Filing Number: 801590
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| Filing Accepted: 1/16/2025 |
| Last/Business Name
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WAKELEY
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First Name |
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HAROLD AND DEBRA |
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| Street Address
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2939 JANET DR. |
| City, State Zip
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NORTH FORT MYERS,
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33903
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| Email Address
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LITIGATION@THEFREEMANLAWFIRMPA.COM |
| Complainant Type:
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Insured |
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| Last/Business Name* |
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WAKELEY |
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First Name |
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HAROLD AND DEBRA |
| Policy # * |
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0766602843 |
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Claim #* |
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5021947846-1-1 |
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Attorney is Applicable
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| Last Name* |
FREEMAN
First Name *
BRIAN
Initial
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| Street Address* |
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4245 FOWLER STREET |
| City, State Zip* |
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FORT MYERS
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FLORIDA
33901
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| Email Address * |
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LITIGATION@THEFREEMANLAWFIRMPA.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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TRUCK INSURANCE EXCHANGE
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| Insurer Name* |
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| Street Address* |
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| City, State Zip* |
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,
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NAIC Company Code 21709 |
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| Name of individual responsible for violation (if any):*
JAMARI BOOKER
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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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Unfair Trade Practice
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Other
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Bad Faith
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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)(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.
The Insureds are in possession of a copy of their insurance policy and believe their Insurance Policy language relevant to the violations includes all applicable insurance policy coverages, loss payment provisions, valuation provisions and other terms and conditions of Insurance Policy No. 0766602843. In particular, the Insureds refers to the following insurance policy coverages included in their insurance policy:
Section I - Property Coverages
A. Coverage A- Dwelling
1. Under Coverage A- "dwelling" we cover:
a. The "dwelling" on the "residence premises" shown in
the Declarations by address, including structures
attached to the "dwelling"; and
b. Materials and supplies located on or next to the
"residence premises" used to construct. alter or
repair the "dwelling" or other structures on the
"residence premises".
2. We do not cover land. Including land or fill on which the
"dwelling" is located.
B. Coverage B - Other Structures
1. Under Coverage B-Other Structures we cover other
structures on the "residence premises" set apart from
the "dwelling" by clear space. This includes structures
connected to the "dwelling" by only a fence, utility line,
sidewalk. driveway, patio or similar connection.
2. We do not cover:
a. Land, including land or fil! on which other structures
are located;
b. Other structures rented or held for rental to any
person not a tenant of the "dwelling", unless used
solely as a private garage;
c. Other structures from which any "business" is
conducted; or
d. Other structures used to store "business" property.
However, we do cover a structure that contains
"business" property solely owned by an "insured" or
a tenant of the "dwelling", provided that "business"
property does not include gaseous or liquid fueL
other than fuel in a permanently installed fuel tank of
a vehicle or craft parked or stored in the structure.
3. The limit of liability for this coverage will not be more than
the limit shown in the Declarations for Coverage B. Use
of this coverage does not reduce the Coverage A limit of
liability.
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 ordinanc1~
or law. except to the extent that coverage for these i ncreas1~d
costs is provided in E.1 0. Ordinance or Law under Section E.
Additional Coverages.
Covered property loss or damage is settled only with you 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;
will be settled for no more than the lesser of the following:
(1) "Actual cash value":
(2) Any stated limit or other limit of insurance in this
policy that applies to the property;
(3) The reasonable and necessary amount actually
spent to mplace lost property or to repair or
replace damage to the damaged part of the
property; or
(4) The loss to the interest of the insured in the
property.
2. The "component parts" of buildings covered under
Coverage A or B, at replacement cost without deduction
for depreciation, subject to parts 3. 4. and 5. and to the
following:
a. If, at the time of loss, the limit stated on the
Declarations for the damaged building is 80% or
more of the full replacement cost of the building
immediately before the loss. we will initially pay the
"actual cash value" of the loss, less any applicable
deductible. We will then pay any remaining amounts
necessary to perform the actual repair or replacement
as work is performed and expenses are incurred, but
not more than the least ofthe following amounts:
( 1) The limit stated on the Declarations that applies to
the building;
(2) The estimated 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.
In the event of a total loss to the building we will pay
the replacement cost without reservation or holdback
of any depreciation in value, pursuant to Section
627.702 of the Florida statutes. subject to the limit
stated on the Declarations.
If the building is rebuilt at a new premises, the
cost described in (2) above is limited to the cost
which would have been incurred if the building had
been built at its existing location on the "residence
premises".
b. If, at th!! time of loss, the: limit stated on the
Declarations is less than 80% of the
full replacement cost of the buildin~~ immediately
before the loss, we will pay the greater of the
following amounts, but not more than the limit stated
on the Declarations 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 limit stated on
the Declarations on the building bears to 80% of
the replacement cost of the building.
c. To determine the amount of insurance required to
equal SO% of the full replacement cost of the building
immediately before tt1e loss. do not include the value
of:
(1) Excavations, footings. foundations, piers, or any
other structures or devices that support all or part
of the building, which are below the undersurface
of the lowest basement floor;
(2) Those supports described in ( 1) above which
are below the surface of the ground inside the
foundation walls, if there is no basement; and
(3) Underground fiues, pipes. wiring and drains.
d. We will settle the loss as follows:
( 1) we will settle the loss as noted in 2.a. of this
provision. If 2.a. is not applicable, we will settle
the loss as follows:
(a) We will initially pay the" actual cash value" of
the building damage, minus any applicable
deductible.
(b) We will then pay the necessary amounts
actually spent to repair or replace the
damaged building as work is performed and
expenses are incurred.
(c) If a total loss, we will pay the replacement cost
amount without deduction for depreciation.
if the "dwelling" is rebuilt at a new premises, the
cost described in(:~) above is limited to the cost
which would have been incurred if the "dwelling"
had been built at its existing location on the
"residence premises".
However, if the cost ro repair or replace the damage
is both:
(1) Less than 5% of the amount of insurance in this
policy on the building; and
(2) Less than $2,500;
we will settle the loss as noted in parts 2.a. and
2.b. of this provision whether or not actual repair or
replacement is complete.
e. For any loss to property which may be settled on a
replacement cost basis, you have 5 years from the
date of our first payment toward "actual cash value"
to collect any amounts due for replacement cost
settlement.
3. We do not cover as part of the settlement of covered loss:
a. Any cost to repair or replace undamaged property
due solely to:
(1) Mismatch of color between undamaged
material and new material used to replace faded,
weathered or oxidized damaged material; or
(2) Mismatch between undamaged material
and new material used to repair or replace
damaged material due to outdated, obsolete or
discontinued products;
However, when the replaced items do not match in
quality, color or size, we will make reasonable repairs
or replacement of items in adjoining areas.
b. Actual or perceived loss in value to any property,
including but not limited to, because materials used
to repair or replace lost or damaged property does
not match undamaged property.
4. General contractor fees or charges:
a. Will only be included as reasonable replacement costs
if it is reasonably likely that the services of a general
required to manage, supervise and
coordinate the repairs: and
b. Will be paid as set forth in part 5. that follows.
5. a. "Actual cash value" and replacement cost settlements
will not include payment of:
(1) Increased costs of or from the enforcement of any
building ordinance or law; or
(2) General contractor fees or charges; or
(3) Costs to match property which is not damaged
with materials used to repair or replace damaged
property;
unless such fees, charges or costs are covered by this
policy and if covered, as the work is performed and
expenses are incurred.
b. If loss or damage to an~1 property, or any "component
part" thereof, may only be settled on an "actual cash
value" basis without recovery of depreciation, then
for settlement of that property, if actually covered and
incurred:
( 1) Item a.( 1 ). will be paid without deduction for
depreciation; and
(2) Items a.(2) and a.(3) will be paid with a deduction
for depreciation.
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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.
During the policy period, on September 28, 2022, the Insureds’ home located at 2939 Janet Dr. North Fort Myers, FL 33903, owned by Harold and Debra Wakeley ("Insureds"), suffered hurricane/windstorm related physical and structural damage as a direct result of Hurricane Ian, a covered loss under the subject insurance policy. Please see insurance policy language above that indicates insurance coverage for hurricane/windstorm damage to the Insureds’ home and roof system as a direct result of Hurricane Ian.
Subsequent to Hurricane Ian, the Insureds immediately reported the loss to their insurance carrier, Truck Insurance Exchange, ("Insurer"). Since the beginning of the claims process, the Insureds fully cooperated in the Insurer's investigation of the Insureds’ hurricane/windstorm damage claim.
Despite overwhelming evidence the Insureds’ home and roof system had been significantly physically and structurally damaged by Hurricane Ian, all covered losses under the subject insurance policy; the Insurer unreasonably and improperly investigated, inspected, evaluated, adjusted and failed to pay the correct amount of damage to the Insureds’ home and roof system. The Insurer performed a completely inadequate investigation of the damage to the Insureds’ home and roof system.
The Insurer retained adjuster Brad Monson (“Mr. Monson”), to inspect the Insureds’ home and roof system for hurricane/windstorm damage. Mr. Monson documented hurricane/windstorm damage to the roof system, interior, exterior, guest house, detached garage and exterior of the Insureds’ home. Despite the extensive documented damage, Mr. Monson prepare a damage estimate totaling a mere $29,044.53 in damage to the Insureds’ home and roof system.
On August 18, 2023, the Insurer sent correspondence to the Insureds informing the Insureds their hurricane/windstorm damage claim was partially denied. Based solely on Mr. Monson’s damage estimate, the Insurer issued payments of only $7,118.11 and $550.00 to the Insureds.
The Insureds retained, at their own expense, Rod Buvens, (“Mr. Buvens”), of Archer Claims to inspect their home and roof system for hurricane/windstorm damage. During his inspection, Mr. Buvens documented extensive physical and structural hurricane/windstorm damage to the Insureds’ roof system, exterior damage and damage to the Insureds’ windows. As a result of Mr. Buvens’s inspection, Mr. Buvens provided the Insureds with a damage estimate in the sum of $263,108.20.
The Insurer did not extend the necessary coverage for the clearly evident damage as a direct result of Hurricane Ian as set forth in Mr. Buvens’ damage estimate. The Insurer failed to extend full coverage for the Insureds’ clearly evident hurricane/windstorm damage, indicating the Insurer does not have proper standards for investigating the proper scope and amount of damage caused by a covered loss. The Insureds provided all the evidence necessary supporting the actual costs associated with the complete replacement of their roof system and the amount necessary to repair the interior and exterior damage to their home in order to restore their home to its pre-loss condition. However, despite this evidence and information, the Insurer failed and refused to pay for the Insureds’ damage in order to restore their home to its pre-loss condition.
Moreover, the Insurer did not perform a legally sufficient hurricane/windstorm damage investigation by failing to perform a substantial structural damage investigation and determination as required by The Florida Building Code and failing to retain a licensed Florida Professional Engineer to investigate the full extent of physical and structural damage to the Insureds’ home a direct result of Hurricane Ian. The Insurers failure to perform this very important substantial structural damage determination and failure to retain a licensed Florida Professional Engineer to assist the Insurer in its investigation of their hurricane/windstorm damage claim further indicates the Insurer did not comply with the basic requirements inherent in the proper investigation of hurricane/windstorm damage claims, and instead performs inadequate and incomplete investigations in order to improperly partially deny valid claims.
The Insureds provided the Insurer with an overwhelming amount of evidence to support the extensive physical and structural damage to their home and roof system and other Hurricane Ian related damage to their home and a comprehensive damage estimate from Mr. Buvens. Notwithstanding, the Insurer failed and refused to pay the amount necessary to restore their home to its pre-loss condition.
The work of adjusting insurance claims in Florida engages the public trust. In the instant case, the Insurer breached this duty through its complete failure to properly investigate, inspect, evaluate, adjust and pay the hurricane/windstorm damage claim of the Insureds. The Insurer's failure to properly inspect, investigate, evaluate, adjust and pay for the damage to the Insureds’ home and roof system, failure to communicate with the Insureds, and improper handling of the Insureds’ hurricane/windstorm damage claim clearly indicates the Insurer failed to adopt and implement proper standards for the investigation, evaluation and adjustment of claims; failed to properly train, manage, supervise and promote claims adjusters so Insureds, such as the Insureds in this case, receive good faith, fair and prompt adjustment of claims; and failed to conduct a full and fair investigation of this hurricane/windstorm damage claim. The Insurer furthermore failed to provide full reasons and facts to the Insureds for the partial denial of their hurricane/windstorm damage claim resulting in the statutory violations as set forth in this notice.
The Insurer also breached its duty to the Insureds by failing to timely and promptly pay the correct indemnity owed to its Insureds. This duty is owed by the Insurer to its Insureds and is inherent in the insurance claims process. The Insureds promptly provided all the necessary documentation, evidence and information for a timely resolution of their hurricane/windstorm damage claim, including an itemized damage estimate from Mr. Buvens and extensive documentation of the damage to their home as a direct result of Hurricane Ian to the Insurer which clearly shows the damage to the Insureds’ home exceeds the grossly inadequate undisputed amount of damage the Insurer documented to the Insureds’ home and failed to provide a detailed damage estimate of such damages documented by the Insurer. To date, the Insurer failed to provide timely and prompt payment for the correct amount of the Insureds’ damage.
To date, the Insureds performed all conditions precedent required of them undertheir insurance policy with the Insurer and under Florida law. However, the Insurer and its agents failed and refused to properly investigate, inspect, evaluate, adjust and pay the Insureds’ hurricane/windstorm damage claim and failed to tender all insurance proceeds due and owing to the Insureds under the subject insurance policy. Due to the Insurer's intentional delay and insufficient investigation of the Insureds’ hurricane/windstorm damage claim, the Insureds were forced to obtain legal counsel at a significant cost and expense to attempt to recover what they are legally owed under their insurance policy with the Insurer.
The concept of insurance is that it is the insurer's granting of timely and prompt indemnity or
security against a contingent loss. Fla. Stat. § 624.02 defines insurance as a contract whereby one undertakes to indemnify another or pay or allow a specified amount or a determinable benefit upon determinable contingencies. Inherent is the fact that payment must be made timely and promptly so that an Insureds may mitigate their damages and be put back into the position they were in prior to the loss as quickly as possible. Simply put, the Insurer failed to comply with its duty to indemnify the Insureds and breached the insurance policy.
The Insurer failed and refused to properly investigate, inspect, evaluate, adjust and pay the Insureds’ hurricane/windstorm damage claim. The Insurer failed and refused to pay the correct amount of insurance proceeds to date owed to the Insureds as required by the insurance policy and Florida law. Refusal and failure to pay the Insureds’ hurricane/windstorm damage claim, when under all the circumstances it could have and should have done so had it acted fairly and honestly towards the Insureds is a breach of the insurance policy and a violation of Florida Law.
The actions taken by the Insurer in the handling and adjustment of the Insureds’ hurricane/windstorm damage claim were willful, wanton, and in disregard for the rights of its Insureds and occur with such a frequency as to indicate a general unfair and deceptive business practice in violation of Florida Statutes § 624.155 and § 626.9541.
Based on the foregoing actions and omissions, the Insurer engaged in wrongful claims handling conduct, including but not limited to, the following:
1) Improper claim denial;
2) Improper claim delays;
3) Not conducting a full and fair investigation of the Insureds’ hurricane/windstorm damage claim;
4) Looking for ways to deny recovery to the Insureds;
5) Overlooking covered damages to the Insureds’ home and roof system and not retaining a professional engineer if causation was in question;
6) Failing to pay the necessary amounts due and owing to restore the Insureds’ home to its pre-loss condition;
7) Not adjusting the claim and not evaluating the loss properly, promptly and fairly so as to provide full and prompt indemnity to its Insureds;
8) Failing to implement proper standards for the adjustment and investigation of insurance claims;
9) Failing to pay the requisite monies owed for the Insureds’ loss, despite receipt of a detailed damage estimate from Mr. Buvens and supporting documentation;
10) Not training, supervising or managing adjusters and independent contractors properly so that prompt and full payments are made, but rather placing the company’s interests before the policyholders’ interests by attempting to deny or minimize payments owed;
11) Establishing severity control initiatives and otherwise establishing a culture of not fully and promptly paying claims following losses.
The Insurer violated the statutes set forth above based on the conduct described herein. The Insurer failed and refused to tender insurance proceeds required by its insurance policy with its Insureds. In addition, the Insurer failed to reasonably and properly pay and resolve the Insureds’ hurricane/windstorm damage claim for money damages when under all the facts and circumstances, it could have and should have done so if it had acted fairly and honestly towards its Insureds. The Insurer’s improper actions are well documented and have occurred with such frequency as to constitute a general unfair and deceptive business practice and were made in a reckless disregard for its Insureds’ rights. The Insurer placed its interest above and before the Insureds’ interest in this matter.
Therefore, to cure the defects outlined in this Civil Remedy Notice, the Insurer must do the following:
A. Immediately pay the Insureds’ hurricane/windstorm damage claim in the amount of the Mr. Buvens’s damage estimate of $263,108.20, plus interest, less the applicable deductible.
B. Agree to tender any recoverable depreciation once it has been incurred per the terms of the insurance policy.
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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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