Filing Number: 788130
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| Filing Accepted: 10/22/2024 |
| Last/Business Name
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GCH PROPERTIES LLC
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First Name |
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| Street Address
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15009 BINDER DR. |
| City, State Zip
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CAPTIVA,
FL
33924
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| Email Address
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LITIGATION@THEFREEMANLAWFIRMPA.COM |
| Complainant Type:
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Insured |
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| Last/Business Name* |
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GCH PROPERTIES LLC |
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First Name |
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| Policy # * |
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6222893164 |
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Claim #* |
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01000066863 |
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Attorney is Applicable
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| Last Name* |
FREEMAN
First Name *
BRIAN
Initial
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| Street Address* |
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4245 FOWLER STREET |
| City, State Zip* |
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FORT MYERS
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FLRORIDA
33901
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| Email Address * |
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LITIGATION@THEFREEMANLAWFIRMPA.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):*
OLU SHITTU
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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 Denial
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Claim Delay
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Unfair Trade Practice
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Other
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Bad Faith
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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)(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)(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)(d) |
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Denying claims without conducting reasonable investigations based upon available information.
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| 626.9541(1)(i)(3)(f) |
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Failing to promptly provide a reasonable explanation in writing to the insured of the basis in the insurance policy, in relation to the facts or applicable law, for denial of a claim or for the offer of a compromise settlement.
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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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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 Insured is in possession of a copy of its insurance policy and believe its insurance policy language relevant to the violations includes all applicable insurance policy coverages, loss payment provisions, valuation provisions and other terms and conditions of Insurance Policy No. 6222893164. In particular, the Insured refers to the following insurance policy coverages included in its insurance policy:
COVERAGE A--Dwelling
We cover:
1. the dwelling on the Described Location shown in the
Declarations, used principally for dwelling purposes,
including structures attached to the dwelling;
2. materials and supplies located on or next to the
Described Location used to construct alter or repair
the dwelling or other structures on the Described
Location; and
3. if not otherwise covered in this policy, building equipment
and outdoor equipment used for the service of
and located on the Described Location.
This coverage does not apply to land, including land on
which the dwelling is locatea.
COVERAGE B--Other Structures
We cover other structures on the Described Location,
set apart from the dwelling by clear space. This includes
structures connected to the dwelling by only a fence,
utility line, or similar connection.
This coverage does not apply to land, including land on
which the other structures are located.
We do not cover other structures:
1. used in whole or in part for commercial, manufacturing
or farming purposes; or
2. rented or held for rental to any person not a tenant of
the dwelling, unless used solely as a private garage.
13.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.
Loss will be payable 60 days after we receive your
proof of loss and:
a. reach an agreement with you;
b. there is an entry of a final judgment; or
c. there is a filing of an appraisal award with us.
5. Loss Settlement. Covered property losses are
settled as follows:
a. (1) Personal property;
(2) Awnings, carpeting, household appliances,
outdoor antennas and outdoor equipment,
whether or not attached to buildings; and
(3) Structures that are not buildings;
at actual cash value at the time of loss but not
more than the amount required to repair or
replace.
b. Buildings under Coverage A or B at replacement
cost without deduction for depreciation, subject to
the following:
(1) If, at the time of loss, the amount of insurance
in this policy on the damaged building is 80%
or more of the full replacement cost of the
building immediately before the loss, we will
pay the cost to repair or replace, after application
of deductible and without deduction for
depreciation, but not more than the least of the
following amounts:
(a) the limit of liability under this policy that applies
to the building;
(b) the replacement cost of that part of the
building damaged for like construction and
use on the same premises; or
(c) the necessary amount actually spent to
repair or replace the damaged building.
(2) If, at the time of loss, the amount of insurance
in this policy on the damaged building is less
than 80% of the full replacement cost of the
building immediately before the loss, we will
pay the greater of the following amounts, but
not more than the limit of liability under this
policy that applies to the building:
(a) the actual cash value of that part of the
building damaged; or
(b) that proportion of the cost to repair or
replace, after application of deductible and
without deduction for depreciation, that part
of the building damaged, which the total
amount of insurance in this policy on the
damaged building bears to 80% of the
replacement cost of the building.
(3) To determine the amount of insurance required
to equal 80% of the full replacement cost of the
building immediately before the loss, do not include
the value of:
(a) excavations, foundations, piers or any supports
which are below the undersurface of
the lowest basement floor;
(b) those supports in (a) above which are
below the surface of the ground inside the
foundation walls, if there is no basement;
and
(c) underground flues, pipes, wiring and drains.
(4) We will pay no more than the actual cash
value of the damage unless:
(a) actual repair or replacement is complete; or
(b) the cost to repair or replace the damage is
both:
(i) less than 5% of the amount of insurance
in this policy on the building; and
(ii) less than $2500.
(5) You may disregard the replacement cost loss
settlement provisions and make claim under
this policy for loss or damage to buildings on
an actual cash value basis. You may then
make claim within 180 days after loss for any
additional liability on a replacement cost basis.
8. Appraisal. If you and we fail to agree on the amount
of loss, either may demand an appraisal of the loss.
In the event, each party will choose a competent appraiser
within 20 days after receiving a written request
from the other. The two appraisers will choose
an umpire. If they cannot agree upon an umpire
within 15 days, you or we may request that the
choice be made by a judge of a court of record in the
state where the Described Location is located. The
appraisers will separately set the amount of loss. If
the appraisers submit a written report of an agreement
to us, the amount agreed upon will be the
amount of loss. If they fail to agree, they will submit
their differences to the umpire. A decision agreed to
by any two will set the amount of loss.
Each party will:
a. pay its own appraiser; and
b. bear the other expenses of the appraisal and umpire
equally.
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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.
During the policy period, on September 28, 2022, the Insured’s home located at 15009 Binder Dr. Captiva, FL 33924, owned by GCH Properties LLC ("Insured"), suffered hurricane/windstorm related physical and structural damage as a direct result of Hurricane Ian, a covered loss under the subject insurance policy. Please see insurance policy language above that indicates insurance coverage for hurricane/windstorm damage to the Insured’s home and roof system as a direct result of Hurricane Ian.
Subsequent to Hurricane Ian, the Insured immediately reported the loss to its insurance carrier, First Protective Insurance Company, ("Insurer"). Since the beginning of the claims process, the Insured fully cooperated in the Insurer's investigation of the Insured’s hurricane/windstorm damage claim.
Despite overwhelming evidence the Insured’s home and roof system had been significantly physically and structurally damaged by Hurricane Ian, all covered losses under the subject insurance policy; the Insurer unreasonably and improperly investigated, inspected, evaluated, adjusted and failed to pay the correct amount of damage to the Insured’s home and roof system as a direct result of Hurricane Ian. The Insurer performed a completely inadequate investigation of the damage to the Insured’s home and roof system as a direct result of Hurricane Ian.
The Insurer retained independent adjuster Scott Berberich (“Mr. Berberich”), to inspect the hurricane/windstorm damage to the Insured’s home and roof system. Mr. Berberich documented extensive hurricane/windstorm damage to the Insured’s roof system, exterior damage, damage to fencing of the Insured’s home and guest house. However, Mr. Berberich grossly underestimated the damage to the Insured’s home and roof system. In total, Mr. Berberich’s damage estimate was a mere $126,021.47.
The Insured retained Paul Marshall of Archer Claims, (“Mr. Marshall”), to inspect its home and roof system for hurricane/windstorm damage. During his inspection, Mr. Marshall documented extensive physical and structural hurricane/windstorm damage to the Insured’s roof system, exterior damage, interior damage and damage to the Insured’s windows and doors. As a result of Mr. Marshall’s inspection, Mr. Marshall provided the Insured with a damage estimate in the sum of $873,057.59 RCV and $821.201.88 ACV.
The Insurer did not extend coverage for the clearly evident physical and structural damage to the Insured’s home and roof system as a direct result of Hurricane Ian as set forth in Mr. Marshall’s damage estimate. The Insurer failed to extend full coverage for the Insured’s clearly evident hurricane/windstorm damage, indicating the Insurer does not have proper standards for investigating the proper scope and amount of damage caused by a covered loss. The Insured provided all the evidence necessary supporting the actual costs associated with the complete replacement of its roof system and the amount necessary to repair all of the interior and exterior damage to its home as a direct result of Hurricane Ian in order to restore its home to its pre-loss condition. However, despite this evidence and information, the Insurer failed and refused to pay for the Insured’s clearly evident Hurricane Ian damage in order to restore its home to its pre-loss condition.
Moreover, the Insurer did not perform a legally sufficient hurricane/windstorm damage investigation by failing to perform a substantial structural damage investigation and determination as required by The Florida Building Code and failing to retain a licensed Florida Professional Engineer to investigate the full extent of both physical and structural damage to the Insured’s home a direct result of Hurricane Ian. The Insurers failure to perform this very important substantial structural damage determination and failure to retain a licensed Florida Professional Engineer to assist the Insurer in its investigation of this hurricane/windstorm damage claim further indicates the Insurer did not comply with the basic requirements inherent in the proper investigation of hurricane/windstorm damage claims, and instead performs inadequate and incomplete investigations in order to improperly partially deny valid claims.
The Insured provided the Insurer with an overwhelming amount of evidence to support the extensive physical and structural damage to its home and roof system and other Hurricane Ian related damage to its home as well as a comprehensive damage estimate from Mr. Marshall. Notwithstanding, the Insurer failed and refused to pay the amount necessary to restore its home to its pre-loss condition.
The work of adjusting insurance claims in Florida engages the public trust. In the instant case, the Insurer breached this duty through its complete failure to properly investigate, inspect, evaluate, adjust and pay the hurricane/windstorm damage claim of the Insured. The Insurer's failure to properly inspect, investigate, evaluate, adjust and pay for the damage to the Insured’s home and roof system, failure to communicate with the Insured, and improper handling of the Insured’s hurricane/windstorm damage claim clearly indicates the Insurer failed to adopt and implement proper standards for the investigation, evaluation and adjustment of claims; failed to properly train, manage, supervise and promote claims adjusters so an Insured, such as the Insured in this case, receives good faith, fair and prompt adjustment of claims; and failed to conduct a full and fair investigation of this hurricane/windstorm damage claim. The Insurer furthermore failed to provide full reasons and facts to the Insured for the partial denial of its hurricane/windstorm damage claim resulting in the statutory violations as set forth in this notice.
The Insurer also breached its duty to the Insured by failing to timely and promptly pay the correct indemnity owed to its Insured. This duty is owed by the Insurer to its Insured and is inherent in the insurance claims process. The Insured promptly provided all the necessary documentation, evidence and information for a timely resolution of its hurricane/windstorm damage claim, including an itemized damage estimate from Mr. Marshall and extensive documentation of the physical and structural damage to its home as a direct result of Hurricane Ian to the Insurer which clearly shows the damage to the Insured’s home exceeds the grossly inadequate undisputed amount of damage the Insurer documented to the Insured’s home and failed to provide a detailed damage estimate of such damages documented by the Insurer to the Insured. To date, the Insurer failed to provide timely and prompt payment for the correct amount of the Insured’s damage.
To date, the Insured performed all conditions precedent required of it under its insurance policy with the Insurer and under Florida law. However, the Insurer and its agents failed and refused to properly investigate, inspect, evaluate, adjust and pay the Insured’s hurricane/windstorm damage claim and failed to tender all insurance proceeds due and owing to the Insured under the subject insurance policy. Due to the Insurer's intentional delay and insufficient investigation of the Insured’s hurricane/windstorm damage claim, the Insured was forced to obtain legal counsel at a significant cost and expense to attempt to recover what its is legally owed under its insurance policy with the Insurer.
The concept of insurance is that it is the insurer's granting of timely and prompt indemnity or
security against a contingent loss. Fla. Stat. § 624.02 defines insurance as a contract whereby one undertakes to indemnify another or pay or allow a specified amount or a determinable benefit upon determinable contingencies. Inherent is the fact that payment must be made timely and promptly so that an Insured may mitigate its damages and be put back into the position they were in prior to the loss as quickly as possible. Simply put, the Insurer failed to comply with its duty to indemnify the Insured and breached the insurance policy.
The Insurer failed and refused to properly investigate, inspect, evaluate, adjust and pay the Insured’s hurricane/windstorm damage claim. The Insurer failed and refused to pay the correct amount of insurance proceeds to date owed to the Insured as required by the insurance policy and Florida law. Refusal and failure to pay the Insured’s hurricane/windstorm damage claim, when under all the circumstances it could have and should have done so had it acted fairly and honestly towards the Insured is a breach of the insurance policy and a violation of Florida Law.
The Insured and Insurer agreed to properly adjust the Insured’s loss by the appraisal process per the terms of the insurance policy between the Insurer and the Insured. However, the Insurer has intentionally and consistently attempted to delay completion of the appraisal process by objecting to the Insured’s named appraiser and requesting the Examination Under Oath of the Insured. In addition, the Insured has intentionally interfered in the appraisal process and breached the terms of its insurance policy with the Insured.
The actions taken by the Insurer in the handling and adjustment of the Insured’s hurricane/windstorm damage claim were willful, wanton, and in disregard for the rights of its Insured and occur with such a frequency as to indicate a general unfair and deceptive business practice of the Insurer in violation of Florida Statutes § 624.155 and § 626.9541.
Based on the foregoing actions and omissions, the Insurer engaged in wrongful claims handling conduct, including but not limited to, the following:
1) Improper partial claim denial;
2) Improper claim delays;
3) Not conducting a full and fair investigation of the Insured’s hurricane/windstorm damage claim;
4) Looking for ways to deny recovery to the Insured;
5) Overlooking covered damages to the Insured’s home and roof system and failing to retain a professional engineer if causation was in question;
6) Failing to pay the necessary amounts due and owing to restore the Insured’s home to its pre-loss condition;
7) Not adjusting the claim and not evaluating the loss properly, promptly and fairly so as to provide full and prompt indemnity to its Insured;
8) Failing to implement proper standards for the adjustment and investigation of insurance claims;
9) Failing to pay the requisite monies owed for the Insured’s loss, despite receipt of a detailed damage estimate from Mr. Marshall and supporting documentation;
10) Not training, supervising or managing adjusters and independent contractors properly so that prompt and full payments are made, but rather placing the company’s interests before the policyholders’ interests by attempting to deny or minimize payments owed;
11) Establishing severity control initiatives and otherwise establishing a culture of not fully and promptly paying claims following losses.
The Insurer violated the statutes set forth above based on the conduct described herein. The Insurer failed and refused to tender insurance proceeds required by its insurance policy with its Insured. In addition, the Insurer failed to reasonably and properly pay and resolve the Insured’s hurricane/windstorm damage claim for money damages when under all the facts and circumstances, it could have and should have done so if it had acted fairly and honestly towards its Insured. The Insurer’s improper actions are well documented and have occurred with such frequency as to constitute a general unfair and deceptive business practice and were made in a reckless disregard for its Insured’s rights. The Insurer placed its interest above and before the Insured’s interest in this matter.
Therefore, to cure the defects outlined in this Civil Remedy Notice, the Insurer must do the following:
A. Immediately pay the Insured’s hurricane/windstorm damage claim in the amount of the Mr. Marshall’s damage estimate of$821.201.88 ACV, plus interest, less the applicable deductible.
B. Agree to tender any recoverable depreciation once it has been incurred per the terms of the insurance policy.
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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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