Filing Number: 785829
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| Filing Accepted: 10/4/2024 |
| Last/Business Name
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VISTA DEL SOL AT BURNT STORE MARINA CONDO ASSN INC.
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First Name |
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| Street Address
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3191 MATECUMBE KEY ROAD |
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PUNTA GORDA,
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33955
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| Email Address
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FLORIDAWALLACE@AOL.COM |
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Insured |
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| Last/Business Name* |
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VISTA DEL SOL AT BURNT STORE MARINA CONDO ASSN INC. |
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First Name |
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| Policy # * |
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CCP0000140-01 |
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Claim #* |
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FLCON20000092 |
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Attorney is Applicable
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| Last Name* |
SHAW
First Name *
KENDRA
Initial
F
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| Street Address* |
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9111 WEST COLLEGE POINTE DRIVE |
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FORY MYERS
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FL
33919
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| Email Address * |
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KSHAW@INSURANCE-COUNSEL.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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CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY
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NAIC Company Code 10953 |
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| Name of individual responsible for violation (if any):*
GRACE SMITH, SENIOR PROPERTY CLAIMS SPECIALIST, CYPRESS PROPERTY & CAS. INS. CO. KRISTEN DILL, SR. CLAIMS ADJUSTER, CYPRESS PROPERTY & CAS. INS. CO. PETER KAPAS, HISI MULTI-LINE ADJUSTING SERVICES JOSEPH C. STOLLINGS, PE; BLAKE HOLLINGSWORTH; GRINDLE
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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 Delay
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Unfair Trade Practice
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Unsatisfactory Settlement Offer
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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)(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)(g) |
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Failing to promptly notify the insured of any additional information necessary for the processing of a claim.
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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.
The Policy affords coverage as follows:
A. Coverage
We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.
1. Covered Property
Covered Property, as used in this Coverage Part, means the type of property described in this section, A.1., and limited in A.2., Property Not Covered, if a Limit of Insurance is shown in the Declarations for that type of property.
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Endorsement CP 01 91 07 10
A. Building section is replaced by the following:
1. Building, meaning the building or structure described in the Declarations, including:
a. Additions, alterations and repairs;
b. Fixtures, outside of individual units, including outdoor fixtures;
c. Permanently installed:
(1) Machinery; and
(2) Equipment;
d. Personal property owned by you that is used to maintain or service the building or structure or its premises, including:
(1) Fire extinguishing equipment;
(2) Outdoor furniture;
(3) Floor coverings; and
(4) Appliances used for refrigerating, ventilating, cooking, dishwashing or laundering that are not contained within individual units;
e. If not covered by other insurance, materials, equipment, supplies and temporary structures, on or within 100 feet of the described premises, used for making additions, alterations or repairs to the building or structure;
f. Air conditioning and heating equipment, including air conditioning compressors, used to service any part of the building or structure, including individual units and the limited common elements;
g. Any other portion of the condominium property located outside of individual units, including improvements, additions and alterations;
h. Fixtures, improvements, additions and alterations that are a part of the building or structure and contained within the boundaries of an individual unit, regardless of ownership, if your Condominium Association Agreement requires you to insure such property; and
i. Additional property as described in the Schedule or in the Declarations.
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B. With respect to the coverage provided under this Coverage Form, such coverage will be provided for all portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications.
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Endorsement CP 10 30 06 07
CAUSES OF LOSS – SPECIAL FORM
A. Covered Causes Of Loss
When Special is shown in the Declarations, Covered Causes of Loss means Risks Of Direct Physical Loss unless the loss is:
1. Excluded in Section B., Exclusions; or
2. Limited in Section C., Limitations;
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Further, the Policy’s Loss Payments provisions state:
1. Loss Payment
a. In the event of loss or damage covered by this Coverage Form, at our option, we will either:
(1) Pay the value of lost or damaged property;
(2) Pay the cost of repairing or replacing the lost or damaged property, subject to b. below;
(3) Take all or any part of the property at an agreed or appraised value; or
(4) Repair, rebuild or replace the property with other property of like kind and quality, subject to b. below.
We will determine the value of lost or damaged property, or the cost of its repair or replacement, in accordance with the applicable terms of the Valuation Condition in this Coverage Form or any applicable provision which amends or supersedes the Valuation Condition.
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g. We will pay for covered loss or damage to Covered Property within 30 days after we receive the sworn proof of loss, if you have complied with all of the terms of this Cover- age Part and:
1. We have reached agreement with you on the amount of loss; or
2. An appraisal award has been made.
If you name an insurance trustee, we will adjust losses with you, but we will pay the insurance trustee. If we pay the trustee, the payments will satisfy your claims against us.
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Endorsement CPCFL 01 25 01 19 [Florida Changes]
D. The Loss Condition Loss Payment, paragraph 4.a.(4) is deleted and replaced by the following:
(4) Repair, rebuild or replace any part or item of the damaged property with material or property of like kind and quality, subject to b. below.
E. The Loss Condition Loss Payment, paragraph 4.a.
(5) is added:
(5) If an identical replacement is not available, we may, at our option, substitute replacement of equal or greater features, functions or capacities of the damaged property, subject to b. below.
F. The Loss Payment Condition 4.g. dealing with the number of days within which we must pay for covered loss or damage is replaced by the following:
Provided you have complied with all the terms of this Coverage Part, we will pay for covered loss or damage upon the earliest of the following:
(1) Within 20 days after we receive the sworn proof of loss and reach written agreement with you;
(2) Within 30 days after we receive the sworn proof of loss and:
(a) There is an entry of a final judgment; or
(b) There is a filing of an appraisal award with us; or
(3) Within 90 days of receiving notice of an initial, reopened or supplemental claim, unless we deny the claim during that time or factors beyond our control reasonably prevent such payment. If a portion of the claim is denied, then the 90-day time period for payment of claim relates to the portion of the claim that is not denied.
Paragraph (3) applies only to the following:
(a) A claim under a policy covering residential property;
(b) A claim for building or contents coverage if the insured structure is 10,000 square feet or less and the policy covers only locations in Florida; or
(c) A claim for contents coverage under a tenant's policy if the rented premises are 10,000 square feet or less and the policy covers only locations in Florida.
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Endorsement CPCFL 00 01 11 18
a) Subparagraph l. with respect to Wind Driven Precipitation is added as follows:
j. Wind Driven Precipitation
You may extend the insurance provided by this coverage form to cover Wind Driven Precipitation. Wind Driven Precipitation is defined as loss or damage to the interior of any building or structure, or to personal property in the building or structure caused by or resulting from rain, snow, sleet or ice, when driven by wind. This extension does not cover loss caused by design, specifications, workmanship, repair, construction, renovation, remodeling, grading, faulty, inadequate or defective materials used in repair, construction, renovation or remodeling; or maintenance of part or all of any
property on or off the described premises. Wind Driven Precipitation losses are subject to the Hurricane deductible whether caused by Hurricane or not.
The most we will pay for loss or damage under this extension is shown on Page 1 for any one loss to covered property caused by a Covered Cause of Loss.
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Finally, the Policy’s Ordinance and Law Provisions state:
D. Coverage
1. Coverage A – Coverage For Loss To The Undamaged Portion Of The Building
With respect to the building that has sustained covered direct physical damage, we will pay un-der Coverage A for the loss in value of the undamaged portion of the building as a consequence of enforcement of an ordinance or law that requires demolition of undamaged parts of the same building.
Coverage A is included within the Limit of Insurance shown in the Declarations as applicable to the covered building. Coverage A does not increase the Limit of Insurance.
2. Coverage B – Demolition Cost Coverage
With respect to the building that has sustained covered direct physical damage, we will pay the cost to demolish and clear the site of undamaged parts of the same building, as a consequence of enforcement of an ordinance or law that requires demolition of such undamaged property.
The Coinsurance Additional Condition does not apply to Demolition Cost Coverage.
3. Coverage C – Increased Cost Of Construction Coverage
a. With respect to the building that has sustained covered direct physical damage, we will pay the increased cost to:
(1) Repair or reconstruct damaged portions of that building; and/or
(2) Reconstruct or remodel undamaged portions of that building, whether or not demolition is required;
when the increased cost is a consequence of enforcement of the minimum requirements of the ordinance or law.
However:
(1) This coverage applies only if the restored or remodeled property is intended for similar occupancy as the current property, unless such occupancy is not per- mitted by zoning or land use ordinance or law.
(2) We will not pay for the increased cost of construction if the building is not repaired, reconstructed or remodeled.
The Coinsurance Additional Condition does not apply to Increased Cost of Construction Coverage.
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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.
At all times material hereto, Cypress Property & Cas. Insurance Company (“Insurer” or “Cypress”) issued Policy No. CCP0000140-01 (the “Policy”) to Vista Del Sol Condominium Association, Inc. (“Vista del Sol,” “the Association” of “Insured”) for the insured premises identified “Location” and/or “Building”, all of which are located at and/or in the environs of 3191 Matecumbe Key Road, Punta Gorda, Lee County, FL 33955 (“Insured Premises” or “Building(s)”), for the policy period of February 28, 2022 to February 28, 2023.
The Policy affords the Insured various coverages with various limits, including, without limitation, “all-risk” “Building” coverage for those Buildings located upon the Insured Premises at “Replacement Cost Value”, for the main structure, with building coverage limits of $17,705,321 and subject to a hurricane deductible of $354,106.00; coverage for a pool house, with coverage limits of $77,182 and a hurricane deductible of $1,544; a pool, with coverage limits of $77,800 and a hurricane deductible of $1,556; and a spa, with coverage limits of $26,000 and a hurricane deductible of $1,000.
Among other things, the Policy affords coverage for property damage to the Insured Premises caused by and/or resulting from windstorm and hurricane events. On September 28, 2022, Hurricane Ian made landfall near Fort Myers, Florida, causing severe windstorm damage and flooding to the surrounding areas, including damages the Insured Premises (“the Subject Loss”).
The Association promptly reported the claim for damages resulting from Hurricane Ian to its carrier, Cypress on September 30, 2022. Cypress accordingly opened a claim for the reported damages and opened Claim No. FLCON20000092 (“the Insurance Claim”). Cypress performed an initial evaluation of the claim and on December 19, 2022, issued an initial payment for undisputed damages for $57,331.85 ($453,802.85 minus deductible and depreciation). On February 22, 2023, Cypress then issued another supplemental payment for an additional $72,985.44.
Cypress assigned engineering firm Grindley Williams Engineering (“Grindley Williams”) to perform a limited inspection of the Property; specifically, an evaluation of the cause and original of damages noted to the windows and doors. Grindley Williams issued its report dated March 8, 2023. Cypress concluded that, despite maximum wind gusts found near the site of up to 110 mph, that there was no storm damage to windows, and limited damages to sliding glass doors. Grindley Williams did find evidence of wind/storm damage to screen enclosures and screen frames, as well as wind-driven rain and related moisture intrusion and staining to interiors.
On September 18, 2023, Keys Claims Consultants (“KCC”), as adjuster for the Insured, provided their letter of representation to Cypress. On September 20, 2023, Cypress sent correspondence acknowledging the letter of representation and asserting their Reservation of Rights against the Insured, as well as requesting that the Insured provide copies of invoices or contracts for repairs performed at the Property, as well as an estimate of damages being claimed and a sworn proof of loss.
On December 15, 2023, the Insured submitted their Sworn Proof of Loss and supporting documents to Cypress, based on an estimate prepared for the Insured by Brian Moye of Coastal Claims Consultants of Florida LLC, in the amount of $4,832,689.35 ($5,189,895.35 total minus application of the policy deductible). In their correspondence, the Insured and their representatives noted that the Insured had been unable to utilize the Proof of Loss form provided by Cypress as it did not comply with current statutory requirements.
On December 22, 2023, Cypress responded with correspondence to the Association acknowledging receipt of the executed sworn proof of loss, but stated that it could “neither accept nor rejected [sic] the proof of loss.” No explanation was provided by Cypress to the Association as to why it could neither accept nor reject the Association’s sworn proof of loss.
On February 21, 2024, mediation was conducted by the Association and Cypress. However, the mediation ended in impasse.
On March 7, 2024, Cypress issued a supplemental payment to the Insured for $42,591.56. In its correspondence enclosing the check and including a payment breakdown, Cypress indicated that it had calculated the total claimed damages as $644,622.91, without application of depreciation. Cypress also indicated that prior payments totaled $247,925.35 (although it appears only $130,317.29 had been paid), as well as application of the policy hurricane deductible ($354,106.00), the total remaining supplemental payment was found to be $42,591.56.
On February 7, 2024, representatives for the Insured requested appraisal under the policy. On March 15, 2024, Cypress responded, rejecting the request for appraisal, without explanation. On May 1, 2024, counsel for the Insured issued correspondence to Cypress, and again requested that the matter proceed to appraisal, as well as inquiring as to the basis for rejection of the prior request for appraisal. On May 7, 2024, Cypress responded, again rejecting the Insured’s request for appraisal, citing the Policy’s appraisal provision but without providing any explanation for the rejection of the request for appraisal.
On June 21, 2024, Vista Del Sol, by and through its counsel, submitted its Statutory Notice of Intent to Initiate Litigation. With the Notice of Intent, the Association provided documentary support, including copies of the estimates, invoices, photos and information provided in support of its sworn proof of loss. In response, Cypress demanded that the parties again attend mediation pursuant to the policy’s terms and conditions to suit. Mediation was conducted again on September 16, 2024, and again ended in impasse. After mediation, Cypress issued another supplemental payment, in the amount of $453,953.52.
The insured in this matter has waited patiently for two years after the loss to be fully compensated for their losses due to Hurricane Ian, and has cooperated with all requests from the carrier and providing all documents, invoices, estimates and receipts as requested. The Insured has made every effort to resolve this matter in two separate pre-suit mediations, and has requested appraisal several times, all of which were rejected by the Insurer.
The Insured respectfully submit that the Insurer’s conduct in this particular instance is the type of act that occurs with such frequency as to indicate a general pattern and practice of business in violation of §624.155 (5) Fla. Stat. The Insurer has placed its interests before the interest of its Insured. These acts are willful, wanton and malicious, and with reckless disregard of the Insured’s rights under the Policy.
The Insurer can cure the foregoing statutory violations by either paying its Insured’s full Insurance Claim as submitted in its SSIPOL claim package or by proceeding with the appraisal of this matter and timely paying the appraisal award.
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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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