Filing Number: 787247
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| Filing Accepted: 10/16/2024 |
| Last/Business Name
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BRUNER
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First Name |
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DANIEL AND JACQUELYN |
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| Street Address
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14117 KEWANEE LANE |
| City, State Zip
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PORT CHARLOTTE,
FL
33984
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| Email Address
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DANBRUNER@YMAIL.COM |
| Complainant Type:
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Insured |
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| Last/Business Name* |
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BRUNER |
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First Name |
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DANIEL AND JACQUELYN |
| Policy # * |
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8908815577 |
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Claim #* |
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01000067067 |
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Attorney is Applicable
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| Last Name* |
GROOVER
First Name *
JEFFREY
Initial
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| Street Address* |
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3615 E. FRONTAGE ROAD |
| City, State Zip* |
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TAMPA
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FLORIDA
33607
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| Email Address * |
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JGROOVER@KPATTORNEY.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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FIRST PROTECTIVE INSURANCE COMPANY
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| Insurer Name* |
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| Street Address* |
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| City, State Zip* |
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,
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NAIC Company Code 10897 |
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| Name of individual responsible for violation (if any):*
APRIL LAMBERT AND TAMMY KLITZKA
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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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Violation of Florida Statutes § 627.7142
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Other
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Violation of Florida Statutes § 627.70131(1)(a)
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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)(e) |
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Failing to affirm or deny full or partial coverage of claims, and, as to partial coverage, the dollar amount or extent of coverage, or failing to provide a written statement that the claim is being investigated, upon the written request of the insured within 30 days after proof-of-loss statements have been completed.
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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.
Special Provisions Endorsement (FIM 00 23 06 21)
SECTION I – PROPERTY COVERAGES
COVERAGE A- Dwelling is deleted and replaced by the following:
1. We cover:
a. The dwelling on the “residence premises” shown in the Declarations, including structures attached to the dwelling;
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SECTION I – PERILS INSURED AGAINST
Paragraph A.1. in Form HO 00 03 is deleted and replaced by the following:
1. We insure for sudden and accidental direct physical loss to covered property described in Coverages A and B unless the loss is otherwise excluded or limited in this policy. However, loss does not include, and we will not pay for, any “diminution in value.”
SECTION I – CONDITIONS
J. Loss Payment is deleted and replaced by the following:
J. Loss Payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment and we have not elected our option to repair.
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c. If payment is not denied, within 90 days after we receive notice of an initial, reopened or supplemental claim.
However, this provision c. does not apply if factors beyond our control reasonably prevent such payment. Failure to comply with this provision c. does not form the basis of a private cause of action against us.
Additionally, Florida insurance statutes are incorporated into Florida insurance policies. As such, the statutory violations noted above also constitute specific insurance provisions violated.
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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.
This civil remedy notice arises from First Protective Insurance Company’s (“First Protective”) failure to attempt in good faith to settle the subject claim, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward Mr. and Mrs. Bruner and with due regard for their interest.
This claim arises from damages to Mr. and Mrs. Bruner’s home caused by Hurricane Ian on September 28, 2022. They reported their claim through First Protective’s online web portal on September 30, 2022 and reported water blowing in from their front door and window, damages to the shingle roof, interior leaking, and water under the flooring. Shortly after reporting the claim, Mr. and Mrs. Bruner hired Frederick Catena of ClaimPros, LLC as their public adjuster to assist with the claim. Nearly one month after Mr. and Mrs. Bruner reported the claim, First Protective’s out-of-state field adjuster Josh Hall inspected the property on October 29, 2022 and documented extensive damage on the exterior and interior of Mr. and Mrs. Bruner’s home.
Following First Protective’s inspection, Mr. and Mrs. Bruner’s public adjuster submitted photographs and an estimate to First Protective totaling $155,656.26 ($148,510.75 for dwelling, $2,755.95 for other structures, and $4,389.56 for contents) on October 31, 2022. During the discovery phase in the underlying litigation, First Protective’s discovery production did not contain any written communication acknowledging receipt of the public adjuster’s estimate. Failure to acknowledge claim communication seemingly violates Florida Statute § 627.70131(1)(a).
Fast forward nearly two months after the public adjuster’s submission of his estimate and post-inspection by First Protective’s field adjuster, First Protective still had not issued a claim determination, nor had it issued any correspondence to Mr. and Mrs. Bruner indicating there was anything that reasonably prevented it from making a payment or decision. However, on December 21, 2022, Mr. Hall finally prepared an estimate of damages totaling $29,497.59 RCV, but First Protective had not made a claim decision by that date. Because of this, Mr. and Mrs. Bruner retained counsel to represent them in this insurance claim.
On December 26, 2022, Mr. and Mrs. Bruner’s attorneys sent a letter of representation to First Protective because 87 days had elapsed from the date the loss was reported, its field adjuster had inspected the property, and it had not issued a claim determination. In the letter of representation, their attorneys inquired of First Protective as follows: “Please advise within five (5) days of any pending requests made of the Policyholders and/or any post loss obligations you may require so we may assist the Policyholders in cooperating in the claim investigation.” In response, First Protective issued a letter on December 26, 2022 acknowledging receipt of the letter of representation but failed to inform them of any outstanding documents or information that was requested and not yet received. First Protective also failed to identify any post-loss duties Mr. and Mrs. Bruner failed to comply with.
After acknowledging receipt of the letter of representation, desk examiner April Lambert with First Protective finally issued its coverage determination letter on December 26, 2022, in which it opened coverage for the loss and issued an RCV payment in the amount of $28,950.65 for dwelling and contents. That amount was $28,497.59 (RCV) for dwelling and $453.06 (RCV) for contents. The coverage determination letter included Mr. Hall’s estimate. Interestingly in the letter, Ms. Lambert misrepresented the nature of the payment. Specifically, the letter states that it included an “actual cash value payment” for the loss, when in fact it was a replacement cost value payment.
At the time of the coverage determination, First Protective was aware of a damages dispute by virtue of having the public adjuster’s estimate for nearly 2 months. However, fast forward another 3 months, on March 30, 2023, First Protective’s ADR Claims Adjuster Tammy Klitzka finally decides to act to evaluate the damages dispute. Specifically, Ms. Klitzka hired Florida licensed general contractor Edward Andrie to prepare a “verbal estimate based on the damages and [determine] if we left out anything. Attached is the FA estimate/photos and the PA estimate/photos. I’m on a deadline with this one, please advise if you could have it to me by 4/4.” On April 4, 2023, Mr. Andrie and Ms. Klitzka had a telephone conversation to discuss the field adjuster’s and public adjuster’s estimate. The substance of their conversation was discovered during Mr. Andrie’s deposition in the underlying litigation. During that deposition, Mr. Andrie testified that he told Ms. Klitzka as follows: “I said the field adjuster might have missed a couple of things that I could have included that he didn’t.” When pressed, Mr. Andrie agreed that First Protective did not pay enough to repair Mr. and Mrs. Bruner’s home. So the question is how much did First Protective underpay in December of 2022. Based on Mr. Andrie’s comparative estimate, First Protective underpaid the claim by over $25,000.
Although First Protective knew and still knows that it underpaid Mr. and Mrs. Bruner’s claim by at least $25,000, First Protective has failed to issue any additional indemnity payment whatsoever. Under Florida Statutes § 627.70131 and the policy’s Loss Payment provision, First Protective had 90 days to pay or deny the claim unless there were factors beyond its control that reasonably prevented payment. More than 90 days elapsed between the time Ms. Klitzka learned of First Protective’s underpayment based on the information she was provided by Mr. Andrie and the time the lawsuit was filed on July 31, 2023. To this date, First Protective is well aware that it has not fully indemnified its insureds based on the testimony of its own general contractor expert. Having this knowledge and refusing to tender any additional indemnity proceeds violates Florida Statutes § 624.155(1)(b)(1) of “[n]ot 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 and violates Florida Statutes § 624.155(1)(b)(3) of “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. It is reasonably believed that First Protective failed to issue any additional payment in the lawsuit because it would constitute a confession of judgment, and it is looking for every possible way of avoiding payment and a bad faith lawsuit. However, First Protective has a continuing duty to adjust the claim, and adjustment of a loss is not tolled by any statute or jurisprudence simply because First Protective was served with a lawsuit.
Once First Protective was served with a lawsuit, First Protective continued its games by denying allegations that Mr. and Mrs. Bruner’s home sustained direct physical damage during the policy. In fact, as of the date of this civil remedy notice, First Protective has failed to amend its answer to the complaint to admit a loss during the policy and has failed to amend its responses to Plaintiffs’ requests for admission to admit a loss occurred during the policy period. Additionally, Defendant and its defense counsel are playing fast and loose with the facts of the case in its motions to the Court, asserting that the only issue is whether First Protective breached the insurance policy by failing to pay the correct actual cash value of the loss. As an initial matter, that amounts to a misrepresentation to the Court because First Protective paid this loss on a replacement cost value basis, not actual cash value. Additionally, it is arguing a defense that it failed to raise in the first place. Additionally, it has not admitted a loss during the policy period, and it has asserted several other affirmative defenses. First Protective’s motions filed on October 15, 2024 and October 16, 2024 and Mr. and Mrs. Bruner’s responses are incorporated herein by reference.
In addition to the foregoing, Mr. and Mrs. Bruner provided a sworn proof of loss to First Protective. Unfortunately, First Protective violated the Florida Homeowner Claim Bill of Rights (Florida Statutes § 627.7142) and Florida Statutes § 626.9541(1)(i)(3)(e) by failing to affirm or deny full or partial coverage of the claim within 30 days of its submission. In fact, First Protective never ever sent any type of correspondence acknowledging receipt of the sworn proof of loss. This violates Florida Statutes § 627.70131(1)(a) for failing to acknowledge claim communication within 14 calendar days.
One of the first pages in First Protective’s policy states that it has “compassionate claims service”. It explains, “If you experience a loss, our dedicated claims specialists work side-by-side with you to make the process speedy and transparent. We promise superior service from a team of compassionate, courteous, responsive and accountable professionals.” As demonstrated in the narrative above, First Protective’s claims specialists were not dedicated to Mr. and Mrs. Bruner, and the claim specialists did not work with Mr. and Mrs. Bruner to make the process speedy and transparent. Rather, First Protective knew with absolute certainty based on its hired expert Edward Andrie that it did not fully indemnify Mr. and Mrs. Bruner for their loss, did not attempt to make any additional indemnity payments for more than 90 days after receiving knowledge that it underpaid the claim, and then tried to hide and bury that information until it was discovered in litigation. It is reasonably believed that First Protective engages in this exact conduct as a business practice in its claims handling in order to maximize its corporate profits to the detriment of its policyholders, including Mr. and Mrs. Bruner. Then, once it is served with a lawsuit, First Protective retains attorneys to continue to delay, deny, and defend the claims – all the while it squirrels reserves away in investment accounts to earn interest. While the interest on a singular claim may not be significant, the aggregate of First Protective’s delay, deny, defend scheme results in substantial interest in a systematic scheme to offset corporate losses through interest bearing accounts and investments. This scheme is not unique to Mr. and Mrs. Bruner’s claim – it constitutes a business practice across First Protective’s business model.
To be clear, First Protective has violated the following statutory provisions, and a brief recitation of the facts to support each statutory violation follows:
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.
In addition to the narrative above, which is incorporated herein by referenced, First Protective knew and knows that it underpaid this claim. Its hired expert, Edward Andrie, informed Ms. Klitzka of that it did not pay enough on this claim more than 90 days before the lawsuit was filed. Notwithstanding that knowledge, First Protective failed and continues to fail to issue any additional indemnity proceeds. This demonstrates First Protective’s unwavering effort of not attempting in good faith to settle the claim when it could have and should have done so if it placed Mr. and Mrs. Bruner’s interests ahead of its own.
624.155(1)(b)(3): 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
In addition to the narrative above, which is incorporated herein by referenced, First Protective knew and knows that it underpaid this claim. Its hired expert, Edward Andrie, informed Ms. Klitzka of that it did not pay enough on this claim more than 90 days before the lawsuit was filed. This demonstrates that First Protective failed to promptly settle the claim, or issue an additional indemnity payment, when the obligation to do so was reasonably clear.
626.9541(1)(i)(3)(e): Failing to affirm or deny full or partial coverage of claims, and, as to partial coverage, the dollar amount or extent of coverage, or failing to provide a written statement that the claim is being investigated, upon the written request of the insured within 30 days after proof-of-loss statements have been completed.
In addition to the narrative above, which is incorporated herein by referenced, First Protective received a sworn proof of loss but never affirmed or denied coverage within 30 days of receipt of same.
In addition to the foregoing statutory violations, First Protective has also violated the following insurance policy provisions:
Special Provisions Endorsement (FIM 00 23 06 21)
SECTION I – PROPERTY COVERAGES
COVERAGE A- Dwelling is deleted and replaced by the following:
1. We cover:
a. The dwelling on the “residence premises” shown in the Declarations, including structures attached to the dwelling;
* * *
SECTION I – PERILS INSURED AGAINST
Paragraph A.1. in Form HO 00 03 is deleted and replaced by the following:
1. We insure for sudden and accidental direct physical loss to covered property described in Coverages A and B unless the loss is otherwise excluded or limited in this policy. However, loss does not include, and we will not pay for, any “diminution in value.”
SECTION I – CONDITIONS
J. Loss Payment is deleted and replaced by the following:
J. Loss Payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment and we have not elected our option to repair.
* * *
c. If payment is not denied, within 90 days after we receive notice of an initial, reopened or supplemental claim.
However, this provision c. does not apply if factors beyond our control reasonably prevent such payment. Failure to comply with this provision c. does not form the basis of a private cause of action against us.
Additionally, Florida insurance statutes are incorporated into Florida insurance policies. As such, the statutory violations noted above also constitute specific insurance provisions violated.
This notice is provided to perfect a right to pursue the civil remedy authorized by Florida Statute §624.155. Therefore, to cure the defects outlined in this Civil Remedy Notice, First Protective must pay Mr. and Mrs. Bruner the sum of $100,620.95 (new money), plus statutory interest pursuant to Florida Statute § 627.70131 from September 30, 2022 through the date payment is finally made, plus attorneys fees pursuant to Florida Statutes § 627.428 since Plaintiffs were required to retain an attorney to enforce their rights under the insurance policy. See Snow v. Jim Rathman Chevrolet, Inc., 39 So. 3d 368 (Fla. 5th DCA 2010) (holding that since Florida Statutes § 627.428 are incorporated in all insurance policies, it constitutes part and parcel of the insurance policy); see also State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 832 (Fla. 1993) (holding, “When an insured is compelled to sue to enforce an insurance contract because the insurance company has contested a valid claim, the relief sought is both the policy proceeds and attorney's fees pursuant to section 627.428.”).
Please note that the cure amount contemplated in this civil remedy notice does not constitute an offer to settle the underlying litigation and does not operate to supersede or serve as a “second bite at the apple” of the allegations raised in the first civil remedy notice. All civil remedy notices filed in this matter stand on their own and are independent of the other. Rather, the amount contemplated in this civil remedy notice is only deemed an amount to cure the violations referenced in this civil remedy notice alone.
A copy of this letter and filed form submitted to the DFS has been printed out and mailed. A courtesy copy has also been forwarded to First Protective defense counsel, Michael Monteverde and Coleen Balkie. Please do not hesitate to contact the undersigned if you have any questions or concerns.
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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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