Civil Remedy Notice of Insurer Violations
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Filing Number:     786078
Filing Accepted:  10/7/2024
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Complainant
Last/Business Name *  
MINTON   First Name   BLAINE
Street Address * 1420 SWINTON AVENUE
City, State Zip * DELRAY BEACH, FL 33444
Email Address * AHANDFINGER@PECKLAW.COM
Complainant Type: * Other
Insured
Last/Business Name*   BOCA DEVELOPMENT & CONSTRUCTION CORPORATION   First Name  
Policy # * 112382-72036085-20 Claim #* N/A
Attorney
Attorney is Applicable
Last Name* HANDFINGER First Name * ADAM Initial
Street Address* ONE SE THIRD AVENUE, SUITE 2000
City, State Zip* MIAMI , FLORIDA 33131
Email Address * AHANDFINGER@PECKLAW.COM
Violation
Insurer Type *   Authorized Insurer Unauthorized Insurer
 
Insurer Name*   SOUTHERN-OWNERS INSURANCE COMPANY
NAIC Company Code 10190
 
Name of individual responsible for violation (if any):* N/A
Type of Insurance * Commercial Property & Casualty   
Reason for Notice *
Other : Failure to settle on behalf of insured
* 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.
* 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(1)(a) of the policy provides for carriers obligations to insured: "We will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies. We will have the right and duty to defend the insured against any 'suit' seeking those damages. However, we will have no duty to defend the insured against any suit seeking damages for 'bodily injury' or 'property damage' to which this insurance does not apply. We may, at our discretion, investigate any 'occurrence' and settle any claim or suit that may result."
 
* Facts and circumstances giving rise to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

Blaine Minton submits this Notice of Civil Remedy in the interest of Boca Development because Boca Development's insurance carrier has unreasonably refused to honor the terms of its Policy before and during the course of the lawsuit between Mr. Minton as the Plaintiff and Boca Development as Defendant. Specifically, Southern-Owners Insurance Company (the “Carrier”) is in violation of Section I(1)(a) of policy #72036085 for not attempting to settle claims when, under all circumstances, it could and should have done so, had it acted with due regard for Boca Development's interests. By way of brief factual background, Mr. Minton and Boca Development entered into three separate contracts for the construction and renovation at Mr. Minton's residence as well as a fourth contract for construction management services. Boca Development was the Contractor of Record and pulled three Master Building Permits – one for each building, as well as various other trader permits. All of the permits were pulled under one of its three Master Permits. Boca Development self-performed over $760K in construction work and supervised, guaranteed, and warranted all of the other work performed at the Project. As a result of Boca Development's improper and defective work, Mr. Minton suffered $3,215,233.64 in damages, including a significant amount of resulting property damage. The existence of the defects and high cost of repair are, in very large part, undisputed. Mr. Minton filed his claim against Boca Development. Over the past three years, both parties have spent a great deal of money, time, and effort to find a just resolution of this case. The parties have participated in discovery, depositions, and countless motions in preparation for trial. After significant information had been made available to the parties, Mr. Minton has made multiple attempts to communicate productively to resolve this matter. Unfortunately, Boca Development's carrier has not properly adjusted and resolved this claim. Boca Development's carrier has not attempted to settle claims when it could and should have done so. Pursuant to Section I(1)(a) of the Policy, Boca Development's carrier is liable to "pay those sums that the insured becomes legally obligated to pay . . . " and has the "right and duty to defend the insured against any 'suit' seeking [property damage to which this insurance applies]." Moreover, the carrier "may, at [its] discretion, investigate any 'occurrence' and settle any claim or 'suit' that may result." As such, Carrier has the right and duty to defend Boca Development. As a result of Carrier's refusal to honor the terms of the policy, Mr. Minton and Boca Development have suffered significant damages (and Boca Development has significant exposure beyond the covered damages). Mr. Minton has been forced to incur significant expenses as a result of Boca Development’s insurance carrier’s refusal to honor the terms of the policy issued to Boca Development. The cost in damages resulting from the conduct of Boca Development likely exceeds the policy limits, however, since the outset of this dispute there has been multiple opportunities for Carrier to step in and settle within the policy limits but Carrier has refused to do so. As a result of Carrier's inaction, Boca Development suffers the risk that the judgment is higher than the policy limit. In addition to the harm to Boca Development, Minton has also been harmed by Carriers conduct. In order to cure the damage, Carrier should resolve the case to the benefit of Boca Development for the amount identified in the offer of judgment served but not filed on August 19, 2024.
Comments
User Id Date Added Comment
barnes.kalisha@aoins.com 12-06-2024 The Department of Financial Services accepted the Civil Remedy Notice on October 7, 2024, and assigned it filing number 786078. The Civil Remedy Notice alleges that Southern-Owners violated Florida Statute Section 624.155(1)(b)(1) by not attempting to settle your client’s claim when under all of the circumstances, it allegedly could and should have done so had it acted fairly and honestly toward its insured and with due regard for Boca Development’s interests. For the reasons stated below, Southern-Owners denies it violated Florida Statute Section 624.155(1)(b)(1) and maintains it has handled this claim appropriately and in accordance with the policy and all statutory regulatory requirements. A. Claim Background This claim arises out of a construction project your client retained Boca Development to perform work for. The total number of contracts at issue has been debated throughout your client’s lawsuit and is the subject of pending cross-motions for summary judgment. According to your client, Boca Development entered into three separate contracts with Mr. Minton to serve as the general contractor for an addition to his house and to build a garage and pool house with each structure having a separate contract. Your client also asserts Boca Development agreed to perform shell work and entered into another contract to provide construction management services. Boca Development vehemently denies that it entered into the three contracts that would have required it to serve as the general contractor and contends it only entered into a contract to perform shell work and a contract to provide construction management services. As a result of Boca Development’s work allegedly being defective and causing damages, on July 6, 2023, you made a demand for $2,467,791.16. The demand did not make any effort to state why you believe it is within the limits of Southern-Owners’ policy. Shortly thereafter, and a mere two days before the July 19, 2023, mediation, you served another demand and elaborated on what you believe is Boca Development’s liability. According to your July 17, 2023, demand, Boca Development’s use of subcontractors to perform its work “has a significant impact in expanding the insurance coverages available to Boca Development because of the well-known and established general contractor’s exception to the ‘Your Work’ exclusion for labor, services and materials furnished by sub-trades.” Your July 17, 2023, demand then asserted: “[e]ach of the three late-produced contracts are substantially the same and contain the following provisions, which clearly illustrate that Boca Development is fully responsible for the work of the subcontractors and is not entitled to any ‘allocations.’ . . . ‘Interestingly, Mr. Minton paid many of Boca Development’s Subcontractors directly (but only after Boca Development directed him to.) . . the Contracts which specifically identify Boca Development as the General Contractor and make it responsible for all of the work performed on the Project specifically state that Mr. Minton is going to pay Boca Development’s Subcontractors directly. . . . As such, the fact that Mr. Minton paid some of Boca Development’s Subcontractors directly does not diminish Boca Development’s role, responsibility and liability in this matter. Boca Development provided a Warranty for all of the Work, including that which was furnished by its Subcontractors.” Based on the damages you believe Boca Development’s subcontractors caused you demanded $1,950,000, but yet again did not state why you believe that number is within the limits of Southern-Owners’ policy. Your July 17, 2023, demand’s assertions that Boca Development’s scope of work was to build the house and it did that by using subcontractors was consistent with your client’s deposition testimony. As you are aware, your client made the following statements while under oath: “Boca Development was hired as a -- as a builder to build this particular home.” “Yes, sir, that is what Boca Development was hired to do, was to build this home, yes sir.” “As I mentioned to you Gavin, this is not all that Boca Construction did. You must know that they built the entire home, sir.” “The main house building, the pool house building and the garage building was built and constructed by Boca Development in this proposal, yes.” “Both of these documents say that they’re going to build this home from start to finish. Both of these--all of this scope and all of this work that you’re talking about, the main building and the pool house in Exhibit 2, this is all work they did and they were paid for.” “The way I look at this is they built my home and they supervised the building of my home just like any other builder would do. I mean, that’s what this looks like to me. I mean, I’m assuming a builder reviews and makes sure its subcontractors are doing what they’re supposed to be doing. I paid them as a builder to build those three structures and paid him to act as a builder.” (emphasis added). “Using the other document, I think it was 2, it talks about the building of the structure, the main house, the pool and the garage. These are all things that Boca Development was paid for to build this particular home and to supervise the entire project. That’s what we paid him to do and it looks pretty easy to me that these are contracts that said this is exactly what he should be doing.” “This particular--this agreement and what we talked about and what he did is build my home, sir. That’s exactly what he did. That’s why there is another agreement on June 21st of all the things that he did, right. You brought this up to me. He built the main house, he built the pool house, and he built the garage, and we listed all those things.” “The total of 400 -- $500,000 whatever the number was, in this proposal was paid to Boca Development to build the main house, the pool house, and the garage building. Those checks cleared and proposed in the proposal that you gave me on page 4 of 4. He built those things. Boca Development built those things, sir.” “I know that there was other compensation, which I’m sure you have, to Boca Development to build the main house, to build the pool building and the garage building.” “Well, as you know, the 500,000 of that was to build the main house, the pool house, and the garage in Exhibit 2. That’s what you gave me. They were paid to build, to waterproof this house, to do everything except for NEP on this particular house, sir.” “Gavin, you --you do realize that they did build the garage, the pool house, and the addition correct? I mean, you do--you guys understand this correct? . . .I paid them to build this, right? I mean, everyone understand this, right? The checks were cleared, sir, to build this home.” “I've explained this maybe seven to ten times. You’ve given me the exhibits that show a construction and a build for a main house, a pool, and a garage that was paid for, it was done by Boca Development Construction Corporation.” Your opening statement during the July 19, 2023, mediation regarding Boca Development’s scope of work and its alleged subcontractors causing the damages was consistent with the allegations and representations contained in your pre-mediation demand and your client’s testimony. My opening statement consequently explained that despite your exclusive reliance on Exclusion l in Southern-Owners’ policy, under Florida law a policy must be read in its entirety and, pursuant to Form CG 22 94 10 01, which is titled “EXCLUSION – DAMAGE TO WORK PERFORMED BY SUBCONTRACTORS ON YOUR BEHALF,” no coverage exists under Southern-Owners’ policy. Although Form CG 22 94 10 01, as well as other provisions, precluded coverage for your client’s purported damages, during the mediation I requested that you provide me with the evidence you claimed to have that established Boca Development caused damages, what damages it allegedly caused, and the value of those damages. Florida law entitled me to request that information on Southern-Owners’ behalf because a carrier is entitled to investigate a claim in order to fairly and fully evaluate it. See Feijoo f/n/a Borroto v. Geico General Ins. Co., 137 F. Supp. 3d 1320, 1328 (S.D. Fla. 2015) (citing Johnson v. Geico Gen. Ins. Co., 318 F. App’x 847 (11th Cir. 2009)) (“the good faith requirement does not deprive an insurer of its duty and right to fully investigate claims”). During the mediation Boca Development’s retained defense counsel asserted that during the litigation she had served requests for production that sought that same information so that she could assess her client’s potential liability, if any, and the value of your client’s purported damages but you never responded to her requests despite your discovery obligations. Shortly before the mediation adjourned after more than eight hours of discussions you represented that you would provide the requested information and you intended to file an amended complaint that did not assert Boca Development retained the subcontractors. The fact that after I told you Form CG 22 94 10 01 excluded coverage you denounced your prior statements about the subcontractors performing work on Boca Development’s behalf and decided to file an amended complaint calls into question the veracity of your representations about who the subcontractors actually performed work on behalf of. Nevertheless, in reliance on your representations that you would produce the documents the retained defense counsel and I requested, the parties decided to have a telephonic settlement discussion on July 31, 2023. However, that call did not occur because you did not produce the documents despite numerous emailed requests and reminders. Eventually, on August 8, 2023, after I had emailed you on July 20, 2023, July 27, 2023, August 1, 2023, and August 3, 2023, your office produced under 290 pages. Since those documents did not contain multiple categories of documents that I had requested during the mediation I emailed you yet another request. Thereafter, on August 19, 2024, you served Boca Development with a demand for $2,900,000, and your Civil Remedy Notice asserts Southern-Owners can cure its non-existent violation by paying that amount The August 19, 2024, demand primarily relied on Mr. Minton asserting his damages total $3,215,233.64, someone Boca Development hired as an expert preparing an affidavit beyond the scope of that individual’s retention which states he believed Boca Development’s damages total $833,155.98, and Southern-Owners’ policy stating that by endorsement the aggregate for Products-Completed Operations is $2,000,000 but the General Aggregate Limit for projects that are not complete is twice the $2 million dollar General Aggregate Limit shown on the Declarations Page. On the one hand your August 19, 2024, demand asks Southern-Owners to agree that Boca Development’s expert accurately calculated the damages despite it being beyond the scope of his retention. Yet, on the other hand you want Southern-Owners to believe that the expert’s total was less than a third of Mr. Minton’s actual damages. Putting aside the demand’s failure to adequately explain that discrepancy, both Boca Development’s corporate representative and your client consistently testified that your client hired Boca Development for a single project but your August 19, 2024, demand is devoid of any indication of why you believe the $2,900,000 demand is within the policy’s limits. As you are aware, I have continued seeking documents on Southern-Owners’ behalf regarding your client’s claim so that Southern-Owners can evaluate its insured’s liability and if coverage exists. For instance, during the December 3, 2024, hearing you informed the Court that Boca Development entered into some contracts with subcontractors, your client and Boca Development both entered into contracts with other subcontractors, and just your client entered into contracts with other unspecified subcontractors. Your assertion to the Court that Boca Development entered into contracts with subcontractors once again called into question your sudden change in position at the mediation regarding whether Boca Development used subcontractors. Since that information is pertinent to Southern-Owners’ coverage analysis less than one hour after the December 3, 2024, hearing concluded I emailed you a request for that information. As I informed you in my email, my investigation on Southern-Owners’ behalf revealed that some subcontracts filed with the Court said subcontractors agreed Boca Development would be an additional insured under the subcontractors’ insurance policies and also entitled to contractual indemnification but the Court’s file did not contain all of the categories of documents you mentioned and I did not know if I had complete records for the other categories. You promptly responded to my request by declining to provide me with the information even though you know it is relevant to Southern-Owners’ adjustment of your client’s claim and your refusal impedes Southern-Owners’ evaluation. B. Southern-Owners’ Policy As an initial matter, the Civil Remedy Notice contains legal defects that do not conform with Florida law. More specifically, Florida Statute Section 624.155(3)(b)(4) required your Civil Remedy Notice to reference the specific policy language that is relevant to Southern-Owners’ alleged violations. The Civil Remedy Notice is deficient because it failed to include any provisions even though Southern-Owners’ April 30, 2021, response to your request for information pursuant to Florida Statute Section 627.4137 stated a copy of the policy was included. Notwithstanding that omission, reviewing Southern-Owners’ policy refutes the Civil Remedy Notice’s contention that Southern-Owners violated Florida law. Southern-Owners issued Policy Number 112382-72036085-20 to Boca Development for the Policy Period of October 1, 2020 to October 1, 2021. The policy contains the following pertinent provisions: COMMERCIAL GENERAL LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words “you” and your” refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy. The words “we”, “us” and “our” refer to the company providing this insurance. The word “insured” means any person or organization qualifying as such under Section II – Who Is An Insured. Other words and phrases that appear in quotation marks have special meaning. Refer to Section V – Definitions. SECTION I – COVERAGES COVERAGE A – BODILY INJURY AND PROPERTY DAMAGE LIABILITY *** 2. Exclusions This insurance does not apply to: a. Expected Or Intended Injury “Bodily injury” or “property damage” expected or intended from the standpoint of the insured. This exclusion does not apply to “bodily injury” resulting from the use of reasonable force to protect persons or property. *** k. Damage To Your Product “Property damage” to “your product” arising out of it or any part of it. l. Damage To Your Work “Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard” . This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. *** SECTION IV – COMMERCIAL GENERAL LIABILITY CONDITIONS * * * 4. Other Insurance If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when Paragraph b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in Paragraph c. below. b. Excess Insurance (1) This insurance is excess over: (a) Any of the other insurance, whether primary, excess, contingent or on any other basis: * * * (b) Any other primary insurance available to you covering liability for damages arising out of the premises or operations, or the products and completed operations, for which you have been added as an additional insured. (2) When this insurance is excess, we will have no duty under Coverages A or B to defend the insured against any “suit” if any other insurer has a duty to defend the insured against that “suit”. If no other insurer defends, we will undertake to do so, but we will be entitled to the insured’s rights against all those other insurers. (3) When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (b) The total of all deductible and selfinsured amounts under all that other insurance. (4) We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer’s share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. SECTION V – DEFINITIONS *** 16. “Products-completed operations hazard”: a. Includes all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except: (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned. However, “your work” will be deemed completed at the earliest of the following times: (a) When all of the work called for in your contract has been completed. (b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site. (c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed. b. Does not include “bodily injury” or “property damage” arising out of: (1) The transportation of property, unless the injury or damage arises out of a condition in or on a vehicle not owned or operated by you, and that condition was created by the “loading or unloading” of that vehicle by any insured; (2) The existence of tools, uninstalled equipment or abandoned or unused materials; or (3) Products or operations for which the classification, listed in the Declarations or in a policy Schedule, states that products- completed operations are subject to the General Aggregate Limit. 17. “Property damage” means: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it. *** 21. “Your product”: a. Means: (1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: (a) You; (b) Others trading under your name; or (c) A person or organization whose business or assets you have acquired; and (2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of “your product”; and (2) The providing of or failure to provide warnings or instructions. c. Does not include vending machines or other property rented to or located for the use of others but not sold. 22. “Your work”: a. Means: (1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or operations. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of “your work”; and (2) The providing of or failure to provide warnings or instructions. * * * EXCLUSION – DAMAGE TO WORK PERFORMED BY SUBCONTRACTORS ON YOUR BEHALF This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART Exclusion l. of Section I – Coverage A – Bodily Injury and Property Damage Liability is replaced by the following: 2. Exclusions This insurance does not apply to: l. Damage To Your Work “Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard”. *** THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. AMENDMENT OF GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SECTION III – LIMITS OF INSURANCE is amended. The following provision is added. Beginning with the effective date of this policy, we will provide twice the General Aggregate Limit (other than Products-Completed Operations), shown in the Declarations. If this policy is written for more than one 12 month period, the General Aggregate Limit for each 12 month period shall never exceed twice the General Aggregate Limit shown in the Declarations. The General Aggregate Limit applies separately to each 12 month period starting with the beginning of the policy period shown in the Declarations. All other policy terms and conditions apply. * * * THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. EXTERIOR FINISHING SYSTEM AND STUCCO EXCLUSION - FORM A This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. SECTION I - COVERAGES, COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 2. Exclusions and COVERAGE B - PERSONAL AND ADVERTISING INJURY LIABILITY, 2. Exclusions are amended. The following exclusion is added. Exterior Finishing System and Stucco This insurance does not apply to any claim, “suit”, action or proceeding for “bodily injury”, “property damage” or “personal and advertising injury” which is in any way: 1. Related to; or 2. Arising out of any “exterior finishing system” or exterior “stucco” application. This exclusion does not apply to any claim, “suit”, action or proceeding for “bodily injury” which occurs before completion of “your work”. “Your work” is deemed completed: 1. When all of the work called for in your contract has been completed. 2. When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site. 3. When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed. B. SECTION V - DEFINITIONS is amended. The following definitions are added. “Exterior finishing system”, is an exterior insulating and finishing system applied to the exterior of a structure which incorporates any synthetic stucco or material similar in substance or purpose, and which may also include: insulating board or other material; adhesive or mechanical fasteners; and the application of flashings, coatings, caulking or sealants. “Stucco”, is a material made of portland cement, sand, cement, lime, and/or plaster, or any combination thereof, applied as a hard covering for exterior walls. All other policy terms and conditions apply * * * THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. FUNGI OR BACTERIA EXCLUSION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. The following exclusion is added to Paragraph 2. Exclusions of Section I - Coverage A - Bodily Injury And Property Damage Liability: 2. Exclusions This insurance does not apply to: Fungi Or Bacteria a. “Bodily injury” or “property damage” which would not have occurred, in whole or in part, but for the actual, alleged or threatened inhalation of, ingestion of, contact with, exposure to, existence of, or presence of, any “fungi” or bacteria on or within a building or structure, including its contents, regardless of whether any other cause, event, material or product contributed concurrently or in any sequence to such injury or damage. b. Any loss, cost or expenses arising out of the abating, testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, neutralizing, remediating or disposing of, or in any way responding to, or assessing the effects of, “fungi” or bacteria, by any insured or by any other person or entity. This exclusion does not apply to any “fungi” or bacteria that are, are on, or are contained in, a good or product intended for bodily consumption. B. The following exclusion is added to Paragraph 2. Exclusions of Section I - Coverage B – Personal And Advertising Injury Liability: 2. Exclusions This insurance does not apply to: Fungi Or Bacteria a. “Personal and advertising injury” which would not have taken place, in whole or in part, but for the actual, alleged or threatened inhalation of, ingestion of, contact with, exposure to, existence of, or presence of any “fungi” or bacteria on or within a building or structure, including its contents, regardless of whether any other cause, event, material or product contributed concurrently or in any sequence to such injury. b. Any loss, cost or expense arising out of the abating, testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, neutralizing, remediating or disposing of, or in any way responding to, or assessing the effects of, “fungi” or bacteria, by any insured or by any other person or entity. C. The following definition is added to the Definitions Section: “Fungi” means any type or form of fungus, including mold or mildew and any mycotoxins, spores, scents or byproducts produced or released by fungi. C. Southern-Owners Denies It Violated Florida Statute Section 624.155 As stated above, the Civil Remedy Notice accuses Southern-Owners of violating Florida Statute Section 624.155(1)(b)(1) for allegedly not attempting in good faith to settle your client’s claim. Southern-Owners categorically denies the allegations against it because at all times it has acted in good faith, as evidenced by its evaluation of the information it has received and its continuing attempts to obtain additional information. Moreover, your continued fluctuation regarding whether Boca Development entered into subcontracts, combined with your Civil Remedy Notice’s failure to cite a single policy provision, renders your Civil Remedy Notice fatally unclear regarding what provisions of Southern-Owners’ policy you erroneous believe Southern-Owners violated and why you believe any of your demands have been within the limits of Southern-Owners’ policy. Furthermore, your Civil Remedy Notice’s failure to acknowledge Southern-Owners’ investigation as well as your ongoing obstructionist responses to Southern-Owners’ attempt to conduct its investigation, renders unsubstantiated your Civil Remedy Notice’s assertion that “Mr. Minton has made multiple attempts to communicate productively to resolve this matter. Unfortunately, Boca Development’s carrier has not properly adjusted and resolved this claim. Boca Development’s carrier has not attempted to settle claims when it could and should have done so.” In addition, and as stated above, subcontracts filed with the Court state subcontractors agreed Boca Development would be listed as an additional insured under the subcontractors’ policies. Thus, even if there was actually any coverage available under Southern-Owners’ policy, it would be excess to the primary coverage provided by the subcontractors’ carriers. More specifically, Southern-Owners’ policy states: “[w]hen this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (b) The total of all deductible and selfinsured amounts under all that other insurance.” Not only is your Civil Remedy Notice devoid of a single provision in Southern-Owners’ policy, there is absolutely no discussion of when, if ever, the primary carriers exhausted their limits and what those limits are. That omission is yet another fatal flaw in your argument that Southern-Owners acted in bad faith. In short, to the extent you believe there is coverage within the limits of Southern-Owners’ policy, Southern-Owners has not been provided sufficient information, or been given a good-faith articulation of your client’s claim that would engender any settlement opportunities. Your Civil Remedy Notices lacks any legal authority that addresses these overarching deficiencies. D. Conclusion For the reasons set forth above, the Civil Remedy Notice is without merit, unsupported by the facts, and contrary to Florida law. At all times Southern-Owners has handled your client’s claim with the utmost good faith. Based upon the information it has been provided, Southern-Owners has acted reasonably and promptly evaluated and adjusted this claim. Southern-Owners did not violate Florida Statute Section 624.155(1)(b)(1) and nothing in the Civil Remedy Notice provides evidence, facts, or circumstances to support such allegations. In addition, Southern-Owners acted in conformance with its policy’s obligations. To the extent that this response does not address any of the allegations or assertions of bad faith contained in the Civil Remedy Notice, whether express or implied, Southern-Owners hereby denies any and all such allegations. Southern-Owners expressly reserves all, and does not waive any of its rights, whether or not mentioned above, under the subject policy, law, public policy, or equity. Nothing in Southern-Owners’ response to the Civil Remedy Notice should be construed as an admission of Southern-Owners in connection with this claim or as a modification of any of the subject policy and/or contract terms, exclusions, privileges, powers, and conditions. All of Southern-Owners’ rights, remedies, and defenses remain reserved, whether expressly mentioned herein or not. Those rights include, but are not limited to, Southern-Owners right to supplement this response at a later date.
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