Filing Number: 794862
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| Filing Accepted: 12/2/2024 |
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RICHARD J. WOJTUKIEWICZ AND JESSICA WOJTUKIEWICZ
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First Name |
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11974 PRINCE CHARLES CT |
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CAPE CORAL,
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33991
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| Email Address
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EBROOKSHER@KPATTORNEY.COM |
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Insured |
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| Last/Business Name* |
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RICHARD J. WOJTUKIEWICZ AND JESSICA WOJTUKIEWICZ |
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First Name |
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| Policy # * |
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ARK143723 |
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Claim #* |
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1104456-221013 |
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Attorney is Applicable
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| Last Name* |
WILKES
First Name *
LEVI
Initial
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925 FEDERAL HWY |
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BOCA RATON
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FL
33432
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LWILKES@KPATTORNEY.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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ASI PREFERRED INSURANCE CORP.
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,
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NAIC Company Code 13142 |
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| Name of individual responsible for violation (if any):*
CLAIMS DEPARTMENT
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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 Delay
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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)(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)(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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Specific policy language that is relevant to the violation.
Enter all words or phrases (one at a time) that should be used to filter.
Loss settlement provisions
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Facts and circumstances giving rise to the violation.
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The carrier has not attempted in good faith to settle the insured’s claim 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 their interests. The carrier has done everything possible to delay the claim and refuses to pay the complete covered loss amount due under the policy. Furthermore, the carrier is required to properly investigate and adjust claims and cannot place that burden upon the insured. This was made clear by the appellate court and the Florida Supreme Court in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005)(“The Legislature has clearly chosen to impose on the insurance companies a duty to use good faith and fair dealing in processing and litigating the claims of their insureds…”).
I. Background
Hurricane Ian struck Plaintiff’s property devastating the property and uprooting the Insureds way of life for a time. The Insureds reported damages to the Carrier shortly after Hurricane Ian. The Property lost power which played an role in the improper investigation undertaken by the carrier’s agents.
On October 11, 2022, the field adjuster for Defendant inspected the Property. The original determination made by the Carrier on October 13, 2022, was below the hurricane deductible, and valued at only $1,596.77, as determined by its field adjuster Jeff Connelly. The transcript of Jeff Connelly paints a grim picture for the relationship between Connelly, his employer IAS and ASI which calls into question not only the underlying case but many others on the “neutrality” of these so call independent adjusting firms.
In any event, damages stemmed beyond the roof were not properly scoped either as Connelly only inspected from ground level the exterior leaving out apparent damages to stucco and glass doors effected by the Hurricane. The Insureds and its agents continued to go back with ASI which resulted in a second coverage letter on January 10, 2023. On that day a Ms. Briana Freeman issued a coverage decision based on an estimate, dated December 6, 2022, created by a Ms. Shirley Powell an individual who did not even inspect the property. Powell did allocate for a roof replacement however the roof measurement were not correct—likely because she did not inspect. Furthermore, the depreciation withheld by the insured had no basis under the insurance policy as the Policy fails to provide a definition or formula for depreciation. The carrier failed to do any investigation as to the valuation and condition of the property prior to Ian. The coverage decision furthermore had no allocation for the other exterior and interior damages sustained due to Ian.
a. Presuit Offer
On March 15, 2023, prior to initiating litigation the Plaintiff fulfilled its statutory requirement by providing the Defendant with the opportunity to resolve all liabilities in regards to the claim (including bad faith) for $105,505.00. In response the Defendant made a single offer—not an undisputed payment—of only $21,246.19 to resolve all damages incurred.
II. Conduct of Carrier
The conduct of the Carrier and its agents in this case have put the Insured at a severe deficit and disadvantage regarding a policy which was meant to cover them and their property for this exact scenario—a devasting and memorable Hurricane for the state of Florida.
During the litigation process intentional delay and concealment of evidence with regards to the claim process ensued and prejudiced the Insured in the prosecution of its case including the late disclosure of expert opinions and concealment of documents created by its adjusters whom the coverage decision was based on. More than two-year have passed since the original date of loss. The carrier has still refused to pay the fully covered amount owed under the policy; has even refused to pay undisputed losses (as identified by its own pricing expert. The carrier is aware of damage sustained by the insured’s property and has not taken any meaningful ensuing action on the known covered loss.
The deposition taken of the Carrier’s field adjuster reveals unfair patterns and practices by the Carrier in regards to its engagement of field adjusters including the use of outside, uneducated adjusters on Florida law, construction practices and norms. Field adjusting offices are hand picked to carry out a biased and predictable role for the carrier by going so far as running CLEs for the hand-picked companies on the way it wants its adjusters to act and inspect and estimate no matter how wrong the practice may be legally. The IA firms are furthermore understaffed for large scale events leading to cutting corners on thorough inspection (intentionally or unintentionally). The Carrier further layers delays and fault into the claim process by delegating that field adjusters cannot assess the discontinued nature of roof tiles and cannot make allocation for loss of use despite the dire circumstances of the Insured in these situations. Furthermore, its clear that multiple estimates, reports and draft estimates were completed on the claim yet the Carrier fails to explain why the estimate of damages changed and how the estimate arrives at the numbers it does.
During the litigation process it was furthermore learned that the field adjusters used incorrect roof measurements—not surprising given the adjuster did not inspect the property. After the carrier’s coverage decision and upon further investigation by the Insureds and their agents it was understood the carrier left out whole portions of damaged property at the home explained only by the fact that a cursory search only was conducted by Jeff Connelly. This omission of damages by Connelly and the subsequent desk adjuster leads to de facto denial given that their failure to identify the damages led to no money being allocated whatsoever. These issues became apparent by the inspection of Vincent Sciandra whose reports and finding were provided in discovery. Despite what should have been clear omissions by the carrier in its investigation it took no action to remediate and rectify.
During litigation it was also learned during deposition that the Carrier retained an expert, Dave Compton, whom it failed to provide its coverage determination and findings to Mr. Compton causing Mr. Compton to write a repair estimate for the roof despite the carrier already determining the roof required replacement. This omission from its own expert and the insistence to present opinions which contradict its own coverage decision are intentional and a bad faith means to leverage the Insureds into an unfair settlement. Mr. Compton furthermore testified to seeing and documenting much more damage than the field adjusters did on the claim and estimated the replacement cost value of the loss to be $104,880.88. Mr. Compton was not given instructions on how to apply depreciation under the policy nor did he read the policy but determined depreciation as $15,227.74 through a program and algorithm not authorized by the policy. This estimate included the amount for the roof system to be $76,697.97—a number almost double than the carrier’s adjuster wrote for replacement. Still yet, with its own experts estimate and opinion the carrier failed to make any payment for claim or petition to put such monies with the court.
III. Violations
The carrier’s actions are in violation of the Loss Settlement provision of the policy as well as the following Florida Statutes:
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.
The carrier has a pattern and practice of denying and underpaying Hurricane Ian claims to maximize profits and well as using improper leveraging tactics in order to have an insured settle for less than what is owed under the policy and their current damages. Even with its experts own opinion as to the amount of damages the Carrier did not make any gap payment or interest bearing on the deficiency admitted.
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.
Through both Pre-suit documents and post-suit discovery the Carrier knows full well that it failed to pay for all covered expenses, and monies owed under the Policy. Instead of acknowledging that fact in litigation and putting funds in court registry and admitting liability it continues to litigate in bad faith and contrary to its own agents’ opinions.
626.9541(1)(i)(3)(a): Failing to adopt and implement standards for the proper investigation of claims
This includes a lack of training on field adjusters and agents used by the carrier and the willingness to put agents with a lack of knowledge as to residential building methods in the line of duty.
626.9541(1)(i)(3)(b): Misrepresenting pertinent facts or insurance policy provisions relating to
coverages at issue.
The Carrier systematically unilaterally applies its own definition and formulas for depreciation which it fails to apply neutrally or consistently among its Florida clients. Upon information and belief, the carrier fails to put definitions and formulas into its policies so that it can underpay insureds and the insureds not have expressed language to point to in order to tell the Carrier their estimate was wrong. The carrier furthermore represents its policies and loss settlement provision do not require matching when Fla. Stat. 626.9744 mandates matching, which must be incorporated into the contract, and its own policy loss settlement provisions states it pays for “like construction, and use”.
Fla. Stat 626.9541 (i)(3)(a) Failing to adopt and implement standards for the proper investigation of claims
The deposition of field adjusters in this matter revealed that’s adjusters were not provided weather data and such data was not part of his rudimentary analysis in determining the integrity of the roof and roofing damages. A fundamental flaw and pattern and practice of the Carrier is to avoid determining accurate weather data for its agents and information regarding the building envelope as it might suggest or lead the adjuster to concerns that the roofing system was compromised due to wind thresholds being exceeded. Further adjusters, both field and desk, are ill-educated on Florida’s matching statute and how that applies to discontinued roofing tiles as such application would surely hurt the bottom-line profits of the Carrier. Despite knowing of Jeff Connelly’s poor performance and cursory review (evidenced by override by desk adjuster) it did not send new personnel to the home to inspect the home’s deck or windows or other portions of the property subject to the compromising wind speeds. The carrier furthermore blinding its experts and not providing documents which showed its coverage decision and the decision of binding agents before that expert is further evidence of bad practices (grossly negligent or intentional)
Fla. Stat 626.9541 (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
The deposition of field adjusters in this matter revealed that’s adjusters were not provided weather data and such data was not part of his rudimentary analysis in determining the integrity of the roof and roofing damages. A fundamental flaw and pattern and practice of the Carrier is to avoid determining accurate weather data for its agents and information regarding the building envelope as it might suggest or lead the adjuster to concerns that the roofing system was compromised due to wind thresholds being exceeded. Further adjusters, both field and desk, are ill-educated on Florida’s matching statute and how that applies to discontinued roofing tiles as such application would surely hurt the bottom-line profits of the Carrier. Despite knowing of Jeff Connelly’s poor performance and cursory review (evidenced by override by desk adjuster) it did not send new personnel to the home to inspect the home’s deck or windows or other portions of the property subject to the compromising wind speeds.
Fla. Stat 626.9541 (i)(j) failing to explain changes in estimates created by the carrier and provide those estimates to the Insured.
The Defendant’s privilege log outlines several draft reports, sketches of damage and estimates which the carrier failed to share with the Insured. These documents being created by persons who were relied upon in the adjustment of the claim on the insurance company and its agent creating issues of transparency and probable issues of misrepresentation.
The Carrier is clearly not treating the insured with good faith claims conduct (pre or post lawsuit); failing to pay a claim clearly owed; not adjusting the claim and evaluating the loss properly, promptly and fairly to provide full and prompt indemnity to the insured; failing to implement proper standards for the adjustment and investigation of claims by its adjusters and placing the company’s interests before the insured’s interests; refusing to pay the full amount owed to the insured despite the fact that the carrier has been on notice of the damages and looking for ways to delay full recovery or any recovery to the insured, when a reasonable carrier in a similar position would have tendered a full payment in accordance with both the policy language and statutory requirements. The carrier’s actions are in violation of Florida Statutes §§ 624.155(1)(b)(1), 624.155(1)(b)(3), 626.9541(1)(i)(3)(a); 626.9541(1)(i)(3)(b), 626.9541(1)(i)(3)(c) and 626.9541(1)(i)(3)(f), as well as Section I- Perils Insured Against, subsection 1, providing coverage for direct loss to property unless the damage was caused solely by an excluded or excepted cause of loss; and the loss payment provision under Section I- Conditions requiring payment of a claim within 90 days.
All the aforementioned are part of what appears to be an ongoing pattern and practice of behavior of the carrier that it demonstrates a wanton and reckless disregard for the insureds’ rights and a pattern and practice of bad faith claims practices to its insureds across the state of Florida. Therefore, to cure the defects outlined in this Civil Remedy Notice, the carrier must: 1.) Pay the complete covered loss in the amount of $193,482.50, less any cashed prior payments and less the applicable policy deductible; and 2.) Pay the statutory interest on the amount of unpaid damages from the date of loss to the date payment is finally made as required under chapter 627 of the Florida Statutes and 3) Agree to pay the reasonable attorney’s fees and expenses incurred the Insureds current and pending lawsuit. A copy of this letter and filed form submitted to the FDFS has been sent to the carrier.
Please do not hesitate to contact the undersigned or Paula Souza at (561)-892-9748 if you have any questions or concerns.
Sincerely,
Levi Wilkes
Attorney at Law
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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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