Filing Number: 686157
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| Filing Accepted: 3/31/2023 |
| Last/Business Name
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JUDGE
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First Name |
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KATHRYN AND BRIAN |
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| Street Address
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7885 GO CANES WAY |
| City, State Zip
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FORT MYERS,
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33901
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| Email Address
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LITIGATION@THEFREEMANLAWFIRMPA.COM |
| Complainant Type:
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Insured |
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| Last/Business Name* |
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JUDGE |
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First Name |
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KATHRYN AND BRIAN |
| Policy # * |
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0760053894 |
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Claim #* |
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5019279922-1-1 |
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Attorney is Applicable
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| Last Name* |
FREEMAN
First Name *
BRIAN
Initial
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| Street Address* |
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4245 FOWLER STREET |
| City, State Zip* |
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FORT MYERS
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FLORIDA
33901
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| Email Address * |
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LITIGATION@THEFREEMANLAWFIRMPA.COM |
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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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TRUCK INSURANCE EXCHANGE
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| Insurer Name* |
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| Street Address* |
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| City, State Zip* |
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,
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NAIC Company Code 21709 |
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| Name of individual responsible for violation (if any):*
KEITH BOOTH
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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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Unfair Trade Practice
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Other
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Bad Faith
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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)(d) |
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Denying claims without conducting reasonable investigations based upon available information.
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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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| 626.9541(1)(i)(3)(g) |
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Failing to promptly notify the insured of any additional information necessary for the processing of a claim.
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| 626.9541(1)(i)(3)(h) |
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Failing to clearly explain the nature of the requested information and the reasons why such information is necessary.
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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.
The Insureds are in possession of a copy of the Policy and believe their Policy language relevant to the violations includes all applicable policy coverages, loss payment provisions, valuation provisions and other terms and conditions of Policy No. 0760053894. In particular, the Insureds refer to the following policy sections and their contained policy language:
Section I - Property Coverages
A. Coverage A- Dwelling
1. Under Coverage A - "dwelling" we cover:
a. The "dwelling" on the "residence premises" shown in
the Declarations by address, including structures
attached to the "dwelling"; and
b. 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".
2. We do not cover land, including land or fill on which the
"dwelling" is located.
B. Coverage B-Other Structures
1. Under 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,
sidewalk, driveway, patio or similar connection.
2. We do not cover:
a. Land, including land or fill on which other structures
are located;
b. Other structures rented or held for rental to any
person not a tenant of the "dwelling", unless used
solely as a private garage;
c. Other structures from which any" business'' is
conducted; or
d . Other structures used to store "business" property.
However, we do cover a structure that contains
"business" property solely owned by an "insured" or
a tenant of the "dwelling", provided that "business"
property does not include gaseous or liquid fuel,
other than fuel in a permanently installed fuel tank of
a vehicle or craft parked or stored in the structure.
3. The limit of liability for this coverage will not be more than
the limit shown in the Declarations for Coverage B. Use
of this coverage does not reduce the Coverage A limit of
liability.
D. Loss Settlement
In this Condition D., the terms "cost to repair or replace"
and "replacement cost" do not include the increased costs
incurred to comply with the enforcement of any ordinance
or law, except to the extent that coverage for these increased
costs is provided in E.1 0. Ordinance or Law under Section E.
Additional Coverages.
Covered property loss or damage is settled only with you as
follows:
1. Property of the following types:
a. Personal property;
b. Awnings, carpeting, household appliances, outdoor
antennas and outdoor equipment, whether or not
attached to buildings;
c. Structures that are not buildings; and
d. Grave markers, including mausoleums;
will be settled for no more than the lesser of the following:
( 1) "Actual cash value";
(2) Any stated limit or other limit of insurance in this
policy that applies to the property;
(3) The reasonable and necessary amount actually
spent to replace lost property or to repair or
replace damage to the damaged part of the
property; or
(4) The loss to the interest of the insured in the
property.
2. The "component parts" of build ings covered under
Coverage A or 8, at replacement cost without deduction
for depreciation, subject to parts 3. 4. and 5. and to the
following:
a. If, at the time of loss, the limit stated on the
Declarations for the damaged building is 80% or
more of the full replacement cost of the building
immediately before the loss, we will initially pay the
"actual cash value" of the loss, less any applicable
deductible. We will then pay any remaining amounts
necessary to perform the actual repair or replacement
as work is performed and expenses are incurred, but
not more than the least of the following amounts:
( 1) The limit stated on the Declarations that applies to
the building;
(2) The estimated replacement cost of that part of the
building damaged with material of like kind and
quality and for like use; or
(3) The necessary amount actually spent to repair or
replace the damaged building.
In the event of a total loss to the building we will pay
the replacement cost without reservation or holdback
of any depreciation in value, pursuant to Section
627.702 of the Florida statutes, subject to the limit
stated on the Declarations.
If the building is rebuilt at a new premises, the
cost described in (2) above is limited to the cost
which would have been incurred if the building had
been built at its existing location on the "residence
premises".
b. If, at the time of loss, the limit stated on the
Declarations on the building is less than 80% of the
fu II replacement cost of the building immediately
before the loss, we will pay the greater of the
following amounts, but not more than the limit stated
on the Declarat ions that applies to the building:
( 1) The "actual cash value" of that part of the building
damaged; or
(2) That proportion of the cost to repair or replace,
without deduction for depreciation, that part of
the building damaged, which the limit stated on
the Declarations on the bU!ilding bears to 80% of
the replacement cost of the building.
c. To determine the amount of insurance required to
equal80% of the full replacement cost of the building
immediately before the loss, do not include the value
of:
( 1) Excavations, footings, foundations, piers, or any
other structures or devices that support all or part
of the building, which are below the undersurface
of the lowest basement floor;
(2) Those supports described in ( 1) above which
are below the surface of the ground inside the
foundation walls, if there is no basement and
(3) Underground flues, pipes, wiring and drains.
d . We will settle the loss as follows:
( 1) We will settle the loss as noted in 2.a. of this
provision. If 2.a. is not applicable, we will settle
the loss as follows:
(a) We will in itially pay the "actual cash value" of
the building damage, minus any applicable
deductible.
(b) We will then pay the necessary amounts
actually spent to repair or replace the
damaged building as work is performed and
expenses are incurred.
(c) If a total loss, we will pay the replacement cost
amount without deduction for depreciation.
If the "dwelling" is rebuilt at a new premises, the
cost described in (2) above is limited to the cost
which would have been incurred if the "dwelling"
had been built at its existing location on the
"residence premises".
However, if the cost to repair or replace the damage
is both:
( 1) Less than 5% of the amount of insurance in this
policy on the building; and
(2) Less than $2,500;
we will settle the loss as noted in parts 2.a. and
2.b. of this provision whether or not actual repair or
replacement is complete.
e. For any loss to property which may be settled on a
replacement cost basis, you have 5 years from the
date of our first payment toward "actual cash value"
to collect any amounts due for replacement cost
settlement.
3. We do not cover as part of the settlement of covered loss:
a. Any cost to repair or replace undamaged property
due solely to:
( 1) Mismatch of color between undamaged
material and new material used to replace faded,
weathered or oxidized damaged material; or
(2) Mismatch between undamaged material
and new material used to repair or replace
damaged material due to outdated, obsolete or
discontinued products;
However, when the replaced items do not match in
quality, color or size, we will make reasonable repairs
or replacement of items in adjoining areas.
b. Actual or perceived loss in value to any property,
including but not limited to, because materials used
to repair or replace lost or damaged property does
not match undamaged property.
4. General contractor fees or charges:
a. Will only be included as reasonable replacement costs
if it is reasonably likely that the services of a general
contractor will be required to manage, supervise and
coordinate the repairs; and
b. Will be paid as set forth in part 5. that follows.
5. a. "Actual cash value'' and replacement cost settlements
will not include payment of:
( 1 ) Increased costs of or from the enforcement of any
building ordinance or law; or
(2) General contractor fees or charges; or
(3) Costs to match property which is not damaged
with materials used to repair or replace damaged
property;
unless such fees, charges or costs are covered by this
policy and if covered, as the work is performed and
expenses are incurred.
b. If loss or damage to any property, or any "component
part" thereof, may only be settled on an "actual cash
va lue" basis without recovery of depreciation, then
for settlement of that property, if actually covered and
incurred:
( 1) Item a.( 1 ). will be paid without deduction for
depreciation; and
(2) Items a.(2) and a.(
12. "Hurricane" means a storm system that has been
declared to be a hurricane by the National Weather
Service, with a duration that includes the time period, in
Florida, which:
a. Begins at the time a hurricane watch or hurricane
warning is issued for any part of Florida by the
National Hurricane Center of t he National Weather
Service;
b. Continues for the time period during which the
hurricane conditions exist anywhere in Florida; and
c. Ends 72 hours following the termination of the last
hurricane watch or hurricane warning issued for any
part of Florida. The watch or warning is issued by the
National Hurricane Center of the National Weather
Service.
13. a. "Hurricane loss" means any direct physical loss or
damage caused by, arising from or resulting only
from the peril of windstorm caused by and during a
"hurricane" event.
b. For purposes of a "hurricane loss". windstorm:
( 1) Means wind, wind gusts. hail, rain, tornadoes, or
cyclones from a "hurricane"; and
(2) Includes ensuing damage to the interior of a
building, or to property inside a build ing, caused
by ra in, snow. sleet, hail, sand, or dust if the direct
force of the windstorm first damages the building,
causing an opening through which the rain,
snow. sleet, hail, sand, or dust enters and causes
damage.
c. "Hurricane loss" does not include loss or damage
caused by, arising from or resulting from any
water event as set forth at Exclusion 3, Section
I - Exclusions, even if caused by or resulting from a
"hurricane".
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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.
During the policy period, on September 28, 2022, the Insureds’ home located at 7885 Go Canes Way, Fort Myers, FL 33966 (“Home”), owned by the named Insureds, Kathryn and Brian Judge ("Insureds”), suffered severe hurricane/windstorm related physical and structural damage as a direct result of Hurricane Ian, an event covered under the subject insurance policy. The Insureds immediately reported the loss to their insurance carrier, Truck Insurance Exchange ("Insurer"). Since the beginning of the claims process, the Insureds have fully cooperated in the Insurer's investigation of the Insureds’ hurricane/windstorm damage claim.
The Insurer initially retained independent field adjuster Keith Booth (“Mr. Booth”), of Truck Insurance Exchange to inspect the hurricane damage to the Insureds’ home and roof system. As a result of his inspection, Mr. Booth prepared a damage estimate documenting hurricane/windstorm damage to the Insureds’ roof system and pool enclosure. However, Mr. Booth’s damage estimate included only a minor repair to the Insureds’ roof system. As a result, Mr. Booth’s initial damage estimate totaled a mere $1,581.89.
On October 18, 2022, the Insurer sent a coverage determination letter to the Insureds. Based solely on Mr. Booth’s damage estimate, the Insurer determined coverage would be provided in the amount included in Mr. Booth’s damage estimate, $1,581.19. The Insurer’s coverage determination letter also claimed the Insurer’s investigation found “both covered and non-covered damages” and without retaining anyone capable of formulating opinions on causation also concluded “that the tiles on your roof are showing signs of normal wear and tear for a tile roof in the form of corner cracks and chips due to slippage of the tiles, this damage is not caused by wind but rather is wear and tear which is not covered by your policy, therefore, this damage is not included in the estimate for replacement.”
After the Insureds disputed the original coverage determination, the Insurer subsequently retained ProNet Group Inc., (“ProNet”), a financially biased engineering firm to conduct a results-oriented investigation of the Insureds’ hurricane/windstorm damage claim. ProNet prepared a self-serving, inaccurate and incomplete boilerplate report that failed to properly scope the damages to the Insureds’ home and roof system. Notably, ProNet’s report was prepared after the Insurer already concluded the damage on the Insureds’ roof system was the result of “wear and tear.” ProNet’s report excluded large portions of the damage to the Insureds’ home and roof system that were caused as a direct result of Hurricane Ian. The ProNet report documented extensive damage to the Insureds’ roof system but determined the majority of the damage was the result of “expansion and contraction” and “foot traffic.” Conveniently, the causes of damages predetermined by the Insurer and excluded under the subject insurance policy.
The Insurer issued an additional coverage determination letter on December 19, 2022. This coverage determination letter included an updated damage estimate from Mr. Booth in the amount of $2,311.37. The Insurer informed the Insureds this amount was less than their deductible and “no payments can be issued at this time and we are closing our claim file.”
Due to the obvious ongoing problems at their home, the Insureds hired Jason Holzem of Day Adjusting & Consulting (“Mr. Holzem”), to determine the extent of damage to their home and roof system as a direct result of Hurricane Ian. Mr. Holzem performed a comprehensive evaluation of the damage to the Insureds’ home and roof system and documented numerous cracked, broken, displaced and loose tiles. The inspection confirmed Mr. Holzem’s initial perception; the Insureds’ roof system had severe windstorm related physical and structural damage and required a full roof system replacement.
Mr. Holzem documented hurricane/windstorm damage to the Plaintiffs’ roof system and pool enclosure. Mr. Holzem provided the Insureds with a damage estimate totaling $177,971.69, the amount necessary to replace their roof system, perform all necessary repairs and return their home to its pre-loss condition.
Despite the overwhelming evidence the Insureds’ home and roof system had been significantly and structurally damaged by Hurricane Ian, all covered losses under the subject insurance policy; the Insurer delayed and unreasonably and improperly investigated and evaluated the amount of damages to the Insureds’ home and roof system. The Insurer partially denied the Insureds’ claim on the basis of a completely inadequate investigation of the damage to the Insureds’ home indicating the majority of damage to the Insureds’ home and roof system was not hurricane/windstorm related and a nonsensical policy interpretation.
Moreover, the Insurer did not perform a legally sufficient hurricane/windstorm damage investigation by failing to perform a substantial structural damage investigation and determination as required by the Florida Building Code. The Insurer’s failure to perform this important substantial structural damage determination further indicates the Insurer did not comply with the basic requirements inherent in the proper investigation of hurricane/windstorm damage claims, and instead performs inadequate, untimely and incomplete investigations in order to improperly partially deny claims. The work of adjusting insurance claims in Florida engages the public trust. In the instant case, the Insurer breached this duty through its improper partial denial and complete failure to properly investigate the hurricane/windstorm damage claim of the Insureds. The Insurer's self-serving report from ProNet and Mr. Booth, failure to communicate with the Insureds, and improper partial denial of the Insureds’ hurricane/windstorm damage claim indicates the Insurer failed to adopt and implement proper standards for the investigation, evaluation and adjustment of claims; failed to properly train, manage, supervise and promote claims adjusters so Insureds receive good faith, fair and prompt adjustment of claims; and failed to conduct a full and fair investigation of this hurricane/windstorm damage claim. The Insurer furthermore failed to provide full reasons and facts to the Insureds for the partial denial of their hurricane/windstorm damage claim resulting in the statutory violations as set forth in this notice.
The Insurer also breached its duty to the Insureds by failing to timely and promptly pay the correct indemnity owed to its Insureds. This duty is owed by the Insurer to its Insureds and is inherent in the insurance claims process. The Insureds promptly provided all necessary documentation, evidence and information for a timely resolution of their hurricane/windstorm damage claim, including an itemized roof damage estimate and extensive documentation of the damage to the Insurer which clearly shows the roof system must be completely replaced and cannot be repaired. However, to date, the Insurer failed to provide timely and prompt payment for the Insureds’ damages.
Interestingly, a number of Insureds in the surrounding area of the Insureds’ home have had their insurance claim approved and roof system completely replaced by their insurance carrier. Notwithstanding, the Insurer failed and refused to pay for the complete replacement of the Insureds’ roof system. The Insureds’ home was exposed to the same category four (4) hurricane-force winds in excess of 100 mph for over eight (8) hours from Hurricane Ian as have other Insureds in the surrounding area, yet the Insurer in this case claims the damage to the Insureds’ home is not related to this hurricane/windstorm event, Hurricane Ian. The replacement of similar roofs in the area further indicates the Insurer in this case unreasonably and improperly investigated the instant claim, unlawfully undervalued and delayed the Insureds’ claim and improperly denied their valid hurricane/windstorm damage claim.
To date, the Insureds have performed all conditions precedent required of them under the subject policy of insurance with the Insurer and under Florida law. However, the Insurer failed and refused to properly investigate the Insureds’ hurricane/windstorm damage claim, and has failed to tender all insurance proceeds due and owing to the Insureds under the subject insurance policy. Due to the Insurer's intentional delay and partial denial of the Insureds’ hurricane/windstorm damage claim, the Insureds have been forced to obtain legal counsel at a significant cost and expense to attempt to recover what they are legally owed under their insurance policy with the Insurer. The Insurer violated the statutes set forth above based on the conduct described herein. The Insurer failed and refused to timely tender insurance proceeds required by its insurance policy with its Insureds. In addition, the Insurer failed to reasonably and properly settle and resolve the Insureds’ hurricane/windstorm damage claim for money damages when under all the facts and circumstances, it could have and should have done so if it had acted fairly and honestly towards its Insureds. The Insurer's improper actions are well documented and have occurred with such frequency as to constitute a general business practice and were made in a reckless disregard for its Insureds’ rights. The Insurer placed its interest above and before the Insureds’ interest in this matter. Therefore, to cure the defects outlined in this Civil Remedy Notice, the Insurer must do the following:
A. Create, adopt and implement adequate standards and/or guidelines for the proper
investigation and adjustment of hurricane/windstorm damage claims.
B. Provide sufficient training and supervision of its employees and agents to avoid further violations as set forth in the paragraphs above from occurring in the future.
C. Immediately pay the Insureds’ hurricane/windstorm damage claim in the amount of Day Adjusting & Consulting’s damage estimate totaling $177,971.69.
D. Immediately pay interest on the Insureds’ hurricane/windstorm damage claim to the Insureds.
E. Agree to pay the Insureds’ reasonable attorney fees pursuant to Fla. Stat. 627.428 and all costs allowed by law, which to date total $25,000.00.
F. Pay all other and further coverages allowed by law to fully compensate the Insureds for their hurricane/windstorm damage claim.
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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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