Filing Number: 799342
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| Filing Accepted: 1/6/2025 |
| Last/Business Name
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| Street Address
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220 HIBISCUS STREET |
| City, State Zip
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TAVERNIER,
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33070
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| Email Address
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BOLYR@YAHOO.COM |
| Complainant Type:
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Insured |
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| Last/Business Name* |
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PETZ |
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First Name |
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BRUCE |
| Policy # * |
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CP9008995 |
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Claim #* |
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H00001085410 |
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Attorney is Applicable
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| Last Name* |
LEVINE
First Name *
HOWARD
Initial
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| Street Address* |
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900 LINCOLN ROAD, SUITE 200 |
| City, State Zip* |
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MIAMI BEACH
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FL
33139
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| Email Address * |
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HLEVINE@LEVINEFELLIGLAW.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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STILLWATER PROPERTY AND CASUALTY INSURANCE COMPANY
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| Insurer Name* |
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| Street Address* |
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| City, State Zip* |
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NAIC Company Code 16578 |
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| Name of individual responsible for violation (if any):*
ALICIA CHUNG, GREG LEFKOWITZ
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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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Claim Delay
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Unsatisfactory Settlement Offer
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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)(d) |
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Denying claims without conducting reasonable investigations based upon available information.
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| 626.9541(1)(i)(3)(e) |
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Failing to affirm or deny full or partial coverage of claims, and, as to partial coverage, the dollar amount or extent of coverage, or failing to provide a written statement that the claim is being investigated, upon the written request of the insured within 30 days after proof-of-loss statements have been completed.
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| 626.9541(1)(i)(3)(f) |
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Failing to promptly provide a reasonable explanation in writing to the insured of the basis in the insurance policy, in relation to the facts or applicable law, for denial of a claim or for the offer of a compromise settlement.
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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 – PROPERTY COVERAGES
A. Coverage A – Dwelling
1. We cover:
a. The dwelling on the "residence premises" shown in the Declarations, including
structures attached to the dwelling; . . .
C. Coverage C – Personal Property
1. Covered Property
We cover personal property owned or used by an "insured" while it is anywhere in the world. . . .
D. Coverage D – Loss Of Use
The limit of liability for Coverage D is the total limit
for the coverages in 1. Additional Living Expense,
2. Fair Rental Value and 3. Civil Authority
Prohibits Use below.
1. Additional Living Expense
If a loss covered under Section I makes that part of the "residence premises" where you reside not fit to live in, we cover any necessary increase in living expenses incurred by you so that your household can maintain its normal standard of living.
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.
2. We do not insure, however, for loss: . . .
c. Caused by: . . .
(6) 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; . . .
Exception To c.(6)
Unless the loss is otherwise excluded, we cover loss to property covered under
Coverage A or B resulting from an accidental discharge or overflow of water or steam from within a: . . .
(ii) Plumbing, heating, air conditioning or automatic fire protective sprinkler system or
household appliance on the "residence premises". This includes the cost to tear out and replace any part of a building, or other structure, on the "residence premises", but only when necessary to repair the system or appliance. However, such tear out and replacement coverage only applies to other structures if the water or steam causes actual damage to a building on the "residence premises".
We do not cover loss to the system or appliance from which this water or steam escaped. . . .
B. Coverage C – Personal Property
We insure for direct physical loss to the property described in Coverage C caused by any of the following perils unless the loss is excluded in Section I – Exclusions. . . .
12. Accidental Discharge Or Overflow Of Water Or Steam
a. This peril means accidental discharge or overflow of water or steam from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or from within a household appliance. . . .
D. Loss Settlement . . .
Covered property losses are settled as follows:
1. Property of the following types:
a. Personal property;
b. Awnings, carpeting, household appliances, outdoor antennas and outdoor equipment, whether or not attached to buildings;
c. Structures that are not buildings; and
d. Grave markers, including mausoleums;
at actual cash value at the time of loss but not more than the amount required to repair or
replace.
2. Buildings covered under Coverage A or B at replacement cost without deduction for
depreciation, subject to the following:
a. If, at the time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately before the loss, we will pay the cost to repair or replace, without deduction for depreciation, but not more than the least of the following amounts:
(1) The limit of liability under this policy that applies to the building;
(2) The replacement cost of that part of the building damaged with material of like kind and quality and for like use; or
(3) The necessary amount actually spent to repair or replace the damaged building. . . .
E. Loss To A Pair Or Set
In case of loss to a pair or set we may elect to:
1. Repair or replace any part to restore the pair or set to its value before the loss; or
2. Pay the difference between actual cash value of the property before and after the loss. . . .
J. Loss Payment
We will adjust all losses with you.
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. . . .
3. Water
This means:
a. Flood, surface water, waves, including tidal wave and tsunami, tides, tidal water,
overflow of any body of water, or spray from any of these, all whether or not driven
by wind, including storm surge;
b. Water which:
(1) Backs up through sewers or drains; or
(2) Overflows or is otherwise discharged from a sump, sump pump or related equipment;
c. Water below the surface of the ground, including water which exerts pressure on, or seeps, leaks or flows through a building, sidewalk, driveway, patio, foundation, swimming pool or other structure; or
d. Waterborne material carried or otherwise moved by any of the water referred to in A.3.a. through A.3.c. of this exclusion.
This Exclusion A.3. applies regardless of whether any of the above, in A.3.a. through A.3.d., is caused by an act of nature or is otherwise caused.
This Exclusion A.3. applies to, but is not limited to, escape, overflow or discharge, for any reason, of water or waterborne material from a dam, levee, seawall or any other boundary or containment system. However, direct loss by fire, explosion or theft resulting from any of the above, in A.3.a. through A.3.d., is covered.
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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.
Insured, BRUCE PELTZ (“Peltz”) is the owner of residential property located at 220 Hibiscus Street, Tavernier, Florida 33070. Peltz procured a homeowner’s open-peril HO-3 policy of residential property insurance with Stillwater Property & Casualty Insurance Company, bearing Policy No.: CP9008995, with effective dates of July 27, 2023 through July 27, 2024 (the “Policy”). The Policy insures the Property against direct physical loss to the dwelling and other structures unless the cause of loss is subject to any of the Policy’s expressly enumerated exclusions. The Policy’s coverages include $641,000 for the Dwelling, $465,750 for Contents (personal property) and $62,100 for loss of use.
On or about November 15, 2023, while the Policy was in full force and effect, Peltz suffered significant interior damage to his residence when water spread from underneath the toilets in both the master bathroom and guest bathroom. The water spread throughout the home, causing, without limitation, extensive damage to the bathrooms, flooring and drywall throughout the residence, and kitchen cabinetry. On the date of loss, although there were heavy rains in the vicinity, there was no general and temporary condition of partial or complete inundation of two or more acres of normally dry land area or two or more properties (one of which being Peltz’s property) so as to constitute a “flood.” The term “flood” is undefined in the Policy. When an insurer fails to define a term in a policy, the insurer cannot take the position that there should be a narrow, restrictive interpretation of the coverage provided. State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998).
Peltz timely reported the loss to Stillwater Property & Casualty Insurance Company (“Stillwater”). Stillwater assigned Claim No. H00001085410 and inspected the Peltz home on or about November 30, 2023. On or about December 28, 2023, Stillwater, via a letter to Peltz from in-house adjuster Alicia Chung (Complex Claims – Dispute Resolution Examiner) reported that “[Stillwater’s] investigation determined due to wear and tear of the toilet, the toilet failed causing water damage to your home. Your policy does not provide coverage for wear and tear or to repair the failed toilet.” In sum, Stillwater concluded that ensuing damage throughout the home as a result of the “failed toilet” was covered, albeit coverage was not afforded for the repair of the “worn and torn” toilet. Having thus acknowledged the claim as a covered loss, Stillwater agreed to tender a net payment of $8,905.34 (computed as $12,205.10 Replacement Cost Value (“RCV”), less $2,799.76 for recoverable depreciation and $500 for the policy deductible). Notably, the December 28, 2023 letter expressly stated that “we have properly addressed all known items regarding this claim [and] are closing your file.”
Independent of Stillwater’s adjustment, Peltz had retained the services of Chinchilla Claim Services (“Chinchilla”), a public adjusting company which inspected the subject property on or about December 1, 2023. Based on Chinchilla’s Xactimate report which valued the loss at more than $70,000, Peltz requested that Stillwater reconsider its grossly low-balled adjustment. Accordingly, on or about February 14, 2024, both Stillwater and Chinchilla met at the Peltz residence for a reinspection. As the result of that reinspection, Stillwater provided a supplemental adjustment of the claim in the net payable amount of $14,455.64 (computed as $19,329.32 RCV, less $4,373.68 for recoverable depreciation and $500 for the policy deductible).
Still believing that Stillwater had not adjusted the claim in good faith, Peltz retained the services of Guard Your Claim Public Adjusters (“GYC”), and based on the findings of GYC, Peltz submitted a sworn proof of loss (“SPOL”) on September 3, 2024, claiming property damage in the amount of $103,241.81, and a net amount of due under Coverage A of $102,741.81, after application of the $500 policy deductible. In addition, Peltz is claiming $1,750 for loss of use (based on a two-week period of repairs during which his home was unlivable and Personal Property damage in the amount of $3,514.95, based on a furniture restoration bill for a water damaged coffee table, glass top wall table, end table and an octagonal table. The total value of Peltz’s claim is 108,006.76.
§627.70131(7)(a), Fla. Stat., required Stillwater to pay or deny the SPOL within 60 days, unless the failure to pay or deny the claim was caused by factors beyond its control. There were no such extenuating factors to prevent Stillwater from paying or denying the SPOL. Indeed, at the time the SPOL was submitted, Stillwater had twice inspected Peltz’s residence and had all the information that it needed to complete two Xactimate estimates of the covered loss. In the seven months that elapsed between February and September 2024, Stillwater gave no indication that it needed additional information to complete its investigation into the cause and origin of the loss. To the contrary, Stillwater had etched its belief in writing, that it had “properly addressed all known items regarding this claim” on December 28, 2023. Rather than paying or denying the claim or a portion of the claim presented in the SPOL within 60 days (as required by §627.70131, Fla. Stat.), and rather than affirming or denying full or partial coverage of claims, and, as to partial coverage, the dollar amount or extent of coverage, within 30 days after proof-of-loss statements have been completed (as required by §626.9541(1)(i)(3)(e), however, Stillwater elected to take Peltz’s examination under oath (“EUO”). Peltz alleges that the request for the EUO was made in bad faith for the outcome-determinative purpose of reneging on its coverage determination rather than to concede its good faith obligation to attempt to settle the claim had it acted fairly and honestly with due regard for the interests of its insured.
The EUO was conducted on December 4, 2024. Following the EUO, Stillwater, through Greg Lefkowitz (Commercial Property Claims Specialist), wrote a letter dated December 12, 2024 to undersigned counsel which indeed reversed its coverage determination in its entirety, stating that the damage to Peltz’s home “was the result of flood or surface water from the No Name Low storm that affected the area on November 15th-16th, 2023.” Stillwater’s untimely revisited cause and origin determination was staked on information that was all readily available to Stillwater at the time that it rendered its initial coverage determination. Specifically, the letter indicates that Stillwater’s coverage reversal is staked on three purported “facts”: (1) “It has been determined that a significant storm occurred on the date of loss which yielded over 14 inches of rain in a short time”; (2) Peltz testified that “on the claimed date of loss, it was raining heavily, there was no damage to the plumbing system, no water needed to be shut off, no repairs were necessary to top any leak, and the water flow stopped on its own; and (3) Peltz left a voicemail with the Islamorada Village Public Works Department regarding his toilet backing up, in which he stated that he was “assuming it is because of all this rain.”
Of course, these three putative “facts” were all known to Stillwater, and presumably relied upon by Stillwater, at the time that it rendered its initial December 28, 2023 finding that this claim was caused by a failing toilet and was a covered loss under the Policy. First, it goes without saying that Stillwater, like any reasonable insurer, has ready access to weather data, and to whatever extent Stillwater may have lacked knowledge regarding the November 15, 2023 weather conditions in Monroe County, Florida, until the December 4, 2024 EUO, that lack of knowledge would only betray Stillwater’s failure to adopt and implement standards for the proper investigation of claims, in violation of §626.9541(1)(i)(3)(a), Fla. Stat. Moreover, Stillwater misrepresents pertinent facts relating to its reliance on the “flood” exclusion to deny coverage, in violation of §626.9541(1)(i)(3)(b), Fla. Stat., to the extent that Stillwater is entirely without any basis to assert that there was any general condition of flooding at the Peltz residence on November 15-16, 2023. To the contrary, the Stillwater adjuster who inspected the loss shortly thereafter reported no evidence of any general condition of flooding, or high watermark at the property, which typically would be noted if there was indeed any suspicion of the possible application of a “flood” exclusion. Second, during a recorded statement taken on December 18, 2023, Peltz was recorded as saying that he did not call a plumber and that the water stopped on its own. Accordingly, Stillwater’s insinuation that it first learned this information on December 4, 2024 is at best disingenuous. Third, any “assumption” which Peltz had (or has) regarding the correlation between the spread of water throughout his house and the rain is just that – an assumption – and the “fact” of Peltz’s “assumption” must not be afforded any weight in furtherance of any reasonable cause and origin determination. In view of the foregoing, it is self-evident that Stillwater had no additional probative information as a consequence of the EUO that it did not have when it completed its investigation of the loss one year earlier and concluded that the loss was covered under the terms of the Policy. The only thing that changed was that Stillwater became informed that the loss which it had low-balled as a $14,455.64 loss was likely far greater in scope than Stillwater initially reported. Had Peltz not pursued his own interest under the Policy, Stillwater would have been content to have disregarded those interests and escape with egregiously inadequate indemnity payments totaling $14,455.64. Once Peltz submitted a sworn proof of loss in excess of $100,000, Stillwater was forced to redesignate this relatively small loss as a “large loss,” and in doing so, Stillwater conveniently reneged on its favorable coverage determination without any supportable factual basis.
Although the narrative portion of the December 14, 2024 claim denial letter stakes its denial on the unsupported and unsupportable conclusion that the cause of loss was “flood,” the letter also incorporates the entirety of the Policy’s “Water Exclusion.” It should be noted that Stillwater likewise has no possible factual basis to support argument that damage to the Peltz residence was caused by (1) “water which (a) backs up through sewers or drains; or (b) overflows or is otherwise discharged from a sump, sump pump or related equipment; as a direct or indirect result of flood (Water Exclusion at “2”); or (2) water below the surface of the ground, including water which exerts pressure on, or seeps, leaks or flows through a building, sidewalk, driveway, patio, foundation, swimming pool or other structure (Water Exclusion at “3”). Stillwater failed to retain any engineer to ascertain or opine on the mechanism by which water entered the Peltz property. Given Stillwater’s burden to prove a Policy exclusion, no reasonable interpretation of the known facts can support Stillwater’s bald and conclusory factually unsupported denial of Peltz’s claim pursuant to the Water Exclusion. As such, Stillwater has violated §626.9541(1)(i)(3)(f), Fla. Stat. by fashioning an egregiously unreasonable explanation in writing to its insured of the basis in the insurance policy, in relation to the facts, for the denial of the claim, in view of its conclusory reversal of its previously favorable coverage determination, and its parroting of coverage exclusions in the absence of any evidentiary basis for so going. Stillwater has simply fashioned an “outcome oriented” argument in the absence of any and all investigative facts to plausibly support its denial. This constitutes a bad faith denial of Peltz’s claim, in violation of §624.155(1)(b)(1), Fla. Stat.
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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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