Filing Number: 785208
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| Filing Accepted: 10/1/2024 |
| Last/Business Name
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| Street Address
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3845 BROOKMYRA DR |
| City, State Zip
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ORLANDO,
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32837
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| Email Address
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R_SOYEZ@ICLOUD.COM |
| Complainant Type:
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Insured |
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| Last/Business Name* |
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SOYEZ |
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First Name |
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ROMAIN |
| Policy # * |
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0760300880 |
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Claim #* |
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7007053304-1 |
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Attorney is Applicable
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| Last Name* |
GOSS
First Name *
ZAF
Initial
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| Street Address* |
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385 W FAIRBANKS AVE STE 300 |
| City, State Zip* |
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WINTER PARK
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FL
32789
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| Email Address * |
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NOI@HMGLEGAL.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):*
JIMMY PACHECO
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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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| 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)(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)(4) |
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Failing to pay undisputed amounts of partial or full benefits owed under first-party property insurance policies within 60 days after an insurer receives notice of a residential property insurance claim, determines the amounts of partial or full benefits, and agrees to coverage, unless payment of the undisputed benefits is prevented by factors beyond the control of the insurer as defined in s. 627.70131(5).
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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 Policy, Policy Number 0760300880, is an all-risks policy form. An all-risks policy form generally provides coverage for all that is not excluded. In this instance, the “all” is defined in Section I: Perils Insured Against. The relative exclusionary and/or limiting language is principally located within two sections of the policy: (1) Section I: Perils Insured Against and (2) Section I: Exclusions (which is further divided into two subsections).
The first section of exclusionary and/or limiting language contained within Section I: Perils Insured Against does not contain an anti-concurrent cause clause. Anti-concurrent cause clauses enhance exclusionary and/or limiting language to exclude losses where there are multiple causes of loss and one is excluded. There is a nuance in this application however where causes of loss may be clearly ordered. In such instance, an insured, in absence of policy language to the contrary may assert the Efficient Proximate Cause Doctrine to assert coverage. Importantly, the absence of anti-concurrent cause language in Section I: Perils Insured Against, means that if there are multiple causes of loss, one of which this section excepts or limits, and at least one of which is a non-excepted or limited cause of loss, then Section I: Perils Insured Against provides for the loss event.
The second section of exclusionary and/or limiting language contained within Section I: Exclusions is divided into two distinct parts. The first part provides a list, subject to anti-concurrent cause language, which enhances the exclusionary and/or limited language contained therein (absent application of the Efficient Proximate Cause Doctrine identified above) to exclude loss events which result from the stated exclusionary and/or limited causes of loss (unless clearly expressed otherwise by the policy). The second part provides a list of causes of loss, not subject to anti-concurrent cause language, and for which any ensuing loss stemming therefrom is covered, even if the underlying cause of loss is excluded or limited by the same.
The application of the coverage to the loss event is then dictated by the payment requirements. The Policy provides two sections which clearly set forth Insurer’s obligation to adjust and pay a covered loss event which implicates the Policy (in excess of Insured’s deductible). These sections are the Loss Settlement and Loss Payment Provisions of the Policy. Importantly, these sections result in a unilateral obligation of Insurer to adjust the Loss and issue payment, the performance of which is a material condition of the Policy (loss payment is the most essential purpose of the Policy). In considering the Loss Settlement and Loss Payment provisions, the Policy, construing any ambiguity against Insurer and in favor of coverage, does not create a duty on Insured to adjust its own loss nor does it create a shifting burden (once Insurer adjusts a loss, then it becomes the province of the Insured to re-adjust their own loss).
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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.
Insurer acted in bad faith in its dealings with Insured violating Fla. Stat. § 624.155. Fla. Stat. 624.155 provides a cause of action for bad faith in first-party claims. Fridman v. Safeco Ins. Co., 185 So. 3d 1214, 1220 (Fla. 2016). These first-party claims are treated the same as third-party claims. Id. at 1221. The question of whether an insurer acted in bad faith is determined by the “totality of the circumstances” standard. Berges v. Infinity Ins. Co., 896 So. 2d 665, 680 (Fla. 2004). This inquiry focuses on the actions of the insurer. Id. at 677. The insurer has a duty to use the degree of care and diligence as a person of ordinary care. Bos. Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980). The insurer must investigate the facts, consider all settlement offers, and settle when a reasonable prudent person would. Id. Additionally, an insurer must not act solely in their own interest in settlement. State Farm Mut. Auto Ins. Co. v. LaForet, 658 So.2d 55, 58 (Fla. 1995). Furthermore, the insurer has the burden to show that there was no realistic possibility of settlement. Powell v. Prudential Prop. & Cas. Ins. Co., 584 So. 2d 12, 14 (Fla. 3d DCA 1991). This notice is given in order to perfect the right to pursue the civil remedy authorized by this Section 624.155, Florida Statutes.
Insurer acted in bad faith under Fla. Stat. 624.155(1)(b)(1) in their dealings with Insured by failing to attempt to settle Insured’s claims when it could and should have done so had it acted fairly and honestly towards insured. Here, Insurer acted in bad faith for failing to settle insured’s claim because Insurer knows, or should know, that Insured’s claim qualifies for additional payment pursuant to the Policy and the law, yet Insurer has withheld the same and has refused to engage the Insured in meaning settlement negotiations. Insured’s Property, located at 3845 Brookmyra Dr, Orlando, FL 32837, suffered direct physical loss on or about 01/09/2024 as the result of wind. Insured promptly notified Insurer of the Loss. Insurer assigned claim number 7007053304-1 to the Loss. Insured then cooperated with Insurer’s investigation of the Loss. After investigating the Loss, Insurer has failed to adjust the Loss pursuant to the facts of the Loss, the Policy, and the Law. Specifically, Insurer has failed to account for substantial damage necessitating substantial repair and expense, such as full roof replacement. Insurer’s failure to adjust the same is without excuse as Insurer has had plain notice and ample opportunity to investigate and inspect the damage. As Insurer knows, or should know, that it has failed to properly adjuster the Loss, Insurer is required by Fla. Stat. 624.155(1)(b)(1) to engage the Insured in meaningful settlement discussions. Insurer’s failure to engage in meaningful settlement discussions has resulted in conduct tantamount to Claim Denial and Claim Delay and is ultimately an Unsatisfactory Settlement Offer. Further, the failure is a quintessential Unfair Trade Practice, by which Insurer delays engaging in resolution to frustrate, annoy, and encumber its Insured with additional costs and delay to obtain the coverage acquired through the Policy.
The cure for the Fla. Stat. 624.155(1)(b)(1) violation is simple, engage Insured in meaningful settlement negotiations based on facts and logic, correctly applying the Policy and the law.
Fla. Stat. § 624.155(1)(a)(1) grants a cause of action against an insurer for unfair insurance trade practices under Fla. Stat. 626.9541(1)(i). Contrary to the language of the statute, a remedy exists even “without proof that the insurer committed unfair or deceptive acts with such frequency as to constitute a general business practice.” Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1232 (Fla. 2006). Here, Insurer’s actions constituted bad faith under:
(a) 626.9541(1)(i)(3)(a): Pursuant to Fla. Stat. 626.9541(1)(i)(3)(a), an insurer must adopt and implement standards for the proper investigation of claims. Plaintiff may bring a civil action for damages caused by the failure to adopt such standards. Fla. Stat. § 624.155(1)(a)(1). Here, the facts of this loss investigation indicate that Insurer does not have adequate standards for the proper investigation of claims. Insurer failed to train and retain competent claims personnel who can investigate claims and apply the facts to the coverages within the Policy. As described in the Policy Section above, the Policy is an all-risks form, with broad coverage, which must be considered in its entirety and liberally in favor of coverage. Here, if Insurer had standards and claim personnel training in place regarding the Policy coverage, considering damage from the Loss, which includes substantial damage necessitating substantial repair and expense, such as full roof replacement, would have and should have issued additional payment pursuant to the Policy and the law. Instead, Insurer has failed to properly adjust the Loss and has wrongfully withheld payment of benefits due and owing. Furthermore, Insurer has failed to implement standards and practices for the handling of claim disputes; Insurer’s personnel are instructed to delay and avoid altering its initial coverage positions, regardless of circumstance, and are not trained to honestly assess and adjust claim disagreements. This has manifested itself with respect to the Loss where Insurer refused to engage the Insured in meaning settlement negotiations. Insured’s Property, located at 3845 Brookmyra Dr, Orlando, FL 32837, suffered direct physical loss on or about 01/09/2024 as the result of wind. Insured promptly notified Insurer of the Loss. Insurer assigned claim number 7007053304-1 to the Loss. Insured then cooperated with Insurer’s investigation of the Loss. After investigating the Loss, Insurer has failed to adjust the Loss pursuant to the facts of the Loss, the Policy, and the Law. Specifically, Insurer has failed to account for substantial damage necessitating substantial repair and expense, such as full roof replacement. Insurer’s failure to adjust the same is without excuse as Insurer has had plain notice and ample opportunity to investigate and inspect the damage. As Insurer knows, or should know, that it has failed to properly adjuster the Loss, Insurer is required by Fla. Stat. 626.9541(1)(i)(3)(a) to have standards in place to avoid this situation. Insurer’s failure to have such standards has resulted in conduct tantamount to Claim Denial and Claim Delay and is ultimately an Unsatisfactory Settlement Offer. Further, the failure is a quintessential Unfair Trade Practice, by which Insurer fails to retain and train competent personnel with the result to frustrate, annoy, and encumber its Insured with additional costs and delay to obtain the coverage acquired through the Policy.
The cure for the Fla. Stat. 626.9541(1)(i)(3)(a) violation is obvious; Insurer must engage claim personnel versed in the specifics of the Policy and the law, who have the requisite skill and training to investigate the facts, then to engage Insured in meaningful discussions regarding a fair and just resolution of the Claim.
(b) 626.9541(1)(i)(3)(c): Pursuant to Fla. Stat. 626.9541(1)(i)(3)(c), an insurer acts in bad faith if it fails to acknowledge and act promptly upon communications with respect to claims. Here, Insurer failed to act promptly in its communication with Insured on 8/15/2024. The LOR requested the following:
(a) A complete copy of the Policy and the Policy Declarations;
(b) Copies of all claim correspondence, including letters and emails, sent by you to the Insured;
(c) Copies of all claim correspondence, including letter and emails, sent by you to any representatives, agents, or contractors of Insured;
(d) A list containing any additional information and/or documents you require;
(e) Copies of all claim correspondence, including letters and emails, sent to you by the Insured;
(f) Copies of all claim correspondence, including letter and emails, sent to you by any representatives, agents, or contractors of Insured;
(g) The name, phone number, and email address of the adjuster(s) or attorney(s) assigned to handle the above-identified claim on your behalf;
(h) Pursuant to F.S. 627.70131, your list of each adjuster who communicated with Insured regarding the Claim either during a physical inspection of the property or any subsequent communication.
Insurer has failed to provide all requested information. The requested information is necessary for Insured’s prompt handling of the Loss and to ensure cooperation with Insurer in its investigation of the Loss. Insurer has a pattern and practice of ignoring or substantially delaying response to requests for information from its Insured such that claims are consistently and routinely delayed – this is a quintessential Unfair Trade Practice that must be stopped.
Like the previous violations, the violation of Fla. Stat. 626.9541(1)(i)(3)(c) has a simple cure, provide the requested information or, if there is a legitimate basis for not doing so, express that to Insured.
(c) 626.9541(1)(i)(3)(f): Pursuant to Fla. Stat. 626.9541(1)(i)(3)(f), an insurer acts in bad faith if it fails 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. Here, the Insurer issued its purported coverage determination letter on 5/2/2024 (CDL). The CDL fails to explain to Insured why Insurer failed to adjust for the covered damage reported and investigated by Insurer. Instead, the CDL makes vague, conclusory statements which neither put Insured on notice of Insurer’s position with respect to the Loss or which funds Insured to go about repairing the damage to Insured’s property. Insurer failed to adjust the Loss pursuant to the facts of the Loss, the Policy, and the Law. Specifically, Insurer has failed to account for substantial damage necessitating substantial repair and expense, such as full roof replacement. Insurer’s failure to adjust the same is without excuse as Insurer has had plain notice and ample opportunity to investigate and inspect the damage. As Insurer knows, or should know, that it has failed to properly adjuster the Loss, Insurer is required by Fla. Stat. 626.9541(1)(i)(3)(f) to issue an updated CDL reflecting a true adjustment of the Loss with a clear explanation of Insurer’s positions with respect to the Loss and the availability of coverage. Insurer’s failure to do so to date has resulted in conduct tantamount to Claim Denial and Claim Delay and is ultimately an Unsatisfactory Settlement Offer. Further, the failure is a quintessential Unfair Trade Practice, by which Insurer delays engaging in resolution to frustrate, annoy, and encumber its Insured with additional costs and delay to obtain the coverage acquired through the Policy.
(d) 626.9541(1)(i)(4): Pursuant to Fla. Stat. (d) 626.9541(1)(i), an insurer must not engage in unfair claim settlement practices. Here, Insurer has engaged in unfair settlement practices by failing to properly and timely adjust the Loss which necessitated Insured obtaining representation to assist Insured in presentation of the claim. Insurer fails to properly adjust losses because it knows that if an insured challenges Insurer’s decision, the law now requires, through NOITL requirements, that Insured adjust Insured’s own loss, at Insured’s own expense, and that the policy and the NOITL law obligate Insured to cooperate with requests for alternative dispute resolution and must bear the costs of representation in such proceedings. In furtherance of that practice, Insurer will most likely engage in such Unfair Claim Settlement Practices here, either demanding a presuit mediation or appraisal, with the sole intention of delays in engaging in resolution to frustrate, annoy, and encumber its Insured with additional costs and delay to obtain the coverage acquired through the Policy. The conduct of using well-intended methods of alternative dispute resolution (appraisal and mediation), as a means of claim delay, is pattern and practice for Insurer. It is part of its scheme to delay correct claim payments as long as possible, if forever, to pad its own bottom line, and to punish any Insured which attempts to uncover Insurer’s bad faith conduct.
To cure the violation of Fla. Stat. 626.9541(1)(i), Insurer must not engage in mediation or appraisal without first exhausting meaningful settlement negotiations with Insured and, in the event, Insurer fails to do so, and then demands an appraisal which results in substantial increases in coverage of Insurer’s coverage determination, Insurer’s bad faith pursuant to Fla. Stat. 626.9541(1)(i) is presumed.
/s/ Zaf Goss
Zaf Goss
Attorney for Insured
HMG Legal
385 W Fairbanks Ave Ste 300
Winter Park, FL 32789
noi@hmglegal.com
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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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