Filing Number: 784299
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| Filing Accepted: 9/24/2024 |
| Last/Business Name
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ORTIZ
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First Name |
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SHERLY YADIRA SOTO |
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| Street Address
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112 MILESTONE DRIVE |
| City, State Zip
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HAINES CITY,
FL
33844
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| Email Address
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STEPHANY@DUBOFFLAWFIRM.COM |
| Complainant Type:
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Insured |
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| Last/Business Name* |
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ORTIZ |
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First Name |
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SHERLY YADIRA SOTO |
| Policy # * |
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P000104046 |
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Claim #* |
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244921 |
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Attorney is Applicable
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| Last Name* |
DUBOFF
First Name *
KENNETH
Initial
R.
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| Street Address* |
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680 NE 127TH ST |
| City, State Zip* |
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NORTH MIAMI
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FL
33161
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| Email Address * |
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STEPHANY@DUBOFFLAWFIRM.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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SECURITY FIRST INSURANCE COMPANY
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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 10117 |
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| Name of individual responsible for violation (if any):*
MATTHEW D. O'BRIEN, ESQ., BRANDI COMPTON,
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| Type of Insurance
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Commercial 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)(d) |
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Denying claims without conducting reasonable investigations based upon available information.
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| 626.9541(1)(i)(3)(i) |
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Failing to pay personal injury protection insurance claims within the time periods required by s. 627.736(4)(b).
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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.
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:
3. "Insured" means you and residents of your household who are:
a. Your relatives; or
b. Other persons under the age of 21 and in the care of any person named above.
Under Section II, "insured" also means:
c. With respect to animals or watercraft to which this policy applies, any person or organization
legally responsible for these animals or watercraft which are owned by you or any person included in 3.a. or
3.b. above. A person or organization using or having custody of these animals or watercraft in the
course of any "business" or without consent of the owner is not an "insured";
d. With respect to any vehicle to which this policy applies:
(1) Persons while engaged in your employ or that of any person included in 3.a. or 3.b. above; or
(2) Other persons using the vehicle on an "insured location" with your consent.
4. "Insured location" means:
a. The "residence premises";
b. The part of other premises, other structures and grounds used by you as a residence and:
(1) Which is shown in the Declarations; or
(2) Which is acquired by you during the policy period for your use as a residence;
c. Any premises used by you in connection with a premises in 4.a. and 4.b. above;
d. Any part of a premises:
1) Not owned by an "insured"; and
(2) Where an "insured" is temporarily residing;
e. Vacant land, other than farmland, owned by or rented to an "insured";
f. Land owned by or rented to an "insured" on which a one or two family dwelling is being built
as a residence for an "insured";
g. Individual or family cemetery plots or burial vaults of an "insured"; or
h. Any part of a premises occasionally rented to an "insured" for other than "business" use.
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.
8. "Residence premises" means:
a. The one family dwelling, other structures, and grounds; or
b. That part of any other building;
where you reside and which is shown as the "residence premises" in the Declarations.
"Residence premises" also means a two family dwelling where you reside in at least one of the
Family units and which is shown as the "residence premises" in the Declarations.
10. “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.
SECTION I – PROPERTY COVERAGES
COVERAGE A– Dwelling
We cover:
1. The dwelling on the "residence premises" used mainly as your private residence, including
attached structures and attached wall-to-wall carpeting if damage to the dwelling is caused by a
covered loss; 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."
This coverage does not apply to land, including land on which the dwelling is located.
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. This coverage does not apply to land, including land on which the other structures are located. We do not cover other structures:
1. Used in whole or in part for “business”; or
2. Rented or held for rental to any person not a tenant of the dwelling, unless used solely as a
Private garage.
The limit of liability for this coverage will not be more than the limit shown on the Declarations
page for Coverage B. Use of this coverage does not reduce the Coverage A limit of liability.
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.
ADDITIONAL COVERAGES
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 with 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 taken solely to protect the covered property from further damage.
d. If however, your policy includes coverage for “hurricane loss” and a covered loss occurs during a hurricane that causes damage to your covered property, the amount we pay under this additional coverage will be the reasonable cost incurred by you for necessary measures taken solely to protect the property from further damage and is not limited to the amount in a. above.
e. A reasonable measure under this Additional Coverage 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 our
inspection, testing, and analysis. For purposes of this Additional Coverage, the cost of testing of air or property to confirm the absence, presence or level of fungi, mold, wet or dry rot, or bacteria is not considered a Reasonable Emergency Measure. This coverage does not relieve you of your duties, in case of a loss to covered property, as set forth in Section I – Condition 2.d. 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.
SECTION I – CONDITIONS
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. 60 days after we receive your written proof of loss and:
(1) There is an entry of a final judgment or, in the case of an appeal from such judgment, within
SFI FL HO3 03 20 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 20 of 31
60 days from and after the affirmance of the same by the appellate court; or
(2) There is a written executed mediation settlement agreement with you according to the terms of the
written mediation settlement; or
c. Within 90 days after we receive written notice of an initial claim, “reopened claim” or “supplemental
claim” from you, we will pay or deny such claim or a 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.
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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.
On January 14, 2023, the insured made a claim for benefits under the policy of property insurance issued by the insurer for the insured’s real property after it was damaged by a direct physical loss, more specifically Hurricane Nicole. Upon the insured’s notice, the insurer did not immediately investigate the loss in adjustment of the claim. Instead, its initial response was delayed and then painfully slow and unnecessarily deliberate. The investigation was punctuated with investigative requests both unnecessary and overly burdensome to the insured. On April 3, 2023, the carrier denied the claim for damages. Following said denial, litigation ensued.
During the course of the litigation, on July 26, 2024 the carrier served a proposal for settlement. As part of the proposal for settlement, the carrier specifically notes they are contesting Plaintiff’s right to attorneys fees in the lawsuit. However, in the event the court disagreed with their motion to strike our fee entitlement, this offer is exclusive of fees. On August 26, 2024 counsel for Plaintiff advised carrier that Plaintiff was accepting the proposal for settlement, pending fees and costs. To date, despite it being more than 20 days of the date of acceptance, the carrier has failed to issue payment as per the terms of the Civil Remedy Notice, the policy and statute. More specifically, the policy states:
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;
Further Florida Statute 627.4265 states:
627.4265 Payment of settlement.—In any case in which a person and an insurer have agreed in writing to the settlement of a claim, the insurer shall tender payment according to the terms of the agreement no later than 20 days after such settlement is reached.
Based on the foregoing, payment should have been tendered within 20 days of Plaintiffs’ acceptance of the proposal for settlement. Instead, we are on day 29, and no payment has been tendered to date.
In furtherance of the carrier's bad faith, as previously noted, the carrier is disputing the plaintiffs’ right to attorneys fee and has filed a motion striking said claim for fees. However, at the time of the issuance of the policy, Fla., Stat. §627.428(1)(2021), provided insureds with a statutory substantive right to a claim for attorneys fees in an action for breach of the policy and Plaintiff has made such claim in this action. See, Bionetics Corp., v. Kenniasty, 69 So. 3d 943, 948 (Fla. 2011)(... “statutory right to attorneys fees constitutes a substantive right.”). The Florida Supreme Court in State Farm Fire &Cas. Co., v. Palma, 629 So. 2d 830, 832 (Fla. 1993) held that the insured’s statutory right to attorneys fees are an implicit part of every insurance policy issued in Florida, declaring; “when insured sues to enforce policy because insurer has contested valid claim, relief sought is both policy proceeds and attorney fees” Palma, supra., and Synergy Contr Grp., Inc. v. Fednat Ins. Co., 332 So. 3d 62, 65 (Fla. 2d DCA 2021) and Cincinnati Ins. Co. v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974). In a case on point, Water Damage Express LLC v. First Protective Insurance Company, 336 So. 3d 310 (Fla 4th DCA 2022), the court recognized that the attorneys fee statute in effect at the time an insurance contract is executed governs the substantive rights to attorneys fees. See also, Menendez v. Progressive Express Insurance Co., 35 So. 3d 873 (Fla. 2010), and Cole v. Universal Property & Cas. Ins. Co., 363 So. 3d 91089 (Fla 4th DCA 2023), (“... the right to attorney's fees ... is substantive and not able to be applied retroactively”). The Water Damage Express LLC decision held that a newly enacted statute affecting an insured’s assignee’s statutory rights to attorneys fees under Fla,. Stat., §627.428(1), cannot be applied retroactively. As such their refusal to acknowledge attorneys fees and costs further evidenced that carriers bad faith in the handling of this claim.
It is believed that future bad faith discovery would reveal an extensive history of delay of claims similar to that of the insured and other insureds across the state of Florida, as this conduct may be a business practice of this Insurer. It is believed that future bad faith discovery may reveal an extensive history of denials (or underpayments) of claims similar to that of the insured and other insureds across the state of Florida, as this conduct may be a business practice of this Insurer.
To cure the defects outlined in this civil remedy notice, the insurer must:
1. Immediately tender $ $33,500.00 payable to SHERLY YADIRA SOTO ORTIZ, LIONEL DELGADO OQUENDO, UNITED WHOLESALE MORTGAGE, RAINBOW RESTORATION OF WELLINGTON, AND DUBOFF LAW FIRM.) – said amount being exclusive of any claims for attorney’s fees and costs.
2. Tender an additional $15,000.00 to cure the bad faith.
3. Pay all statutory interest due on the foregoing amounts as provided by Fla. Stat. §627.70131(5)(a)
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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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