Filing Number: 785582
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| Filing Accepted: 10/3/2024 |
| Last/Business Name
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MALBON
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First Name |
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TIMOTHY G. |
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| Street Address
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11531 ISLE OF PALMS DRIVE |
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FORT MYERS,
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33931
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| Email Address
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TIM@BWBEACHRESORT.COM |
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Insured |
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| Last/Business Name* |
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MALBON |
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First Name |
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TIMOTHY G. |
| Policy # * |
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HCPC-HO3-479124-6 |
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Claim #* |
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926686 |
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Attorney is Applicable
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| Last Name* |
PETTINATO
First Name *
DAVID
Initial
J
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| Street Address* |
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1000 W. CASS STREET |
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TAMPA
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FLORIDA
33606
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| Email Address * |
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DPETTINATO@OLDERLUNDYLAW.COM, DJP-PARALEGALS@OLDER |
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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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HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC.
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| Insurer Name* |
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NAIC Company Code 12944 |
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| Name of individual responsible for violation (if any):*
DAVID CARLSON, KIMBERLY KNOX, LATOSHA JONES, FIRMO PESQUERA, DEMARCUS WILLIS, AND ALL OTHER ADJUSTERS, SUPERVISORS, MANAGEMENT AND INDIVIDUALS ASSOCIATED WITH OR RETAINED BY HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY INVOLVED IN THE CLAI
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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 Delay
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Unsatisfactory Settlement Offer
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Unfair Trade Practice
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Other
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Failure to properly investigate claim and with due regard to Insured’s interest
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Other
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Failure to acknowledge and act promptly to communications regarding claim
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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)(2) |
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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.
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| 626.9541(1)(i)(3)(a) |
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Failing to adopt and implement standards for the proper investigation of claims.
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| 626.9541(1)(i)(3)(b) |
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Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue.
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| 626.9541(1)(i)(3)(c) |
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Failing to acknowledge and act promptly upon communications with respect to claims.
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| 626.9541(1)(i)(3)(f) |
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Failing to promptly provide a reasonable explanation in writing to the insured of the basis in the insurance policy, in relation to the facts or applicable law, for denial of a claim or for the offer of a compromise settlement.
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| 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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| 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.
ADD’L STATUTES VIOLATED
§627.70131(1)(a)
§627.70131(2)
§627.70131(7)(a)
POLICY LANGUAGE
The Insured may not be in possession of a complete copy the applicable policy of insurance, however, the specific policy language relevant to the violations outlined below is contained within Homeowners Choice Property & Casualty Insurance Company’s Homeowners policy, Policy No. HCPC-HO3-479124-6, issued to the Insured including, but is not limited to, the following:
Coverage A-Dwelling provisions (HC HO3 01 20)
Coverage B-Other Structures provisions (HC HO3 01 20)
Coverage C-Personal Property provisions (HC HO3 01 20)
Coverage D-Loss of Use provisions (HC HO3 01 20)
- Additional Living Expenses
Additional Coverages provisions (HC HO3 01 20)
- Debris Removal
- Reasonable Emergency Measures
- Tree, Shrubs and Other Plants
- Glass or Safety Glazing Material
- “Fungi”, Wet or Dry Rot, Yeast or Bacteria
- Ordinance Or Law
Calendar Year Hurricane Deductible-FL. endorsement (HC 24 07 08)
The Declarations Page (HC HO3 DEC 10 21)
Loss Payment or Loss Settlement provisions (HC HO3 01 20)
Duties in Event of Loss Policy provisions (HC HO3 01 20)
The insurance policy's definition sections (HC HO3 01 20)
The insurance policy's exclusion of coverage provisions (HC HO3 01 20)
Please advise if there are other applicable policy provisions that are not cited above but would provide coverage to the Insured for the September 28, 2022, Hurricane Ian and/or hurricane force winds 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.
In Florida, the work of adjusting insurance claims engages the Public Trust. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY (“HOMEOWNERS CHOICE”) has breached this duty by its failure or refusal to acknowledge its Insured’s claim of loss.
HOMEOWNERS CHOICE has failed to create and implement adequate guidelines for proper investigation to evaluate claims handling and for training and supervision of employees resulting in statutory violations as set forth above. HOMEOWNERS CHOICE has failed and/or refused to thoroughly, accurately, and completely investigate and evaluate the Insured’s insurance claim for damages.
To date, notwithstanding the Insured’s pleas, HOMEOWNERS CHOICE has continued to refuse to acknowledge its obligation to acknowledge and pay the full amount of its Insured’s claim.
This complaint is made on behalf of the Insured, Timothy G. Malbon (“MR. MALBON”). Further, this complaint is a statement that notice is hereby given in order to perfect the right to pursue the civil remedy authorized and pursuant to Florida Statute §624.155.
In consideration of the premium paid to it by MR. MALBON, HOMEOWNERS CHOICE issued an Homeowners policy, Policy No. HCPC-HO3-479124-6 (hereinafter referred to as “the Policy”), to MR. MALBON wherein the insurance policy provided coverage for all losses, including Hurricane Ian and/or hurricane force winds, except those losses which were expressly excluded.
The policy was in full force and effect at the time the damage occurred as a result of Hurricane Ian and/or hurricane force winds, and the ensuing damages as a direct result thereof, to the insured premises located at 11531 Isle of Palms Drive, Fort Myers, FL 33931, on or about September 28, 2022.
On or about September 28, 2022, Hurricane Ian, a large and destructive Category 5 storm, struck the state of Florida, becoming the deadliest hurricane to strike the state of Florida in over 80 years. Hurricane Ian was the third-costliest weather disaster on record, causing complete destruction or extensive property damage to the structures, homes, businesses, and roadways in its path. Millions of people were left without power, while many others were entrapped or forced to seek refuge elsewhere. As a result of the extreme damage and loss of life, the name Ian will never be used again for an Atlantic hurricane.
MR. MALBON was a victim of Hurricane Ian’s destruction when his insured home suffered exterior and interior damages due to hurricane-force winds, and ensuing damages, including, but not limited to, extensive wind damage to the roof system, allowing water intrusion into the home, causing interior water damages throughout the home.
MR. MALBON’S insured property sustained damages to the interior and exterior of the home. On the exterior, MR. MALBON’S insured property sustained damages to the roof system, rear upper porch, siding, shutters, gutters, etc.
On the interior, MR. MALBON’S insured property sustained damages, including but not limited to, the drywall, ceiling, paint, etc. located in the great room and closet.
MR. MALBON timely notified HOMEOWNERS CHOICE of the damages and opened a claim pursuant to the terms and conditions of the Policy.
Following the loss, MR. MALBON retained Aluminum Design Specialties to rescreen and repair the shutters of his insured property.
In response, HOMEOWNERS CHOICE assigned the claim to its representative, Demarcus Willis, to adjust and investigate the loss, as well as a field adjuster, to inspect the damages.
HOMEOWNERS CHOICE’S representative visited the insured property and performed a cursory and inadequate investigation of the damaged property. HOMEOWNER CHOICE’S damage estimate highly undervalued the extent of damages sustained to MR. MALBON’S home.
On December 19, 2022, HOMEOWNERS CHOICE submitted a Payment Letter to MR. MALBON for $72,945.78 for Dwelling damages (Coverage – A).
Concerned that HOMEOWNERS CHOICE had no intention to fairly investigate and adjust his claim, MR. MALBON retained the services of an insurance claim professional, David C. Osburn from Goodman, Gable, Gould Adjusters International (GGG), to assist in submitting his claim to HOMEOWNERS CHOICE which would adequately and fairly detail all the damages sustained as a result of the loss.
In contrast to HOMEOWNER CHOICE’S damage estimate, MR. MALBON’S damage estimate from GGG, totaled a loss of $185,658.73 in Dwelling damages (Coverage – A). This estimate was inclusive of the full extent of damages sustained to MR. MALBON’S insured property, as detailed above.
Following retention of GGG, HOMEOWNERS CHOICE reinspected MR. MALBON’S insured property, and again, failed to evaluate the full extent of damages sustained to his home.
On May 10, 2023, MR. MALBON contacted HOMEOWNERS CHOICE and was advised he had a new second adjuster, LaTosha Jones.
On May 24, 2023, HOMEOWNERS CHOICE submitted a Supplemental Payment Letter to MR. MALBON for $7,712.34 for Dwelling damages (Coverage – A).
On or about August 2, 2024, MR. MALBON submitted to HOMEOWNERS CHOICE an executed Sworn Statement in Proof of Loss, totaling $185,658.73 in Dwelling damages (Coverage – A).
Unable to wait for HOMEOWNERS CHOICE to issue full owed insurance benefits for his loss, MR. MALBON retained Watco Construction, Inc. to replace his insured property’s roofing system and also retained 3g Gutter Soffit Installation Repair to replace his gutters and soffit system.
In addition, MR. MALBON retained Palm City Solutions to install tarps over the boat life on his insured property, in an effort to prevent additional damages.
On August 10, 2023, MR. MALBON submitted a letter to HOMEOWNERS CHOICE, where he detailed areas of disagreement in damages observed.
On August 25, 2023, MR. MALBON sent a follow-up communication to HOMEOWNERS CHOICE regarding his letter, but received no response. To date, MR. MALBON has not received a response from HOMEOWNERS CHOICE for his letter.
On September 5, 2023, MR. MALBON was advised by HOMEOWNERS CHOICE that his claim was now transferred to a new third adjuster, Kimberly Knox.
On October 11, 2023, additional documentation was provided by MR. MALBON in support of the damages and at the request of Ms. Knox, a subsequent call was scheduled for October 19 between both parties.
On October 19, 2023, approximately 7 minutes before the 2:00 p.m. call was scheduled to take place, Ms. Knox emailed asking to push the call out one day, to Friday the 20th at 2:00 p.m. Ms. Knox again failed to make the scheduled call and failed to notify MR. MALBON that she had a conflict.
On October 24, 2023, MR. MALBON received an email from Ms. Knox stating that HOMEOWNERS CHOICE was waiting for approval of “revisions to the FA Estimate.’’
On November 28, 2023, MR. MALBON resubmitted his letter to HOMEOWNERS CHOICE, where he detailed areas of disagreement in damages observed.
In response, HOMEOWNERS CHOICE submitted a boiler plate response from a previous adjuster that did not respond to MR. MALBON’S specific disagreements.
In relation to MR. MALBON’S claim, HOMEOWNERS CHOICE has demonstrated unprofessionalism and delay, as it has had numerous adjuster reassigned and has failed to communicate effectively with the Insured.
HOMEOWNERS CHOICE has admitted that MR. MALBON sustained covered damages as a result of the Hurricane Ian and/or hurricane force winds loss that occurred on or about September 28, 2022 but has denied tendering all owed insurance benefits to MR. MALBON. Pursuant to Florida Statute §626.9541(1)(i)(4), HOMEOWNERS CHOICE is required to pay undisputed amounts of partial or full benefits owed under first-party property insurance policies within 90 days after HOMEOWNERS CHOICE received notice of the residential property insurance claim, determine the amounts of partial or full benefits, and agree 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). As HOMEOWNERS CHOICE has failed to do so, HOMEOWNERS CHOICE has wrongfully denied coverage.
Since the beginning of the claim, HOMEOWNERS CHOICE has engaged in a pattern of delay, denial, and reckless disregard for MR. MALBON’S rights. The actions of HOMEOWNERS CHOICE listed herein have been continuing in nature and given the totality of the circumstances, which includes HOMEOWNERS CHOICE’S adjustment, actions and/or omissions post the filing of this CRN. MR. MALBON contends that given the past experience in this matter with HOMEOWNERS CHOICE, it is reasonably foreseeable that HOMEOWNERS CHOICE’S current actions will extend to its entire conduct in the handing of his claim, including the acts or omissions of HOMEOWNERS CHOICE and/or its representatives, until the final resolution of his claim. As such, MR. MALBON contends adequate notice has been given should HOMEOWNERS CHOICE’S actions and violations listed herein continue after the expiration of this notice.
HOMEOWNERS CHOICE has failed and/or refused to settle the claim when it could and should have done so had it acted fairly and honestly towards MR. MALBON, and has failed to take into account the information and evidence provided that contradict its decisions.
Even upon receipt of additional and supporting evidence to the contrary, HOMEOWNERS CHOICE has continued to stand by its claim denials. As such, MR. MALBON does not anticipate HOMEOWNERS CHOICE will rescind its denial of his claim.
HOMEOWNERS CHOICE’S conduct has been reckless and unfair to MR. MALBON, and has caused and continues to cause additional damages throughout the property. This is evidenced by the delay in paying the claim and the failure of HOMEOWNERS CHOICE to evaluate the claim in total.
To date, HOMEOWNERS CHOICE has failed and/or refused to provide MR. MALBON with all the insurance benefits due and owing and has not tendered the full amount needed to repair the Property despite knowing that MR. MALBON has sustained covered damages to his insured property.
As HOMEOWNERS CHOICE must admit, it is implied within every insurance policy a duty of good faith and fair dealings. In an insurance contract, each party is prevented from interfering with the other’s right to benefit from the contract. The obligations of good faith and fair dealings encompass qualities of decency and humanity inherent in its responsibilities as a fiduciary. HOMEOWNERS CHOICE is bound to conduct itself with the utmost good faith for the benefit of MR. MALBON. However, HOMEOWNERS CHOICE has failed to comply with the obligations in connection with this claim and has never looked at the claim or the contract for insurance with good faith and fair dealing. Instead, HOMEOWNERS CHOICE has looked for ways not to pay the claim in full, or at all, and these actions have been to the detriment of MR. MALBON.
The adjusters assigned to this claim have a duty to adjust and treat all claims equally. Since the beginning of this claim the representatives on behalf of HOMEOWNERS CHOICE have approached this investigation in a manner prejudicial to MR. MALBON. HOMEOWNERS CHOICE is using either untrained or improperly trained adjusters in connection with this claim. HOMEOWNERS CHOICE should have been adjusting the loss with MR. MALBON but instead, it was looking for ways not to pay the claim at all, or pay the claim in full. If HOMEOWNERS CHOICE handles all the claims in the manner in which MR. MALBON’S claim was adjusted, then it is improperly handling all claims.
HOMEOWNERS CHOICE has refused and/or failed to comply with The Policy’s cooperation and/or “Loss Payment” provision. Under The Policy, HOMEOWNERS CHOICE was to timely tender undisputed insurance benefits to MR. MALBON. HOMEOWNERS CHOICE has failed and/or refused to timely tender owed insurance benefits, undisputed or otherwise. This is a breach of The Policy.
HOMEOWNERS CHOICE has refused and/or failed to cooperate and/or “Adjust the Loss” by cooperating with MR. MALBON during the claims adjustment process in compliance with The Policy’s “Loss Payment” provision. This is a breach of The Policy.
The concept of insurance is that insurance is the insurer’s granting of timely and prompt indemnity or security against a contingent loss. Florida Statute §624.02 defines “insurance” as a contract whereby one undertakes to indemnify another or pay or allow specified amount or a determinable benefit upon determinable contingencies. Inherent is the fact that payment must be made timely and promptly so that MR. MALBON may mitigate his damages and to put him back into the position he was in prior to the loss as quickly as possible. HOMEOWNERS CHOICE has breached this duty.
HOMEOWNERS CHOICE has refused and/or failed to tender all insurance proceeds to MR. MALBON upon demand. HOMEOWNERS CHOICE’S refusal and/or failure to settle the insurance claim when under all circumstances it could have and should have done so had it acted fairly and honestly towards MR. MALBON is wrongful conduct. Furthermore, MR. MALBON contends that HOMEOWNERS CHOICE’S adjusters and/or representatives financially benefit by such wrongful conduct.
It is clear that HOMEOWNERS CHOICE’S adjusters have also failed to adhere to insurance industry rules and guidelines when adjusting a first party claim. It is also evident that HOMEOWNERS CHOICE violated the Florida unfair claims practices, the adjuster’s ethical code of conduct, and acted irresponsibly in the handling of its insured’s claims. In this case, MR. MALBON paid a hefty premium for a service, the service is called claims adjusting (I encourage you to read the book titled, “The Claims Environment” written by James J. Markham, Kevin M. Quinley, and Layne S. Thompson-this book is taught in every first year AIC course).
The claim professional must dispense his or her knowledge and skill for the benefit of society. The general public expects claims representatives to pay all legitimate claims promptly and fairly. The claim professional must harness all of his or her knowledge and expertise to accomplish the objectives of the claim function. He or she must also adhere to the highest degree of ethical conduct. In addition to interacting with other insurance personnel and service providers in a professional manner, the claims professional must deal with public’s and regulator’s expectations. Insurance Companies provide such a vital and necessary service to society that the selling and servicing of insurance is imbued with a public trust. James J. Markham, Kevin M. Quinley, Layne S. Thompson, “The Claims Environment”, Insurance Institute of America, 1st ed., 1993.
Accordingly, HOMEOWNERS CHOICE has a contractual and statutory obligation to investigate all possible bases which might support MR. MALBON’S claim and cannot deny a claim without thoroughly investigating the foundation for its denial or basis for withholding insurance benefits. HOMEOWNERS CHOICE violated its obligations here.
- HOMEOWNERS CHOICE has a contractual and statutory obligation to make a perfunctory investigation, not ignoring evidence that would support MR. MALBON’S claim. HOMEOWNERS CHOICE violated its obligations here.
- HOMEOWNERS CHOICE has a contractual and statutory obligation not to look the other way when confronted with facts revealing the possibility of coverage and resisting reasonable interpretations of its policy. HOMEOWNERS CHOICE violated its obligations here.
- HOMEOWNERS CHOICE has a contractual and statutory obligation not to deny the claim based on standards known to be impermissible or on an interpretation contrary to established law. HOMEOWNERS CHOICE violated its obligations here.
These actions and violations were either done intentionally or as the result of HOMEOWNERS CHOICE’S failure to adopt and implement the proper standards of the investigation and adjustment of claims.
Overall, HOMEOWNERS CHOICE’S investigation of the claim was inadequate and contrary to its obligations under the insurance policy and Florida law.
MR. MALBON has done everything legally requested by HOMEOWNERS CHOICE to date. To cure the violations set forth in this Civil Remedy Notice, HOMEOWNERS CHOICE must now agree to acknowledge its duties and obligations under the law in adjusting its insured’s claim, and tender rightfully owed insurance benefits to return MR. MALBON to his pre-loss condition.
Further, to cure the violations set forth in this Civil Remedy Notice, MR. MALBON hereby requests that HOMEOWNERS CHOICE tender at this time, or prior to the expiration of the statutory cure period, the amount of MR. MALBON’S damage estimate and demand which accurately reflects the true nature and extent of MR. MALBON’S damages. Therefore, HOMEOWNERS CHOICE should tender $185,658.73 (less any prior payments, depreciation, excess policy limits, and/or deductible) in insurance benefits at this time.
Although MR. MALBON has made a demand for payment in the amount of $185,658.73 (less any prior payments, depreciation, excess policy limits, and/or deductible) and has provided HOMEOWNERS CHOICE with all the necessary documentation in support thereof, he is still willing to consider and to potentially accept any reasonable counter-offer made by HOMEOWNERS CHOICE. Therefore, if HOMEOWNERS CHOICE is not in agreement with MR. MALBON’S reasonable demand for payment of his rightfully owed insurance benefits being submitted at this time, MR. MALBON hereby requests that HOMEOWNERS CHOICE now make a reasonable counter-offer before the expiration of the cure period. MR. MALBON still hopes that his claim can be resolved amicably.
The concept of insurance is that insurance is the insurer’s granting of timely and prompt indemnity or security against a contingent loss. Florida Statute §624.02 defines “insurance” as a contract whereby one undertakes to indemnify another or pay or allow specified amount or a determinable benefit upon determinable contingencies. Inherent is the fact that payment must be made timely and promptly so that MR. MALBON may mitigate his damages and to put him back into the position he was in prior to loss as quickly as possible. HOMEOWNERS CHOICE breached this duty.
This notice is given in order to perfect the right to pursue the civil remedy authorized and pursuant to Florida Statute §624.155, including any and all bad faith/extra contractual, should HOMEOWNERS CHOICE fail to cure the violations set forth in this Civil Remedy Notice within the given cure period.
While no specific “cure amount” is required for this Civil Remedy Notice to be valid, MR. MALBON will consider the allegations contained herein “cured” if HOMEOWNERS CHOICE, without any requirement for a release:
(1) Immediately tenders the amount of MR. MALBON damage estimate in the amount of $185,658.73 (less any prior payments, depreciation, excess policy limits, and/or deductible), which accurately reflects the true nature and extent of the damages to the Dwelling / Other Structures;
(2) Agrees to reimburse MR. MALBON for his expenses incurred by having to retain a public adjuster to present his claim; and
(3) Immediately tenders the amount of statutory interest due and owing to MR. MALBON pursuant to Florida Statute §627.70131(5)(a).
(4) Immediately provides MR. MALBON with the documentation HOMEOWNERS CHOICE has used and/or continues to contend, supports the claim determination made by HOMEOWNERS CHOICE in the adjustment of MR. MALBON’S claim. Specifically, HOMEOWNERS CHOICE must provide MR. MALBON with its claim estimate(s), supporting photographs and/or videos, as well as any and all reports of any expert(s) or other individuals retained on behalf of HOMEOWNERS CHOICE upon which HOMEOWNERS CHOICE has relied on in reaching and/or further supporting its coverage determination in MR. MALBON’S claim.
MR. MALBON continues to remain open to a fair and reasonable settlement offer from HOMEOWNERS CHOICE in an effort to avoid additional delay, costs and expenses, and hereby request the same prior to the expiration of the statutory “cure” period. MR. MALBON has provided HOMEOWNERS CHOICE with all necessary estimates, documentation, etc. in support of the claim. HOMEOWNERS CHOICE must act fairly and honestly in its response to MR. MALBON’S request for a prompt, fair and reasonable settlement offer and resolution of the 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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