Filing Number: 794275
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| Filing Accepted: 11/26/2024 |
| Last/Business Name
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AAPEX HOLDINGS, LLC
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First Name |
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| Street Address
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6201 CHERRY STREET |
| City, State Zip
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PANAMA CITY,
FL
32404
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| Email Address
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VERNK0007@GMAIL.COM |
| Complainant Type:
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Insured |
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| Last/Business Name* |
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HANCOCK WHITNEY BANK/ AAPEX HOLDINGS, LLC |
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First Name |
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| Policy # * |
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LLB0063939 |
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Claim #* |
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652105 |
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Attorney is Applicable
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| Last Name* |
EROSS
First Name *
THOMAS
Initial
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| Street Address* |
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210 EAST FORSYTH STREET |
| City, State Zip* |
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JACKSONVILLE
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FLORIDA
32202
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| Email Address * |
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TEROSS@DGINSLAW.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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UNDERWRITERS AT LLOYD'S, LONDON
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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 |
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| Name of individual responsible for violation (if any):*
DORA SOTO
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| Type of Insurance
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Commercial 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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Unsatisfactory Settlement Offer
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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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| 626.9541(1)(i)(3)(e) |
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Failing to affirm or deny full or partial coverage of claims, and, as to partial coverage, the dollar amount or extent of coverage, or failing to provide a written statement that the claim is being investigated, upon the written request of the insured within 30 days after proof-of-loss statements have been completed.
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| 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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Specific policy language that is relevant to the violation.
Enter all words or phrases (one at a time) that should be used to filter.
Dwelling Property: Coverage A- Dwelling: We Cover: a. the dwelling on the described location shown in Declarations, used principally for dwelling purposes, including structures attached to the dwelling.
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.
Coverage C- Personal Property: We cover personal property, usual to the occupancy as a dwelling and owned or used by you or members of your familar residing with you while it on the described location.
Coverage A and B- Perils Insured Against: Section 1: We insure against risk against the direct physical loss to the properties described in Coverages A and B.
Coverage C- Personal Property: We insure for direct physical loss to the property described in Coverage C by a peril listed below... 2. windstorm or hail.
E. Loss Settlement Provision
G. Appraisal: If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent and impartial appraiser within 20 days (about 3 weeks) 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: 1. Pay its own appraiser; and 2. Bear the other expenses of the appraisal and umpire equally.
N. Mortgage Clause: 1. If a mortgagee is named in this policy, any loss payable under Coverage A or B will be paid to the mortgagee and you, as interests appear. If more than one mortgagee is named, the order of payment will be the same as the order of precedence of the mortgages
Commercial Property:
A. Coverage: 1. Covered Property: a. Building, meaning the building or structure described in the Declarations.... 4. Personal property that is owned by you that is used to maintain or service the building or structure or its premises.
3. Covered Causes of Loss: d. Windstorm or Hailstorm.
G: Loss Conditions: 2. Appraisal: If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent and impartial appraiser within 20 days (about 3 weeks) 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: 1. Pay its own appraiser; and 2. 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.
I. Under Florida Law, specifically, Fla. Stat. Ann. § 626.9541(j), insurers are required to create and implement adequate guidelines for proper investigation and evaluation of claims and for training and supervision of employees or agents.
II. Insurer has breached this duty by its adjustment of the subject claim and loss. Insurer has failed to create and implement such guidelines resulting in multiple statutory violations of Fla. Stat. Ann. § 624.155 including, but not limited to “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; Fla. Stat. Ann. § 624.155.”
III. Insurer has failed and/or refused to thoroughly, accurately, and completely investigate and evaluate the insured’s insurance claim for damages based on all available information and has instead ignored relevant and obvious information that would show that it’s adjustment and determinations as to the amounts owed are incorrect and inadequate to indemnify its insured.
IV. To date, notwithstanding the insured’s pleas, Insurer has continued to refuse to acknowledge its’ obligation to tender all monies due and owing the insured, and fully assist the insureds in the mitigation of their damages.
V. The “Insured,” Aapex Holdings LLC, received a forced placed insurance policy through Hancock Whitney Bank. Aapex Holdings LLC has an insurable interest through the policy as owner of the subject property and thus is still considered an “Insured” for the purposes of the Civil Remedies Notice. Aapex Holdings LLC also has an insurable interest in any proceeds paid to the mortgagee from the insurance claim that exceed the lien on the Property.
VI. The insured’s property at 6201 Cherry St, Panama City, Florida 32404 was damaged on or about September 14, 2020, due to sudden and intense storm activity, while the Policy was in full force and effect.
VII. The Insurer agreed to insure the Property in April of 2020 at Policy inception.
VIII. Storm damage is undisputedly covered under the relevant insurance policy and is evident from perusal of the Policy. Pursuant to the Policy SECTION I – PERILS INSURED AGAINST), storm damage is not excluded in the list of exclusions and the relevant portion of the policy reproduced herein below provides coverage:
“We insure against risk of direct loss to the property described in Coverages A and B on if that loss is a physical loss to the property.”
IX. In September 2020, the Insured notified the Insurer and filed a claim pursuant to the terms and conditions of the insurance policy that a storm loss had occurred and that there was a direct physical loss to the property. The defendant acknowledged and assigned it the claim number 652105
X. Insurer has breached its duty to indemnify the Insured in good faith by its bad faith refusal to adjust the claim and pay indemnity for the covered peril and loss of use.
XI. The insurer has not conducted a good faith investigation of the claim and failed to arrive at a coverage determination on the claim after over four years.
XII. Despite the above, the insureds were forced to obtain legal representation to protect their interests. Accordingly, David Graham Insurance Lawyers, P.A. (“DGIL”) sent its letter of representation and demand for documents on July 8, 2021.
XIII. On January 26, 2022, over one year after the damage to the insured’s property, the Insurer made payment on this damage claim in the amount of $6,107.61 which amount is grossly inadequate to repair or remediate the damage to the insured’s property.
XIV. Insurer failed to comply with the terms of the insurance policy they issued to the insured. On February 2, 2023, the insured requested appraisal. The insurer denied this request in a letter dated February 17, 2023 claiming they did not have a duty to comply with the request.
XV. Insurer’s failure to make a proper coverage determination or even consider the Insured’s request for alternative dispute resolution is considered to be bad faith acts under Florida law. The insurer maintains a duty to resolve the claim in good faith under Florida law. Fla. Stat. Ann. § 624.155(5(a). The delay of the insurer has led to an increase in damage to the insured’s property.
XVI. Insured has fully complied with the policy following the loss by cooperating with the insurer and its agents.
XVII. The insured has performed all conditions precedent, and everything legally requested by Insurer to date including open access to the damaged property. The insured, by and through its attorney, made repeated demands upon Insurer, through the Defendant’s adjusters to pay for the damages. The demands were refused until such time as the time periods referred to in Florida Statute § 624.155 had expired.
XVIII. The insurer has thwarted the insured at every turn and every corner. It has done nothing but place obstructions and obstacles on the path to claim resolution by inter alia an aggressive and unethical litigation strategy designed to annoy, harass, and vex the insured. The insurer misrepresented to the insured that it had performed a full and fair investigation and adjustment of the claim at that time and misrepresented that the amounts offered were the full value of the indemnity owed under the provisions of the insurance policy.
XIX. To cure the violations set forth in this civil remedy notice, Insurer must now acknowledge its duties and obligations under the law in adjusting the insured’s claim and tender the insurance benefits legally due under the policy and necessary to return the insured to pre-loss condition.
XX. Per the Court in Bos. Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980)
“Insurance” is a contract whereby one undertakes to indemnify another or pay or allow specified amount or a determinable benefit upon determinable contingencies. Inherent in this contract is an implied covenant of good faith which requires that payment must be made timely and promptly to allow the insured to mitigate his damages and to put him back into the position he was in prior to loss as quickly as possible.
Insurer breached this duty by failing to conduct a good faith investigation and settlement of claims and speedy disbursal of benefits to restore status quo ante the damage from the windstorm.
XXI. The insured was and still is forced to expend out of pocket monies to submit the insurance claim, e.g., completing repairs to mitigate further damage, retaining experts, and legal counsel, to force the insurer to honor its obligations under the insurance policy and to pay all the insurance proceeds due and owing the insureds.
XXII. The Bad Faith actions of the Insurer have caused the Insured to be forced to pay the lien amount of a non-performing loan while also having to pay the costs of repairs to the damages as the result of the storm.
XXIII. Insurer has refused and/or failed to tender all insurance proceeds to the insured upon demand. Insurer's refusal and/or failure to settle the insurance claim when under all circumstances it could have and should have done so had it acted fairly and honestly towards the insured is wrongful conduct. The insured contends that Insurer has financially benefited from its improper withholding of due and owing insurance proceeds by profiting from the "float".
XXIV. The insured contends that Insurer's adjusters and/or representatives financially benefit by such unfair trade practices as a part of Insurer's general business practices. Furthermore, the insured contends that Insurer pressures its agents and/or representatives, through financial incentives, to look for reasons to underpay or deny claims instead of fulfilling their obligations to do the opposite as a general business practice.
XXV. This notice is given in order to perfect the right to pursue the civil remedy authorized by Florida statute, including any and all bad faith/extra contractual, should Insurer fail to cure the violations set forth in this civil remedy notice within the given cure period. The insured also intends to seek punitive damages against Insurer as it appears that Insurer's violations occur with such frequency as to evidence a general business practice and the violations were willful, wanton and malicious and were in reckless disregard for the rights of the insured.
XXVI. As evidenced by the amounts paid by the Insureds, the defects in this notice can be cured by the Insurer tendering $350,000.00 which represents the repair out of pocket costs, loss of use, interest, attorneys’ fees, and costs.
XXVII. THEREFORE, TO CURE THE DEFECTS OUTLINED IN THIS CIVIL REMEDY NOTICE, INSURER MUST, IN ADDITION TO THE STEPS PREVIOUSLY NOTED, ALSO:
a. IMMEDIATELY TENDER ALL UNDISPUTED PROCEEDS TO ITS INSUREDS;
b. ACT FAIRLY AND HONESTLY TOWARDS THE INSUREDS, WITH DUE REGARD FOR THEIR INTERESTS AS INSURANCE COMPANY ATTEMPTS TO SETTLE THE INSUREDS’ CLAIM;
c. IMMEDIATELY, AND UNDER NO CIRCUMSTANCES LATER THAN SIXTY DAYS FROM THE DATE OF THIS CIVIL REMEDY NOTICE, TENDER $350,000.00 DUE AND OWING THE INSUREDS;
d. ENSURE THAT PAYMENT MADE WOULD BE ADEQUATE TO PLACE INSUREDS BACK IN THEIR PRE-LOSS CONDITION, MINUS ALL APPROPRIATELY APPLICABLE DEDUCTIBLES; AND
e. RESPOND IN A TIMELY AND REASONABLE FASHION TO CORRESPONDENCE AND COMMUNICATIONS FROM THE INSUREDS AND THEIR REPRESENTATIVES THOUGHOUT THE PROCESSING OF THIS CLAIM.
XXVIII. SHOULD INSURER FAIL TO COMPLY WITH THE DEMANDS SET FORTH IN THIS CIVIL REMEDY NOTICE, IT MUST BE PREPARED TO PAY THE FULL COST OF ITS FAILURE TO RIGHTFULLY INDEMNIFY THE INSUREDS, INCLUDING ALL FUTURE DAMAGES THAT COME ABOUT AS A RESULT OF ITS FAILURE TO COMPLY WITH THE DEMANDS SET FORTH IN THIS CIVIL REMEDY NOTICE.
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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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