Civil Remedy Notice of Insurer Violations
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Filing Number:     785625
Filing Accepted:  10/3/2024
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Complainant
Last/Business Name *  
MULLEAVEY   First Name   ERIC AND GERARDVIANE
Street Address * 1425 DEUCE CIRCLE
City, State Zip * DAVENPORT, FL 33896
Email Address * VIRTUALESM@AOL.COM
Complainant Type: * Insured
Insured
Last/Business Name*   MULLEAVEY   First Name   ERIC AND GERARDVIANE
Policy # * 02737 28 63 91A Claim #* 027372863–012
Attorney
Attorney is Applicable
Last Name* TEMPLETON First Name * LOGAN Initial C
Street Address* 1000 LEGION PLACE, STE. 1200
City, State Zip* ORLANDO , FLORIDA 32789
Email Address * LOGANT@SOUTHMILHAUSEN.COM
Violation
Insurer Type *   Authorized Insurer Unauthorized Insurer
 
Insurer Name*   UNITED SERVICES AUTOMOBILE ASSOCIATION
NAIC Company Code 25941
 
Name of individual responsible for violation (if any):* KELLI, HER LAST NAME WAS NOT INCLUDED ON CLAIM CORRESPONDENCE
Type of Insurance * Residential Property & Casualty   
Reason for Notice *
Claim Delay
Unfair Trade Practice
Other : Underpayment of Claim
* Statutory provision(s) which the insurer allegedly violated.
 
624.155(1)(b)(1) 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.
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)(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)(i) Failing to pay personal injury protection insurance claims within the time periods required by s. 627.736(4)(b).
* Specific policy language that is relevant to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

SECTION I – PROPERTY WE COVER - Coverage A – Dwelling Protection (entire section) ADDITIONAL COVERAGES, Debris Removal (entire section) ADDITIONAL COVERAGES, Reasonable Repairs (entire section) ADDITIONAL COVERAGES, Reasonable Emergency Measures (entire section) ADDITIONAL COVERAGES, Building Ordinance or Law (entire section) SECTION I – LOSSES WE COVER, Coverage A – Dwelling Protection Coverage and Coverage B – Other Structures Protection Coverage (entire section) SECTION I - CONDITIONS, Mediation and Appraisal (Florida Special Provisions - entire section) SECTION I – CONDITIONS, Loss Settlement (entire section) SECTION I – CONDITIONS, Loss Payment (entire section)
 
* Facts and circumstances giving rise to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

The Carrier has not attempted in good faith to settle the Insureds’ Claim when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its Insureds and with due regard for their interests. The Carrier has delayed full payment of the Claim due and owing under the Policy, putting its interests over those of the Insured. Furthermore, the Carrier is required to properly investigate and adjust claims and cannot place that burden upon the Insured. This was made clear by the Florida Supreme Court in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005)(“The Legislature has clearly chosen to impose on the insurance companies a duty to use good faith and fair dealing in processing and litigating the claims of their insureds…”). The property located at 1425 Deuce Circle, Davenport, Florida 33896 (the “Insured Property”) suffered a covered loss due to storm damage. The Carrier was timely put on notice of the Insureds’ storm damage Claim. After being put on notice the Carrier began its investigation of the Claim. The Carrier conducted an inspection to determine the cause and extent of the damage and the necessary repairs to bring the Insured Property back to its pre-loss condition. The inspection revealed damage to the roof system and resulting interior damage. Although the carrier opened coverage for the Claim, the Carrier misrepresented to the Insureds that the damage to the roof was caused by faulty, negligent, inadequate or defective design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction, materials used in repair, construction, renovation or remodeling or maintenance that. The Carrier did not provide any explanation or analysis as to how it determined the damage to the roof was due to all the causes just listed. In addition to misrepresenting to the Insureds that the roof damage was not covered under the Policy, the Carrier also failed to provide complete coverage for all of the resulting interior water damage. The Carrier misrepresented to the Insured that the resulting interior damage fell under the Policy’s $6,570 deductible. To assist with the handling of their Claim, the Insureds retained a public adjuster, Larry NeJame, with NeJame Claims Adjusting. NeJame Claims Adjusting inspected the Insured Property and found significant storm damage to the roof and resulting interior water damage. Based on the inspection, Mr. NeJame had prepared a repair estimate totaling $154,973.11 to repair all the damage arising out of and related to the storm event. In an effort to resolve the coverage dispute, the Insureds, through their public adjuster, sent an appraisal demand request on April 10, 2024 and naming Christine NeJame as their appraiser. On April 17, 2024 the Adjuster handling the Claim stated, “USAA is rejecting your choice of appraiser as we do not believe that Christine NeJame is an impartial third party.” The Policy has two appraisal provisions, with the controlling provision found in HO-FL (11-21) Florida Special Provisions. However, neither appraisal provision states the appraiser has to be an “impartial third party.” The requirements for an appraiser under HO-FL (11-21) Florida Special Provisions – Section I – Conditions, 6. Mediation and Appraisal are that each party’s appraiser must be qualified and disinterested. The Policy does not define “disinterested”. The Insureds therefore look to the applicable case law; specifically, State Farm Florida Insurance Company v. Jon Parrish, 3123 So.3d 145 (Fla. 2nd DCA 2021). In Parrish, the Insured attempted to name his Public Adjuster as the disinterested qualified appraiser. Similar to the Insureds’ Policy, the policy at issue in Parrish did not define “disinterested”. Citing to several other cases in its decision, the 2nd DCA held that, “Where the language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written.” The opinion goes on to state: “Here, the term ‘interested’ is an adjective describing an appraiser who holds an interest—that is, a stake of some sort, whether pecuniary, proprietary, or personal—in the outcome of the appraisal process. The prefix “dis” connotes its negative—so “disinterested” means an appraiser who does not hold an interest in the outcome of the policy's appraisal process.” Christine NeJame has no stake in the outcome of the appraisal process. She is not employed or contracted by NeJame Claims Adjusting, she is not paid based on the outcome of the appraisal award; rather, she is paid a flat fee for her services by the Insureds and finally, she was selected by the Insureds, not NeJame Claims Adjusting. In addition to failing to provide complete coverage for the damage resulting from the storm event, the Carrier has also refused to participate in appraisal pursuant to the terms of its own Policy. The Carrier engages in the practice of 1) misrepresenting the scope and amount of damage arising from storm claims; and 2) misrepresenting policy language and conditions regarding appraisal with such regularity and frequency that it indicates both are a general business practice of this Carrier, in reckless disregard for its Insureds’ rights under the Policy. It is clear that the Carrier has not acted in good faith toward the Insureds; failed to pay the amounts clearly owed; did not adjust and evaluate the loss properly, promptly and fairly to provide full and timely indemnity to the Insureds; placed its interests before the Insureds’ interests; failed to agree to the Insureds’ qualified and disinterested appraiser and looked for ways to delay full recovery to the Insureds for services that need to be performed at the Insured Property, when a reasonable carrier in a similar position would have tendered full payment in accordance with both the Policy and statutory requirements. The Carrier’s actions are in violation of Florida Statutes §§ 624.155(1)(b)(1), 626.9541(1)(i)(3)(a), 626.9541(1)(i)(3)(b), 626.9541(1)(i)(3)(f), and 626.9541(1)(i)(3)(i). All the aforementioned are part of what appears to be an ongoing pattern and practice of behavior by the Carrier that demonstrates a wanton and reckless disregard for the Insureds’ rights and a pattern and practice of bad faith claims practices to its insureds across the State of Florida. Therefore, to cure the defects outlined in this Civil Remedy Notice, the Carrier must: 1) pay the Insureds’ the repair estimate in the amount of $154,973.11 less the applicable deductible and any prior payments; and 2) pay the statutory interest on the amount of unpaid insurance proceeds from the date of loss to the date payment is finally made. A copy of this letter and filed form submitted to the Florida Department of Financial Services has been printed out and mailed.
Comments
User Id Date Added Comment
logant@southmilhausen.com 10-11-2024 Logan Templeton, counsel for the Insureds, hereby withdraws this Civil Remedy Notice as the parties have reached an amicable resolution of the Claim.
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