “To establish a material breach, the party alleged to have breached the contract must have failed to perform a duty that goes to the essence of the contract . . .” See Burlington, 160 So. 3d at 960; see also Beefy Trail, Inc. v. Beefy King Int’l, Inc., 267 So. 2d 853, 857 (Fla. 1972) (“To constitute a vital or material breach a defendant’s nonperformance must be such as to go to the essence of the contract . . . A defendant’s failure to perform some minor part of his contractual duty cannot be classified as a material or vital breach.”).
Fundamentally, an insurance policy is obtained by homeowners to protect against unknown disasters, catastrophes and misfortunes, which may, or may not, ever occur. The entire purpose of residential property insurance is to provide indemnification in the event of damage to an insured property resulting from a sudden event.
Defendant has materially breached at least three provisions within the Policy – the appraisal provision (previously set forth on pages 2-3 of the instant Motion), the Loss Payment provision; and the Loss Settlement provision.
Finally, the implied covenant of good faith and fair dealing. See e.g., Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir.1999); Barnes v. Burger King Corp., 932 F.Supp. 1420, 1438 (S.D.Fla.1996); County of Brevard v. Miorelli Eng'g, Inc., 703 So.2d 1049, 1050 (Fla.1997); Ins. Concepts & Design, Inc. v. Healthplan Servs., Inc., 785 So.2d 1232, 1234–35 (Fla. 4th DCA 2001). The duty of "good faith" in Florida provides that insurers owe "a duly to their insureds to refrain from acting solely on the basis of their own interest in settlement." State Farm Mut. Auto Ins. Co. v. Laforet, 658 So.2d 55. 58 (Fla. 1995). The duty of good faith obligates an insurer to handle claims brought against its insureds with "the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business." Boston Old Colony v. Gutierrez. 386 So.2d 783 (Fla. 1980).
This notice is given in order to perfect the right to pursue the civil remedy authorized by F.S. §624.155.
In Florida, the profession of adjusting insurance claims involves a special relationship of trust with the public. As such, insurance adjusters and insurance company claims representatives are imposed with a duty of good faith claims conduct. Heritage Property & Casualty Insurance Company (including but not limited to all of its officers, directors, members, managers, shareholders, parents, subsidiaries, affiliates, employees, agents, independent contractors, 1099 employees, any and all persons affiliated with and/or working on behalf of HPCIC, attorneys for HPCIC, and any other person or entity acting for or on behalf of HPCIC and/or under HPCIC’s authority or control) (hereinafter referred to as “HPCIC”) has breached this duty by its adjustment of Dipak Majmundar’s claim of loss.
HPCIC is a Florida domiciled property and casualty insurance company principally located in Pinellas County, Florida. HPCIC operates under a holding company known as Heritage Insurance Holdings, Inc. Among other offerings, HPCIC provides residential homeowner property insurance policies, whereby HPCIC agrees to protect the insured homeowner against certain losses. In exchange, the homeowner pays HPCIC a monthly, semi-annual, or annual premium.
When calculating what premium to charge, insurance companies such as HPCIC utilize sophisticated models to forecast and predict risk. These models take certain criteria into account to evaluate this risk, such as the likelihood of a severe weather event, and the cost to repair or replace an insured’s home. But such models also take into account other human factors. For example, insurance companies like HPCIC know that, when a loss occurs, not every policyholder will submit a claim for coverage, even if the policyholder is entitled to coverage under the terms of the policy. HPCIC also knows that, even when a covered event occurs, and the policyholder submits the claim, many policyholders will be unable to assess whether HPCIC undervalued the extent of the damage. And, if HPCIC wrongfully denies coverage, HPCIC knows that many policyholders will not turn to litigation to enforce their rights under a policy. HPCIC’s admitted goal (stated, inter alia, in publicly disclosed financial filings and corporate governance guidelines) is to maximize profit.
An insurance policy is obtained by homeowners, like Dipak Majmundar, to protect against unknown disasters, catastrophes and misfortunes, which may, or may not, ever occur. The policyholders, after paying premiums and expecting protection against a loss, are in an especially vulnerable economic and personal position when the unexpected loss occurs. The entire purpose of insurance is defeated if those involved with insurance adjustment can refuse or delay the prompt and full payment of monies due under the contract. Insurance contracts are not like other contracts because insurers like HPCIC have an advantage in bargaining power and are the sole drafters of the insurance policies that they issue to their customers such as Dipak Majmundar. Insurers and their representatives are therefore held to a higher standard of care.
When an insurance company, such as HPCIC, issues an insurance policy to insureds, such as Dipak Majmundar, it promises to provide financial security in the event of damage to the insured’s home. Claims representatives are the people responsible for fulfilling the insurance company’s promise. When a covered loss occurs, the insurance company’s obligation under its promise to pay is triggered. The policyholders are completely dependent on performance by the insurance company when the insureds are at their most vulnerable position – after a loss – since the policyholder is an economically inferior party to the contract. Therefore, the claim representative’s chief task should be to seek and find coverage, not to seek and find coverage controversies or to delay, deny, dispute or underpay claims.
If the insurance company fails to fulfill its obligations, such as HPCIC has done with regard to this claim, its policyholders not only suffer contractual damages but also extra-contractual damages. When an insurance company fails to pay claims it owes or engages in wrongful practices, contractual damages alone are inadequate. It is hardly a penalty to require an insurer to pay its insureds what it owed all along. Accordingly, the Florida legislature addressed the need for a bad faith action against an insurer in §624.155, Fla. Stat., and the insured adopts and incorporates all provisions of that statute into this Civil Remedy Notice including all of the applicable provisions of §624.155(1)(i).
It is far more profitable for an insurance company to take in an insured’s premium and not pay for a covered loss, rather than to promptly and fully pay what is owed for the covered loss. This financial incentive conflicts with the extreme public trust placed in the insurance industry which is the reason that the State of Florida also implemented codes of ethics and good faith duties articulated in the Florida Administrative Code. Insurers and their representatives must follow these ethical duties. HPCIC violated the following ethical requirements in its adjustment of the subject claim:
4-220.201 Ethical Requirements.
(4) Code of Ethics. The following code of ethics shall be binding on all adjusters:
a) The work of adjusting insurance claims engages the public trust. An adjuster must put the duty for fair and honest treatment of the claimant above the adjuster’s own interests, in every instance.
b) An adjuster shall have no undisclosed financial interest in any direct or indirect aspect of an adjusting transaction…
c) An adjuster shall treat all claimants equally; an adjuster shall not provide favored treatment to any claimant. An adjuster shall adjust all claims strictly in accordance with the insurance contract.
…
f) No adjuster may advise a claimant to refrain from seeking legal advice, nor advise against the retention of counsel to protect the claimant’s interest.
…
i) An adjuster shall not knowingly fail to advise a claimant of their claim rights in accordance with the terms and conditions of the contract and of the applicable laws of this state…
j) An adjuster shall approach investigations, adjustments, and settlements with an unprejudiced and open mind.
k) An adjuster shall make truthful and unbiased reports of the facts after making a complete investigation.
l) An adjuster shall handle each and every adjustment and settlement with honesty and integrity and allow a fair adjustment or settlement to all parties without remuneration to himself except that to which he is legally entitled.
m) An adjuster, upon undertaking the handling of a claim, shall act with dispatch and due diligence in achieving a proper disposition thereof.
n) An adjuster shall not undertake the adjustment of any claim concerning which the adjuster is not currently competent and acknowledgeable as to the terms and conditions of the insurance coverage, or which otherwise exceeds the adjuster’s current expertise.
Further, HPCIC has failed to create and implement adequate guidelines for proper investigation and evaluation of insurance claims and for training and supervision of employees and adjusters resulting in statutory violations as set forth above. HPCIC has failed and/or refused to thoroughly, accurately, and completely investigate and evaluate Dipak Majmundar’s claim for damages requiring the insureds to hire legal counsel.
Notwithstanding Dipak Majmundar’s timely notification to HPCIC of their insurance claim, HPCIC has delayed in paying or tendering to the insureds all insurance proceeds due and owing to them under their insurance policy.
HPCIC has failed to promptly settle Dipak Majmundar’s insurance claim when the obligation to settle the insurance claim had become reasonably clear. To date, HPCIC has continued to refuse to acknowledge its obligation to tender all insurance proceeds and monies due and owing to the insured.
On or around September 10, 2017, Dipak Majmundar suffered substantial damages to his insured home located at 7090 Penzance Blvd., Fort Myers, FL 33966-1335 by Hurricane Irma. The claim was promptly reported to HPCIC by Mr. Majmundar on September 9, 2020.
HPCIC’s own correspondence confirms that the cause of loss was “Wind/Hurricane Irma” on 9/10/2017.
After Dipak Majmundar’s prompt reporting of his claim to HPCIC, HPCIC chose not to inspect the property prior to litigation. This is despite having the unfettered opportunity to inspect Mr. Majmundar’s home, and despite being provided with timely notification of Mr. Majmundar’s claim and documentation concerning the damages at their home.
After HPCIC wrongfully denied Mr. Majmundar’s claim, Mr. Majmundar’s only option was to utilize the services of SFR Services, LLC (“SFR”) and Elite Claims Consultants, LLC (“Elite”) in order to ensure that their claim was fairly adjusted. Elite determined that the loss had caused approximately $92,829.05 in damages. Elite prepared the estimate using Xactimate software that incorporates standard industry pricing and accurately reflects the repairs necessary to return the insureds’ property to its pre-loss condition. Xactimate uses third-party aggregate price lists that determine the median pricing for certain scope items and labor in any given region for any given job and was actually developed and majority owned by insurance companies.
On November 11, 2020, HPCIC, by way of Claims Examiner Daniel Dessum, issued a coverage determination letter, denying all coverage for Mr. Majmundar’s claim.
That November 11, 2020 correspondence states in pertinent part that:
“At this juncture, because of your failure to provide prompt notice of this claim, and due to your failure or inability to provide us with any facts or documents to support your claim, Heritage has absolutely no way to determine whether the storm caused any direct physical damage. As such, our investigation is prejudiced by your failure to provide prompt notice, and your claim is hereby denied. Under Florida law, an insurer has a legal basis for the denial of recovery under the policy where the insured failed to provide timely notice of a loss.”
Due to HPCIC’s erroneous coverage determination, Mr. Majmundar’s only option was to hire an attorney to file a lawsuit to compel HPCIC to pay all insurance proceeds due and owing. Even after suit was filed, HPCIC has continued, through its litigation adjusters and attorneys, to take the position that it should not pay anything additional for the damages to Mr. Majmundar’s home caused by Hurricane Irma, despite having received Mr. Majmundar’s documentation, despite having received comprehensive documentation and photographs, despite Mr. Majmundar’s cooperation at every step of the way as to any reasonable requests by HPCIC, despite having had the opportunity to inspect the insured home, and despite being provided with clear evidence of covered damage to the insured home.
Defendant has materially breached at least two provisions within the Policy, including but not necessarily limited to, the appraisal provision, the Loss Payment provision, and the Loss Settlement provision.
To establish a material breach, the party alleged to have breached the contract must have failed to perform a duty that goes to the essence of the contract . . .” See Burlington, 160 So. 3d at 960; see also Beefy Trail, Inc. v. Beefy King Int’l, Inc., 267 So. 2d 853, 857 (Fla. 1972).
Defendant’s failure to pay all amounts due and owing under the Policy to Plaintiff amounts to a material breach of the Policy’s Loss Settlement and Loss Payment provisions because payment of indemnity proceeds goes to the very essence of the Policy. Fundamentally, an insurance policy is obtained by homeowners to protect against unknown disasters, catastrophes and misfortunes, which may, or may not, ever occur. The entire purpose of residential property insurance is to provide indemnification in the event of damage to an insured property resulting from a sudden event.
Insurance policies, such as the Policy at issue here, are contracts and subject to well established rules of contract interpretation. If the language used in an insurance policy is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning of the language used so as to give effect to the policy as it was written. See Cathedral of Praise Worship Ctr., Inc. v. Scottsdale Ins. Co., 20-CV-61732, 2020 WL 7061557, at *3 (S.D. Fla. Nov. 13, 2020), report and recommendation adopted, 20-61732-CIV, 2020 WL 7059357 (S.D. Fla. Dec. 2, 2020) (“In interpreting insurance contracts, the Florida Supreme Court has made clear that ‘the language of the policy is the most important factor . . . [and] that courts may not ‘rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties’”) citing to White Surf Condo. Mgmt. Ass'n, 2017 WL 10084143, at *1; see also Arias v. Affirmative Ins. Co., 944 So.2d 1195, 1197 (Fla. 4th Dist. Ct. App. 2006) (citation omitted); State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 569 (Fla. 2011); Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779, 785 (Fla. 2004); James River Ins. Co. v. Ground Down Eng'g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008) (citations omitted).
The commencement of litigation does not end an insurance company’s ethical obligations to adjust in good faith. No law or statute indicates that an insurance company’s good faith obligations are severed by litigation and there is nothing in the bad-faith statute that limits the bad faith penalty to pre-litigation events. The attorneys handling this matter on behalf of HPCIC have made absolutely no real effort to settle Mr. Majmundar’s claim, and instead have caused Mr. Majmundar’s lawsuit to drag on for an inordinate length of time since it was filed with the Court.
It has now been over 730 days since HPCIC was first placed on notice of this claim and HPCIC has failed and refused to tender any insurance proceeds to Mr. Majmundar. HPCIC has refused and/or failed to settle Mr. Majmundar’s insurance claim when under all circumstances it could and should have done so had it acted fairly and honestly towards the insured. This is wrongful conduct.
Rule 69B-220.201 of the Florida Administrative Code (titled “Ethical Requirements for All Adjusters and Public Adjuster Apprentices”) states that “[a]n adjuster shall not approach investigations, adjustments, and settlements in a manner prejudicial to the insured.” Yet HPCIC has done nothing except approach its investigation and adjustment in a manner prejudicial to the interests of Mr. Majmundar. This is especially illustrated by (but certainly not limited to) HPCIC’s failure to timely inspect the property upon reporting of the subject claim.
Even after suit was filed, HPCIC has continued, through its litigation adjusters and attorneys, to take the position that it should not pay any insurance proceeds to Mr. Majmundar, despite having received overwhelming evidence of the true extent of the covered loss, including the insured’s estimate(s), photographs, and despite being presented with clear evidence of the severe damages sustained to the insured’s home.
Rule 69B-220.201 of the Florida Administrative Code also states that “[a]n adjuster shall adjust all claims strictly in accordance with the insurance contract.” HPCIC has failed to do so. Rather, the above facts provided within this Civil Remedy Notice and the evidence discovered in litigation points to a breakdown in the adjustment process on the part of HPCIC, and a failure by HPCIC to adjust all claims strictly in accordance with the insurance contract. HPCIC failed to abide by the loss payment provision of the policy. HPCIC failed to abide by the loss settlement provision of the policy. HPCIC failed to abide by the appraisal provision of the policy. HPCIC failed to cover the damages caused by Hurricane Irma despite same being clearly covered by the subject policy. This is especially illustrated by (but certainly not limited to) HPCIC’s failure to timely inspect the property upon reporting of the subject claim.
Rule 69B-220.201 of the Florida Administrative Code also states that “[a]n adjuster, upon undertaking the handling of a claim, shall act with dispatch and due diligence in achieving a proper disposition of the claim.” If “dispatch,” “due diligence” and “proper” are operative words, the facts herein and the evidence discovered in litigation confirm that HPCIC has utterly failed to abide by this Rule.
Rule 69B-220.201 of the Florida Administrative Code also states that “[a]n adjuster shall make truthful and unbiased reports of the facts after making a complete investigation.” The facts herein and the evidence discovered in litigation confirm that HPCIC has utterly failed to abide by this Rule.
Rule 69B-220.201 of the Florida Administrative Code also states that “[a]n adjuster shall make truthful and unbiased reports of the facts after making a complete investigation.” The facts herein and the evidence discovered in litigation confirm that HPCIC has utterly failed to abide by this Rule.
Rule 69B-220.201 of the Florida Administrative Code also states that “[a]n adjuster shall not knowingly fail to advise a claimant of the claimant's claim options in accordance with the terms and conditions of the insurance contract.” The facts herein and the evidence discovered in litigation confirm that HPCIC has utterly failed to abide by this Rule.
Rule 69B-220.201 of the Florida Administrative Code also states that “[a]n adjuster shall not undertake the adjustment of any claim concerning which the adjuster is not currently competent and knowledgeable as to the terms and conditions of the insurance coverage, or which otherwise exceeds the adjuster’s current expertise. The facts herein and the evidence discovered in litigation confirm that HPCIC has utterly failed to abide by this Rule.
A cursory review of the 52 customer complaints listed on HPCIC’s profile published by the Better Business Bureau, and the 41 public reviews from its insureds published by same, also confirms that HPCIC is conducting these practices against other insureds.
Likewise, the 4,982 Civil Remedy Notices filed against HPCIC in the past eight years clearly demonstrate that HPCIC is conducting bad faith practices against other insureds, so much so that the violations occur with such frequency as to indicate a general business practice. The contents of the 4,982 Civil Remedy Notices filed against HPCIC in the past eight years demonstrate that HPCIC’s actions are willful, wanton and malicious, and done with reckless disregard as to the rights of its insureds. Mr. Majmundar incorporates the 4,982 Civil Remedy Notices filed against HPCIC in the past eight years within the instant Civil Remedy Notice as if fully set forth herein to demonstrate HPCIC’s pattern and practice of bad faith behavior.
There are many more examples of bad faith behavior undertaken by HPCIC that are available vis-à-vis a simple internet and/or public records search. Mr. Majmundar incorporate same within the instant Civil Remedy Notice as if fully set forth herein.
Accordingly, Mr. Majmundar will seek punitive damages from HPCIC should a bad faith action be filed as a result of HPCIC’s erroneous coverage determinations and bad faith practices discussed herein.
Florida law imposes no requirement to specify a definite cure amount in a civil remedy notice. Talat Enterprises, Inc., v. Aetna Casualty & Surety Co., 753 So. 2d 1278 (Fla. 2000). However, for clarity purposes, to cure the defects outlined in this civil remedy notice, HPCIC must issue a check made out to Mr. Majmundar and any applicable mortgage company in the amount of $84,671.51 indemnity proceeds. In addition, HPCIC must tender a payment for statutory interest calculated at the applicable interest rate, and a payment for statutory attorneys’ fees and costs since Mr. Majmundar had to resort to litigation to resolve their dispute with HPCIC.
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The submitter hereby states that this notice is given in order to perfect the rights of the
person(s) damaged to pursue civil remedies authorized by Section 624.155, Florida Statutes.
Before submitting a Notice using this system, please verify that all text has been entered
correctly and completely. Once the Notice has been submitted, the text cannot be changed
or deleted.
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DFS-10-363
Rev. 10/14/2008
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