Civil Remedy Filing

Civil Remedy Notice of Insurer Violations

Filing Number: 805393

Filing Accepted: 2/5/2025

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Complainant

Last/Business Name *

FOY

First Name

LAURA

Street Address *

2123 OLD BURNT STORE RD. N.

City, State Zip *

CAPE CORAL, FL 33993

Email Address *

P.WEBB@ELAWFIRM.ORG

Complainant Type: *

Insured

Last/Business Name*		FOY		First Name		LAURA
Policy # *		FLP636953		Claim #*		1105562-221013

Attorney

Attorney is Applicable

Violation

Insurer Type *		Authorized Insurer Unauthorized Insurer

Insurer Name
Insurer Name*		ASI PREFERRED INSURANCE CORP.
Insurer Name*
Street Address*
City, State Zip*		,
NAIC Company Code 13142

Name of individual responsible for violation (if any):* JONATHAN SMAIL; ASI PREFERRED INSURANCE CORP. D/B/A PROGRESSIVE HOME; JONATHAN SMAIL, SENIOR CLAIMS ADJUSTER; CHRIS MARTIN, CLAIMS ADJUSTER; WILLIAM MARULANDA, SENIOR CLAIMS ADJUSTER; LINDA FLUTY, ADJUSTER; RYAN BYRD, APPRAISER; CARLITA BARNES, CLAIM
Type of Insurance * Residential Property & Casualty

Reason for Notice *

	Claim Denial
	Claim Delay
	Unsatisfactory Settlement Offer
	Unfair Trade Practice

* Statutory provision(s) which the insurer allegedly violated.

	624.155(1)(b)(1)		Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests.
	624.155(1)(b)(3)		Except as to liability coverages, failing to promptly settle claims, when the obligation to settle a claim has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage.
	626.9541(1)(i)(3)(a)		Failing to adopt and implement standards for the proper investigation of claims.
	626.9541(1)(i)(3)(b)		Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue.
	626.9541(1)(i)(3)(c)		Failing to acknowledge and act promptly upon communications with respect to claims.
	626.9541(1)(i)(3)(d)		Denying claims without conducting reasonable investigations based upon available information.
	626.9541(1)(i)(3)(f)		Failing to promptly provide a reasonable explanation in writing to the insured of the basis in the insurance policy, in relation to the facts or applicable law, for denial of a claim or for the offer of a compromise settlement.
	626.9541(1)(i)(3)(g)		Failing to promptly notify the insured of any additional information necessary for the processing of a claim.
	626.9541(1)(i)(3)(h)		Failing to clearly explain the nature of the requested information and the reasons why such information is necessary.
	626.9541(1)(i)(4)		Failing to pay undisputed amounts of partial or full benefits owed under first-party property insurance policies within 60 days after an insurer receives notice of a residential property insurance claim, determines the amounts of partial or full benefits, and agrees to coverage, unless payment of the undisputed benefits is prevented by factors beyond the control of the insurer as defined in s. 627.70131(5).

* Specific policy language that is relevant to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

See the policy provisions related to Loss Settlement, Appraisal, and Loss Payment. By filing this Civil Remedy Notice, Laura Foy does not intend to waive any rights, defenses, or claims which she now has or may have in the future under her Policy. All rights, defenses, claims, and privileges afforded under said Policy are hereby expressly reserved.

* Facts and circumstances giving rise to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

This notice is given in order to perfect the right to pursue the civil remedy authorized by F.S. §624.155. ASI has failed to promptly settle Laura Foy’s insurance claim when the obligation to settle the insurance claim had become reasonably clear. To date, ASI has continued to refuse to acknowledge its obligation to tender all insurance proceeds and monies due and owing to the insureds. In exchange for the payment of a premium by Laura Foy to ASI, ASI issued policy of insurance to Laura Foy (hereinafter referred to as the “Policy”). This Policy was intended to protect Laura Foy’s home located at 2123 Old Burnt Store Rd. N, Cape Coral, FL 33993 (hereinafter referred to as the “home,” the “insured property,” or the “subject property”) at all material times. On or about September 28, 2022, Laura Foy’s home suffered substantial damages caused by the passing of Hurricane Ian (hereinafter the “Loss”). According to the National Oceanic and Atmospheric Administration (“NOAA”), on the date of the Loss, the eye of Hurricane Ian, an extremely powerful and dangerous Major hurricane, passed directly over Laura Foy’s home as it made landfall on Florida’s mainland. Laura Foy promptly reported a claim to ASI for the substantial damages caused by the Loss. Following the loss, Laura Foy took action to mitigate the damages to her home. Laura Foy made her home available to ASI for its requested inspections. Unfortunately, ASI conducted cursory, inadequate, and perfunctory inspections of the home by way of its agents, which resulted in an estimate being generated and approved by ASI that woefully underestimated the true extent of Laura Foy’s Loss. Laura Foy utilized the services of Florida Roofing, A Division of Wooden Homes, Inc. (FR) to ascertain the extent of damages to her home, and the legal services of Elevate Legal Services, PLLC., (Elevate) to ensure that her claim was adjusted fairly. After acknowledging Laura Foy’s letter of representation as ASI termed it, ASI continued its intransigence standing behind its woefully underestimated damage assessment of Laura Foy’s home. In response to Laura Foy’s Notice of Intent to Initiate Litigation, ASI responded by invoking the appraisal provisions of the policy in order to resolve any disputes in the amounts owed due to damage to the property caused by the passage of the eye of Hurricane Ian over her home. ASI named Ryan Byrd of Precisions Claims Solutions as their appraiser. Laura Foy chose Dave Nguyen, IICRC WRT, FSRT Appraiser/Loss Consultant/Umpire of W&N Settlement Services as her appraiser. The Parties chose Aaron Pen of Aaron Penn, LLC., to serve as Umpire and to settle matters of difference that have arisen between the two appraisers. On or about March 4, 2024, an Appraisal Award was reached finding Replacement Cash Value of $242,331.39 and Actual Cash Value of $237,741.74. On March 29, 2024 Progressive Home (ASI) issued a payment letter to Elevate for Laura Foy, indicating there was $4,589.65 total Maximum Recoverable Depreciation, and that the net claim if maximum depreciation is recovered (after prior payments of $11,047.79, Hurricane Deductible of $11,180.00, and less “non-recoverable” depreciation excluded of $21,552.74,) would be $188,980.35. Laura Foy, through counsel Elevate Legal Services, PLLC., has requested from ASI recovery of the recoverable depreciation of $4,589.65, pursuant to the policy of insurance. ASI has refused through the pen of its Senior Claims Adjuster, Jonathan Smail. Laura Foy’s counsel Elevate, issued a Notice of Intent To Initiate Litigation (hereinafter referred to as the “Notice”) received by ASI on January 24, 2025 stating: On September 28, 2022, the Property sustained damage during the passing of Hurricane Ian, ASI Preferred Insurance Corporation (“ASI”) Insured the Property. There was a dispute as to the amount needed for repairs and the parties resolved the dispute through the appraisal process. After receiving the insurance proceeds from appraisal, the insured hired a roofing company to complete all necessary repairs. After the repairs were made, the insured submitted all repair documentation to ASI and requested return of the $4,589.65 held in recoverable depreciation. To date, however, ASI has refused to return the recoverable depreciation thereby breaching the insurance policy. The Insured’s pre-suit settlement demand is comprised of a request for return of the $4,589.65 held in recoverable depreciation, plus interest, plus $5,000 in attorney fees and $0.00 attorney costs, totaling a demand for $9,589.65 (which represents the disputed amount). This Notice is being provided following a denial of coverage. In response to Laura Foy’s Notice, ASI, through Jonathan Smail, issued its response letter to the Notice, on January 30, 2025, (hereinafter referred to as the “Response”) which blatantly misstates the law, the facts, and is clearly misleading. The Response states of Laura Foy’s Notice, that it “-does not state with specificity the alleged acts or omissions of the insurer giving rise to the suit, -does not state that a copy of the notice was provided to the claimant, - does not provide a pre-suit settlement demand which itemizes damages, attorney fees and costs, - does not provide the disputed amount.” The Response goes on to opine that the Notice is defective and while naming the pre-suit settlement demand amount of $9,590 that the Response stated just a moment before that the Notice did not provide, goes on to offer a net offer amount of: $0.00. ASI has breached the policy by failing to return recoverable depreciation. ASI is clearly misstating the law and the facts in derogation of its duties under the law and to its insured, Laura Foy. This is a pattern and practice of ASI in this claim, and is ASI’s business practice. ASI has refused and/or failed to settle Laura Foy’s insurance claim when under all circumstances it could and should have done so had it acted fairly and honestly towards her. Additionally, to date, the adjusters and attorneys handling this matter on behalf of ASI have made no real effort to settle Laura Foy’s claim at an amount that would compensate Laura Foy for the severe damage to her home. This is wrongful conduct. Acts or omissions by the agents and attorneys for ASI are chargeable to ASI. This means that acts or omissions by the agents and attorneys for ASI are, for all intents and purposes, the acts of ASI itself. See e.g., Griffith v. Investment Co., et al, 92 Fla. 781 (Fla. 1926). For example, upon information and belief, discovery will show that at all material times ASI and its agents and attorneys have been aware of covered damages to Laura Foy’s Property in excess of indemnity amounts paid by ASI all along – and that despite this knowledge ASI and its agents and attorneys have failed to act appropriately regarding same at all material times in accordance with the plain text of the Policy and Florida law. Past Civil Remedy Notices filed against Jonathan Smail while working for ASI, clearly demonstrate his and ASI’s bad faith, these include civil remedy notice numbers 730284, 730291, 730296, 730301, 77991 available as of January 31, 2025. Likewise, the past Civil Remedy Notices filed against ASI in the past six years clearly demonstrate that ASI is conducting bad faith practices against other insureds, so much so that the violations occur with such frequency as to indicate a general business practice. The contents of the past Civil Remedy Notices filed against ASI in the past six years demonstrate that ASI’s actions are willful, wanton and malicious, and done with reckless disregard as to the rights of its insureds, including but not limited to Laura Foy. Larua Foy incorporates all past Civil Remedy Notices filed against ASI in the past six years within the instant Civil Remedy Notice as if fully set forth herein to demonstrate ASI’s pattern and practice of bad faith behavior. Accordingly, Laura Foy will seek punitive damages from ASI should a bad faith action be filed as a result of ASI’s erroneous coverage determination and bad faith practices discussed herein. The person or persons representing the insurer who are most responsible for and/or knowledgeable of the facts giving rise to the allegations in this notice include, but are not limited to, the following: ASI PREFERRED INSURANCE CORP. D/B/A PROGRESSIVE HOME; JONATHAN SMAIL, SENIOR CLAIMS ADJUSTER; CHRIS MARTIN, CLAIMS ADJUSTER; WILLIAM MARULANDA, SENIOR CLAIMS ADJUSTER; LINDA FLUTY, ADJUSTER; RYAN BYRD, APPRAISER; CARLITA BARNES, CLAIM REPRESENTATIVE; ALL LITIGATION ADJUSTERS WORKING FOR OR ON BEHALF OF ASI PREFERRED INSURANCE CORPORATION THAT HAD A ROLE IN HANDLING, REVIEWING, AND/OR ADJUSTING THE SUBJECT CLAIM; ALL INDIVIDUALS RESPONSIBLE FOR CREATING THE MANUALS UTILIZED BY ASI PREFERRED INSURANCE CORPORATION AND/OR ITS THIRD-PARTY VENDORS DURING THE ADJUSTMENT OF CLAIMS, INCLUDING BUT NOT LIMITED TO ASI PREFERRED INSURANCE CORPORATION’S CLAIMS-HANDLING MANUAL; ALL INDIVIDUALS RESPONSIBLE FOR IMPLEMENTING THE PRACTICES AND PROCEDURES OUTLINED IN THE MANUALS UTILIZED BY ASI PREFERRED INSURANCE CORPORATION AND/OR ITS PREFERRED THIRD-PARTY VENDORS DURING THE ADJUSTMENT OF CLAIMS, INCLUDING BUT NOT LIMITED TO ASI PREFERRED INSURANCE CORPORATION’S CLAIMS HANDLING MANUAL; ALL INDIVIDUALS THAT JONATHAN SMAIL REPORTED TO DURING THE ADJUSTMENT OF THE SUBJECT CLAIM; ALL INDIVIDUALS THAT CHRIS MARTIN REPORTED TO DURING THE ADJUSTMENT OF THE SUBJECT CLAIM; ALL INDIVIDUALS THAT WILLIAM MARULANDA REPORTED TO DURING THE ADJUSTMENT OF THE SUBJECT CLAIM; ALL INDIVIDUALS THAT LINDA FLUTY REPORTED TO DURING THE ADJUSTMENT OF THE SUBJECT CLAIM; ALL INDIVIDUALS THAT RYAN BYRD REPORTED TO DURING THE ADJUSTMENT OF THE SUBJECT CLAIM; ALL INDIVIDUALS THAT CARLITA BARNES REPORTED TO DURING THE ADJUSTMENT OF THE SUBJECT CLAIM; ASI PREFERRED INSURANCE CORPORATION’S CAT TEAM, AND ALL EMPLOYEES AND MANAGEMENT COMPRISING SAME; ALL ATTORNEYS, PARALEGALS, EMPLOYEES, AGENTS, AND/OR INDEPENDENT CONTRACTORS IN MANAGEMENT POSITIONS AND/OR ROLES WORKING AT, ENGAGED BY, OR WORKING ON BEHALF OF ASI PREFERRED INSURANCE CORPORATION; ANY AND ALL ADJUSTERS, SUPERVISORS, MANAGEMENT, ATTORNEYS, OR OTHER INDIVIDUALS ASSOCIATED WITH OR RETAINED BY ASI PREFERRED INSURANCE CORPORATION; ANY AND ALL ADJUSTERS, SUPERVISORS, MANAGEMENT, ATTORNEYS, OR OTHER INDIVIDUALS ASSOCIATED WITH OR RETAINED BY ASI PREFERRED INSURANCE CORPORATION INVOLVED WITH THE HANDLING OF THIS CLAIM; ANY AND ALL PARENT AND/OR SUBSIDIARY COMPANIES THAT UNDERWRITE POLICIES FOR ASI PREFERRED INSURANCE CORPORATION AND BEAR RISK OF LOSS; THE UNDERWRITING DEPARTMENT FOR ASI PREFERRED INSURANCE CORPORATION; AND, ANY AND ALL ATTORNEYS, PARALEGALS, EMPLOYEES, AGENTS, AND/OR INDEPENDENT CONTRACTORS EMPLOYED AND/OR ENGAGED BY ASI PREFERRED INSURANCE CORPORATION THAT HAD ANY ROLE IN THE ADJUSTMENT AND OR THE LITIGATION RELATING TO THE SUBJECT CLAIM.

Comments

User Id		Date Added		Comment
darryl_j_roles@progressive.com		02-07-2025		While ASI Preferred Insurance Corp believes that the Civil Remedy Notice fails to comply with the requirements of Florida Statute §624.155 and Florida Case law, it has responded to the notice in writing to Elevated Legal Services PLLC, on January 7, 2025.

Acknowledgement
*	The submitter hereby states that this notice is given in order to perfect the rights of the person(s) damaged to pursue civil remedies authorized by Section 624.155, Florida Statutes. 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.

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