Civil Remedy Notice of Insurer Violations
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Filing Number:     795305
Filing Accepted:  12/4/2024
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Complainant
Last/Business Name *  
FERNANDEZ   First Name   MARLENE
Street Address * 1863 SE NORTH BUTTONWOOD DRIVE
City, State Zip * PORT ST. LUCIE, FL 34952
Email Address * MARLENEFERNANDEZ134@GMAIL.COM
Complainant Type: * Insured
Insured
Last/Business Name*   FERNANDEZ   First Name   MARLENE
Policy # * 6784897037 Claim #* 01000110047
Attorney
Attorney is Applicable
Last Name* VELMOSKY First Name * AARON Initial M
Street Address* 800 EAST BROWARD BLVD, SUITE 501
City, State Zip* FT. LAUDERDALE , FL 33301
Email Address * AV@WEKLAW.COM
Violation
Insurer Type *   Authorized Insurer Unauthorized Insurer
 
Insurer Name*   FIRST PROTECTIVE INSURANCE COMPANY
NAIC Company Code 10897
 
Name of individual responsible for violation (if any):* JEFF LANSPERY
Type of Insurance * Residential Property & Casualty   
Reason for Notice *
Claim Denial
Unsatisfactory Settlement Offer
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.
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)(b) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue.
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.
* Specific policy language that is relevant to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

Section I - Perils Insured Against, 2.c.(5) Repeated seepage or leakage Section I, Exclusions, A. 12. Repeated seepage or leakage; Section I - Conditions - 1.a.Give immediate notice to us or your agent;
 
* Facts and circumstances giving rise to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

Marlene Fernandez (the "Insured") purchased an insurance policy ("Policy") from First Protective Insurance Company ("FRONTLINE"), with effective coverage on the date of the loss, on or about November 9, 2022, and policy number 6784897037 to insure her home located at 1863 SE North Buttonwood Drive, Port St. Lucie, FL 34952 (the "Property"). On or about November 9, 2022, the aforementioned Property suffered severe damage to its roofing system a result of Hurricane Nicole (“the Loss”). To aid in the presentation of the claim to FRONTLINE, the Insured retained Five Star Claims Adjusting (“FIVE STAR”) as her public adjuster to assist in the evaluation of damage to the Property, in part due to a language barrier. FIVE STAR inspected the Property, assessed the observed damage and generated an estimate necessary to repair the damage arising from the Loss. Thereafter, the FIVE STAR prepared an estimate in the sum of $69,156.68, which FIVE STAR sent to FRONTLINE along with a photographs depicting the water damage sustained to the bedroom, porch and laundry room. After the Loss had been sustained, the Insured retained Family First Mold & Water to perform services to dry out her property in the sum of $13,308.68. These services included the drilling of the kitchen cabinet toe kicks to permit the dry-out of the laundry room and bedroom. Family First also placed tarps on the roofing system at a cost of $21,027.73 and $22,224.40. FIVE STAR promptly reported the Loss to FRONTLINE. FRONTLINE acknowledged receipt of the claim by generating claim number 01000110047 on or about March 1, 2024. For reasons unknown to the Insured, FRONTLINE waited fifteen (15) days to send its field adjuster to inspect the insured property. At that time, the field adjuster was afforded an opportunity to inspect the sustained damage. Based upon his observations, FRONTLINE elected to conduct further investigation. Thereafter, the Insured retained Mold Alert to perform a mold assessment on March 22, 2024 at a cost of $2,750. Mold Alert detected the presence of mold in the kitchen and recommend the performance of mold remediation services therein. In light of the detection of mold, the Insured hired One Call Restoration to perform mold remediation services on or about April 4, 2024 in the sum of $8,666.27. On June 20, 2024, Frontline took the Insured’s examination under oath. Frontline took the examination under oath of the Insureds’ public adjuster a little over a month later on July 24, 2024. On August 16, 2024, the Insured filed a notice of intent to initiate litigation, seeking payment of the public adjuster’s estimate and for the mold invoice (the “Notice”). At that time the Notice was filed because the Insured had not been notified of the carrier’s coverage determination. Thereafter, the Insured received notice of FRONTLINE’s denial of coverage for the reported damage. In support, FRONTLINE represented that its representative’s inspection of the property revealed evidence of manual manipulated shingles, not wind, and alleged pre-loss repairs to the roofing system over the affected bedroom. FRONTLINE also concluded that the damage that had been observed was ongoing for a period of six months to a year. FRONTLINE further represented that its investigation was prejudiced due to the late reporting of the claim. FRONTLINE’s denial letter mentions the occurrence of the examination under oath of the Insured, but did not include any specific reference to her testimony therein, most specifically, her discovery of the damage. FRONTLINE conveniently overlooked the Insureds’ testimony that she was unaware of the damage until the end of February 2024 when she found some shingles on the ground. At that point, she contacted the public adjuster, who confirmed that there was damage to her roofing system that likely resulted from Hurricane Nicole. It was at that point in time that the Insured learned the cause and origin of the damage and confirmed that the shingles that she saw on the ground came from the roof. Her public adjuster reported the loss shortly thereafter on March 1, 2024. FRONTLINE’s denial of coverage is predicated upon vague language, which it drafted, that serves to preclude coverage for repeated seepage or leakage over a period of time. This language entails nearly each and every type of water loss because the term “period of time” is not defined. A period of time could be a second, day or millenia. Moreover, the leak conceivably be repeated to the extent that was is dripping during this unclear duration of time. It is not clear what type of loss this exclusion is meant to apply. The Insured contends that she was unaware of the leak until it was discovered and same persisted until it was fixed. Thus, it was an ongoing, non-repeated leak. For that reason, the Insured contends that FRONTLINE misapplied, in bad faith, this provision. Additionally, the Insured suspects, but is not certain, that FRONTLINE similarly misapplies this provision in an attempt to avoid paying otherwise valid insurance company, so as to constitute a business practice. By stating the above detailed facts, it is clear that FRONTLINE has violated 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 their interest; • 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) 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; or • 626.9541(1)(i)(3)(b) Failing to adopt and implement standards for the proper investigation of claims; • 626.9541(1)(i)(3)(f) Failing to promptly provide a reasonable explanation in writing to the Insured and/or their public adjuster of the basis in the insurance policy, in relation to the facts or applicable law, for the offer of a compromise settlement; To date, FRONTLINE has failed to accept and fully perform its obligations under the operable insurance contract. The Insured’s property remains in an unsafe condition because they have not been paid the necessary, covered insurance proceeds sufficient to return the Property to its pre-loss condition. As a direct result of FRONTLINE’s initial insufficient investigation and handling of the claim, deficient extension of coverage and subsequent breaches of not only the policy of insurance, but also Florida Statutes, the Insured had no choice other than to seek the help of licensed professionals to assist them, including, but not limited to a public adjuster and legal counsel. Considering the aforementioned conduct, it is irrefutable that FRONTLINE knowingly and intentionally, and in bad faith delays the claims process in order to further disadvantage the Insured. The financial detriment caused to the Insured is a direct result of FRONTLINE’s dismissive, reckless treatment of the claims process. The Insured submitted all available requested documents in their custody and control in a timely fashion, made her property available for inspection, sat for an examination under oath and submitted additional documentation in support of the insurance proceeds sought under her insurance contract. Nevertheless, FRONTLINE failed to properly assess this information and reach the logical conclusion resulting in its gross mismanagement of the claim. To deny the Insured the remaining benefits clearly due and owing under the Policy, for which she has time and time again been making premium payments for and after she satisfied all of her obligations is morally and ethically reprehensible, and reeks of Unfair Claims Practice and Bad Faith. Upon information and belief, the above identified actions taken by FRONTLINE, among others, were made so often as to constitute a general business practice, evidencing a motive to enhance FRONTLINE’s profits, and designed to cause a detrimental effect to its policyholders. This notice is given to perfect the right to pursue the civil remedy authorized by Section 624.155, Florida Statutes, should FRONTLINE fail to cure the violations set forth in this Civil Remedy Notice within the given cure period. Therefore, to cure the defects outlined in this Civil Remedy Notice, FRONTLINE must: (1) Immediately tender all proceeds due and owing to the Insured that are fairly owed to the Insured under the insurance policy that would reasonably compensate the Insured in order to put the loss property back to its pre-loss condition in the sum of $36,627.64; (2) Agree to reimburse the Insured for incurred mitigation services in the sum of $13,308.68; (3) Agree to reimburse the Insured for incurred mold assessment services in the sum of $43,252.13 (4) Agree to reimburse the Insured for incurred mold assessment services in the sum of $2,750.00; (5) Agree to reimburse the Insured for incurred mold remediation services in the sum of $8,666.27; (6) Agree to reimburse the Insured's reasonable attorneys’ fees and costs for having to become involved to resolve the claim; (7) Agree to reimburse the Insured for interest on the amount of benefits that was found to be due and owing to the Insured, relating back to the date of loss.
Comments
User Id Date Added Comment
alvarez@kdapa.com 01-30-2025 January 30, 2025 VIA ELECTRONIC FILING Florida Department of Financial Services Bureau of Consumer Assistance c/o: Civil Remedy Section Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0322 VIA EMAIL AV@WEKLAW.COM Aaron Velmosky Weisser Elazar & Kantor, PLLC 800 East Broward Blvd Suite 510 Fort Lauderdale, FL 33301 RE: Fernandez, M. v FirstPro Claim No. 01000110047 Policy No. 6784897037 DOL: 11/9/2022 (roof) Case No. 2024CA001669 DFS Filing No.: 795305 Dear Mr. Velmosky: We represent First Protective Insurance Company (hereinafter “FRONTLINE”) regarding the claim presented by the insured, Marlene Fernandez (hereinafter “Complainant”), for alleged damages sustained to the property located at 1863 SE North Buttonwood Dr Port St. Lucie, FL 34952-6968 (hereinafter the “subject property”), regarding a loss which allegedly occurred on or about November 9, 2022 regarding a Hurricane Nicole. On December 4, 2024, the DFS accepted the filing of a Civil Remedy Notice of Insurer Violation (hereinafter “CRN”), as submitted by the Complainant through their attorney under filing number 795305. This will serve as Frontline’s response to said CRN. Frontline welcomes the opportunity to respond to this Civil Remedy Notice and specifically denies each and every allegation contained in the CRN. The Civil Remedy Notice fails to comply with the specific notice and information requirements as set forth in Florida Statute §624.155 and Florida case law. Julien v. United Prop. & Cas. Ins. Co, 311 So.3d 875 (Fla. 4th DCA 2021). As a preliminary matter, Frontline notes that the proper purpose for submitting a valid CRN to the Florida Department of Financial Services, as set forth in Fla. Stat. § 624.155, is to provide detailed notice of specific, factually supported statutory bad faith violations along with an opportunity to cure any such violations. The proper purpose is not to dispute coverage decisions or estimates of covered damages. The instant CRN provided no specificity of any purported bad faith allegations and is deficient on its face. The CRN alleges that Frontline violated Florida Statute Sections 624.155(1)(b)(1), 624.155(1)(b)(3), 626.9541(1)(i)(3)(a), 626.9541(1)(i)(3)(b), and 626.9541(1)(i)(3)(f) as the basis for filing the instant notice. Frontline specifically denies that it has violated any of these sections and any other allegations of bad faith or improper claims handling in this matter. Frontline maintains that it has acted promptly, fairly and honestly with the insureds at all times in the handling of this claim. Further, many of the sections the Complainant cites to are wholly inapplicable to this matter on their face. Specifically, Frontline explicitly denies violation of any applicable Florida Statute in the evaluation and adjustment of the referenced claim. Frontline denies that it did not, in good faith, attempt to settle the claim and asserts that it acted fairly and honestly toward its insureds with due regard for their interests. Frontline denies that it failed 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. Frontline denies that it failed to adopt and implement standards for the proper investigation of claims. Frontline denies that it misrepresented pertinent facts or insurance policy provisions relating to coverages at issue. Frontline denies that it failed to promptly provide a reasonable explanation in writing to the insured for 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 CRN fails to comply with the very statute the Complainant is seeking to invoke. Contrary to the specific requirements of Section 624.155(3)(b)(4), the CRN fails to identify the specific policy language that is relevant to the purported violation(s). Section 624.155 states, in pertinent part, as follows: b. notice shall be on a form provided by the department and shall state with specificity the following information, and such other information as the department may require: 2. The facts and circumstances giving rise to the violation. 4. Reference to specific policy language that is relevant to the violation, if any. If the person bringing the civil action is a third party claimant, she or he shall not be required to reference the specific policy language if the authorized insurer has not provided a copy of the policy to the third party claimant pursuant to written request. § 624.155(3)(b)(2)&(4), Fla. Stat. (2015) [emphasis added]. Instead of citing actual facts and policy language, where the CRN form requires the Complainant to do so, the Complainant provides absolute zero recitation of the actual facts of this claim, omitting pertinent facts, and misstating others. This lackadaisical approach in completing a CRN not only is non-conforming to the requirements of Florida law, but it also fails to place Frontline on notice as to what the Complainant contends Frontline has or has not done to the insureds’ satisfaction. The CRN fails to provide any policy language in support of these allegations, nor does it provide how Frontline has violated any specific terms of the subject policy of insurance. Frontline also objects to the CRN, as it lacks sufficient specificity, as required by §624.155, Fla. Stat., in addition to other defects. As filed, the CRN fails to accurately and specifically describe the facts and circumstances of Frontline’s alleged statutory violation. Instead, the insured’s recitation of “facts” presents mere conclusory statements and offers no support as to the acts and/or omissions purportedly taken by Frontline which substantiate the insureds’ allegations. The Insured’s assertions are vague, baseless, and contrary to Florida law. Furthermore, the allegations contain sweeping summaries of conversations that purportedly occurred without any support for the same. Section 624.155(2)(d) “requires that the civil remedy notice state with specificity the facts and circumstances giving rise to the violation.” Lane v. Westfield Ins. Co., 862 So.2d 774, 778 (5th DCA 2003). The purpose of a civil remedy notice is to give the insurer one last chance to settle a claim with the Insured, and not to give the Insured a right of action to proceed against the Insurer. Lane, 862 So.2d at 779; see also Talat Enterprises, Inc. v. Aetna Casualty & Surety Co., 952 F.Supp. 773 (M.D. Fla. 1997) (holding that a claimant must give the Florida Department of Insurance and the insurer sixty days written notice of a violation so that the insurer may cure any violation) and Julien v. United Prop. & Cas. Ins. Co., 46 Fla. L. Weekly D486 (Fla. 4th DCA March 3, 2021). Without such notice, Frontline is unable to cure any alleged defect, if warranted. Instead of citing actual facts and policy language, where the CRN form requires the Complainants to do so, the Complainants provides a vague, inaccurate, and misleading recitation of the facts of this claim, omitting pertinent facts, and misstating others. This approach in completing a CRN is not only non-conforming to the requirements of Florida law, but it also fails to place Frontline on notice as to what the Complainants contend Frontline has or has not done to the insured’s satisfaction. Stripped of its purpose to give Frontline notice of potentially applicable cures, the CRN is entirely deficient with respect to the explicit requirements of Section 624.155, and should be rejected as being non-compliant with the statute. Due to the lack of specificity and other defects, the CRN is invalid and cannot serve as a condition precedent to any action for alleged bad faith under §624.155, Fla. Stat., or otherwise under Florida law. The Complainant indicates in the CRN that the reason for the notice is due to unfair trade practice, claim denial, claim delay, not treating the policyholder with good faith claims conduct, looking for ways to deny full recovery to the insureds, looking for ways to delay full recovery to the insureds, not training, supervising, or managing adjusters properly so that prompt and full payments are made, and failing to provide the insureds with the full benefits award to him under the contract of insurance. Frontline further objects to the CRN, and the CRN is defective, additionally because it neither provides a general description, nor references to the specific policy language at issue in the alleged violations, as required by Florida Statute §624.155(3)(b)4. Rather, the CRN merely uses boilerplate language as to Frontline’s actions, which fails to explain how Frontline was wrong in its assessment of coverage. The subject policy issued by Frontline is governed by the policy’s terms, conditions, and exclusions together with any endorsements. Frontline, being the maker of the policy is very familiar with its language and what losses are afforded coverage. This CRN response does not waive any such provisions of the policy. Lastly, because no specific facts or remedies are referenced, Frontline cannot be expected to investigate the Complainants’ allegations and determine whether any corrective measures are warranted. As such, the CRN is defective and must be rejected. Section 624.155, of the Florida Statutes sanctions recovery of extra-contractual damage in insurance disputes when the insurance carrier fails to attempt in good faith to settle a claim. The statute requires the Insured to file a Civil Remedy Notice of Insurer Violation as a condition precedent to the bad faith cause of action. The Statute demands strict compliance and lays out specific notice requirements the Insured’s CRN has to meet for it to be legally sufficient. The filing of a legally sufficient CRN is not only a condition precedent but is essential to the procedural integrity of an action for bad faith. See Allstate Ins. Co. v. Clohessy, 32 F. Supp. 2d 1328 (M.D. Fla. 1998); see also Talat Enters. v. Aetna Cas. & Sur. Co., 753 So. 2d 1278 (Fla. 2000). The statute’s clear and unambiguous standards for proper notice require the claimant to state with specificity the facts and circumstances giving rise to the violation and to reference the policy language relevant to such alleged violations. The Complainant has failed to comply with the above authority for this subject CRN. The CRN alleges that Frontline violated Florida Statute Sections 624.155(1)(b)(1), 624.155(1)(b)(3), 626.9541(1)(i)(3)(a), 626.9541(1)(i)(3)(b), and 626.9541(1)(i)(3)(f) as the basis for filing the instant notice. However, the CRN (i) fails to reference the proper policy language relevant to such alleged violations; (ii) fails to state with specificity any facts and circumstances giving rise thereto; and (iii) fails to state, with specificity, the cure sought by the insured. The CRN is facially deficient and fails to comply with current Florida case law, as stated above. The purpose behind the notice requirement of the Civil Remedy Statute is to give an opportunity to the insurer to remediate the alleged statutory violation. The statute provides a sixty day cure period during which an insurer may avoid bad faith litigation by (i) paying the contractual amount due under the policy or (ii) by correcting the circumstances giving rise to the violation. The CRN provides no such opportunity to Frontline as the CRN does not specify the circumstances giving rise to Frontline’s alleged violations. The Complainant does not indicate how the cited policy language is relevant to any violations alleged and do not state with specificity any facts or circumstances giving rise to any violation. As such, the Complainant’s CRN does not afford Frontline adequate notice or an opportunity to cure any alleged violation, if warranted. The CRN is deficient and should be rejected. Frontline has acted promptly, fairly, in good faith, and in the best interest of the Insured at all times during the claims process. The subject claim was reported to Frontline on March 1, 2024, 478 days after the alleged loss which was reported as November 9, 2022 due to “Hurricane Nicole.” Claiming that the subject property sustained roof damage which resulted in water leaking into the front guest bedroom, laundry room, and porch. Following the untimely reporting of the alleged loss, Frontline sent a field adjuster to inspect the property on March 12, 2024 who was only allowed to inspect the exterior of the property at that time. The roof had no tarp at the time of the inspection and the adjuster took various photographs of the roof showing various prior repairs to the roof. A subsequent interior inspection was completed on March 15, 2024. Frontline also sent various correspondences requesting several documents from the insured. Thereafter, on April 19, 2024, Frontline sent an engineer to inspection the subject property who opined that the roof was not affected by Hurricane Nicole, but rather due to deficiencies in the roofing system resulting from age, wear, tear, deterioration, manual manipulation, improper or deficient repairs and not Hurricane Nicole. Furthermore, the engineer opined that the staining seen in the front bedroom had been ongoing for some time prior to December 2, 2020, based on the historical images showing prior repairs in this area. The engineer also performed a detailed inspection of the laundry room and the attic above it finding that the dark staining seen in the attic was indicative that the leak had been ongoing for more than 6 months to a year. In addition, the engineer advised that due to the delay in reporting he had been prejudiced in determining the duration of certain damages being claimed, which is further delineated within the engineer’s report. Additionally, on June 20, 2024, an Examination Under Oath (“EUO”) of Ms. Marlene Fernandez and of her public adjuster on July 24, 2024. Both EUOs were attended by counsel for Ms. Fernandez who was present and heard the testimony provided by both Ms. Fernandez and the public adjuster. Ms. Fernandez advised that she allegedly discovered shingles on the ground outside of her home, which she presumes were hers but was not certain. These shingles were allegedly discovered sometime in early 2024 and no photographs of said shingles were taken nor provided to Frontline. Ms. Fernandez then went on to explain that once her public adjuster got involved he advised her that the roof was possibly damaged due to Hurricane Nicole which had occurred a year and a half earlier. At the EUO of the Public Adjuster, he claimed that Ms. Fernandez was the one who advised him that she advised that the damages had first been discovered around the reported date of loss which is contrary to Ms. Fernandez’s testimony. Other facts related to the loss were also discussed at the EUO of the insured and public adjuster. Following the investigation, on August 29, 2024, Frontline issued its denial letter explaining its reason for denial based on its investigation along with excerpts of the applicable policy language which was determined to be applicable based on Frontline’s investigation into the claim. Frontline does not intend by this letter or any aspect of its investigation to waive any of its rights afforded either under the contract of insurance or at law. Frontline explicitly reserves all rights. Should you have any further questions, concerns or require additional information, do not hesitate to contact us. Sincerely, Lissette M. Alvarez LMA/lma
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.

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