Civil Remedy Notice of Insurer Violations
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Filing Number:     808011
Filing Accepted:  2/24/2025
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Complainant
Last/Business Name *  
BERRY   First Name   ELIZABETH
Street Address * 4601 HIGHWAY A1A, APT. 305
City, State Zip * VERO BEACH, FL 32963
Email Address * ELIZKATHY@YAHOO.COM
Complainant Type: * Third Party
Insured
Last/Business Name*   BALAKRISHNAN   First Name   BEENA
Policy # * UNKNOWN Claim #* 01-113974
Attorney
Attorney is Applicable
Last Name* MURPHY, JR. First Name * LEWIS Initial W.
Street Address* 2001 U.S. HIGHWAY 1
City, State Zip* VERO BEACH , FLORIDA 32960
Email Address * WMURPHY@MURPHYWALKER.COM
Violation
Insurer Type *   Authorized Insurer Unauthorized Insurer
 
Insurer Name*   FIRST PROTECTIVE INSURANCE COMPANY
NAIC Company Code 10897
 
Name of individual responsible for violation (if any):* JENNIFER CLARK AND JACKIE HESS
Type of Insurance * Residential Property & Casualty   
Reason for Notice *
Claim Denial
* 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.
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.
* Specific policy language that is relevant to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

We are not in possession of the tortfeasor's insurance policy.
 
* Facts and circumstances giving rise to the violation.
Enter all words or phrases (one at a time) that should be used to filter.

By correspondence dated November 20, 2024, counsel for the owner of Unit 305 in the multi-story condominium contacted Frontline Insurance as the insurer for Unit 405. In response to said inquiry, Jennifer Clark of Frontline Insurance wrote to counsel for the owner of Unit 305 on December 10, 2024 and advised that its insured, Beena Balakrishnan, has no liability because the HVAC contractor was negligent during the installation for the HVAC in Unit 405. In response to said correspondence, counsel for the owner of Unit 305 wrote to Frontline Insurance on December 16, 2024 to advise that Florida law does not provide that a property owner can escape liability by seeking to blame the negligence of the contractor retained by that property owner, and that immunity would not apply when water damage flows from Unit 405 to Unit 305. In response to that explanation, Jackie Hess of Frontline Insurance wrote to counsel for the owner of Unit 305 to advise that Frontline Insurance is unaware of any common law that supports the position previously asserted on behalf of the owner of Unit 305, and requested that the legal authority relied upon be provided. In response to that inquiry, on January 22, 2025, counsel for the owner of Unit 305 provided a three-page summary of common law confirming the liability of the owner of Unit 405 and the absence of any defense if an independent contractor for that owner caused or contributed to cause the damages at issue. In response to that explanation, Jackie Hess of Frontline Insurance advised that the investigation by Frontline Insurance “. . . led to a rescission of the Frontline policy issued to [its insured] back to the date of inception.” Counsel for the owner of Unit 305 responded in writing to Jackie Hess of Frontline Insurance on January 29, 2025 to explain in writing the basis for the rescission as all information required to support a claim against the owner of Unit 405 as the insured of Frontline Insurance has been provided. The request for an explanation of the untimely effort by Frontline Insurance to avoid its obligations to the owner of Unit 405, its insured, in an effort to deny the claim asserted on behalf of the owner of Unit 305 below was met with silence. No further response was provided by Frontline Insurance to counsel for the owner of Unit 305.
Comments
User Id Date Added Comment
hconnolly@sgc-attorneys.com 03-13-2025 March 13, 2025 Via The Department of Financial Services Civil Remedy System Florida Department of Financial Services Division of Consumer Services 200 East Gaines Street Tallahassee, FL 32399-0322 Re: Civil Remedy Notice of Insurer Violations Complainant: Elizabeth Berry Company: First Protective Insurance Company Claim No.: 01000113974 DFS File No.: 808011 Acceptance Date: 02/24/2025 Dear Sir or Madam: We write on behalf of First Protective Insurance Company (hereafter “First Protective”) to respond to the Civil Remedy Notice of Insurer Violations submitted to the Department of Financial Services (hereafter “DFS”) by Lewis W. Murphy, Jr., Esq. on behalf of Third-Party Complainant, Elizabeth Berry (hereafter “the Complainant”). The DFS accepted the Civil Remedy Notice on February 24, 2025. On July 21, 2022, Beena Balakrishnan completed, executed, and submitted an application for insurance to First Protective. Based on the application submitted by Ms. Balakrishnan, First Protective issued a homeowners insurance policy to her with an inception date of August 3, 2022. Thereafter, Ms. Balakrishnan submitted a property damage claim to First Protective under the policy due to a water leak emanating from her air conditioning system. The Complainant, who lives in the unit below Ms. Balakrishnan, made a liability claim against Ms. Balakrishnan for damages to her property reportedly caused by the same water leak. First Protective subsequently engaged in two claim investigations, one into Ms. Balakrishnan’s first-party property damage claim, and the other into the Complainant’s third-party liability claim. After investigating the Complainant’s claim against Ms. Balakrishnan, First Protective determined that Ms. Balakrishnan was not liable for the Complainant’s damages. In the meantime, First Protective discovered during its investigation into Ms. Balakrishnan’s first-party insurance claim that at the time Ms. Balakrishnan applied for insurance, she made certain misrepresentations, omitted or concealed facts, and/or made incorrect statements in the application that were material to the acceptance of the risk, material to the hazard assumed by First Protective, and/or fraudulent. Upon learning of the material misrepresentations, omissions, concealment, and/or statements, First Protective notified Ms. Balakrishnan on January 16, 2025, of policy rescission from inception and refunded the premiums. The Complainant’s alleged violations purportedly arise out of First Protective’s investigation and evaluation of her liability claim against Ms. Balakrishnan. The alleged violations also purportedly arise out of First Protective’s rescission of the insurance policy issued to Ms. Balakrishnan based on the false statements contained within her insurance application. However, the Civil Remedy Notice is factually and legally deficient, and thus invalid, because it does not comply with the requirements of § 624.155(3)(b), Fla. Stat., and First Protective otherwise denies the blanket and unsupported allegations. To begin, an injured third-party has no beneficial interest in a liability policy and cannot otherwise maintain a direct action against a liability insurer, unless and until that person has obtained either a settlement or verdict against the insured for a cause of action which is covered by the insurance policy. Hazen v. Allstate Ins. Co., 952 So.2d 531 (Fla. 2d DCA 2007); General Star Indem. Co. v. Boran Craig Barber Engel Const. Co., 895 So.2d 1136 (Fla. 2d DCA 2005); VanBibber v. Hartford Accident & Indem. Ins. Co., 439 So.2d 880 (Fla. 1983); § 627.4136, Fla. Stat. Here, because the policy was rescinded, there is no insurance policy and thus no contractual, insurer-insured relationship between First Protective and Ms. Balakrishnan. Furthermore, the Complainant does not otherwise allege that she has obtained a settlement or a judgment against Ms. Balakrishnan. Absent a settlement or judgment for a cause of action which is covered by an insurance policy issued by First Protective, the Complainant has neither the standing nor the authority to file a civil remedy notice. See State Farm Fire & Cas. Co. v. Zebrowski, 706 So.2d 275, 277 (Fla. 1997) (§ 624.155(1)(b)1, Fla. Stat., authorizes a third-party to file a bad faith claim upon obtaining a judgment in excess of the policy limits). In addition to the fact that the Complainant does not have standing or the authority to file a civil remedy notice, the Notice is otherwise statutorily deficient. Section 624.155(3)(b), Fla. Stat., requires a Civil Remedy Notice to provide “with specificity” each of the following: (1) the statutory provision allegedly violated, including the specific language of the statute; (2) the facts and circumstances giving rise to a violation of the statutes referenced in the notice; (3) the name of any individual involved in the alleged violation; and (4) the specific policy language that is relevant to the alleged violation. Accordingly, to be valid, the Civil Remedy Notice must be specific enough factually so as to provide an insurer with the opportunity to adequately respond to and, if necessary, timely cure the alleged violations within sixty days. See Julien v. United Prop. & Cas. Ins. Co., 311 So.3d 875 (Fla. 4th DCA 2020) (Fla. 4th DCA 2020) (a civil remedy notice is facially invalid where the insured fails to identify the specific statute and specific policy provisions relevant to the alleged violations); Heritage Corp. of S. Fla. v. National Union Fire Ins. Co. of Pittsburgh, 580 F.Supp.2d 1294 (S.D. Fla. 2008) (insured did not state with requisite specificity the facts giving rise to the specific statutory violation so as to put the insurer on notice of the wrongful acts being alleged). The Civil Remedy Notice submitted by the Complainant fails to meet these basic requirements. Specifically, the Complainant does not allege any specific facts explaining how First Protective (1) did not attempt in good faith to settle her claim when, under the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her interests, (2) failed to adopt and implement standards for the proper investigation of claims, (3) misrepresented pertinent facts or insurance policy provisions relating to coverages at issue, (4) failed to acknowledge and act promptly upon claims communications, or denied the claim without conducting a reasonable investigation based upon the available information. For these reasons, the Civil Remedy Notice filed on behalf of the Complainant fails to comply with the requirements of § 624.155(3)(b), and First Protective respectfully requests the DFS to reject the Civil Remedy Notice as being deficient. Notwithstanding these glaring deficiencies, First Protective categorically denies all allegations of wrongdoing contained in the Notice. With respect to First Protective’s liability determination, First Protective’s investigation into the Complainant’s claim against Ms. Balakrishnan did not reveal any liability on the part of Ms. Balakrishnan. Instead, First Protective’s investigation revealed that the water leak was caused by an independent contractor hired by Ms. Balakrishnan to replace her air conditioning system. Despite this, the Complainant improperly sought to hold Ms. Balakrishnan responsible for the actions of the independent contractor. An owner of real property is neither an insurer of nor strictly liable for everything that happens on his or her property. Dombrowski v. Blum, 388 So.3d 53 (Fla. 3d DCA 2023); Haynes v. Lloyd, 533 So.2d 944 (Fla. 5th DCA 1988). The Complainant did not show, and First Protective’s investigation did not otherwise disclose, that Ms. Balakrishnan’s created or controlled the situation that led to the water leak. Sierra v. Allied Stores Corp., 538 So.2d 943 (Fla. 3d DCA 1989); Sterling Fin. & Mgmt., Inc., 117 So.3d 790 (Fla. 4th DCA 2013); Gyongyosi v. Miller, 80 So.3d 1070 (Fla. 4th DCA 2012); Stander v. Dispoz-O-Products, Inc., 973 So.2d 603 (Fla. 4th DCA 2008); Smith v. Mayes, 851 So.2d 785 (Fla. 1st DCA 2003); Burch v. Strange, 126 So.2d 898 (Fla. 1st DCA 1961). Instead, the Complainant, by and through her attorneys, merely alleged that Ms. Balakrishnan was strictly liable for the negligence of the independent contractor. This is insufficient to support a claim against Ms. Balakrishnan. Sherry v. Regency Ins. Co., 884 So.2d 175 (Fla. 2d DCA 2004) (strict liability does not apply to damages resulting from water in household plumbing). As to the rescission of the insurance policy, First Protective has the unilateral right to rescind an insurance policy under Florida law based on an actual misstatement or misrepresentation in the insurance application. Rodriguez v. Responsive Auto Ins. Co., 388 So.3d 846 (Fla. 3d DCA 2023); Nembhard v. Universal Prop. and Cas. Ins. Co., 326 So.3d 760 (Fla. 3d DCA 2021); Moustafa v. Omega Ins. Co., 201 So.3d 710 (Fla. 4th DCA 2016); Singer v. Nationwide Mut. Fire Ins. Co., 512 So.2d 1125 (Fla. 4th DCA 1987). First Protective exercised that right once it discovered that the application upon which the policy was issued contained inaccurate information and misstatements. Finally, First Protective has addressed and communicated these issues directly with the Complainant’s counsel, Mr. Murphy. The Complainant and Mr. Murphy simply disagree with First Protective’s assessments. A mere disagreement, standing alone, does not support the general allegations of wrongdoing. To conclude, although the Complainant’s Civil Remedy Notice is statutorily deficient, First Protective denies that it violated any of the statutes summarily referred to in the Notice. We trust that this response addresses the “allegations” of insurer violations set forth in the Civil Remedy Notice. Should you have any questions, please contact us at any time. Sincerely yours, HUGH J. CONNOLLY cc: Elizabeth Berry c/o Lewis W. Murphy, Jr., Esq. Murphy & Walker 2001 U.S. Highway 1 Vero Beach, Florida 32960 Via Mail and Email: wmurphy@murphywalker.com
Acknowledgement
* The submitter hereby states that this notice is given in order to perfect the rights of the person(s) damaged to pursue civil remedies authorized by Section 624.155, Florida Statutes.

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