Filing Number: 787846
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| Filing Accepted: 10/21/2024 |
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WHYTE AND ANTHONY JONES
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First Name |
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ASHEIA |
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| Street Address
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20650 NW 1ST COURT |
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MIAMI,
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33169
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| Email Address
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ASHEIA876@GMAIL.COM |
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Insured |
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WHYTE AND ANTHONY JONES |
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First Name |
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ASHEIA |
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1501-1601-0095 |
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Claim #* |
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FL22-0114451 |
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Attorney is Applicable
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| Last Name* |
DECARLO
First Name *
JEFFREY
Initial
D
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| Street Address* |
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1212 E. BORWARD BLVD. |
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FORT LAUDERDALE
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FLORIDA
33301
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| Email Address * |
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JDECARLO@REALJUSTICE.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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UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY
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,
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NAIC Company Code 10861 |
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| Name of individual responsible for violation (if any):*
STEPHEN J. DONAGHY, BRYOR WEISS AND DEFENSE COUNSEL
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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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Unfair Trade Practice
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Statutory provision(s) which the insurer allegedly violated.
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| 624.155(1)(b)(1) |
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Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests.
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| 624.155(1)(b)(3) |
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Except as to liability coverages, failing to promptly settle claims, when the obligation to settle a claim has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage.
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| 626.9541(1)(i)(2) |
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A material misrepresentation made to an insured or any other person having an interest in the proceeds payable under such contract or policy, for the purpose and with the intent of effecting settlement of such claims, loss, or damage under such contract or policy on less favorable terms than those provided in, and contemplated by, such contract or policy.
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| 626.9541(1)(i)(3)(a) |
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Failing to adopt and implement standards for the proper investigation of claims.
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| 626.9541(1)(i)(3)(b) |
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Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue.
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| 626.9541(1)(i)(3)(d) |
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Denying claims without conducting reasonable investigations based upon available information.
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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.
All loss is expressly excluded since this is an all perils policy. Further:
SECTION I - PROPERTY COVERAGES
A. Coverage A - Dwelling
1. We cover:
a. The dwelling on the "residence premises" shown in the Declarations, including structures attached to the dwelling; and
b. Materials and supplies located on or next to the "residence premises" used to construct, alter or repair the dwelling or other structures on the "residence premises".
2. We do not cover land, including land on which the dwelling is located.
SECTION 1- PERILS INSURED AGAINST
A. Coverage A - Dwelling And Coverage B -
Other Structures
1. We insure against direct physical loss to property described in Coverages A and B. However, loss does not include and we will not pay for any "diminution in value".
2. We do not insure, however, for loss:
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c. Caused by:
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(6) Accidental discharge or overflow of water or steam:
(a) That does not result in loss to property covered under Coverage A or B;
(b) Which occurs off the "residence premises";
(c) That does not originate from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance on the "residence premises".
However, unless otherwise excluded or limited elsewhere in the policy, we will cover loss to property covered under Coverage A or B resulting from an accidental discharge or overflow of water or steam from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance on the "residence premises".
This includes the cost to tear out and repair only that part of a building or only that part of an other structure covered under Coverage A or B on the "residence premises", necessary to access and repair the system or appliance from which the water or steam escaped.
The cost that we will cover for the tear out and repair above is only that cost necessary to access and repair only that part of the system or appliance that caused the covered loss, whether the system or appliance, or any part of the system or appliance, is repairable or not.
In the event that additional tear out and repair are required beyond that necessary to access and repair only that part of the system or appliance that caused the covered loss, we will still only cover the cost as described above.
However, we do not cover loss to the system or appliance from which this water or steam escaped.
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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.
A. SPECIAL RELATIONSHIP.
1. Insurer and insured.
2. Insurer wrote policy.
3. Insured paid insurer a significant annual premium to insure their home.
4. Premium includes cost of inspecting to inspect home in response to a claim.
5. Insurer has a duty to determine cause and extent of all loss, damage and coverage.
6. Insurer has duty to provide complete information with regard to any claim.
7. This includes disclosure of all material information fully–i.e., all not some.
8. Insurer cannot injure, defraud or deceive insured with regard to any claim.
9. Insurer has a duty to act in good faith at all times.
B. INSURER’S CLAIMS EXPERIENCE.
10. Insurer has been insuring homes in Florida for many years.
11. Insurer has had hundreds of cast iron pipe plumbing claims in the past.
12. Insurer has a team of consulting experts to help it determine extent of loss and damage with regard to any claim–e.g., plumbers, engineers, contractors, etc.
13. Insurer knows these plumbing systems are at high risk of failing.
14. This is why insurer charges an extra premium for “Age of Home.”
15. Insurer knows when a plumbing system fails the pipes leak water under the floor when a toilet is flushed or someone uses water in the home.
16. Insurer knows there is bacteria in the water, it pools under the floor and is absorbed by the concrete floor and the backfill since they are both porous.
17. Insurer knows this will continue until plumbing system is repaired or replaced.
18. Insurer knows allowing this condition to exist violates the Florida Building Code and Plumbing Code, which prohibits the discharge of sewage into the ground and/or water table.
C. INSURED’S HOMEOWNER’S INSURANCE POLICY.
19. HO-3 Policy a/k/a all perils or all risks policy.
20. All loss is covered unless expressly excluded.
21. Insured’s loss is covered under the policy.
D. INSURED’S DUTY IN RESPONSE TO CLAIM.
22. Insurer has duty to conduct a “complete” inspection of the home.
23. Determine all (a) cause of loss, (b) damage and (d) coverage. Cingari v. First Protective Insurance Company, 377 So.3d 1169, 1174 (Fla. 4DCA 2024) (Insurer’s “duty to evaluate the claim necessarily includes a duty to investigate the ... cause of injury to the property.”); Williams v. State Farm, 346 So.3d 79, 81 (Fla. 2DCA 2022) (insurer has a contractual duty to determine coverage); and Zaleski v. State Farm, 315 So.3d 7, 12 (Fla. 4DCA 2021) (“[W]hen an insurer receives a claim, it has an independent duty to evaluate the claim in advance of a determination of damages ... ”).
24. Prepare letter to insured disclosing and explaining all (a) causes of loss; (b) damage above and below the floor; and (c) coverage including (i) gaining access to failed plumbing system a/k/a tear out, (ii) gaining access to bacteria under the floor, (iii) debris removal, (iv) post tear out repairs, (v) additional living expenses during repairs or replacement, (v) compliance with building code under ordinance or law during repairs or replacement, (vii) age of home and (viii) coverage to prevent further loss to covered property.
25. This includes full and complete disclosure of all information–i.e., all not some.
26. Insurer cannot injure, defraud or deceive insured.
27. Insurer must act in good faith at all times.
E. POLICY FOR INSURED’S DWELLING.
28. Insurer knew the following when issuing policy and each renewal.
29. Dwelling has concrete floor, backfill and a cast iron pipe plumbing system.
30. Foundation supports the home and includes (a) concrete footings, (b) stem walls, (c) structural backfill and (d) concrete floor.
31. Cast iron pipe plumbing system is incased in the foundation–e.g., backfill.
32. Backfill is a construction material used to (a) support the concrete floor and (b) encase and support the plumbing system and hence it is structural.
33. When you flush the toilet or use water in the home it travels through the cast iron pipe plumbing system under the floor and is discharged outside into the septic tank or city sewer.
34. These pipes are subject to wear and tear, marring, decay and deterioration.
35. Over time this deterioration of the pipes causes the pipes to thin, crack and bottom out (“fail”).
36. When pipes fail, they discharge Category 3 waste water in the foundation.
37. Waste water contains bacteria, then pools in the foundation and under the concrete floor.
38. Backfill and concrete floor then absorb the waste water with bacteria.
39. When plumbing system fails the foundation functions as a septic tank.
40. This is unhealthy for the insured and anyone in the home
F. INSURER’S NOTICE.
41. Insurer knows year home was built.
42. Insurer knows home has a cast iron pipe plumbing system.
43. Insurer knows that the pipes are over 52 years old.
44. Insurer was aware of all relevant underwriting materials.
45. Insurer knows the pipes are at high risk of failure.
46. Insurer knows how to determine if pipes are leaking under the floor.
G. TYPICAL FAILED CAST IRON PIPE PLUMBING CLAIM.
47. Insurer knows the failed cast iron pipe plumbing system is the main claim since this is the cause of the underlying plumbing problem–i.e., symptoms.
48. Symptoms may include among others (a) slow drain, not draining at all or water overflows or backups from the toilet, shower, bathtub, kitchen or bathroom sinks; (b) water damage; (c) leaking pipes; (d) bad smell; (e) roaches, flies or rodents; or (f) other plumbing problems (“symptoms”).
49. Payment for water damage alone does not remediate the cause of the water damage–i.e., failed plumbing system.
50. Symptoms and drainage problems will continue until plumbing system is repaired or replaced.
H. INSURED’S PRE-SUIT CLAIM.
51. Insured notified insurer that they have a plumbing problem. More specifically, insured reported to insurer that on April 30, 2022, insured observed the bathtub in the guest bathroom draining slowly and it stopped draining. Water, suddenly and accidentally, backed up out of the floor at the base of the toilet and out of the toilet bowl on to the floor. The guest bathroom baseboards and wall were damaged by the waste-water. The waste-water also went into the master bedroom located nearby and also damaged a dresser in the master bedroom. Insured used a wet vacuum to remove the water from the guest bathroom and the master bathroom and bedroom. The backfill was damaged (displaced and contaminated) by the waste water and had to be replaced promptly.
52. Insurer must now determine extent of all loss, damage and coverage.
53. Insurer has a duty to pay or deny the claim within 90 days.
54. Insurer knows the symptoms of a failed plumbing system.
55. Insurer is in the best position to diagnose the cause of the symptoms.
56. Otherwise, the insured’s plumbing problems will continue.
57. On May 11, 2022, insured hired plumber, King’s Plumbing who conducted a camera inspection and found the underground drain line was completely collapsed and in need of replacement. The insured’s plumber observed the drain system holding water and lots of debris. The drain line was holding black, category 3 water throughout the entire system. Valleys were observed where water is settling at the bottom of the drain line. Debris was observed settling at the bottom of the drain line which was causing solids and paper to jam up the flow of fluids. Metal flaking was also observed inside the line, which causes paper and solids to get stuck inside the line and can cause backups and water damage to property.
58. On May 26, 2022, insured provided a plumbing proposal to insurer for approximately $30,338.00, for included tear out work to access the deteriorated drain system and replace the pipes and backfill. More specifically, the estimate was for chipping or cutting 65 feet of the concrete floor slab to access the pipes, remove them and replace the backfill and concrete.
59. On June 6, 2022, insured provided a sworn proof of loss with their public adjuster’s replacement cost value (RCV) estimate of $134,397.35, which included the plumbing charges for tear out (opening and closing the slab) and for the plumbing work pre and post tear out.
I. INSURER’S WRONGFUL PRESUIT MISCONDUCT
60. On June 28, 2024, insurer’s plumber C and D Plumbing, inspected the dwelling and conducted a camera inspection of the insured’s drainpipe system.
61. Purpose of inspection was to determine the cause of the loss, extent of loss, damage and coverage.
62. Insurer knew that a failed plumbing system would trigger coverage or indemnity payments under policy for (a) tear-out, (b) post tear out repairs, (c) rental and (d) moving and storage during any repairs (“indemnity payments”).
63. Insurer’s plumber failed to inspect plumbing system under the floor. Insurer’s plumber said he could not see the pipes, even though insured’s plumber could see them at or near the time of the loss.
64. Insurer’s plumber is paid to say he could not see the pipes, so the coverage decision and payment of the claim can be delayed.
65. This was purposely done to avoid or delay full indemnity payments.
66. Insurer had a team of consulting experts available for the inspection and could have and should have conducted another camera inspection.
67. Insurer was not limited to one camera inspection.
68. Insurer also failed to timely disclose results of its plumber’s inspection and his recommendations to insured resulting in further damage to insured’s home.
69. On July 1, 2022, insurer informed insureds’ it was not in agreement with the figures provided for settlement of the claim in insured’s sworn proof of loss.
70. On July 11, 2022, insured conducted a recorded statement of Anthony Jones.
71. On or about August 3, 2022, without sufficient explanation, insurer provided insured with an undisputed actual cash value (ACV) estimate of $6,459.49, which it said was the net amount due after application of the deductible and recoverable depreciation.
72. However, insurer’s ACV estimate did not include any funds or line item for tear out coverage even though insurer was now informing insured for the first time since C and D Plumbing’s June 28, 2022 inspection that C and D Plumbing Inc. was recommending that the kitchen cabinets be removed and the kitchen wall be opened up in order to replace the kitchen waste arm and that insured must perform jetting of the lines and other repairs before C and D Plumbing could complete its camera inspection of the pipes beneath the home.
73. Despite insurer asking insured to tear out the cabinets and wall, insurer failed to provide any coverage or payment for tear out in its actual cash value estimate thereby intentionally underpaying the claim and breaching the policy of insurance.
74. Insurer effectively denied insured’s claim for tear out coverage and for damage to the backfill beneath.
75. Insurer also informed insured mediation was available and stated: “If you have any questions, or have any additional information that you believe would cause us to re-evaluate our position on this matter, please do not hesitate to contact your adjuster Byror Weiss. However, nowhere in the letter does insured specifically request or inform insured an ACV estimate is required or being requested.
76. On August 5, 2022, insured issued an undisputed check for $6,459.49, but the insured never cashed the check.
77. At no time whatsoever pre-suit, did insurer ever notify insured that insured needed to submit an ACV estimate or otherwise must inform insurer insured disagreed with insurer’s estimate prior to filing suit.
78. Even though insurer never informed insured that insured must inform insurer of insured’s disagreement with the ACV estimate, insured did inform insurer of insured’s disagreement with the ACV estimate.
79. Insured also informed insurer that insured offered to mediate the claim.
80. Insurer agreed with insurer to mediate the claim.
81. On November 2, 2022, the parties unsuccessfully mediated the claim pre-suit.
82. At all relevant times pre-suit insurer ignored and failed to address insured’s evidence.
83. Insurer failed to disclose and explain (a) cause of loss; (b) damage above and below the floor; and (c) coverage including (i) gaining access to failed plumbing system a/k/a tear out, (ii) gaining access to bacteria under the floor, (iii) debris removal, (iv) post tear out repairs, (v) additional living expenses during repairs or replacement, (vi) compliance with building code under ordinance or law during repairs or replacement, (vii) age of home and (viii) coverage to prevent further loss to covered property.
84. Insurer failed to provide complete information.
85. Insured’s partial disclosure is misleading.
86. Insurer’s intent was to injure, defraud or deceive insured.
87. Insurer failed to act in insured’s best interest.
88. Insurer’s response and actions are tantamount to bad faith
J. INSURED’S POST-SUIT/LITIGATION MISCONDUCT
89. On November 11, 2022, insured filed suit for breach of contract seeking coverage for water damage to the backfill and other parts of the dwelling and for the cost of tearing out the failed system and post-tear out repairs. Insured did not seek coverage for the pipes or the system itself.
90. Thereafter, insurer denied the allegations in insured’s complaint that should be admitted, it asserted affirmative defenses without a factual or legal basis, it objected and failed to answer discovery during the litigation and otherwise obstructed the litigation process to delay or reduce payment and/or force the insured to settle for less than their loss and damages
91. Insurer has obstructed the resulting litigation and discovery pursuant to its general business practices outlined below.
92. Actions by insurer and defense counsel are one and the same. Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 396-397 (1993) (“[C]lients must be held accountable for the acts and omissions of their attorneys [--e.g., client] voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ”). Accord Lyons v. O'Quinn, 746 Fed.Appx. 898, fn. 3 (11th Cir. 2018) (“In civil cases, counsel acts as an agent for a litigant ... [and] [u]nfortunately, [litigant] is bound by his counsel's handling or mishandling of the case.”). Rule 2.515(a), Fla. R. Jud. Admin. (“The signature of an attorney shall constitute a certificate by the attorney that the attorney has read the document [and] to the best of the attorney's knowledge, information, and belief there is good ground to support the document” –e.g., (a) answer and affirmative defenses; (b) answers, responses and objections to discovery; and (c) all representations made in each document filed with the court.
93. Insured also misrepresented facts to the court in litigating the case.
94. For instance, insurer misrepresented to the court that it was unaware that any dispute over the ACV of the loss existed between Plaintiffs and Universal until Plaintiffs filed suit.
95. Insured omitted from the court that it mediated the claim pre-suit/November 2, 2022, at which time it knew or should have known that insured disputed insured’s ACV estimate and that insured was seeking tear out coverage and coverage for damage to the backfill.
96. In light of the parties’ pre-suit mediation, this is a complete and utterly false statement of fact/allegation.
97. Insurer’s intent was to injure, defraud or deceive insured and court.
98. Insurer failed to act in insured’s best interest.
99. Insurer’s response and actions are tantamount to bad faith
K. INSURER’S GENERAL BUSINESS PRACTICE & BAD FAITH.
100. General business practice includes presuit, litigation, mediation or appraisal.
101. This case is an example of insurer’s general business practice.
102. Insurer fails to fully pay or deny the claim within 90 days. §627.70131(5)(a), F.S.
103. Insurer fails to inspect the plumbing system to avoid indemnity payments.
104. Insurer fails to write the policy clearly for insured to understand–e.g., when reading the policy, endorsements, amendments or changes you have to be a lawyer that specializes in reading insurance policies to understand what it says and even then sometimes the lawyers disagree.
105. Insurer’s intent is to injure, defraud or deceive insured. §817.234(7)(b), F.S.
106. Insurer remits low ball payments without adequate explanations.
107. Insurer fails to provide complete and accurate information to its insured.
108. Insurer ignores, denies, and fails to identify, all loss, damage and coverage.
109. When insured is forced to file suit for breach of the policy, insurer denies allegations in response to the complaint that should be admitted, it asserts affirmative defenses without a factual or legal basis, it objects and fails to answer discovery during the litigation and otherwise obstructs the process to delay or reduce payment and/or force the insured to settle for less than their loss and damages.
K. INSURER’S GOOD FAITH REQUEST TO INSURER
110. To help you evaluate this civil remedy notice, please review (a) the evidence, (b) pleadings, (c) all filed documents on the docket, (d) all discovery in this case and (e) your complete file before filing a response to this civil remedy notice.
111. To remedy this civil remedy notice and avoid any bad faith action:
• First, please timely pay all of insured’s loss and damage under policy.
• Second, please agree to insured’s entitlement to attorney’s fees and costs.
• Third, please agree in writing to implement the following business practice changes, within the next 12 months when issuing or renewing a dwelling or commercial policy with a cast iron pipe plumbing system, that require insured to sign a written Cast Iron Pipe Plumbing System Disclosure Form.
• Cast Iron Pipe Plumbing System Disclosure Form (a) will explain how a cast iron pipe plumbing system works and what happens when it fails–e.g., pipes leak water under the floor each time someone flushes a toilet or uses water in the home or building; (b) will identify all coverage, exclusions and the total amount of coverage for (i) tear-out, (ii) post tear-out repairs, (iii) rental and (iv) moving and storage during any repairs; (c) will inform insured that cast iron pipe plumbing systems are at high risk of failure since they are over 50 years old and are at the end of their life expectancy; (d) will inform insured that the cost of tear out and post tear out repairs can be expensive; and (e) insurer agrees to retain a disinterested licensed master plumber to (i) videoscope the plumbing system and (ii) test the moisture levels in the floor slab when inspecting the property in the event the insured makes a plumbing related claim.
112. The objective is to help the insured make an informed decision when choosing or renewing the policy and whether they need to obtain insurance from another insurer.
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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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