Civil Remedy Filing

Civil Remedy Notice of Insurer Violations

Filing Number: 826042

Filing Accepted: 6/9/2025

Print Filing

Complainant

Last/Business Name *

WESTCHESTER CONDOMINIUM ASSOCIATION, UNIT 1, INC.

First Name

Street Address *

2244 WINKLER AVENUE

City, State Zip *

FORT MYERS, FL 33901

Email Address *

LITIGATION@THEFREEMANLAWFIRMPA.COM

Complainant Type: *

Insured

Last/Business Name*		WESTCHESTER CONDOMINIUM ASSOCIATION, UNIT 1, INC.		First Name
Policy # *		WKAC 3939-00		Claim #*		4204731

Attorney

Attorney is Applicable

Last Name*	FREEMAN First Name * BRIAN Initial
Street Address*		4245 FOWLER STREET
City, State Zip*		FORT MYERS , FLORIDA 33901
Email Address *		LITIGATION@THEFREEMANLAWFIRMPA.COM

Violation

Insurer Type *		Authorized Insurer Unauthorized Insurer

Insurer Name
Insurer Name*		ASPEN SPECIALTY INSURANCE COMPANY
Insurer Name*
Street Address*
City, State Zip*		,
NAIC Company Code 10717

Name of individual responsible for violation (if any):* R. FACHON REED
Type of Insurance * Commercial Property & Casualty

Reason for Notice *

	Claim Denial
	Claim Delay
	Unfair Trade Practice
	Other : Bad Faith

* 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.

* 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 Insured is in possession of a copy of the insurance policy and believe its 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 Numbers; Aspen Specialty Insurance Company: WKAC 3939-00, Lexington Insurance Company: 064852196-00, Lloyd’s of London: UB211264A1177, Old Republic Union Insurance Company: ORAWPR002520-00, and Scottsdale Insurance Company: RYS0006769. In particular, the Insured refers to the following insurance policy coverages and included insurance policy language:A. Coverage We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss. 1. Covered Property Covered Property, as used in this Coverage Part, means the type of property described in this section, A.1., and limited in A.2. Property Not Covered, if a Limit Of Insurance is shown in the Declarations for that type of property. a. Building, meaning the building or structure described in the Declarations, including: (1) Completed additions; (2) Fixtures, outside of individual units, including outdoor fixtures; (3) Permanently installed: (a) Machinery; and (b) Equipment; (4) Personal property owned by you that is used to maintain or service the building or structure or its premises, including: (a) Fire-extinguishing equipment; (b) Outdoor furniture; (c) Floor coverings; and (d) Appliances used for refrigerating, ventilating, cooking, dishwashing or laundering that are not contained within individual units; (5) If not covered by other insurance: (a) Additions under construction, alterations and repairs to the building or structure; (b) Materials, equipment, supplies, and temporary structures, on or within 100 feet of the described premises, used for making additions, alterations or repairs to the building or structure; and (6) Any of the following types of property contained within a unit, regardless of ownership, if your Condominium Association Agreement requires you to insure it: (a) Fixtures, improvements and alterations that are a part of the building or structure; and (b) Appliances, such as those used for refrigerating, ventilating, cooking, dishwashing, laundering, security or housekeeping. But Building does not include personal property owned by, used by or in the care, custody or control of a unit-owner except for personal property listed in Paragraph A.1.a.(6) above. e. Increased Cost Of Construction (1) This Additional Coverage applies only to buildings to which the Replacement Cost Optional Coverage applies. (2) In the event of damage by a Covered Cause of Loss to a building that is Covered Property, we will pay the increased costs incurred to comply with the minimum standards of an ordinance or law in the course of repair, rebuilding or replacement of damaged parts of that property, subject to the limitations stated in e.(3) through e.(9) of this Additional Coverage. (3) The ordinance or law referred to in e.(2) of this Additional Coverage is an ordinance or law that regulates the construction or repair of buildings or establishes zoning or land use requirements at the described premises and is in force at the time of loss. (4) Under this Additional Coverage, we will not pay any costs due to an ordinance or law that: (a) You were required to comply with before the loss, even when the building was undamaged; and (b) You failed to comply with. (5) Under this Additional Coverage, we will not pay for: (a) The enforcement of or compliance with any ordinance or law which requires demolition, repair, replacement, reconstruction, remodeling or remediation of property due to contamination by "pollutants" or due to the presence, growth, proliferation, spread or any activity of "fungus", wet or dry rot or bacteria; or (b) Any costs associated with the enforcement of or compliance with an ordinance or law which requires any insured or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of "pollutants", "fungus", wet or dry rot or bacteria. (6) The most we will pay under this Additional Coverage, for each described building insured under this Coverage Form, is $10,000 or 5% of the Limit of Insurance applicable to that building, whichever is less. If a damaged building is covered under a blanket Limit of Insurance which applies to more than one building or item of property, then the most we will pay under this Additional Coverage, for that damaged building, is the lesser of $10,000 or 5% times the value of the damaged building as of the time of loss times the applicable Coinsurance percentage. The amount payable under this Additional Coverage is additional insurance. (7) With respect to this Additional Coverage: (a) We will not pay for the Increased Cost of Construction: (i) Until the property is actually repaired or replaced, at the same or another premises; and (ii) Unless the repair or replacement is made as soon as reasonably possible after the loss or damage, not to exceed two years. We may extend this period in writing during the two years. (b) If the building is repaired or replaced at the same premises, or if you elect to rebuild at another premises, the most we will pay for the Increased Cost of Construction, subject to the provisions of e.(6) of this Additional Coverage, is the increased cost of construction at the same premises. (c) If the ordinance or law requires relocation to another premises, the most we will pay for the Increased Cost of Construction, subject to the provisions of e.(6) of this Additional Coverage, is the increased cost of construction at the new premises. (8) This Additional Coverage is not subject to the terms of the Ordinance Or Law Exclusion to the extent that such Exclusion would conflict with the provisions of this Additional Coverage. 4. Loss Payment a. In the event of loss or damage covered by this Coverage Form, at our option, we will either: (1) Pay the value of lost or damaged property; (2) Pay the cost of repairing or replacing the lost or damaged property, subject to b. below; (3) Take all or any part of the property at an agreed or appraised value; or (4) Repair, rebuild or replace the property with other property of like kind and quality, subject to b. below. We will determine the value of lost or damaged property, or the cost of its repair or replacement, in accordance with the applicable terms of the Valuation Condition in this Coverage Form or any applicable provision which amends or supersedes the Valuation Condition. b. The cost to repair, rebuild or replace does not include the increased cost attributable to enforcement of or compliance with any ordinance or law regulating the construction, use or repair of any property. c. We will give notice of our intentions within 30 days after we receive the sworn proof of loss. d. We will not pay you more than your financial interest in the Covered Property. e. We may adjust losses with the owners of lost or damaged property if other than you. If we pay the owners, such payments will satisfy your claims against us for the owners' property. We will not pay the owners more than their financial interest in the Covered Property. f. We may elect to defend you against suits arising from claims of owners of property. We will do this at our expense. g. We will pay for covered loss or damage to Covered Property within 30 days after we receive the sworn proof of loss, if you have complied with all of the terms of this Coverage Part, and: (1) We have reached agreement with you on the amount of loss; or (2) An appraisal award has been made. If you name an insurance trustee, we will adjust losses with you, but we will pay the insurance trustee. If we pay the trustee, the payments will satisfy your claims against us. h. A party wall is a wall that separates and is common to adjoining buildings that are owned by different parties. In settling covered losses involving a party wall, we will pay a proportion of the loss to the party wall based on your interest in the wall in proportion to the interest of the owner of the adjoining building. However, if you elect to repair or replace your building and the owner of the adjoining building elects not to repair or replace that building, we will pay you the full value of the loss to the party wall, subject to all applicable policy provisions including Limits of Insurance, the Valuation and Coinsurance Conditions and all other provisions of this Loss Payment Condition. Our payment under the provisions of this paragraph does not alter any right of subrogation we may have against any entity, including the owner or insurer of the adjoining building, and does not alter the terms of the Transfer Of Rights Of Recovery Against Others To Us Condition in this policy.

* 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 Insured’s multi-story residential building located at 2244 Winkler Avenue, Fort Myers, Florida 33901(hereafter referred to as “Building”), owned by the named Insured, Westchester Condominium Association, Unit 1, Inc. ("Insured"), suffered severe hurricane related physical and structural damage as a direct result of Hurricane Ian, an event covered under the subject insurance policy. Please see insurance policy language above that indicates coverage for hurricane/windstorm related physical and structural damage to the Insured’s Building, carports and roof system as a direct result of Hurricane Ian. Subsequent to Hurricane Ian, the Insured immediately reported the loss to its insurance carriers, Aspen Specialty Insurance Company, Lexington Insurance Company, Lloyd’s of London, Old Republic Union Insurance Company and Scottsdale Insurance Company ("Insurers"). Since the beginning of the claims process, the Insured fully cooperated in the Insurers’ investigation of the Insured’s hurricane/windstorm damage claim. The Insurers retained a field adjuster Gilbert Baran (“Mr. Baran”), and engineering firm, JS Held, to investigate the Insured’s hurricane/windstorm damage claim. After the investigation, Mr. Baran prepared a damage estimate documenting hurricane/windstorm damage to the Insured’s roof system, exterior damage, interior damage, and damage to windows of the Insured’s Building. Hurricane/windstorm damage to the Insured’s carport was also documented during the Insurer’s investigation of the Insured’s hurricane/windstorm damage claim. However, Mr. Baran’s damage estimate grossly undervalued the total damages to the Insured’s Building and carports and amounted to only $579,313.02 for the Building and $68,227.75 for the Carport damage. On November 14, 2024, the Insurers sent correspondence to the Insured informing the Insured “The policy excludes from coverage damage caused by wear and tear, deterioration, and inadequate workmanship and maintenance. Therefore, no coverage is provided for the undamaged windows or for the windows that are leaking unrelated to the hurricane.” The Insurer also applied a “co-insurance penalty” on the payment of the Insured’s hurricane/windstorm damage claim, reducing the amount of payment on the claim. After the “co-insurance penalty,” “depreciation,” and the deducible were applied, coverage of only $135,560.89 in RCV Building coverage or $216,658.87 ACV Building coverage was afforded on the claim by the Insurer. Additionally, the Insurers determined the “co-insurance penalty” did not apply to the carports and only afforded coverage in the amount of $47,359.80 ACV for the Insured’s carport damage. The Insured retained Dave Griffey of Day Adjusting & Consulting (“Mr. Griffey”), to assist the Insured with its hurricane/windstorm damage claim. Mr. Griffey investigated the damage to the Insured’s Building, carports and roof system and documented hurricane/windstorm damage to the roof system, carports, exterior damage and interior damage to the Insured’s building. In total, Mr. Griffey estimated $1,536,689.79 in damage to the Insured’s Building, carports, roof system, windows, doors, exterior and interior damage to the Insured’s Building. The Insurers failed to extend full coverage for the Insured’s clearly evident hurricane/windstorm damage, indicating the Insurers do not have proper standards for investigating the proper scope and amount of damage caused by a covered loss and instead uses self-serving, financially biased engineering firms, such as JS HELD, to conduct inadequate and incomplete investigations. In addition, the Insurer never provided any reports from its self-serving and financially biased engineering firm, JS HELD to the Insured. The work of adjusting insurance claims in Florida engages the public trust. In the instant case, the Insurers breached this duty through their complete failure to properly inspect, investigate, evaluate, adjust and pay the Hurricane Ian damage claim of the Insured. The Insurers’ self-serving, incomplete and inadequate hurricane/windstorm damage investigation, failure to communicate with the Insured, and improper partial denial of the Insured’s hurricane/windstorm damage claim clearly indicates the Insurers failed to adopt and implement proper standards for the proper investigation, evaluation and adjustment of hurricane/windstorm damage claims; failed to properly train, manage, supervise and promote claims adjusters so Insureds 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 Insurers furthermore failed to provide any credible reason(s) or facts to the Insured for the partial denial of its hurricane/windstorm damage claim resulting in the statutory violations set forth in this notice. The Insurers also breached their duty to the Insured by failing to timely and promptly pay the correct indemnity owed to its Insured. This duty is owed by the Insurers to their Insured and is inherent in the insurance claims process. The Insured promptly provided all necessary documentation, evidence and information for a timely resolution of its hurricane/windstorm damage claim including an itemized damage estimate from Mr. Griffey. However, the Insurers failed to provide timely and prompt payment for the Insured’s damages. To date, the Insured performed all conditions precedent required of it under the subject insurance policy with the Insurers and under Florida law. However, the Insurers and their agents failed and refused to properly inspect, investigate, evaluate, adjust and pay the Insured’s hurricane/windstorm damage claim, and failed to tender all insurance proceeds due and owing to the Insured under the subject insurance policy. Due to the Insurers’ intentional delay and partial denial of the Insured’s hurricane/windstorm damage claim, the Insured was forced to obtain legal counsel at a significant cost and expense to attempt to recover what it is legally owed under its insurance policies with the Insurers. The actions taken by the Insurers in the handling and adjustment of the Insureds’ hurricane/windstorm damage claim were willful, wanton and in disregard of the rights of its Insured 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 partial claim denial; 2) Improper claim delays; 3) Not conducting a full and fair investigation of the Insured’s hurricane/windstorm damage claim; 4) Looking for ways to deny recovery to the Insured; 5) Overlooking covered damages to the Insured’s Building; 6) Failing to pay the necessary amounts due and owing to restore the Insured’s Building, carports and roof system to their 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 Insured; 8) Failing to implement proper standards for the adjustment and investigation of insurance claims; 9) Failing to pay the requisite monies owed for the Insured’s loss, despite receipt of a detailed damage estimate from Mr. Griffey 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 policyholder’s 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 Insurers violated the statutes set forth above based on the conduct described herein. The Insurers failed and refused to timely tender insurance proceeds required by its insurance policy with its Insured. In addition, the Insurers failed to reasonably and properly settle and resolve the Insured’s 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 Insured. The Insurers’ 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 Insured’s rights. The Insurers placed their interest above and before the Insured’s interest in this matter. Therefore, to cure the defects outlined in this Civil Remedy Notice, the Insurers must do the following:A. Immediately pay the Insured’s hurricane/windstorm damage claim in the amount of Mr. Griffey’s damage estimate of $1,536,689.79, plus interest, less the applicable deductible and any prior undisputed payments by the Insurers. B. Agree to tender any recoverable depreciation once it has been incurred per the terms of the insurance policy.

Comments

User Id		Date Added		Comment
msims@berklawfirm.com		08-07-2025		Aspen denies any and all allegations of wrongful conduct and statutory violation alleged in the CRN. A detailed response to the CRN was emailed to insured c/o counsel of record. The Department may contact us for further details.

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