Filing Number: 816030
|
| Filing Accepted: 4/14/2025 |
| Last/Business Name
*
|
|
|
TAYLOR MORRISON OF FLORIDA, INC.
|
|
First Name |
|
|
|
| Street Address
*
|
|
4900 NORTH SCOTTSDALE ROAD, SUITE 2000 |
| City, State Zip
*
|
|
SCOTTSDALE,
AZ
85251
|
| Email Address
*
|
|
LKERR@COGBURNLEGAL.COM |
| Complainant Type:
*
|
|
Insured |
|
| Last/Business Name* |
|
CONSTRUCTION COATINGS GROUP INC |
|
First Name |
|
|
| Policy # * |
|
GLP 0148978 00 (2013-14); GLP 0148978 01 (2014-15) |
|
Claim #* |
|
117608 |
|
Attorney is Applicable
|
| Last Name* |
KERR
First Name *
LAUREN
Initial
D
|
| Street Address* |
|
777 S. HARBOUR ISLAND BLVD., SUITE 245 |
| City, State Zip* |
|
TAMPA
,
FL
33602
|
| Email Address * |
|
LKERR@COGBURNLEGAL.COM |
|
|
| Insurer Type
*
|
|
 Authorized Insurer
 Unauthorized Insurer
|
|
|
| Insurer Name |
|
|
| Insurer Name* |
|
NATIONAL BUILDERS INSURANCE COMPANY
|
| Insurer Name* |
|
|
| Street Address* |
|
|
| City, State Zip* |
|
,
|
|
NAIC Company Code 16632 |
|
|
| Name of individual responsible for violation (if any):*
MELISSA WELDEN AND/OR BONNIE DEROOS
|
| Type of Insurance
*
Commercial Property & Casualty
|
|
|
| Reason for Notice
*
|
|
|
Claim Denial
|
|
|
Claim Delay
|
|
|
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.
|
|
| 626.9541(1)(i)(2) |
|
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.
|
|
| 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)(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.
Construction Coatings Group, Inc. (“CCG”) purchased at least four commercial general liability (“CGL”) policies from Vinings Insurance Company N/K/A National Builders Insurance Company ("Builders") providing coverage for liability because of property damage resulting from CCG’s work, specifically Policy Numbers GLP 0148978 00 (2013-14); GLP 0148978 01 (2014-15); GLP 0148978 02 (2015-16); and GLP 0148978 04 (2016-17) (the "Policies").
The insuring agreements of the Policies state, in relevant part:
We will pay those sums that the insured becomes legally obligated to pay as damages because of … “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages …
The Policies define “property damage” to include:
a. Physical injury to tangible property, including all resulting loss of use of that property … or
b. Loss of use of tangible property that is not physically injured …
For coverage to be afforded, “property damage” must have been caused by an “occurrence,” which is defined under the Policies as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”
Not only do the Policies provide coverage to the named insured, CCG, they also provide coverage to Taylor Morrison of Florida, Inc. (“Taylor Morrison”) as an additional insured.
The 2013-14 Policy contains a General Liability Extra Coverage Endorsement for CCG’s ongoing operations, which states:
SECTION II – WHO IS AN INSURED is revised as follows:
1. Additional Insureds. The following is added to Paragraph 2.:
Who Is An Insured is amended to include as an additional insured person(s) or organization(s) when you and such person or organization have agreed in a written contract or agreement that such person or organization will be added as an additional insured . . .
The 2014-15 policy contains an endorsement titled ADDITIONAL INSURED – OWNERS, LESSEES OR CONTRACTORS – COMPLETED OPERATIONS, which states:
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule . . .
The Schedule lists under Name Of Additional Insured Person(s) or Organization(s): “BLANKET”.
The 2015-16 policy also contains a blanket Completed Operations endorsement.
The subcontract between Taylor Morrison and CCG required that CCG name Taylor Morrison as an additional insured on its CGL policies of insurance.
|
| |
*
Facts and circumstances giving rise to the violation.
Enter all words or phrases (one at a time) that should be used to filter.
This civil remedy notice is being filed because Vinings Insurance Company N/K/A National Builders Insurance Company ("Builders") has failed to address Taylor Morrison of Florida, Inc.’s (“Taylor Morrison”) tenders of defense in good faith. The Builders policies implicated are Policy Numbers GLP 0148978 00 (2013-14); GLP 0148978 01 (2014-15); GLP 0148978 02 (2015-16); and GLP 0148978 04 (2016-17) (the "Policies").
Taylor Morrison has been named as a defendant in a lawsuit filed by John and Julie Bondurant (the “Plaintiffs”) against Taylor Morrison of Florida, Inc. (the “Lawsuit”), styled as John C. Bondurant and Julie R. Bondurant v. Taylor Morrison of Florida, Inc., Pasco County, Florida Case No. 2024-CA-00665-ES. The Lawsuit alleges property damage resulting from stucco system-related claims due to work performed by Taylor Morrison’s stucco subcontractor, Construction Coatings Group, Inc. (“CCG”). During original construction, CCG performed work on the project pursuant to the terms and conditions of its subcontract with Taylor Morrison. Because of the pending allegations and CCG’s work at the subject property, Taylor Morrison tendered the claim to Builders. To date, Builders has failed to provide Taylor Morrison with a defense in the Lawsuit.
Included in the subcontract between Taylor Morrison and CCG was a requirement that CCG would secure commercial general liability ("CGL") insurance and name Taylor Morrison as an Additional Insured on such policies of insurance. CCG purchased at least four policies, the Policies, from Builders which provide coverage for liability because of property damage resulting from CCG’s work. This coverage extends to both the named insured, CCG, and the additional insured, Taylor Morrison.
As described above, the Policies provide blanket additional insured coverage where required by written contract. Because the written subcontract required CCG to name Taylor Morrison as an additional insured, Taylor Morrison is an additional insured under the Policies.
Taylor Morrison tendered its defense of the Lawsuit to Builders on August 22, 2023. On December 19, 2023, Builders denied Taylor Morrison’s tender, arguing that the Plaintiffs could not have suffered damages during the policy term because the Plaintiffs are subsequent purchasers of the home at issue and purchased the home after the applicable Policies of insurance. On July 16, 2024, Builders reiterated its denial and stated it was refusing to participate in settlement. On December 10, 2024, Taylor Morrison again tendered its defense to Builders and supplied a copy of the Lawsuit. Taylor Morrison is unfortunately familiar with Builders’ consistent and automatic denials of, or failure to respond to, Taylor Morrison’s tenders in similar matters. Builders’ refusal to provide a defense is knowingly wrongful because the Lawsuit, as pled, implicates coverage and Builders’ argument conflicts with Florida law.
Builders’ denial is apparently based on the “owner-claimant” view, which is not supported by any Florida reported decision and instead represents a view rejected by the majority of courts that have considered it. See Bergen v. Ginnell Mut. Reinsurance Co., 946 F. Supp. 2d 867 (D. Minn 2013); Am. States Ins. Co. v. PIH Beaverton LLC, 2016 U.S. Dist. LEXIS 83188 (D. Or. 2016); Village Homes of Colorado, Inc. v. Travelers Cas. & Sur. Co., 148 P. 3d 293 (Colo. App. 2006). Much like this line of cases rejecting the “owner-claimant” view, there is nothing in the Policies requiring the Plaintiffs to have an ownership interest in the home at issue during the policy periods, only that the property damage itself occur during the policy period(s). Indeed, the Plaintiffs’ complaint merely seeks damages caused by CCG’s work, without reference to timing, implicitly including damages that could have been caused during each of the Policies’ duration. Under Florida law, an insurer's duty to defend is determined solely by the allegations in the underlying complaint. See Category 5 Mgmt. Grp., LLC v. Companion Prop. & Cas. Ins. Co., 76 So. 3d 20, 23 (Fla. 1st. Dist. Ct. App. 2011); see also Lawyers Title Ins. Corp. v. JDC (America) Corp., 52 F.3d 1575, 1580 (11th Cir. 1995). "The duty arises when the relevant pleadings allege facts that 'fairly and potentially bring the suit within policy coverage.'" Lawyers Title Ins. Corp., 52 F.3d at 1580 (quoting Lime Tree Vill. Cmty. Club Ass'n v. State Farm Gen. Ins. Co., 980 F.2d 1402, 1405 (11th Cir. 1993)). The actual facts of the situation are not relevant, such that "the insurer must defend even if facts alleged are actually untrue or legal theories unsound." Id. As a result, the question is not whether the claimants may be able to recover damage that occurred prior to their acquisition to the property, but whether it is possible that they are seeking such damages in their complaint. Because the complaint is not clear that the Plaintiffs are only seeking damages that occurred after their acquisition, Builders owes both Taylor Morrison and CCG a defense. See e.g., Auto-Owners Ins. Co. v. Envtl. House Wrap, Inc., No. 3:17-cv-817-J-34PDB, 2019 U.S. Dist. LEXIS 115898 (M.D. Fla. July 12, 2019). Builders’ refusal to defend Taylor Morrison is a material breach of its contractual and fiduciary obligations under the Policies and is not in good faith.
Builders’ failure to defend its insured has prejudiced and damaged Taylor Morrison. Taylor Morrison has been forced to incur defense costs in the Lawsuit, for which Builders is responsible. The Lawsuit includes allegations of losses covered under the Policies. Under Florida law, Builders’ duty to defend Taylor Morrison was triggered by the Plaintiffs’ allegations, whether they are proven to be true or not. Builders’ unreasonable handling of Taylor Morrison’s claim has caused it to incur substantial legal fees and costs in defending itself against the claims. The attorneys' fees and costs that Taylor Morrison has incurred have unjustly burdened Taylor Morrison. Taylor Morrison has exhausted all available options to convince Builders to deal with Taylor Morrison in good faith, to no avail.
Builders has failed to appropriately consider or explore settlement opportunities, subjecting Taylor Morrison and CCG to exposure to a verdict. Moreover, by refusing to defend Taylor Morrison, Builders has greatly exposed its named insured CCG to a much larger claim for Taylor Morrison’s defense costs in this matter pursuant to the contractual indemnification provisions in the subcontract.
Builders must exercise its duty of good faith to both Taylor Morrison and CCG and must employ “the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” Farinas v. Florida Farm Bureau Gen. Ins. Co., 850 So. 2d 555 (Fla. 4th DCA 2003) (internal citations omitted). Under Farinas, Builders is obligated to fully investigate all claims at hand to determine how to best limit its insured’s liability; (2) seek to settle as many claims as possible within the policy limits; (3) minimize the magnitude of possible excess judgments against its insureds by reasoned claim settlement; and (4) keep the insureds informed of the claim resolution process.
Builders’ obligations extend to all the insureds under the policy and are not limited to the named insured. Thus Builders’ obligations extend to additional insureds, like Taylor Morrison. To date, Taylor Morrison is unaware of Builders’ investigation, if any, of the claims against Taylor Morrison or its efforts, if any, to resolve as many of the claims against Taylor Morrison as possible within existing policy limits. Likewise, Builders has never advised Taylor Morrison how, or if, it intends to minimize the magnitude of possible excess judgments against insureds CCG or Taylor Morrison, nor has Builders apprised Taylor Morrison of any claim resolution process.
Given Builders’ denial, lack of participation in settlement, and the other facts outlined above, Builders has failed to meet the standard for good faith in this matter.
Taylor Morrison will be filing suit against Builders but is also filing this notice in an effort to provide Builders with a last opportunity to deal with Taylor Morrison in good faith as well as to perfect its right to pursue the remedies provided under Section 624.155, Florida Statutes. Builders can cure by acknowledging its duty to defend and reimbursing Taylor Morrison its reasonable defense costs incurred to date and working together with Taylor Morrison to resolve this claim.
|
|
|
*
|
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
|