Civil Remedy Notice of Insurer Violations
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Filing Number:     782012
Filing Accepted:  9/10/2024
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Complainant
Last/Business Name *  
EYM DINER OF FLORIDA, LLC.   First Name   UNIT 7940
Street Address * 75 EAST MERRITT ISLAND CAUSEWAY
City, State Zip * MERRITT ISLAND, FL 32951
Email Address * DAVID@PEOPLEFIRSTLEGAL.COM
Complainant Type: * Insured
Insured
Last/Business Name*   EYM DINER OF FLORIDA, LLC.   First Name   UNIT 7940
Policy # * FSF16497502 001 Claim #* KY22K2904528
Attorney
Attorney is Applicable
Last Name* SHOLL First Name * DAVID Initial
Street Address* 8950 SW 74TH COURT SUITE 2201
City, State Zip* MIAMI , FLORIDA 33156
Email Address * DAVID@PEOPLEFIRSTLEGAL.COM
Violation
Insurer Type *   Authorized Insurer Unauthorized Insurer
 
Insurer Name*   WESTCHESTER SURPLUS LINES INSURANCE COMPANY
NAIC Company Code 10172
 
Name of individual responsible for violation (if any):* JAMES FENN (“CHUBB”), DEMETRIUS ALEXANDER (“CHUBB”), MITCHELL SHANEBERGER (“SEC”), JOHN GILBERT (“SEC”), VINCENT CICCI (“EM”), STEPHENS ENGINEERING CONSULTANTS INC., AS WELL AS INSURERS AND THEIR AGENTS INCLUDED IN ANY ATTACHED DOCUMENTATION
Type of Insurance * Commercial Property & Casualty   
Reason for Notice *
Unfair Trade Practice
* Statutory provision(s) which the insurer allegedly violated.
 
626.9541(1)(i)(1) Attempting to settle claims on the basis of an application, when serving as a binder or intended to become a part of the policy, or any other material document which was altered without notice to, or knowledge or consent of, the insured.
626.9541(1)(i)(2) A material misrepresentation made to an insured or any other person having an interest in the proceeds payable under such contract or policy, for the purpose and with the intent of effecting settlement of such claims, loss, or damage under such contract or policy on less favorable terms than those provided in, and contemplated by, such contract or policy.
626.9541(1)(i)(3)(a) Failing to adopt and implement standards for the proper investigation of claims.
626.9541(1)(i)(3)(b) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue.
626.9541(1)(i)(3)(c) Failing to acknowledge and act promptly upon communications with respect to claims.
626.9541(1)(i)(3)(f) 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.
626.9541(1)(i)(3)(g) Failing to promptly notify the insured of any additional information necessary for the processing of a claim.
* Specific policy language that is relevant to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

626.9541(1)(i)(1) Attempting to settle claims on the basis of an application, when serving as a binder or intended to become a part of the policy, or any other material document which was altered without notice to, or knowledge or consent of, the insured. 626.9541(1)(i)(2) A material misrepresentation made to an insured or any other person having an interest in the proceeds payable under such contract or policy, for the purpose and with the intent of effecting settlement of such claims, loss, or damage under such contract or policy on less favorable terms than those provided in, and contemplated by, such contract or policy. 626.9541(1)(i)(3)(a) Failing to adopt and implement standards for the proper investigation of claims. 626.9541(1)(i)(3)(b) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue. 626.9541(1)(i)(3)(c) Failing to acknowledge and act promptly upon communications with respect to claims. 626.9541(1)(i)(3)(f) 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. 626.9541(1)(i)(3)(g) Failing to promptly notify the insured of any additional information necessary for the processing of a claim. When something is relevant to a violation, it has a logical connection to the issue at hand and can help determine whether a violation has occurred. What follows is a compilation of the policy language cited by the insurer during the course of this claim as well as other policy language from the subject insurance policy that the claimant believes bears a logical connection to the issue of whether the insurer has violated the Florida Insurance Code and committed bad faith pursuant to Fla. Stat. 624.155(1)(a). Separately, Claimant contends the policy language cited bears a logical connection to whether the insurer committed bad faith pursuant to Fla. Stat. 624.155(1)(b) by: (1) failing to settle this claim when it could have and should have under the circumstances of this claim; and (2) not acting fairly and in good faith in discharging its contractual responsibilities. In so doing, pursuant to Fla. Stat. 624.155(1)(b, the insurer failed to deal fairly and in good faith with the Claimaint by refusing, without proper cause, to compensate the Claimant for losses covered by the subject policy, such conduct–is separate from bad faith under F.S. 624.155(1)(a) and–gives rise to its own cause of action for bad faith under Florida law. THE POLICY LANGUAGE RELEVANT TO THE VIOLATIONS INCLUDES ALL APPLICABLE LOSS PAYMENT AND COVERAGE PROVISIONS OF POLICY NUMBER POLICY NO.: 80CCX8128 INCLUDING THE DECLARATIONS PAGES AND ALL ENDORSEMENTS TO THE POLICIES, WITH RESPECT TO COVERAGES A, B, C, AND D. ADDITIONALLY, ANY SECTIONS RELIED UPON BY THE INSURER IN ITS COVERAGE DETERMINATION AND FAILURE TO FULLY PAY THE CLAIMS, INCLUDING THE DUTIES IN THE EVENT OF LOSS PROVISIONS AND THE POLICIES’ EXCLUSION OF COVERAGE PROVISIONS. THE CLAIMANT SPECIFICALLY POINTS TO THE FOLLOWING PROVISIONS AS RELEVANT TO THIS CLAIM. GENERAL FACTS AND CIRCUMSTANCES GIVING RISE TO THESE VIOLATIONS AND THIS BAD FAITH CLAIM Because bad faith is considered on a case-by-case basis and therefore requires a contextual analysis based on the existing circumstances, these sections are necessary to provide the background circumstances of the Claimant's allegations of bad faith. Because most first-party bad-faith lawsuits begin with insurers attempting to dismiss such lawsuits on the basis of the contents of the civil remedy notice it is imperative the claimant and insurer share a common understanding of the situation and law surrounding this bad-faith claim. After Hurricane Ian and Hurricane Nicole hit Florida many policyholders find themselves in a crisis due to the malfeasance of their insurance companies. Despite the widespread damage caused by the storms, insurance companies have failed to settle claims fairly and honestly. This has resulted in many policyholders being unable to rebuild their properties, businesses, and lives. These profit-hungry corporations have taken advantage of their policyholders, leaving them in dire straits. With natural disasters like hurricanes striking frequently, the insurers use this as an excuse to increase premiums and decrease coverage, lining their own pockets while leaving their customers struggling to make ends meet. These companies have further exacerbated the problem by cherry-picking their policyholders, only covering those deemed low-risk or profitable, and leaving high-risk individuals with little to no coverage. The insurance industry's bad faith practices have only worsened the situation. They deny valid claims, delay payments, and fail to properly investigate claims, all in the name of profit. Under Florida law, insurance companies are required to act in good faith towards their policyholders. However, these companies have flouted these laws with impunity. Their greed and callousness have resulted in a catastrophic insurance crisis that threatens to ruin the lives of thousands of Floridians and Florida-based businesses. As a result of this bad faith on the part of the insurance companies, Florida found itself in an insurance crisis. Many policyholders were left feeling frustrated and helpless as they struggled to navigate a complex system that seemed stacked against them. (I)(1) CIRCUMSTANCES REGARDING BAD FAITH AND THE CURRENT INSURANCE CRISIS: Florida’s bad faith laws provide important protections for consumers while allowing sufficient opportunity to settle for insurers acting in good faith. It is important to note at the outset that bad faith is not limited by an insurer’s good intentions. Instead, Florida’s bad faith laws are expansive in scope and the boundaries of bad faith law in Florida encompass even well-intentioned acts by insurers. See Victor E. Schwartz, Restoring The Good Faith in Florida’s “Bad Faith” Insurance Litigation, 11 (2011). There is no legal requirement for malevolent will. Id. Simply put, bad faith is a dishonest or unfair act that occurs when an insurance company does not meet legal or contractual obligations under Florida law–even technical ones. It is important to note that insurers set themselves up for bad faith by not acting fairly towards their insureds. Insurers cannot be “setup” for bad faith if the insurer “undertakes a prompt investigation of the loss, timely evaluation of the legal liability of the insured, communicates to the insured the material events of the adjustment process, and acts reasonably with regard to opportunities to settle the loss and protect the assets of the insured.” Rutledge R. Liles, Florida Insurance Bad Faith Law: Protecting Businesses and You, 85 FLA. B.J. 8, 11 (Mar. 2011). THE REQUIREMENTS OF THE CIVIL REMEDY NOTICE Before a Claimant can bring a bad faith claim, the insurance company must be given 60 days to cure the alleged violation(s). To begin the process, a Civil Remedy Notice (“CRN”) is filed with both the insurance company and the Department of Financial Services. The plain language of Fla. Stat. § 624.155(3)(b) instructs the policyholder to “state with specificity” certain information in the CRN. According to the Department of Financial Services, “the specificity requirement [of 624.155] will be met if all of the fields on the electronic form which include those statutorily required are filled out.” Florida Senate Committee on the Judiciary, Insurance Bad Faith: Interim Report 2012-132, 7 (Nov. 2011), F.N. 60 (citing Meeting with Department of Financial Services staff (Aug. 24, 2011)). Further, Florida Courts recognize that the statute cannot create a barrier to entry to a bad faith lawsuit and have held that only substantial compliance with the specificity requirement of the statute is needed by a Claimant, not strict compliance. See Pin-Pon Corp. v. Landmark Am. Ins. Co., 2020 U.S. District LEXIS 212941. In other words, despite insurers’ contentions to the contrary, the specificity threshold is very low. As such, Fla. Stat. 624.155 provides the insurer with a 60-day “safe harbor” period to address and settle the claim in order to prevent a bad faith action even if the CRN fails to describe the amount of the claim, the nature of the insurer’s alleged bad faith conduct with great detail, or has technical defects. (I)(3) CIRCUMSTANCES FOR BRINGING THE BAD FAITH LAWSUIT UNDER FLORIDA LAW Florida’s strong bad faith law puts it in a unique posture to effectively protect consumers by holding insurers accountable for their misconduct. Florida Senate Committee on the Judiciary, Insurance Bad Faith: Interim Report 2012-132, 17 (Nov. 2011). The good news for bad faith claimants in Florida is that the law is quite clear. Fla. Stat. 624.155 provides that “any person may bring a civil action against an insurer when such person is damaged” by certain acts by an insurer. Florida courts have interpreted this good faith requirement in Florida as an insurer’s duty “to refrain from acting solely on the basis of their own interest” in the claims process. The measure of whether an insurer has acted in good faith is, necessarily, determined by an assessment of the lengths to which the carrier went in an effort to provide the insured with the protection afforded by the insurance policy. It is for this reason that under Florida’s bad faith laws “‘the focus in a bad faith case is not on the actions of the claimant but rather on those of the insurer in fulfilling its obligations to the insured.’” Berges v. Infinity Ins. Co., 896 So. 2d 665, 677 (Fla. 2004)). That said, a claimant’s actions are “not completely ignored under Florida law” but they only become relevant after the insurer has attempted to settle the bad faith allegations. See Snowden v. Lumberman’s Mut. Casualty Co., 358 F. Supp. 2d 1125, 1129 (N.D. Fla. 2003). Consequently, an insurer responding to this notice by merely attacking its substance and denying all allegations of bad faith is in itself likely an act of bad faith unless the insurer provides a detailed explanation of the investigation it undertook in response to this CRN and engages in a substantive information exchange with the Claimant designed to settle the dispute alleged herein. See also generally Crosby v. Jones, 705 So. 2d 1356, 1358 (Fla. 1998) (“the public policy of Florida is to encourage settlements”); Abbott v. Purdy Group Inc. v. Bell, 738 So. 2d 1024, 1027 (Fla. 4th D.C.A. 1999) (the public policy of Florida is to “promote settlements and early termination of litigation”) (citation omitted). If an insurance company fails to respond to a CRN with particularity or provides incomplete or inaccurate information, it can be considered bad faith and may be subject to legal action. Therefore, it is essential for insurance companies to take CRNs seriously and respond promptly and accurately with the requested information.
 
* Facts and circumstances giving rise to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

I. INTRODUCTION In the delicate balance of commercial industry, the arena of insurance holds a sacred duty, a beacon of trust and refuge in the face of calamity. This role, particularly in the state of Florida, is deeply interwoven with the Public Trust, and its key players bear a profound obligation to honor this trust. WESTCHESTER SURPLUS LINES INSURANCE CO. (hereinafter "INSURANCE COMPANY"), with a disturbing display of negligence and deceit, threatens to unravel this bond of trust. The troupe leading this reprehensible performance includes James Fenn (“Chubb”), Demetrius Alexander (“Chubb”), Mitchell Shaneberger (“SEC”), John Gilbert (“SEC”), Vincent Cicci (“EM”), Stephens Engineering Consultants Inc., as well as insurers and their agents included in any attached documentation (collectively referred to as "REPRESENTATIVES"). With a startling lack of experience and a blatant disregard for their professional duties, they have steered this already storm-battered vessel straight into catastrophe. II. THE INSUREDS AND THE DISASTER EYM DINER OF FLORIDA, LLC. (collectively known as “THE INSUREDS”), have been devoted policyholders for 4 years at their property located at 75 East Merritt Island Causeway, UNIT 7940, Merritt Island, FL 32951. They faithfully fulfilled their part of the bargain, regularly paying their premiums with the just expectation of appropriate coverage when disaster strikes. Unfortunately, when Hurricane Ian, an event of unparalleled magnitude, swept through Florida on September 28, 2022, the INSURANCE COMPANY abandoned THE INSUREDS in the aftermath of the devastation. Despite their Insurance Policy, POLICY NO.: FSF16497502-001, being active and unblemished, their dire plight was met with obstruction and negligence. III. DETAILED VIOLATIONS Violation of Section 626.9541(1)(i)(1) In the aftermath of Hurricane Ian, THE INSUREDS found themselves grappling not only with the physical damage inflicted upon their property but also a different kind of tempest—one of manipulated documents and the deceitful attempts to exploit them. The field adjuster's estimate, a document pivotal to the determination of the claim's worth, was manipulated without the knowledge or consent of THE INSUREDS. This document, altered by unnamed and unseen individuals acting on behalf of the INSURANCE COMPANY, was used as an unjust tool to diminish the rightful benefits owed to THE INSUREDS. This brazen act stands in direct violation of Florida Statute 626.9541(1)(i)(1), causing significant financial distress to THE INSUREDS and shaking the very foundation of their trust in the insurance system. Violation of Section 626.9541(1)(i)(2) To add insult to injury, the REPRESENTATIVES, acting as agents of the INSURANCE COMPANY, made material misrepresentations with a clear intent of coercing THE INSUREDS into accepting a settlement far below what they were justly entitled to. This calculated deception was not only a gross violation of Florida Statute 626.9541(1)(i)(2), but it also trampled on the spirit of the contractual relationship between the INSURANCE COMPANY and THE INSUREDS. The ensuing stress, uncertainty, and mental turmoil inflicted on THE INSUREDS by this insidious strategy are beyond comprehension. Violation of Section 626.9541(1)(i)(3)(a) Despite the complexities and the sizable stakes associated with the claim, the REPRESENTATIVES shockingly failed to adopt and implement appropriate standards for its investigation. This crucial violation of Florida Statute 626.9541(1)(i)(3)(a) led to a gross undervaluation of the damage suffered by THE INSUREDS. This flagrant dereliction of duty only amplified THE INSUREDS' already mounting financial woes and intensified their feeling of betrayal at the hands of the INSURANCE COMPANY. Violation of Section 626.9541(1)(i)(3)(b) Despite the complexities of the claim and the stark inconsistencies in their approach, the REPRESENTATIVES, acting for the INSURANCE COMPANY, failed to clarify pertinent facts or policy provisions to THE INSUREDS. Their violation of Florida Statute 626.9541(1)(i)(3)(b) has led to confusion, disappointment, and mistrust, further aggravating THE INSUREDS' mental anguish. Violation of Section 626.9541(1)(i)(3)(c) Furthermore, the REPRESENTATIVES failed to acknowledge and act promptly upon communications regarding THE INSUREDS' claims, violating Florida Statute 626.9541(1)(i)(3)(c). This negligence and lack of professional conduct have caused significant delays in processing the claim, placing additional stress and financial hardship on THE INSUREDS. Violation of Section 626.9541(1)(i)(3)(f) Despite numerous attempts by THE INSUREDS to understand the basis for the denial of their claim, the REPRESENTATIVES did not provide a reasonable explanation in writing. This blatant disregard for the provisions of Florida Statute 626.9541(1)(i)(3)(f) further underscored the extent of the INSURANCE COMPANY's deception and lack of transparency. Violation of Section 626.9541(1)(i)(3)(g) In yet another display of gross incompetence and violation of Florida Statute 626.9541(1)(i)(3)(g), the REPRESENTATIVES failed to promptly notify THE INSUREDS of additional information required for claim processing. This deliberate delay tactic added to the bureaucratic red tape, causing unnecessary frustration and uncertainty for THE INSUREDS, who were merely seeking the coverage they were promised. Moreover, the exclusionary and limiting language is unconscionable and therefore, unenforceable. Under Florida law, “before a court may hold a contract unconscionable, it must find that it is both procedurally and substantively unconscionable.” Gainesville Health Care Ctr., Inc. v. Weston, 857 So. 2d 278 (Fla. 1st DCA 2003). It is therefore important for businesses to understand that its negotiation process and substantive contract terms may be scrutinized by Florida courts in breach of contract actions if a defense of unconscionability is raised. “The concept of unconscionability does not mean, however, that a court will relieve a party of his obligations under a contract because he has made a bad bargain containing contractual terms which are unreasonable or impose an onerous hardship on him.” Gainesville Health Care Ctr., Inc. v. Weston, 857 So. 2d 278 (Fla. 1st DCA 2003). “It is only where it turns out that one side or the other is to be penalized by the enforcement of the terms of a contract so unconscionable that no decent, fair-minded person would view the ensuing result without being possessed of a profound sense of injustice, that equity will deny the use of its good offices in the enforcement of such unconscionability.’” Steinhardt v. Rudolph, 422 So. 2d 884 (Fla. 3d DCA 1982). Under Florida law, courts will only find a contract to be unconscionable if it is both procedurally and substantively unconscionable. Bellsouth Mobility LLC v. Christopher, 819 So. 2d 171 (Fla. 4th DCA 2002). However, while both elements must be present, they do not have to be present to the same degree. Basulto v. Hialeah Auto., 141 So. 3d 1145 (Fla. 2014). In Basulto, Florida’s Supreme Court held that court should use a “sliding scale” approach when both procedural and substantive unconscionability are present to some degree. This sliding scale analysis employs “a balancing approach . . . allowing one prong to outweigh another provided that there is at least a modicum of the weaker prong.” SHEDDF2-FL3, LLC v. Penthouse S., LLC, 314 So. 3d 403 (Fla. 3d DCA 2020). “The more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to conclude that the term is unenforceable, and vice versa.” 12550 Biscayne Condo. Ass’n, Inc. v. NRD Investments, LLC., 46 Fla. L. Weekly D2401 (Fla. 3d DCA Nov. 10, 2021). Procedural unconscionability relates to the manner in which a contract is made and involves consideration of issues such as the bargaining power of the parties and their ability to know and understand disputed contract terms. 12550 Biscayne Condo. Ass’n, Inc. v. NRD Investments, LLC., 46 Fla. L. Weekly D2401 (Fla. 3d DCA Nov. 10, 2021). A contractual provision is procedurally unconscionable if the alleged non-breaching party lacked “meaningful choice” about the provision in question. Gainesville Health Care Ctr., Inc. v. Weston, 857 So. 2d 278 (Fla. 1st DCA 2003). To determine whether a contract is procedurally unconscionable, a court must look to the “circumstances surrounding the transaction” to determine whether the complaining party had a “meaningful choice” at the time the contract was entered. Kohl v. Bay Colony Club Condo., Inc., 398 So. 2d 865 (Fla. 4th DCA 1981). “Among the factors to be considered [while determining whether a contractual provision is procedurally unconscionable] are whether the complaining party had a realistic opportunity to bargain regarding the terms of the contract, or whether the terms were merely presented on a ‘take-it-or-leave-it’ basis; and whether he or she had a reasonable opportunity to understand the terms of the contract.” A substantively unconscionable contract is one that “no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Woebse v. Health Care & Ret. Corp. of Am., 977 So. 2d 630 (Fla. 2d DCA 2008). For substantive unconscionability, courts must determine whether the contractual terms are “so outrageously unfair as to shock the judicial conscience. Courts do not equate unconscionability with mere unreasonableness.” Belcher v. Kier, 558 So. 2d 1039 (Fla. 2d DCA 1990). The Harm Suffered by the Insureds includes: Financial Consequences: At its core, the primary damage of bad faith is financial. Insurance policies serve as safety nets against unforeseen damages and losses. If an insurer refuses to pay out a valid claim, delays payments, or significantly undervalues the cost of repairs, the policyholder is often left to bear these financial burdens. These burdens may lead to crippling debt, bankruptcy, or even the loss of the insured property. They've diligently paid their insurance premiums and expect their policy to cover the costs of repairing the property to pre-loss condition. However, their insurance company unjustly refuses to properly pay the claim, citing reasons that aren't applicable under their policy's provisions. As a result, they're left with tens or even hundreds of thousands of dollars in repair costs, which could lead to mounting debt and potential bankruptcy. Legal Consequences: In many instances, insured parties may have to engage in expensive and time-consuming legal battles to receive the compensation they're owed. This could include the cost of hiring a lawyer, court fees, and the loss of personal or work time. To receive a fair settlement, the insured has been forced to hire an attorney to fight for them. Legal fees can quickly pile up, not to mention the time and stress involved in legal proceedings. Mental and Emotional Stress: The stress and anxiety of fighting a bad faith claim can have serious mental and emotional consequences. The process can be incredibly stressful and confusing, particularly if the insured has never navigated the complex insurance landscape before. This can lead to stress-related health conditions like insomnia, depression, and anxiety disorders. Here, the policyholder now has to worry about where their family will live, in addition to dealing with the bureaucracy and delay tactics of the insurer. The constant stress and uncertainty surely has or will lead to mental health problems like depression and anxiety. Distrust in the System: Bad faith practices erode trust in the insurance system. This might discourage individuals from seeking coverage in the future, leaving them vulnerable to the financial impact of property damages. The negative experiences can also affect other consumers, causing a ripple effect that undermines the industry as a whole. Here, after experiencing the anguish of a denied, delayed, and underpaid claim, the Insured has developed a deep-seated dislike of insurance companies. They may decide not to renew their policy or get insured in the future, leaving them financially vulnerable in the event of a catastrophe. Damage to Personal Belongings and Health: If the insurer does not act swiftly and adequately to cover damages, it could lead to further deterioration of the property and personal belongings due to continued exposure to elements like water, heat, or mold - despite best efforts to mitigate the damage by the Insured(s). This could also potentially expose the insured and their family to health hazards like mold or structural instability. Opportunity Cost: The time spent dealing with a bad-faith insurance company could be better used elsewhere. Policyholders may lose out on opportunities such as work, education, or personal pursuits because of the time and energy consumed by the claims process. Here, the Insured(s) have had to take time off work or abandon personal pursuits to chase the insurer, gather supporting evidence, engage in discussions, and even hire an attorney. This time could otherwise have been used productively or for personal enjoyment. Increased Premiums: After a bad faith claim, policyholders may face higher premiums in the future. This is because other insurers may seek to recoup their bad faith losses from policyholders, even if the original claim was valid and unfairly denied, delayed or underpaid. Further, after having their claim unjustly denied and using litigation to resolve the dispute, a policyholder may find themselves in a difficult position when seeking insurance from a new provider. The previous claim may be seen as a risk factor, and as such, the policyholder may be charged higher premiums, making insurance less affordable all because the prior carrier failed to uphold its end of the contractual bargain. CONCLUSION AND DEMAND In light of the heinous acts and statutory violations outlined above, this Civil Remedy Notice serves as a final warning to the INSURANCE COMPANY. THE INSUREDS demand that the INSURANCE COMPANY correct these violations within sixty (60) days of receiving this Notice, failing which, legal action will ensue. This Notice is not merely a precursor to a lawsuit; it is a testament to the egregious breach of faith perpetrated by the INSURANCE COMPANY. It is a reminder that there is a human cost to such deceit, and it is a cry for justice for THE INSUREDS and others who may have suffered similar fates at the hands of the INSURANCE COMPANY. The law provides for remedies for those affected by the insurance company's violation of these prohibited acts, and THE INSUREDS fully intend to pursue these remedies if the INSURANCE COMPANY continues to neglect its duties. The INSURANCE COMPANY is hereby put on notice. Rectify these transgressions or prepare to face the full force of the law. Therefore, to cure the defects outlined in this Civil Remedy Notice, the INSURANCE COMPANY must: Create and implement adequate guidelines for proper investigation and evaluation as to claims handling and for the training and supervision of employees, which will avoid future statutory violations as set forth above, and to avoid this from occurring in the future; the INSURANCE COMPANY must create and implement adequate guidelines for the proper investigation and evaluation of these types of claims, and for the training and supervision of employees with regard to these types of claims to ensure the INSURANCE COMPANY’s claims handling procedures with regard to these types of losses are adequate to stop further Insureds from being treated unfairly and wrongfully; the INSURANCE COMPANY must assist THE INSURED in mitigating his damages; the INSURANCE COMPANY must not demand pretextual investigations of the Property to further delay tendering payment to THE INSURED to return the Property to its pre-loss condition. The INSURANCE COMPANY must immediately tender all undisputed insurance proceeds to THE INSURED, while continuing to adjust the loss with THE INSURED; The INSURANCE COMPANY must act fairly and honestly towards THE INSURED and with due regard for their best interests in attempting to settle THE INSURED’S claim; The INSURANCE COMPANY must immediately tender all insurance benefits due and owing to THE INSURED under the Policy pursuant to the relevant policy provisions provided therein that would reasonably place THE INSURED back to their pre-loss condition, including, but not limited to all interest due and owing under applicable Florida Statutes, The INSURANCE COMPANY must also pay THE INSURED the fair value of his insurance claim and all expenses incurred with the adjustment of the claim (including the amount demanded in any public adjuster or contractors estimate), which includes adjuster fees, costs and attorney fees.
Comments
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Tracy.Gowen@KennedysLaw.com 10-17-2024 Westchester Surplus Lines Insurance Company (“Westchester”) hereby responds to Civil Remedy Notice No. 782012 (“Notice”) filed by Unit 7940 EYM Diner of Florida, LLC in connection with claim number KY22K2904528 under policy number FSF16497502 001. Westchester objects to the Notice as facially defective because it does not state with specificity the information required by Fla. Stat. Section 624.155(3)(b): (1) The statutory provision, including the specific language of the statute, which the authorized insurer allegedly violated; (1) The facts and circumstances giving rise to the violation; (3) The name of any individual involved in the violation; and (4) Reference to specific policy language that is relevant to the violation, if any. The Notice alleges that Westchester violated Section 626.9541(1)(i)(1), alleging Westchester attempted to settle the claim on the basis of an application, when serving as a binder or intended to become a part of the policy, or any other material document which was altered without notice to, or knowledge or consent of, the insured. However, the Notice does not identify any relevant alterations to an application or other material document. Similarly, the Notice alleges that Westchester violated Section 626.9541(1)(i)(2), alleging Westchester made a material misrepresentation to the insured for the purpose and with the intent of effecting settlement of such claims, loss, or damage under such contract or policy on less favorable terms than those provided in, and contemplated by, such contract or policy. The Notice also alleges that Westchester violated Section 626.9541(1)(i)(3)(b), alleging that Westchester misrepresented pertinent facts or insurance policy provisions relating to coverages at issue. But the Notice does not identify any specific misrepresentation or identify the person who made the specific misrepresentation. The Notice alleges that Westchester violated Section 626.9541(1)(i)(3)(c), alleging that Westchester failed to acknowledge and act promptly upon communications with respect to the claims. But the Notice does not identify with any specificity a single communication that Westchester failed to acknowledge and act upon promptly. Likewise, the Notice alleges that Westchester violated Section 626.9541(1)(i)(3)(g), alleging that Westchester failed to promptly notify the insured of any additional information necessary for the processing of the claim. But the Notice does not allege any situation where the claim adjustment was delayed because Westchester failed to promptly notify the insured of additional information that Westchester needed for processing the claim. Westchester also objects to the Notice because it does not identify with specificity the policy language relevant to the alleged violation. The Notice states that relevant policy language “includes all applicable loss payment and coverage provisions of policy no. 80CCX8128,” and refers to “Coverages A, B, C, and D.” It is not clear what “policy no. 80CCX8128” the Notice is referring to or how it is relevant. The Notice also appears to be citing to the entire policy given its reference to “all applicable … coverage provisions.” Additionally, policy number FSF16497502 001 does not have Coverages A, B, C, and D, so it is not clear what the Notice is referring to. Westchester further objects to the Notice as ambiguous because it repeatedly refers to “the insureds,” but the Policy does not have multiple insureds. Westchester also objects to the Notice because Unit 7940 EYM Diner of Florida, LLC is not the named insured. Additionally, the section of the Notice pertaining to policy language contains a diatribe of the complainant’s grievances towards the insurance industry as a whole. However, the complainant’s grievances do not relate to any specific act or omission by Westchester. Likewise, the “Harm Suffered by the Insureds” section does not describe any specific harm suffered by the complainant. The section is also vague and ambiguous because the complainant is a limited liability company, yet it refers to the complainant’s family, health, and emotional stress, amongst other things. Finally, the Notice is ambiguous as to how to cure the vaguely alleged violations. The Notice does not state any specific amount of money Westchester is required to pay. For these reasons, the Notice is legally insufficient. Julien v. United Prop. & Cas. Ins. Co., 311 So. 3d 875, 879 (Fla. 4th DCA 2021). Notwithstanding that the Notice is legally insufficient, the facts and circumstances described in the Notice are inaccurate. Westchester issued a commercial property insurance policy to EYM Diner of Florida #1, LLC (“Insured”) bearing policy number FSF16497502 001, with policy period from March 15, 2022 to March 15, 2023 (“Policy”). The Policy provides certain insurance coverage for a building located at 75 East Merritt Island Causeway, Merritt Island, FL 32952 (“Property”). The Insured reported a claim for damage to the Property following Hurricane Ian. Westchester engaged engineer Mitchell Shaneberger, P.E., with Stephens Engineering Consultants, to assist with its investigation of the claim. Mr. Shaneberger observed a missing vent cap on the left-facing slope of the roof, which he attributed to Hurricane Ian. Aside from the single missing vent cap, Mr. Shaneberger did not observe any storm-related damage to the roof or exterior. He did not observe any bent, torn, missing, or folded roof panels consistent with wind damage. Similarly, he did not observe any areas of torn, missing, or wrinkled roof membrane or displaced gravel ballast consistent with wind damage. With respect to the interior, Mr. Shaneberger determined that the moisture intrusion in the front entry area was the result of deficiencies in the roofing or underlayment. He observed a missing ceiling tile in the dining room, which he attributed to leaks in a galvanized pipe above the ceiling tile. Mr. Shaneberger observed water intrusion in the left storage room ,which he determined was a historical and ongoing condition caused by deficiencies in the integral gutter at the side of the building, which was exacerbated by drainage deficiencies in the gutter. Mr. Shaneberger determined that the moisture intrusion was not the result of a storm-created opening. The Policy contains the following relevant exclusions and limitations: We will not pay for loss, or physical loss or damage, caused directly or indirectly by any of the following. Such loss or physical loss or damage, is excluded regardless of any cause or event that contributes concurrently or in any sequence to the loss, or physical loss or damage: 1. Presence, growth, proliferation, spread or activity of "fungus", wet rot or dry rot or bacteria. But if "fungus" wet rot, dry rot or bacteria results in a "specified cause of loss", we will pay for the loss caused by that "specified cause of loss". This exclusion does not apply when "fungus", wet rot or dry rot, or bacteria results from fire or lightning …. *** This policy excludes any loss or damage directly or indirectly caused by, resulting from or contributed to by any pre-existing property damage at the time of loss. *** We will not pay for cosmetic damage to roof surfacing caused by wind and/or hail. For the purpose of this endorsement, cosmetic damage means that the wind and/or hail caused marring, pitting or other superficial damage that altered the appearance of the roof surfacing, but such damage does not prevent the roof from continuing to function as a barrier to entrance of the elements to the same extent as it did before the cosmetic damage occurred. *** B. Exclusions 2. We will not pay for loss or damage caused by or resulting from any of the following: d. (1) Wear and tear; (2) Rust or other corrosion, decay, deterioration, hidden or latent defect or any quality in property that causes it to damage or destroy itself; (4) Settling, cracking, shrinking or expansion; f. Continuous or repeated seepage or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more. 3. We will not pay for loss or damage caused by or resulting from any of the following, 3.a. through 3.c. But if an excluded cause of loss that is listed in 3.a. through 3.c. results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss. c. Faulty, inadequate or defective: (2) Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; (3) Materials used in repair, construction, renovation or remodeling; or (4) Maintenance; of part or all of any property on or off the described premises. *** C. Limitations The following limitations apply to all policy forms and endorsements, unless otherwise stated: 1. We will not pay for loss of or damage to property, as described and limited in this section. In addition, we will not pay for any loss that is a consequence of loss or damage as described and limited in this section. c. The interior of any building or structure, or to personal property in the building or structure, caused by or resulting from rain, snow, sleet, ice, sand or dust, whether driven by wind or not, unless: (1) The building or structure first sustains damage by a Covered Cause of Loss to its roof or walls through which the rain, snow, sleet, ice, sand or dust enters …. Westchester accepted coverage for the damaged vent cap, but the cost of repairs did not exceed the Windstorm or Hail Deductible. Westchester specifically denies each and every accusation of wrongful conduct made against it in the Notice. Should the Department require further evidence, elaboration, or clarification in the context of the Notice and this response, please do not hesitate to contact the undersigned.
Acknowledgement
* 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.

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DFS-10-363
Rev. 10/14/2008