Filing Number: 792362
|
| Filing Accepted: 11/14/2024 |
| Last/Business Name
*
|
|
|
MOZINGO
|
|
First Name |
|
HOWARD AND CYNTHIA |
|
| Street Address
*
|
|
323 MARIVAL DRIVE |
| City, State Zip
*
|
|
DAVENPORT,
FL
33837
|
| Email Address
*
|
|
MDETEMPLE@PALERMOPA.COM |
| Complainant Type:
*
|
|
Third Party |
|
| Last/Business Name* |
|
WEATHERMASTER BUILDING PRODUCTS, INC |
|
First Name |
|
|
| Policy # * |
|
112382-72041946 |
|
Claim #* |
|
NOT GIVEN BUT REQUESTED |
|
Attorney is Applicable
|
| Last Name* |
DETEMPLE
First Name *
MEG
Initial
|
| Street Address* |
|
258 CRYSTAL GROVE BLVD |
| City, State Zip* |
|
LUTZ
,
FLORIDA
33548
|
| Email Address * |
|
MDETEMPLE@PALERMOPA.COM |
|
|
| Insurer Type
*
|
|
 Authorized Insurer
 Unauthorized Insurer
|
|
|
| Insurer Name |
|
|
| Insurer Name* |
|
SOUTHERN-OWNERS INSURANCE COMPANY
|
| Insurer Name* |
|
|
| Street Address* |
|
|
| City, State Zip* |
|
,
|
|
NAIC Company Code 10190 |
|
|
| Name of individual responsible for violation (if any):*
UNKNOWN CLAIMS REPRESENTATIVE
|
| Type of Insurance
*
Commercial Property & Casualty
|
|
|
| Reason for Notice
*
|
|
|
Claim Denial
|
|
|
Claim Delay
|
|
|
Unsatisfactory Settlement Offer
|
|
|
Unfair Trade Practice
|
|
|
Other
:
unfair claims settlement practices
|
|
|
Other
:
Failure to provide certified copy of Insurance Policy within thirty (30) days
|
|
|
*
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.
|
|
| 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.
|
|
| 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.
|
|
*
Specific policy language that is relevant to the violation.
Enter all words or phrases (one at a time) that should be used to filter.
Duty to Defend: We will have the right and duty to defend the insured against any ‘suit’ seeking damages to
which this insurance applies.
Duty to Settle in Good Faith: We will make reasonable efforts to settle any claims or suits in good faith,
considering both the insured’s interests and the likelihood of judgment exceeding policy limits. We may
settle any claim or suit within the limits of insurance without the insured’s consent, provided that
settlement is reasonable and appropriate given the circumstances.
|
| |
*
Facts and circumstances giving rise to the violation.
Enter all words or phrases (one at a time) that should be used to filter.
Southern-Owners Ins. Co. has committed the following in handling this claim: 1) failure to act in due diligence and good faith to resolve claims; 2) placing the financial interest of the insurer before that of the insured and/or claimants; 3) failure to properly train, evaluate, and manage adjusters retained to represent the policies and
procedures of Peleus; 4) looking for ways to delay benefit payments and otherwise “low ball” or “stone
wall” claims; 5) looking for ways to reduce recovery to the claimants; 6) failed to promptly pay the full
benefit owed to the claimants; 8) has failed to ethically defendant its Insured; 9) failed to provide the
Claimants a copy of the insurance policy; and 10) the reasons for this may be attributed to improper
training, supervision, and/or motivation of outside adjusters and claims supervisors to promptly and fairly adjust and pay full benefits available to the claimant. The insurer may have failed to adopt proper
standards of investigation and adjustment of losses, or is otherwise not implementing those standards
because a proper investigation and full and prompt payment for the loss is not occurring. 11.) Insurer is
utilizing an adjuster who has a personal animus for Plaintiffs' attorney due to investment in an unethical litigation style described below, the attorney is not able to behave in a unbiased fashion. As a beginning fact, the insurance company’s client, Weathermaster Building Products, Inc. was the window sub contractor on Plaintiffs’ home. Weathermaster Building Products, Inc’s.construction contained numerous defects that were not in accordance with the Florida Building Code and ASTM standards and violated the ordinary standard of care for their industry. They have been served with a notice pursuant to Florida Statute §558 and other discovery requests that notified them of the following.
The hidden defects include but are not limited to:
A.) Multiple design defects and deviations from the design plans.
B.) The window subcontractor and their agents/employees breached the duty of care owed to the homeowners by failing to properly flash, seal, and caulk the windows in violation of the manufacturers specifications and recommendations thus allowing water to intrude through the windows.
C.) The window subcontractor and their agents/employees breached the duty of care owed to homeowners by installing the window despite the opening not being wrapped and taped properly. Thus the windows did not perform the water barrier protection and water tight function they are designed to.
D.) The window subcontractor and their agents/employees breached the duty of care owed to homeowners by failing to follow the manufacturers recommendations and specifications for fastening and spacing thus allowing water to intrude through the windows.
As a result of these defects, my clients have experienced significant issues including, but not limited to:
- Water infiltration caused staining, bubbling, and peeling of paint. Additionally the water infiltration has led to drywall deterioration and the need for extensive repairs.
- Floors: Water has damaged flooring materials. This has led to warping, mold growth under carpets, and deterioration of subflooring.
- Wooden framing and other structural components have and will continue to rot over time if exposed to moisture, weakening the overall structure of the home.
- Water stains have appeared on walls, ceilings, and floors, necessitating repainting or refinishing.
- Warping: Wooden trim, baseboards, and other finishes have warped due to moisture exposure.
Based on a visual inspection, the above defects are throughout the interior of the home and the water damage and staining in on all four interior elevations near windows. Water damage is evident on the interior side of all four exterior walls
In response the insurance company authorized their lawyers to file a motion to dismiss seeking the ultimate
sanction. The insurance companies’ motion to dismiss reflects a deliberate strategy to evade liability by
capitalizing on procedural technicalities, thereby obstructing a fair adjudication of the Plaintiffs’ claims.
This motion, rather than addressing the underlying merits of the case, serves as an attempt to
unreasonably delay or dismiss valid claims through a bad faith approach. This strategy violates principles
of fairness, due process, and the court’s duty to prioritize adjudications on the merits.
Please also be aware that we are familiar with the vast amount of building code violations associated with
windows installed by Weathermaster Building Products, Inc., which are exactly like the ones present at Plaintiffs’ home and are affecting thousands of Florida consumers, indicate a troubling pattern, Therefore, given the extent of these violations and the number of affected consumers, this will serve as
notice of bad faith on the part of your litigation strategy that will result in the breaking of policy limits if the
aggregate $2,000,000 policy limit is reached and exhausted. This will apply to all Plaintiffs that are impacted
by this bad faith litigation behavior as a matter of both common and statutory law.
Florida recognizes both common law and statutory bad faith claims. Under common law, bad faith claims
typically involve an insurer's failure to settle a claim within policy limits, exposing the insured to excess
liability (Dunn v. National Sec. Fire and Cas. Co., 631 So.2d 1103 (1993))[1]. Statutory bad faith claims are
governed by section 624.155, Florida Statutes , which allows any person to bring a civil action against an
insurer for not attempting in good faith to settle claims, among other violations (F.S. § 624.155)[2].
In Florida, bad faith insurance litigation is determined under the "totality of the circumstances" standard,
which considers whether the insurer's actions were willful and without reasonable cause. See Goheagan v.
American Vehicle Ins. Co., 107 So.3d 433 (2012)) If the insurance company, is evading liability by attacking
procedural steps rather than addressing the actual construction defects, this will be seen as bad faith as
the insurance company’s actions are willful and without reasonable cause. In cases such as Boston Old
Colony Insurance Co. v. Gutierrez, 386 So. 2d 783 (Fla. 1980), the court emphasized that an insurer’s duty to
act in good faith includes the requirement to give fair consideration to settlement and not subject the
insured to unreasonable risks. An insurer’s pursuit of unethical litigation strategies is absolute grounds for
a bad faith claim if it violates this principle. For purposes of this specific action and all actions occurring
during the policy period this will serve as notice of bad faith that will result in the breaking of policy limits if the aggregate $2,000,000 policy limit is
reached and exhausted.
Moreover, If an insurer is found to have ordered or influenced the use of unethical strategies, it could not
only face liability for bad faith and compensatory damages for any harm caused to the victim and ultimately
the insured, but also possibly punitive damages if the conduct is deemed egregious enough. Florida courts
look closely at the insurer’s actions, and bad faith cases can lead to significant financial consequences for
the insurer.
It is noteworthy to point out that even if the insurer ultimately tenders policy limits, it will not automatically
insulate itself from bad faith. Powell v. Prudential Property & Cas. Ins. Co., 584 So. 2d 12, 14 (Fla. 3d DCA
1991). Bad faith may be inferred from a delay in settlement negotiations which is willful and without
reasonable cause based on the circumstances. Id. Here, there is more than a reasonable inference that the
insured, Weathermaster Building Products, Inc committed building code violations, committed negligence
and caused damage to the Claimants’ property and home; that the insurer has failed to defend its insured;
and that the insurer has unreasonably delayed the settlement of the claims arising out of same.
In the context of bad faith claims, bad faith is determined on a totality of the circumstances basis, taking the
insurer’s entire conduct during the claims handling process into consideration. Berges v. Infinity Ins. Co.,
896 So.2d 665, 680 (Fla. 2004). This in no way requires an insurer to act perfectly, however. Novoa v. Geico
Indem. Co., 542 F. App’x 794, 796 (11th Cir. 2013) (per curiam). Rather, insurers simply must “refrain from
acting solely on the basis of their own interests in settlement.” Id. When applying this standard to the facts
of this claim, the totality of the circumstances is certainly in the claimants’ favor. The insurer is ignoring the
significant liability of its insured, Best Wrap LLC, and the damages sustained by the Claimants. Reasonable
jurors will find that the insurer acted solely on its own behalf to avoid defending its Insured and avoid
settlement negotiations and settlement with the Claimants altogether.
The insurance companies’ motion to dismiss reflects a deliberate strategy to evade liability by capitalizing
on procedural technicalities, thereby obstructing a fair adjudication of the Plaintiffs’ claims. This motion,
rather than addressing the underlying merits of the case, serves as an attempt to unreasonably delay or
dismiss valid claims through a bad faith approach. This strategy violates principles of fairness, due
process, and the court’s duty to prioritize adjudications on the merits. Here are the key ways in which this
motion exemplifies bad faith litigation.
1. Procedural Obfuscation to Avoid Merits-Based Adjudication: Rather than defending on substantive
grounds, the insurance companies’ motion hinges on procedural technicalities with the intent to dismiss
Plaintiffs’ claims without addressing the underlying construction defects and alleged code violations. The
case law, such as Miller v. Nelms and Howard v. Risch, is clear that courts must carefully adhere to due
process, adversarial practice, and evidentiary rules, especially when considering dismissal as an ultimate
sanction. Dismissal is an extreme measure, reserved only for egregious cases of fraud. The insurance
companies’ motion ignores this high standard, using procedural grounds to divert attention from the
legitimate issues in the case—an approach emblematic of a bad faith litigation strategy aimed solely at
circumventing liability.
2. Failure to Follow Evidentiary Requirements for Dismissal: The insurance companies’ motion to dismiss,
which calls for an extraordinary sanction of dismissal, lacks adherence to the required due process
safeguards. Florida courts, in cases such as Brito v. Southern Fidelity Property & Casualty, Inc. and
Robinson v. Safepoint Insurance Company, have established that dismissal for fraud on the court requires
an evidentiary hearing to substantiate any such claim. By pursuing dismissal without an evidentiary
hearing, the insurance companies attempt to skirt the procedural safeguards and due process that would
otherwise allow Plaintiffs a fair opportunity to present their case.
3. Absence of Clear and Convincing Evidence of Fraud: Dismissal for alleged bad faith or fraud demands
clear and convincing evidence of an intentional scheme to deceive the court, as outlined in Cherubino v.
Fenstersheib and Fox. The insurance companies’ motion, however, fails to meet this high evidentiary
standard. Instead, it relies on unsubstantiated procedural objections rather than actual proof of intentional
deception or fraud. By seeking dismissal based on this unsubstantiated standard, the insurance companies
effectively leverage procedural maneuvers to dodge liability—another hallmark of a bad faith approach.
4. Disregard for Florida’s Legislative Framework and Good Faith Compliance Efforts: Florida’s statutory
framework prescribes that noncompliance with pre-suit notice requirements, under Florida Statute §
558.003, should result in a stay rather than dismissal. Plaintiffs offered to stay proceedings and comply with
these pre-suit requirements; however, the insurance companies’ motion rejects this reasonable approach
and instead pursues the extreme remedy of dismissal. This choice disregards the statutory framework and
the Plaintiffs’ clear willingness to comply, revealing a lack of intent to engage in a fair, good faith process to
resolve the dispute.
5. Use of Litigation to Delay and Preclude Legitimate Claims: Bad faith litigation can often manifest in the
strategic delay or suppression of claims, and that is precisely what the insurance companies seek here.
Rather than proceeding on the merits of Plaintiffs’ claims, the insurance companies’ motion seeks to
eliminate them on a technicality, imposing delays that deprive Plaintiffs of a timely and fair resolution.
Plaintiffs have alleged, and the insurance company has not disputed, that Weathermaster Building Products, Inc worked on the home and that Plaintiffs suffered damages due to construction defects. Instead of
responding to these substantive allegations, the insurance company’s motion seeks to delay the proceedings to deny Plaintiffs their rightful opportunity to pursue these claims.
6. Improper Attempts to Impose Attorney’s Fees and Sanctions: The insurance companies’ motion also
attempts to use the threat of attorneys’ fees and costs as a deterrent to Plaintiffs’ valid claims, despite the
lack of any clear and convincing evidence to justify such sanctions. This motion, aimed at imposing
financial burdens on Plaintiffs and their counsel, reflects an improper attempt to weaponize legal costs as a
form of intimidation, rather than a legitimate legal defense. Florida case law establishes that the imposition
of attorneys’ fees and costs is only appropriate where a claim is patently frivolous or pursued in bad
faith—neither of which applies here, given the merits of Plaintiffs’ claims.
7. Failure to Engage in Meaningful Settlement Discussions: Plaintiffs have taken reasonable steps to
resolve the matter amicably, including an offer to stay proceedings to comply with procedural
requirements. However, the insurance companies’ refusal to consider a stay or engage in any meaningful
settlement discussions underscores a strategy of bad faith, aimed solely at using the legal process to
exhaust Plaintiffs’ resources and eliminate their claims. Courts have held that bad faith in litigation includes
a refusal to engage in good faith settlement discussions when the facts warrant it. Florida Rule of Civil
Procedure 1.351(f) allows for independent actions to obtain necessary documents before advancing
litigation. Plaintiffs utilized this rule to identify subcontractors involved in constructing their home, and
multiple courts have upheld this procedural approach as compliant. The insurance company’s opposition to
this legitimate discovery effort and attempt to dismiss the case without addressing the underlying facts
reveal a pattern of bad faith.
8. Unwarranted Pursuit of the Ultimate Sanction of Dismissal: Courts have consistently held that dismissal
is a last-resort sanction, reserved only for extreme circumstances involving deliberate and contumacious
conduct. The insurance companies have presented no evidence of willful misconduct by Plaintiffs or their
counsel. The motion to dismiss, therefore, is an attempt to impose the ultimate sanction without basis,
contrary to Florida’s judicial standards for proportionality in sanctions. This misuse of dismissal as a
litigation tactic exemplifies the insurance company’s disregard for the fair administration of justice, as well
as a calculated effort to prevent adjudication of Plaintiffs’ valid claims.
Conclusion
In summary, the insurance companies’ motion to dismiss epitomizes a bad faith litigation strategy by
seeking dismissal on procedural grounds rather than addressing the substantive issues at hand. This
approach is an attempt to evade accountability, delay the adjudication process, and impose unnecessary
financial burdens on Plaintiffs. The insurance companies’ refusal to consider a stay, engage in discovery, or
address Plaintiffs’ claims on the merits highlights a strategy of bad faith that is incompatible with Florida’s
legal principles and the duty to act in good faith.
If the insurance company attorneys would stop blocking a full evidentiary hearing on their aforementioned
bad faith motion, it will clearly establish all of the following facts to be true. In our scenario we certainly
acted in good faith by initially naming Charles Fry Inc. as a defendant under Florida Rule of Civil Procedure
1.351(f), as our intent was not to mislead or engage in baseless litigation but to obtain records necessary to
identify the subcontractors involved in the project. Based on the information provided, our approach fits the
purpose of Rule 1.351(f), which allows for the production of documents and things from a non-party without
a deposition in a distinct separate action. Every subcontractor we named in the amended complaint worked
on the project, and we had a reasonable basis to believe they caused damage to the property, either
through their negligence or by violating the Florida Building Code. Only parties who worked on the project
were ever served, thus avoiding an uninvolved party incurring unnecessary litigation costs.
Our actions in filing the lawsuit under Florida Rule of Civil Procedure 1.351(f), especially in light of the
changes brought about by Senate Bill 360 and Florida Statute 558, were clearly taken in good faith. Here’s a
detailed summary of why our actions were reasonable, necessary, and compliant with the legal framework,
given the circumstances.
1. Urgency Due to Statutory Changes:
With the Senate Bill 360 amendment reducing the statute of repose for construction defect claims from 10
years to 7 years, homeowners with homes built between 2014 and 2017 were compelled to file their claims
by July 1, 2024. We faced a significantly compressed timeframe within which to act that could have
detrimental impacts to several of our clients.
• Good Faith Filing: To protect our clients' rights before the statute of repose expired, we needed to file the
lawsuits promptly. Delaying the filing could have resulted in our clients' claims being time-barred. This
urgency to file was legally necessary, demonstrating good faith in ensuring that their claims were not
extinguished by the new, restrictive deadline.
2. Strategic Use of Rule 1.351(f):
Given the urgency imposed by the statutory changes, filing under Rule 1.351(f) was a strategic and
necessary discovery mechanism to identify the relevant subcontractors. The statute Florida Statute
558.004(d) explicitly states that a notice of claim does not toll the statute of repose. Therefore, waiting for
pre-suit discovery without filing would have jeopardized our clients’ claims. Naming Charles Fry Inc.:
Choosing Charles Fry Inc. as the initial defendant in this case was justified based
on our reasonable belief that they had a preferred vendor contract with the builder that built our clients’
home in this matter, and that Charles Fry Inc. worked specifically on the Plaintiffs’ home, Our plan to
identify the correct subcontractors through discovery and later amend the complaint shows reasonable diligence and adherence to the good faith discovery process without risking the statutory deadline and
preserve our clients’ claims. As a point of fact, a present Google search still shows Charles Fry Inc. is listed
as a construction company engaged primarily in new home construction. This business operates within the
"Construction - Special Trade Contractors" sector. The company's address is reported as 4688 Rummell Rd,
Saint Cloud, Florida. Additionally, records suggest the company has been operational for approximately 25
years, having been founded in 1999. Current estimates show an annual revenue of $212,808 in 2024, with
three employees, including the individual Charles Fry, at a single location. At no point in our research did
any records or business listings indicate that Charles Fry had passed away. Moreover, In 2021, the case
"Echevarria, Felix J. vs. Maronda Homes LLC of Florida, F/K/A Maronda Homes" was filed in Osceola
County within the Ninth Judicial Circuit of Florida, and Charles Fry Inc. was named and served as a
defendant. Moreover in 2019, "MARONDA HOMES INC OF FLORIDA VS CHARLES FRY INC Et Al" was filed.
The case involves a property construction defect lawsuit filed on July 24, 2019, where Maronda Homes Inc.
of Florida again sued Charles Fry Inc. Therefore, trying to paint the naming of Charles Fry Inc. in the initial
complaint as a sinister, nefarious act is gaslighting the entire civil justice system on behalf of the insurance
company’s bad faith litigation objectives.
3. Amending the Complaint:
If we received confirmation that Charles Fry Inc. had no involvement in the specific project, we took
appropriate steps by amending the complaint to include only the relevant subcontractors. Amending the
complaint when additional or different information becomes available is a standard and acceptable legal
practice. It underscores our intent to correct any initial uncertainty rather than proceed with a baseless
claim.
We carefully avoided serving Charles Fry Inc. until we could verify whether they were involved in the
project, ensuring that no unnecessary legal or financial obligations were triggered for the company. This
demonstrates our caution and diligence in not activating those agreements prematurely.
4. Necessity of Immediate Action:
Due to the shortened statute of repose, this action was not only reasonable but also legally required to
preserve our clients' rights. Failing to file the lawsuit promptly could have resulted in our clients' claims
being permanently barred.
• Timeliness: By filing the lawsuit within the statutory period and then taking steps to identify the correct
subcontractors, we were complying with both the new legal requirements and procedural rules. This further
demonstrates that the filing of the lawsuit was done in good faith to ensure that the claims were adjudicated
on the merits, rather than lost due to technicalities.
5. Impact on the judicial and private resources of taxpayers and small businesses:
In Florida, directly suing subcontractors rather than the general contractor offers significant advantages for
both homeowners and subcontractors, particularly in the context of increasing repair costs due to inflation.
Here are the key points:
Avoidance of Legal Defense Costs: When homeowners sue general contractors, the general contractor
shifts the duty to defend and associated costs to the subcontractors through duty to defend, indemnity
agreements, and insurance clauses. This requires subcontractors to cover not only their own legal fees but
also the general contractor’s defense, leading to inflated legal costs. Directly suing the subcontractors
eliminates the need for these costly layers of defense, allowing for a more efficient use of financial
resources and the resources of the judiciary. In 2021, the case "Echevarria, Felix J. vs. Maronda Homes LLC
of Florida, F/K/A Maronda Homes" was filed in Osceola County within the Ninth Judicial Circuit of Florida.
This property construction defect lawsuit was initiated by Felix J. Echevarria on September 15, 2021 against
Maronda Homes LLC of Florida. The core of the case involved construction defects on a property built by
Maronda Homes, and the plaintiff sought compensation for issues allegedly caused by faulty construction.
As is common in such cases, Maronda Homes named and served Charles Fry, Inc. as a third party
defendant, and invoked the duty to defend and additional insured provisions in their subcontracting
agreements. These provisions required Charles Fry Inc. and other subcontractors to step in and defend
Maronda Homes against claims related to their scope of work by the Plaintiffs, pay their own legal fees as
third party defendants, and any damages awarded to the initial Plaintiffs. This effectively shifted the burden
of defense costs and potential liability to Charles Fry Inc., along with other subcontractors involved in the
project. Keep in mind this was a case initiated in September of 2021. Moreover in 2019, "MARONDA HOMES
INC OF FLORIDA VS CHARLES FRY INC Et Al" was filed. The case involves a property construction defect
lawsuit filed on July 24, 2019, where Maronda Homes Inc. of Florida again sued Charles Fry Inc. and other
subcontractors, such as Coverall Aluminum Inc. and JROD Plastering LLC. The case was filed in Marion
County - Fifth Judicial Circuit Court.
More Equitable Settlements: In cases where the subcontractor is sued directly, the homeowner receives a
greater portion of the settlement. Without the general contractor’s legal fees consuming significant funds,
more money is available for home repairs and compensation, which is particularly important given the
rising costs due to inflation.
Subcontractor Benefits: By bypassing the general contractor, subcontractors avoid paying for the general
contractor’s defense costs. This streamlining of legal responsibilities leads to less complex litigation and
often results in lower total legal expenses. The cost savings can be directed towards better settlements and
more substantial home repairs for the homeowners, creating a win-win situation for all parties. This approach minimizes unnecessary legal fees and fosters more practical, financially sustainable
solutions for addressing construction defects in Florida. This approach demonstrates good faith and a
people first approach to litigation. It ultimately relieves the burden on Florida Courts.
5. Remedy for Noncompliance: Stay, Not Dismissal:
Under Florida Statute 558.003, the statutory remedy for failure to provide a pre-suit notice is a stay of
proceedings, not dismissal. This statute explicitly states that a claimant cannot proceed with an action until
the notice requirements are fulfilled, but the remedy is to pause the case until compliance is achieved, not
to penalize the claimant through dismissal.
• Case Law Support: In Gindel v. Centex Homes, 272 So. 3d 417 (Fla. 4th DCA 2019) and Altman Contractors,
Inc. v. Crum & Forster Specialty Insurance Co., 232 So. 3d 273, courts made it clear that the appropriate
remedy for noncompliance is a stay, not dismissal. This precedent further reinforces that your filing, even if
there was a pre-suit notice issue, should not lead to a dismissal, as long as you took steps to rectify the
situation and comply with Chapter 558.
6. Willingness to Stay the Proceedings:
We demonstrated good faith by offering to stay the proceedings to comply with Chapter 558's requirements.
Our proactive approach to remedy any procedural issues demonstrates that our primary objective was to
follow statutory protocols while ensuring that our clients' claims were preserved.
7. No Basis for Dismissal:
Based on the statutory language, Florida Statute 558.003, and supporting case law, dismissal for failure to
comply with pre-suit notice requirements is not supported. Courts have consistently ruled that the remedy
for noncompliance is a stay to allow the claimant time to meet the statutory requirements.
• Corrective Actions: Our immediate steps to propose a stay and later amend the complaint reflect good
faith efforts to comply with the procedural framework. These actions demonstrate that we were not
circumventing the statute but were working within the framework to ensure compliance.
Conclusion:
Our actions were fully aligned with good faith efforts under the statutory framework. The statutory changes
imposed by Senate Bill 360 created an urgency that required us to act quickly for our clients, and Florida
Statute 558 outlines that the remedy for noncompliance is a stay, not dismissal. We balanced the need to
protect our clients' rights with the statutory requirements, taking corrective steps as necessary to ensure
procedural compliance. Any assertion of bad faith or grounds for dismissal fails to account for the legal
landscape and our diligent efforts to comply with both the statute of repose and Chapter 558.
This comprehensive analysis shows that our actions, including naming Charles Fry Inc., filing under Rule
1.351(f), and offering to stay proceedings, were in good faith and consistent with Florida's statutory
framework, case law, and the best interest of our clients and the court.
This hostile attitude adopted by the insurer's counsel has turned an already difficult time for the Claimants
into a tumultuous, drawn-out process. As this claim progresses through litigation, it should be kept in mind
that the Claimants simply wanted to be compensated for the requisite repairs due to the improvident
damage to their home and property caused by the insurer's insured, Weathermaster Building Products, Inc
The insurer's actions amount to, but are not limited to, the following:
Failure to defend its insured ethically
Claim Delay
Not treating the claimants with good faith claims conduct
Looking for ways to reduce recovery to the claimants
Looking for ways to delay recovery to the claimants
Failing to provide a certified policy within thirty (30) days of written request
Failing to implement standards for the adjustment and investigation of claims
Not training, supervising, or managing adjusters properly so that good faith claims adjusting occurs, but
rather placing the company’s interest before that of the claimant
Failure to settle the claim when the duty to do so became reasonably clear
Therefore, to cure the defects outlined in this Civil Remedy Notice, the insurer must:
Step in and defend its insured with a different adjuster who is not carrying personal malice towards the
claimants' attorney
Admit full coverage for the Claimants’ loss.
Tender all amounts due and owing for the claim.
|
|
|
*
|
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
|