Civil Remedy Filing

Civil Remedy Notice of Insurer Violations

Filing Number: 791936

Filing Accepted: 11/13/2024

Print Filing

Complainant

Last/Business Name *

LENNAR HOMES, LLC

First Name

Street Address *

5505 WATERFORD DISTRICT DRIVE

City, State Zip *

MIAMI, FL 33126

Email Address *

LKERR@COGBURNLEGAL.COM

Complainant Type: *

Insured

Last/Business Name*		ROLANDS PAINTING SERVICES INC.		First Name
Policy # *		GLP 0261542 00; GLP 0261542 01		Claim #*		113048

Attorney

Attorney is Applicable

Last Name*	KERR First Name * LAUREN Initial D
Street Address*		777 S. HARBOUR ISLAND BLVD., SUITE 245
City, State Zip*		TAMPA , FL 33602
Email Address *		LKERR@COGBURNLEGAL.COM

Violation

Insurer Type *		Authorized Insurer Unauthorized Insurer

Insurer Name
Insurer Name*		AMERICAN BUILDERS INSURANCE COMPANY
Insurer Name*
Street Address*
City, State Zip*		,
NAIC Company Code 11240

Name of individual responsible for violation (if any):* UNKNOWN. PREVIOUSLY MARK POWELL.
Type of Insurance * Commercial Property & Casualty

Reason for Notice *

	Claim Delay
	Unfair Trade Practice

* 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.
	626.9541(1)(i)(3)(a)		Failing to adopt and implement standards for the proper investigation of claims.
	626.9541(1)(i)(3)(c)		Failing to acknowledge and act promptly upon communications with respect to claims.
	626.9541(1)(i)(3)(f)		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.
	626.9541(1)(i)(3)(g)		Failing to promptly notify the insured of any additional information necessary for the processing of a claim.

* Specific policy language that is relevant to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

Rolands Painting Services Inc. (“Rolands”) purchased at least two commercial general liability (“CGL”) policies from American Builders Insurance Company ("Builders") providing ongoing and products-completed operations coverage for liability because of property damage resulting from Rolands’ work, specifically Policy Numbers GLP 0261542 00 and GLP 0261542 01 (the "Policies"). The insuring agreements of the Policies state: We will pay those sums that the insured becomes legally obligated to pay as damages because of … “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages … The Policies define “property damage” to include: a. Physical injury to tangible property, including all resulting loss of use of that property … or b. Loss of use of tangible property that is not physically injured … For coverage to be afforded, “property damage” must have been caused by an “occurrence,” which is defined under the Policies as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Not only do the Policies provide coverage to the named insured, Rolands, they also provide coverage to Lennar Homes, LLC (“Lennar”) as an additional insured. The Policies each contain the following endorsement in same or substantially similar part, which applies to both Rolands’ ongoing and completed operations: GENERAL LIABILITY EXTRA COVERAGE ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SECTION II – WHO IS AN INSURED – is revised as follows: 1. Additional Insureds. A. Section II – Who Is An Insured is amended to include as an additional insured: 1. Any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy … The subcontract between Rolands and Lennar required that Rolands name Lennar as an additional insured on its policies of insurance. Additionally, the Policies each contain an Additional Insured endorsement specifically naming “CALATLANTIC GROUP INC AND ITS AFFILIATES” as an additional insured entitled to coverage under the Policies. Lennar is an affiliate of CalAtlantic Group, LLC f/k/a CalAtlantic Group, Inc.

* 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 is being filed because American Builders Insurance Company ("Builders") has failed to address Lennar Homes, LLC’s (“Lennar”) tenders of defense in good faith. The Builders policies implicated are Policy Numbers GLP 0261542 00 and GLP 0261542 01 (the "Policies"). Lennar has been named as a defendant in a lawsuit styled as Bridgehaven at Citrus Park Homeowners Association, Inc. v. Lennar Homes, LLC, et al, Case No. 22-CA-009092, Hillsborough County, Florida (now pending before the American Arbitration Association) (the “Lawsuit”). The Lawsuit alleges property damage resulting from work performed at the Bridgehaven community (the “Project”), including the painting and sealant work performed by Lennar’s subcontractor, Rolands Painting Services Inc. (“Rolands”). During original construction, Rolands performed work at the Project pursuant to the terms and conditions of its subcontract with Lennar. Included in the subcontract between Lennar and Rolands was a requirement that Rolands would secure commercial general liability ("CGL") insurance and name Lennar as an Additional Insured. Rolands purchased at least two CGL policies, the Policies, from Builders, which provide ongoing and products-completed operations coverage for liability because of property damage resulting from Rolands’ work. This coverage extends to both the named insured, Rolands, and the additional insured, Lennar. As described supra, the Policies extend coverage to additional insureds where required by contract. Because the written subcontract between Lennar and Rolands required Rolands to name Lennar, Lennar is an additional insured under the Policies. Moreover, the Policies specifically extend coverage to “CalAtlantic Group, Inc. and its affiliates”. Lennar is an affiliate of CalAtlantic Group, LLC f/k/a CalAtlantic Group, Inc. Lennar tendered its defense to Builders on December 22, 2022 and March 15, 2024. Although Builders acknowledged receipt of the claim, for nearly two years, Builders has refused to issue a coverage determination as to Lennar’s tender of defense, nor has Builders provided Lennar with a defense in the Lawsuit. Builders’ refusal to provide a defense to Lennar is knowingly wrongful because the Lawsuit, as pled, implicates coverage under the Policies and does not clearly implicate any exclusions under the Policies. "Under Florida law, an insurer's duty to defend its insured against legal action is quite broad, and 'is determined by comparing the allegations contained within the four corners of the underlying complaint with the language of the policy.'" Zurich Am. Ins. Co. v. Southern- Owners Ins. Co., 314 F. Supp. 3d 1284, 1299 (M.D. Fla. 2018) (Howard, J.) citing Addison Ins. Co. v. 4000 Island Blvd. Condo. Ass'n, Inc., 263 F. Supp. 3d 1266, 1269 (S.D. Fla. 2016) (quoting Jones v. Fla. Ins. Guar. Ass'n Inc., 908 So. 2d 435, 443 (Fla. 2005)). That is, an insurer's duty to defend is determined solely by the allegations in the underlying complaint. Zurich, 314 F. Supp. 3d at 1299 citing Category 5 Mgmt. Grp., LLC v. Companion Prop. & Cas. Ins. Co., 76 So. 3d 20, 23 (Fla. 1st DCA 2011); Lawyers Title Ins. Corp. v. JDC (Am.) Corp., 52 F. 3d 1575, 1580 (11th Cir. 1995). "The duty arises when the relevant pleadings allege facts that 'fairly and potentially bring the suit within policy coverage.'" Id. citing Lawyers Title Ins. Corp., 52 F. 3d at 1580 (quoting Lime Tree Vill. Cmty. Club Ass'n, Inc. v. State Farm Gen. Ins. Co., 980 F. 2d 1402, 1405 (11th Cir. 1993)). The actual facts of the situation are not relevant, such that "the insurer must defend even if facts alleged are actually untrue or legal theories unsound." Id. As a result, "an insurer's duty to defend is distinct from, and broader than, the duty to indemnify," Id. citing Sinni v. Scottsdale Ins. Co., 676 F. Supp. 2d 1319, 1323 (M.D. Fla. 2009), which "must be determined by analyzing the policy coverage in light of the facts in the underlying case," J.B.D. Constr., Inc. v. Mid-Continent Cas. Co., 571 F. App'x 918, 927 (11th Cir. 2014) (emphasis added). In addition, where an injured party "alleges facts partially within and partially outside the coverage of the policy, the insurer is obligated to defend the entire suit." Category 5 Mgmt. Grp., LLC, 76 So. 3d at 23. Builders’ failure to defend Lennar has prejudiced and damaged Lennar. Due to Builders’ unreasonable claims handling practices, Lennar has been and will be forced to incur significant defense costs in the Lawsuit, for which Builders is responsible. The Lawsuit includes allegations of losses covered under the Policies. Under Florida law, Builders’ duty to defend Lennar was triggered by the Plaintiff’s allegations, whether they are proven to be true or not. Builders appears to be employing a misguided strategy of simply ignoring the Lawsuit and Lennar’s tender of defense in an effort to avoid paying the defense costs to which Lennar is entitled. The attorneys' fees and costs that Lennar has incurred have unjustly burdened Lennar. Moreover, by refusing to defend Lennar, Builders has greatly exposed its named insured, Rolands, to a much larger claim for Lennar’s defense costs in this matter pursuant to the contractual indemnification provisions in the subcontract. Builders must exercise its duty of good faith to Lennar and must employ “the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” Farinas v. Florida Farm Bureau Gen. Ins. Co., 850 So. 2d 555 (Fla. 4th DCA 2003) (internal citations omitted). Under Farinas, Builders is obligated to (1) fully investigate all claims at hand to determine how to best limit its insured’s liability; (2) seek to settle as many claims as possible within the policy limits; (3) minimize the magnitude of possible excess judgments against its insureds by reasoned claim settlement; and (4) keep the insureds informed of the claim resolution process. Builders’ obligations extend to all the insureds under the Policies and are not limited to the named insured. Thus, Builders’ obligations extend to additional insureds, like Lennar. To date, Lennar is unaware of Builders’ investigation, if any, of the claims against Lennar, or its efforts, if any, to seek to settle the claim within the policy limits. Likewise, Builders has never advised Lennar how, or if, it intends to minimize the magnitude of a possible excess judgment against Lennar. Given Builders’ lack of response for over two years and the other facts outlined above, Builders has failed or attempted to meet the standard for good faith in this matter. Lennar will be filing suit against Builders but is also filing this notice in an effort to provide Builders with a last opportunity to deal with Lennar in good faith as well as to perfect its right to pursue the remedies provided under Section 624.155, Florida Statutes. Builders can cure by acknowledging its duty to defend Lennar, reimbursing Lennar for its reasonable defense costs, and working together with Lennar to resolve this claim, including without limitation participating at the mediation scheduled for December 10, 2024.

Comments

User Id		Date Added		Comment
LHaine-Roberts@hinshawlaw.com		01-10-2025		Hinshaw & Culbertson LLP, on behalf of American Builders Insurance Company, responded to the Civil Remedy Notice in correspondence dated January 10, 2025 to attorney Lauren Kerr at Cogburn Law Firm, P.A., denying it acted in bad faith

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. 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.

DFS-10-363
Rev. 10/14/2008