Filing Number: 797664
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| Filing Accepted: 12/19/2024 |
| Last/Business Name
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CAMPBELL
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First Name |
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MATTHEW |
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| Street Address
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13291 BLUE DIAMOND PLACE |
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WELLINGTON,
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33414
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| Email Address
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MATT.CAMPBELL247@GMAIL.COM |
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Insured |
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CAMPBELL |
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First Name |
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MATTHEW |
| Policy # * |
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1501-1700-7127 |
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Claim #* |
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FL22-0119990 |
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Attorney is Applicable
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| Last Name* |
TIFFANY
First Name *
MATTHEW
Initial
E
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| Street Address* |
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777 SOUTH HARBOUR ISLAND BOULEVARD, SUITE 950 |
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TAMPA
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FLORIDA
33602
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MTIFFANY@MERLINLAWGROUP.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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UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY
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,
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NAIC Company Code 10861 |
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| Name of individual responsible for violation (if any):*
RYAN LASHLEY, ANTHONY SAMOL, ANDREA JIMENEZ, LEE WARD, AILEEN SILES
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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 Denial
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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)(2) |
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Making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which payments are being made.
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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)(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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| 626.9541(1)(i)(3)(h) |
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Failing to clearly explain the nature of the requested information and the reasons why such information is necessary.
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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.
D. Loss Settlement
In this Condition D., the terms cost to repair or replace and replacement cost do not include the increased costs incurred to comply with the enforcement of any ordinance or law, except to the extent that coverage for these increased costs is provided in Additional Coverage 11. Ordinance Or Law under Section I – Property Coverages. Additionally, the valuation of any covered property losses does not include and we will not pay any amount for “diminution in value”. Covered property losses are settled as follows:
[…]
2. Buildings and screened enclosures covered under Coverage A or B at replacement cost without deduction for depreciation, subject to the following:
[…]
b. If, at the time of loss, the amount of insurance in this policy on the damaged building is less than 80% of the full replacement cost of the building immediately before the loss, we will pay the greater of the following amounts, but not more than the limit of liability under this policy that applies to the building:
(1) The actual cash value of that part of the building damaged; or
(2) That proportion of the cost to repair or replace, without deduction for depreciation, that part of the building damaged, which the total amount of insurance in this policy on the damaged building bears to 80% of the replacement cost of the building.
[…]
d. We will initially pay at least the actual cash value of the insured loss, less any applicable deductible. We will then pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred, subject to 2.a. and 2.b. above.
[…]
J. Loss Payment
We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable upon the earliest of the following:
1. 20 days after we receive your proof of loss and reach written agreement with you; or
2. 60 days after we receive your proof of loss and:
a. There is an entry of a final judgment; or
b. There is a filing of an appraisal award or a mediation settlement with us.
3. Under Florida Statutes we are required to pay or deny an initial, reopened, or supplemental property insurance claim or portion of a claim, within 90 days of notice of such claim unless there are reasonable circumstances which prevent us from so doing.
Our failure to comply with this paragraph shall not form the sole basis for an action against us for breach of contract under this policy or for benefits under this policy.
[…]
H. Suit Against Us
No action can be brought against us unless there has been full compliance with all of the terms under Section I of this policy and the action is started within 5 years after the date of loss.
[…]
SECTION I – PERILS INSURED AGAINST
A. Coverage A – Dwelling And Coverage B – Other Structures
1. We insure against direct physical loss to property described in Coverages A and B. However, loss does not include and we will not pay for any “diminution in value”.
2. We do not insure, however, for loss:
[…]
c. Caused by:
[…]
(5) Constant or repeated seepage or leakage of water or steam or the presence or condensation of humidity, moisture or vapor, over a period of weeks, months or years, unless such seepage or leakage of water or steam or the presence or condensation of humidity, moisture or vapor, and the resulting damage is unknown to all “insureds” and is hidden within the walls or ceilings or beneath the floors
or above the ceilings of a structure;
[…]
(7) Any of the following:
(a) Wear and tear, “marring”, deterioration;
(b) Mechanical breakdown, latent defect, inherent vice or any quality in property that causes it to
damage or destroy itself;
[…]
(f) Settling, shrinking, bulging or expansion, including resultant cracking, of bulkheads, pavements, patios, footings, foundations, walls, floors, roofs or ceilings;
[…]
SECTION I – EXCLUSIONS
A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area
[…]
5. Neglect
Neglect means neglect of an "insured" to use all reasonable means to save and preserve property at and after the time of a loss.
[…]
B. We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered.
[…]
3. Faulty, inadequate or defective:
a. Planning, zoning, development, surveying, siting;
b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
c. Materials used in repair, construction, renovation or remodeling; or
d. Maintenance; of part or all of any property whether on or off the "residence premises".
[…]
SECTION I – CONDITIONS
C. Duties After Loss
Any claim or reopened claim under an insurance policy that provides property insurance for loss or damage caused by any covered peril is barred unless notice of the claim or reopened claim is given to us in accordance with the terms of the policy and within two years after the date of loss. A supplemental claim is barred unless notice of the supplemental claim is given to us in accordance with the terms of the policy and within three years after the date of loss. For purposes of this section, the term reopened claim means a claim that we have previously closed, but that has been reopened upon an insured’s request for additional costs for loss or damage previously disclosed to us. Supplemental claim means a claim for additional loss or damage from the same peril which we previously adjusted or for which costs have been incurred while completing repairs or replacement pursuant to an open claim for which timely notice was previously provided to us. This section does not affect any applicable limitation on civil actions.
Additionally, we have no duty to provide coverage under this policy to you or an “insured” seeking coverage, if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an "insured" seeking coverage, or a representative of either:
1. Give prompt notice to us or our agent;
Except for Reasonable Emergency Measures taken under Additional Coverage 2. there is no coverage for repairs that begin before the earlier of:
a. 72 hours after we are notified of the loss;
b. The time of loss inspection by us; or
c. The time of other approval by us.
2. a. To the degree reasonably possible, retain the damaged property; and
b. Allow us to inspect, subject to 2.a. above, all damaged property prior to its removal from the “residence premises.”
[…]
4. Protect the covered property from further damage. If emergency measures are required, the following must be performed:
a. Take reasonable emergency measures that are necessary to protect the covered property from further damage, as provided under Additional Coverage 2.A reasonable emergency measure under 4.a. above may include a permanent repair when necessary to protect the covered property from further damage or to prevent unwanted entry to the property. To the degree reasonably possible, the damaged property must be retained for us to inspect; and
b. Keep an accurate record of repair expenses;
5. Cooperate with us in the investigation of a claim;
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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.
The defendant Universal Property & Casualty Insurance Company [hereinafter “defendant” or “Universal”] issued a policy of insurance to the plaintiffs Matthew Campbell & Nina Connelly [hereinafter collectively “insureds” or “plaintiffs”] for the real property located at 13291 Blue Diamond Place, Wellington, Florida, 33414 [hereinafter “property”]. The property had a concrete tile roof.
The subject policy is an “All Risk” or “All Peril” policy that covers any and all damage to the property unless the policy clearly and specifically excludes a cause of damage from coverage.
The subject policy contains some “Anti-Concurrent Cause of Loss” provisions that exclude coverage for an entire claim when only a part or portion of the damage to the property results from one of the delineated “anti-concurrent” excluded causes of loss. For example, the subject policy includes an “anti-concurrent” clause for losses associated with “neglect”. However the majority of the policy exclusions or limitations contain no such “Anti-Concurrent” clause or provision.
The subject policy contains some “Post Loss Obligations” or “Duties After Loss” provisions that exclude coverage for an entire claim when an insured fails to comply with post loss condition under the policy and the defendant insurance company suffers prejudice specifically because the insureds failed to comply with that post loss condition.
On or about June 23, 2022, the insureds reported to the defendant a claim, subsequently numbered FL22-0119990 [hereinafter “subject claim”] and alleged that on or about April 6, 2022, the property suffered damage, including water damage to the interior and hail or wind or some other storm damage to the roof.
On or about July 1, 2022, Ryan Lashley, an adjuster employed by the defendant, inspected the property. After inspection, Lashley prepared an estimate to repair the damage associated with the subject claim. The estimate did not include repair to the roof of the property. The estimate only included interior repairs, primarily repair to drywall, in rooms identified as the kitchen, living/dining room, hallway, master bedroom & children bedroom. The total replacement cost value was $11,450.30 and the actual cash value was $9,280.41.
On or about July 7, 2022, Ryan Lashley (or more accurately Lashley in conjunction with some yet unidentified cadre of managers and supervisors) prepared correspondence regarding the subject claim. On or about July 7, 2022, the defendant sent to the insureds two (2) letters. The first letter denied coverage under the subject policy for the damage to the roof of the property and refused to issue payment to repair damage to the roof of the property. The second letter opened coverage under the subject policy for the interior water damage, and after reduction for “recoverable depreciation” and application of the deductible, issued payment in the amount of $6,780.41 to repair the interior water damage.
Neither claim coverage decision letter alleged that the plaintiffs failed to comply with any post loss condition or obligation under the policy. Neither claim coverage decision letter alleged that the defendant suffered prejudice due to any purported failure to comply with a post loss condition or requested compliance with any post loss condition as part of the continued adjustment of the subject claim. The defendant, before reaching a claim coverage decision, never raised the issue of non-compliance with the policy or the suggestion of prejudice to the defendant. Apart from making the property available for inspection, the defendant never asked for the insureds to comply with any other post loss condition under the policy. Further, neither claim coverage letter declared that the damage to the property was not covered under the subject policy because the damage resulted from a cause of loss with an anti-concurrent cause of loss provision, nor did either claim coverage letter raise any exclusion or limitation regarding the interior water damage.
Based on the insurance company denying the portion of the claim associated with the damage to the roof and underestimating the cost to repair the portion of the claim associated with the damage to the interior, the insureds spoke with contractors and eventually with Merlin Law Group. The insureds, in part through counsel, retained contractors and other professionals to inspect the property and provide an opinion regarding the cause and extent of the damage as well as the reasonable and necessary scope of repair.
The insureds retained Roof Leak Detection, an engineering firm, to inspect the property. On July 14, 2022, Roof Leak Detection inspected the property. They concluded that the property suffered damage from a weather event and that the roof of the property should be replaced and could not reasonably be repaired.
On or about August 17, 2022, the insureds retained Fortification Testing & Emergency Services, a contractor, to place a tarp on the roof of the property.
The insureds originally retained Exact Building Consultants, a Florida licensed roofing contractor, to inspect the property and prepare an estimate to replace the existing concrete tile roof with a new concrete tile roof. Exact Building Consultants prepared an estimate with a cost to replace the roof in the total amount of $101,831.05 (or in the amount of $83,758.28 without tax, overhead or profit included).
On September 20, 2022, Merlin Law Group sent to the defendant correspondence wherein Merlin Law Group informed the defendant that Merlin Law Group represented the insureds, asked for documents or records (such as a certified copy of the policy), and inquired whether there were any outstanding post loss conditions which the plaintiffs failed to comply.
On September 20, 2022, pursuant to Florida Statute § 627.70152, Merlin Law Group filed a Notice of Intent to Initiate Litigation with the Florida Department of Financial Services and served a copy on the defendant [hereinafter “First Notice of Intent”]. On September 28, 2022, the defendant served Merlin Law Group with a response to the First Notice of Intent, wherein the defendant stood by the prior claim coverage decision and declined to open any additional or supplemental coverage. During the above exchange, the defendant never mentioned anything about lack of compliance with post loss conditions or about prejudice to the defendant. Nor did the defendant insurance company reference any anti-concurrent cause of loss provision associated with the denial of the subject claim.
The insureds continued to dispute the claim coverage decision. On October 18, 2022, the insureds served on the defendant a Complaint [hereinafter “First Complaint”] wherein the insureds alleged a cause of action for breach of contract. By Order of Court, on January 26, 2023, the plaintiffs filed an Amended Complaint, wherein the plaintiffs corrected a mistake regarding the alleged date of loss but continued to allege the same cause of action for breach of contract [hereinafter “First Amended Complaint”]. On February 14, 2023, the defendant filed an Answer to the Amended Complaint. The case associated with the First Amended Complaint was styled Matthew Campbell & Nina Connelly v. Universal Property & Casualty Insurance Company, with the court case number was 50-2022-CA-009845 [hereinafter “Original Case”].
During the litigation on the Original Case, the insureds retained a contractor to remove the existing concrete tile roof and replace it with an asphalt shingle roof, and, retained contractors to prepare an estimate to repair the damage to the interior of the subject property. The insureds decided to replace the concrete tile roof with an asphalt shingle roof because the roof continued to leak, and the insureds simply could not afford to the cost to replace the concrete tile roof with their own out of pocket money. Despite the fact that the policy, as well as applicable building code and statute, entitled the insureds to replace the existing concrete tile roof with a new concrete tile roof, the insureds were forced to replace the concrete tile roof with a less expensive asphalt shingle roof.
The insureds retained a Florida licensed roofing contractor called Daley Brothers to replace the roof of the property. From on or about August 2023 through on or about January 2024, Daley Brothers removed the existing concrete tile roof and replaced it with an asphalt shingle roof. The insureds paid approximately $23,866.00 to replace the roof of the property. Contemporaneous with the repairs the insureds provided the defendant insurance company with the estimates and/or invoices from Daley Brothers, along with photographs, associated with the completed work on the property, including the removal of the existing concrete tile roof and replacement with the asphalt shingle roof.
Despite the insureds electing to replace the roof with asphalt shingles, a less expensive option that, should the insurance company agree to open coverage or otherwise settle the dispute, would result in the insurance company paying less money than they should, the insurance company made no effort to resolve the disputed claim.
The insured contacted a general contractor called Tella Builders to inspect the property and prepare an estimate to repair the interior damage and to mitigate or remediate the mold damage. Tella Builders provided an estimate in the amount of $19,290.00 to repair the interior damage and $1,200.00 to mitigate or remediation any mold damage. The insureds ultimately ended up declining to hire Tella Builders to perform the work; however, the insureds provided the insurance company with the estimates.
The insureds subsequently retained Triad Restoration, a Florida licensed contractor, to inspect the property and prepare estimates to repair the damage to the interior of the property. A preliminary estimate by Triad Restoration indicated that the actual cash value of the damage to the interior of the property could be as high as $56,192.64 and the replacement cost value could be as high as $60,083.67 (with both amounts before application of any deductible or any reduction for the prior payment). On or before April of 2024 the insureds provided the defendant insurance company with the estimates prepared with Triad Restoration.
The estimated costs to repair the damage to the interior of the property exceeded the total amount of coverage opened by the defendant insurance company and the dollar value of the actual damage exceeded the total amount paid by the defendant insurance company. The existing evidence indicates, and has indicated, that the dollar value of the damage to the interior of the property and the potential cost to repair the damage to the interior of the property has always clearly exceeded the amount of coverage opened and amount of payment issued by the defendant insurance company. The photographs provided by the insureds, both prior to litigation and during litigation, alone indicate that parts of the kitchen will have to be torn out and that numerous “matching” portions of the property – such as the floors - will have to be replaced (the defendant Universal, according to the adjuster Ryan Lashley, included costs associated with matching in their own estimate).
During the course of litigation on the above referenced case(s), the insureds and the defendant insurance company engaged in discovery, including conducting discovery depositions.
On May 25, 2023, the insured Matthew Campbell appeared for deposition. Relevant to the present Civil Remedy Notice, the insured Matthew Campbell testified as follows:
The insureds purchased the property in March of 2017. Before the damages associated with the subject claim, the plaintiffs did not have any issues or problems with the roof of the property or any issues or problems with water intrusion. Apart from the subject claim, the insureds have never filed a claim for benefits with a property insurance company. The insureds had never filed a claim before and were new homeowners.
Around April 2022, the insureds started to notice a leak over a bay window that formed the corner of the breakfast nook or kitchen nook. Matthew Campbell noticed water entering from the ceiling about the top of the frame of the bay window and described a heavy volume of water entering the property on occasion. The insureds hired a handyman named RaeShaun Garnder to repair what appeared to be the source of the water intrusion. Over the course of approximately three (3) weeks RaeShaun Garder repaired (or attempted to repair) the damage, however, despite his attempts, water continued to enter the property. The insureds paid RaeShaun Gardner approximately one thousand five hundred dollars ($1,500.00) to attempt to repair the apparent damage.
After RaeShaun Garder finished the unsuccessful attempted repairs, the insureds noticed additional water intrusion around the bay window of the kitchen nook area. Around the same time, the insureds noticed water spots or water stains on the ceiling of a bedroom. Matthew Campbell attempted one last effort at repairing the damage, by applying some sort of patch to the exterior of the property, at which point the plaintiffs met with a contractor to discuss more fundamental or serious repairs to the property. The contractor inspected the property and informed the plaintiffs that the water intrusion was probably the consequence or result of a storm that passed through the area around April 6, 2022. The contractor placed a tarp and/or patches on the roof, which lessened or reduced the amount of water entering the property. Later, the insureds had another contractor place a tarp on the roof of the property. The insureds decided to wait to repair the damage to the interior of the property until after they were able to repair the damage to the roof because water continued to enter the property.
On May 25, 2023, the insured Nina Connelly appeared for deposition. Connelly generally testified consistently with her husband Matthew Campbell. Relevant to the present Civil Remedy Notice, Nina Connelly testified as follows:
When the insureds purchased the property, a couple years prior, there were no issues or problems with the property, and the property was the first home that the insureds owned. Nina Connelly did not remember the exact date that she first noticed the water intrusion, however, the insureds started the (attempted) repairs shortly after they first noticed the water damage to the kitchen. Connelly described the initial water intrusion as water “dripping” down the wall that the plaintiffs collected in “buckets” and dried with towels. The insureds hired RaeShaun Gardner to repair the property to prevent further water intrusion, however, the attempted repairs were not successful, and water continued to enter the kitchen. The insureds placed a tarp on roof of the property, however, water still continued to enter the property – even on the date of the deposition water would enter the kitchen when it rained.
On May 23, 2023, Lee Ward, sitting as the designated representative for the defendant, appeared for deposition. Relevant to the present Civil Remedy Notice, Lee Ward testified as follows:
Ward repeatedly testified in the form of conclusory statements that the insureds failed to comply with post loss obligations however Ward was unable to explain exactly how the defendant suffered prejudice form the purported failure to comply, why the defendant insurance company neglected to raise that issue prior to litigation or how the defendant insurance company was able to reach a claim coverage decision on the merits of the claim. Ward did suggest that counsel for the insureds look up the meaning of words used by Ward during the deposition, which was neither responsive to the question asked nor helpful in resolving any issue. When questions about the facts that support policy exclusions asserted by the insurance company, Ward declined to testify about any specific facts, routinely declaring that such information was privileged “claims handling” information or “deferring” to the adjuster Ryan Lashley. Overall, Ward either could not or would not testify about facts in support of the insurance company’s denial of coverage and spent the majority of the deposition poorly hiding a clear and evident disdain for either the insureds or counsel for the insureds as well as the proceedings.
On September 28, 2023, the adjuster Ryan Lashley appeared for deposition. Relevant to the present Motion, Ryan Lashley testified as follows:
Ryan Lashley testified that he observed damage to several areas of the property, both exterior and interior: Lashley observed damage to the roof of the property, including cracked and displaced concrete roof tiles. Lashley observed water damage to the kitchen, including “heavy” water damage to the kitchen nook area, as well as water damage to kitchen adjacent areas such as nearby doors, floors or windows as well water stains to ceilings of other rooms. Lashley described the interior water damage he observed as “relatively recent”.
Lashley testified that the interior water damage resulted from wind driven rain, though he could not describe exactly how the wind drive rain entered the property. Lashley, using the “Xactimate” software program, prepared one estimate for costs to repair the interior damage to the property, and with zero (0) costs to repair the damage to the roof.
Unfortunately, despite the fact that Lashley’s name appears on the claim coverage decision letters, Lashley testified that he only “assisted” in drafting the claim coverage decisions letters and an unnamed superior completed or finalized the letter or perhaps even wrote the letter. When asked to explain the basis for the claim coverage determinations contained in the letters, counsel for defendant objected and instructed Lashley not to answer (a common occurrence during the deposition).
Eventually, Lashley testified that he never concluded that the damage to the property resulted from wind or did not result from wind, rather, some unnamed persons employed by the defendant concluded that the damage to the property resulted from an excluded cause of loss. When asked to identify the “superiors” who concluded that the damage was not covered under the policy, counsel for the defendant objected and instructed Lashley not to answer.
Lashley did testify that the cracks to the tiles “could have” resulted from deterioration and that the displaced tiles “could have” been caused by deterioration, but also that the tiles may have also “loosened” over time. Similarly, Lashley testified that the cracks to the tiles “could have been” caused by lack of maintenance or “could have been” caused by settling or shrinking. Contrary to the claim coverage decision letters, Lashley did not observe any damage to the property consistent with existing damage or consistent with defects in construction, design, repair or maintenance. Eventually, Lashley testified that he did not or could not conclude that any damage resulted from lack of maintenance.
On May 3, 2024, Corey Daley with Daley Brothers Roofing testified at deposition. Daley testified that his company replaced the existing concrete tile roof with an asphalt shingle roof, including replacing the underlay and portions of the roof decking. Daley testified that replacing a concrete tile roof with new concrete tile is generally twice as expensive as replacing it with asphalt shingles. Daley testified that it would not have been possible or practical to have replaced just a portion of the roof and that the entire roof needed to be replaced, and that attempting to repair one portion or slope of the roof would have been disproportionately expensive. Daley testified that replacement would not have even been possible because there would not have been available replacement tile that would be matched or been up to building code thus all new tile would had to been used to replace the existing tile roof.
The claim also involved a drawn-out procedural dispute.
During litigation of the Original Case, the defendant insurance company stated that they did not consider the portion of the subject claim involving the damage to the interior of the property to be part of the litigation because the defendant believed that the insureds did not provide the defendant sufficient pre-litigation notice that the insureds disputed the specific portion of subject claim involving the damage to the interior.
The dispute over whether the litigation included all damage to the property or only damage to the exterior of the property delayed resolution of the claim from late 2022 through present. The insureds made numerous good faith attempts over the past year to resolve the issue. However, the defendant insurance company refused to even attempt to resolve the issue regarding the scope of the litigation and assumed contradictory and inconsistent positions in response to the insures attempts to resolve the matter on the merits.
On April 18, 2024, the insureds filed a Second Notice of Intent to Initiate Litigation with the Florida Department of Financial Services [hereinafter “Second Notice of Intent”] wherein the insureds specifically disputed the portion of the claim coverage decision associated with the interior water damage. On the same date the insureds sent the defendant correspondence [hereinafter “April Dispute Letter”] wherein the plaintiffs specifically disputed the portion of the claim coverage decision associated with the interior water damage, and stipulated that any payment or settlement in response to the Second Notice of Intent, or in response to the April Dispute Letter, would not constitute an admission of liability or confession of judgment for the litigation on the First Amended Complaint. The insureds also agreed to forego collecting any attorney fees or costs as party of a settlement agreement in response to the Second Notice of Intent.
On April 26, 2024, the defendant responded to the Second Notice of Intent and declared that the defendant “reject[ed]” the Second Notice because the insureds already “initiated litigation and currently has ongoing litigation against Universal in the Circuit Court in and for Palm Beach, Florida, bearing Case No. 502022 CA 00984 for the same claim you referenced in your Notice. Accordingly, your Notice is hereby rejected because it fails to comply with Florida law.”
Based on the defendant’s response to the Second Notice of Intent, the insureds considered the dispute whether the interior damages were part of litigation resolved – the defendant unequivocally stated, in response to the Second Notice of Intent, that the matter was part of ongoing litigation on the First Amended Complaint. The insureds proceed to file a Motion for Leave to Amend the Complaint.
On August 23, 2024, the insureds, by leave of Court, filed a Second Amended Complaint, wherein the insureds specifically disputed both the portion of the claim for damage to the exterior as well as the portion of the claim for damage to the interior. On September 22, 2024, the defendant filed an Answer & Affirmative Defenses to the Second Amended Complaint [hereinafter “Answer to the Second Amended Complaint”]. Despite the defendant declaring, in their response to the Second Notice of Intent, that the interior water damage was part of litigation on the First Complaint, and despite the Court granting leave to amend and substituting the Second Amended Complaint for the First Complaint, in their Answer to the Second Amended Complaint, the defendant pled general denials as well as affirmative defenses wherein the defendant alleged that the interior damage portion of the subject claim was not part of litigation on the Second Amended Complaint because the insureds did not provide legally sufficient notice that the plaintiffs disputed the interior damage portion of the claim.
The insureds attempted yet again to resolve the dispute over whether the disputed interior damage was part of the current litigation. On October 22, 2024, the insureds filed a Third Notice of Intent to Initiate Litigation with Florida Department of Financial Services [hereinafter “Third Notice of Intent”], where the insureds again disputed the portion of the claim coverage decision associated with the interior water damage. On the same date, the insureds sent the defendant another correspondence [hereinafter “October Dispute Letter”] wherein the insureds specifically disputed the portion of the claim coverage decision associated with the interior water damage, and, agreed and stipulated that any payment or settlement in response to the Third Notice of Intent, or in response to the October Dispute Letter, would not constitute an admission of liability or confession of judgment for the litigation on the First Amended Complaint or soon to be Second Amended Complaint.
On November 4, 2024, the Defendant responded to the Third Notice and declared that “UPCIC objects to the Notice as it is not in compliance with §627.70152” because the Plaintiffs “initiated litigation and currently [have] ongoing litigation against Universal in the Circuit Court in and for Palm Beach County, Florida, bearing case No. 50-2022-CA-009845-XXXX-MB for the same claim you reference in your Notice” and therefore “UPCIC objects to the Notice and reserves the right to raise the non-compliance pursuant to Section 627.70152, Florida Statutes in litigation” [sic]. However, the defendant also responded to the Third Notice by invoking the right to prelitigation mediation through the Florida Department of Financial Services.
The plaintiffs, from November 7, 2024, through December 4, 2024, contacted the Florida Department of Financial Services as well as the defendant to coordinate a mediation conference, however, the Florida Department of Financial Services responded that they “received notice that this claim is in litigation” and the defendant refused to participate in mediation. The defendant invoked statutory mediation however the defendant’s subsequent actions suggest that the defendant never had any real interest in participating in mediation or resolving the disputed claim and only further delayed resolution of the subject claim.
Based on the above referenced factual and procedural history of litigation on the case, specifically including but not limited to the defendant’s responses to the plaintiffs’ attempts to resolve the dispute regarding the scope of litigation, on Thursday, December 5, 2024, the plaintiffs filed a Second Complaint [hereinafter “Companion Complaint”], wherein the plaintiffs alleged a cause of action for breach of contract based solely on the portion of the subject claim associated with the disputed interior water damages.
The defendant engaged in bad faith conduct throughout the subject claim and litigation.
The defendant engaged in bad faith conduct in response to the insureds numerous attempts to resolve the dispute over whether the entirety of the subject claim was in litigation. The defendant provided inconsistent and often outright contradictory responses to the insureds’ notices and correspondence. The defendant’s bad faith actions delayed resolution of the subject claim and required the insureds to expend substantial time and effort to resolve what should have been a simple procedural matter.
The procedural dispute has already delayed resolution of the subject claim by more than a year. Even assuming that the insureds failed, prior to litigation, to provide the defendant with notice that the insureds disputed the claim coverage decision, the insureds remedied any purported lack of legally sufficient notice on or by April of 2024 when the insureds filed the Second Notice of Intent. Nevertheless, the defendant continued (and continues) to reflexively reject the insureds attempts to resolve the procedural dispute, resulting in more delay and further delay and surplus litigation.
The defendant engaged in bad faith conduct when the defendant asserted failed to comply with post loss conditions as a bar to recovery.
The defendant has argued that the insureds cannot recover under the subject policy because the insureds failed to comply with post loss conditions. However, the defendant, prior to litigation, never alleged that the insureds failed to comply with post loss conditions and did not deny the subject claim – or any part of the subject claim - because the insureds failed to comply with post loss conditions. Further, none of the evidence demonstrates, even should the insureds have materially failed to comply with a post loss condition, that the defendant suffered any prejudice while investigating the loss or adjusting the claim. On the contrary, the defendant was able to reach a claim coverage decision based on the facts of the claim. Nevertheless, despite all evidence to the contrary, the defendant alleged and continues to allege that the insureds are not entitled to recover any further benefits or recover any (legal) damages because the insureds have materially failed to comply with the policy and thereby caused “extreme” prejudice to the defendant (the prejudice being “extreme” according to designated representative Lee Ward).
The undisputed facts indicate that the insureds/plaintiffs complied with their obligations under the policy while demonstrating that the defendant has no evidence that he insureds failed to comply with policy or that the defendant suffered prejudice: The insureds promptly attempted to repair the damage to the property and promptly attempted to stop the water intrusion, the insureds, subsequent to attempts to mitigate the damage, timely reported the damage to the defendant, the insureds made the property available for inspection upon request by the defendant, the defendant made no other requests for compliance with post loss conditions under the subject policy and never informed the insureds that the defendant believed that the insureds failed to comply with post loss conditions, the defendant reached a claim coverage decision based on the merits of the subject claim, asserting claim exclusions and limitations while opening coverage and issuing payment, and the defendant cannot present any evidence that the defendant suffered any prejudice.
The insurance company completed their investigation of the loss and adjustment of the claim and reached a claim coverage decision based on the facts and merits, denying coverage for the roof damage while opening coverage for the interior damage. Further, even if the insureds failed to abide by the conditions of the policy and even if the defendant suffered prejudice, the defendant waived any such defense (or should be estopped from asserting such defense) because the defendant failed to raise issues of compliance or prejudice prior to litigation or otherwise failed to invoke post loss conditions/obligations during investigation and adjustment.
The defendant engaged in bad faith conduct by denying coverage for the portion of the subject claim associated with the damage to the roof. Contrary to all evidence, the defendant insurance company alleged that the damage to the roof of the property did not result from a covered cause of loss, rather, the insurance company alleged that the damage to the roof of the property resulted from some excluded cause of loss occurring over an unspecified period of time and arising from unknown events. The evidence in existence at the time the insurance company made the claim coverage decision did not support exclusion of the damage to the roof.
Further, none of the evidence supports any policy exclusion for the interior damage, which the defendant opened coverage and paid prior to litigation. Nevertheless, the defendant insurance company has asserted defenses to the litigation seeking to exclude or limit recover for the interior water damage, for example, the insurance company now alleges that the damage resulted from continued or repeated exposure to water, or even more implausible, dur to neglect. The evidence, such as the insureds testimony and the testimony of Ryan Lashley, the insurance company’s own adjuster, clearly indicate that that the interior water damage is not excluded. None of the existing evidence supports the conclusion that the damage to the interior is now excluded.
Since the beginning of the claim, the insurance company has engaged in a pattern of delay and denial that has harmed the insureds. The insurance company has not settled the claim when it could and should have done so had it acted fairly and honestly and has failed to take into account the information and evidence that clearly shows or showed that additional payment is owed.
The insurance company has engaged in several instances of bad faith conduct including but not limited to the conduct described above as well as the following conduct:
The insurance company failed to attempt in good faith to settle the claim when the facts and circumstances indicate that the insurance company should have settled the claim. The insurance company incorrectly denied a portion of the claim and underpaid a portion of the claim. During litigation the evidence clearly indicated that the insurance company should have paid the entire claim in an amount sufficient to cover the repairs. However, the insurance company chose to ignore the evidence presented by the insureds and advance inapplicable defenses.
The insurance company failed to act fairly and honestly toward the insureds and with adequate regard for the interest of the insureds. The insurance company has essentially ignored the accumulated evidence that demonstrates that the claim is covered and that additional payment is owed. The insurance company continues to argue defenses that simply are not supported by the evidence rather than attempt to resolve the subject claim.
The insurance company has engaged in a pattern of behavior intended to delay resolution of the claim. The insurance company has raised numerous policy defenses, such as post loss conditions, that are clearly not applicable to the case, and, has raised never ending procedural arguments over whether the insureds can even litigate aspects of the subject claim. The insurance company even invoked mediation then declined to participate in mediation, contributing to further delay. The delay has resulted in ongoing damage to the insureds and increased costs to repair the clearly covered damage. The insurance company has taken calculated steps to delay resolution of the subject claim, all to the detriment of the insureds and with no real legitimate purpose.
The insurance company has withheld relevant information from the insureds during the entire process, under the guise of “claim handling” or under the guise that the sought after information is confidential or privileged, even where the insurance company relied upon such information to deny the claim or limit recovery under the claim. The insureds have provide all relevant requested information – or even information not requested – while the insurance company has refused to answer basic question, thereby prolonging the case unnecessarily.
The insurance company has relied upon facts or information or evidence even where the insureds have provided proof that the facts or information that the insurance company has relied upon is inaccurate or incomplete. Some of the information relied upon by the insurance company even contradicts the insurance company’s own position, such as the testimony by Ryan Lashley versus the testimony of Lee Ward or experts retained by the defendant. The insurance company choses to rely upon information they believe to be favorable to them even when the evidence proves that the insurance company’s reliance is misplaced.
The defendant insurance company can remedy the bad faith conduct by paying for the cost to repair the covered damage to the property along with any interest, costs and fees. The defendant insurance company can remedy the bad faith conduct by paying the amount that the insureds paid to replace the roof of the property, the estimated cost to repair the interior water damage, the estimated cost to mitigate or remediate any actual or potential mold damage, the costs incurred by the insureds to mitigate against further damage, including the costs incurred by the insureds to place a tarp on the roof, along with the statutory interest owed on any moneys not timely paid by the defendant insurance company, as well as any legal costs and fees incurred as part of litigating the case. The insureds have submitted estimates and invoices throughout the history of the claim detailing the costs associated with mitigation and repairs as well as estimated future repairs.
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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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