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William B. Esq.
William B. Esq., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 3055
Experience:  I am a civil litigation attorney with experience representing individuals and businesses.
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Were northern snowbirds, trying to resolve an insurance claim

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We're northern snowbirds, trying to resolve an insurance claim at our FL condo. Our claim was for water intrusion thru exterior wall cracks and around windows (necessitating interior drywall repair), discovered by our FL caretaker 9/6/12 after Tropical Storm Isaac had gone thru the area. The claim date (9/6/12) is at the center of the dispute.

The need for exterior painting/patching/sealing/window caulking is documented in COA emails and was scheduled pre-rainy season 2012 (also email-documented), but didn't get done on schedule. We were told by the COA prez and the COA's insurance agent that the COA insurance policy would cover this as a negligence claim.

Our claim was denied by Insurance Co. A (ICA) because:

-- though paid on time by the COA prez, the COA premium check got lost in the agent's office, and the policy in place with the previous Insurance Co. B (ICB) had lapsed in late May 2012
-- the lapse with no COA coverage extended from late May 2012 to 9/6/12, when the new policy started with ICA; though the policy start date is the same as our claim date, we're told by the COA prez that this is coincidence, that the agent had discovered the COA check had been misplaced earlier than that date and coincidentally got a new policy with ICA to start on this date; we weren't told of the lapse in coverage or the coincidence in start date & claim date until Jan. 2013
-- ICA said the damage likely occurred before 9/6/12, possibly due to the wet summer of 2012, T.S. Isaac was before 9/6/12, the previous owner (we bought in 2011) had reported water intrusion, the pre-purchase inspection noted issues needing attention

The agent then told us to file our claim with ICB, the COA carrier prior to the coverage lapse in May 2012. ICB denied our claim saying our claim date (date of discovery) was 9/6/12, and that was the date to use to determine which carrier was responsible.

We asked the agent to file under his Errors and Omissions policy with Firemens Fund. He did so, and they now want copies of the paperwork we submitted to ICA, saying they want to use it to get ICA to pay. At this point, we're skeptical of that explanation; we believe FFI wants to find some/any issue that will allow them to deny our claim.

We've contacted the state of FL regulatory bodies covering insurance agents and COAs; neither were helpful. We're told we're 3rd party to a matter that's technically between our COA and its insurance carrier, and as such nobody has offered us any help.

The repair work was completed, paid for out of our pocket. We feel our COA was negligent, our claim is legitimate, and the insurance carrier should honor it.

Our questions:

-- Which insurance company of the 3 is responsible?
-- How much help we should be getting from the COA in getting our claim paid? If so, what actions should the COA be taking to help us?
-- What leverage do we have in getting our claim paid?
-- Are there any consumer reps, agencies or ombudsmen that can help us?

We'd like to avoid taking legal action against our own COA or creating ill will against other owners.
Submitted: 10 months ago.
Category: Consumer Protection Law
Expert:  William B. Esq. replied 10 months ago.

William B. Esq. :

Thank you for using our service. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

I am sorry to learn of this issue. From what you have posted, it appears that the negligent party was the COA insurance agent. His E&O policy should cover this loss.

William B. Esq. :

His "misplacing" the properly tendered check from the COA was the proximate cause of the COA's lapse in insurance and your inability to get coverage.

William B. Esq. :

If a demand letter against the insurance agent does not produce results (a "pre-litigation demand letter") you can file a lawsuit for negligence against him. You may need to involve the COA as the real party in interest if you need to file a lawsuit, but I would advise consulting with a local attorney prior to filing this suit - it would be necessary to review these policies in order to make the appropriate strategic plan.

William B. Esq. :

Unfortunately, I am not permitted to give specific referrals on this forum. I can however give you a couple of sites that will be helpful in locating a local attorney. You can find attorneys on your State Bar Association’s website: (http://www.floridabar.org/tfb/TFBConsum.nsf/840090c16eedaf0085256b61000928dc/ec2322e512b83d1e85256b2f006cc812?OpenDocument); Martindale Hubble: (http://www.martindale.com/); or, on AVVO: (http://www.avvo.com/find-a-lawyer).



To keep costs down, I recommend finding an attorney that is working in a small firm or as a solo practitioner. A newer attorney usually charges slightly less than a more experienced attorney, while the more experienced attorneys are usually a little more efficient. In the end, you need to find an attorney that you feel comfortable with, and it is okay to speak with more than one before retaining one.

William B. Esq. :

I hope the above is helpful, if you have any questions please do not hesitate to let me know and I will follow up quickly.


Thank you for using our service, please do not forget to rate my answer when you are satisfied. I am going to transfer our conversation to the "Q&A" format to ensure you can review the entire response (some customers have browser interface issues and I want to avoid any delay) and that I can follow up to any questions you may have quickly. I do wish you the best of luck in this matter.

Expert:  William B. Esq. replied 10 months ago.
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Customer: replied 10 months ago.

If legal action requires involvement of the COA, how do we convince the COA prez to "take our side" in this? Right now, she seems more inclined to give the insurance agent a break (cut him some slack). She hasn't said or done anything that would make us think that she agrees with the merits of our claim, as maintenance negligence is pretty much a reflection on her work as condo prez. She's the sole year-round resident, and she's basically responsible for the delay in exterior maintenance. We've tried to cut her some slack, since we know a great portion of condo matters rests on her shoulders. We've avoided blaming her, but that doesn't mean we think the COA if off the hook for our damage. If anything, we're worried that we're seeing a pattern of lax attention to the buildings, and we'd like the COA to know we're not OK with that attitude. We need something with "teeth" in it to convince her that she needs to side with us. As of now, we don't think any of the other condo owners are aware of our claim, the reserves are not flush, and at least one owner has said they're wanting to sell. We've told the prez that we want our claim to be made known to any potential buyers, to let them know there are outstanding issues with the COA adequately maintaining buildings, honoring its responsibilities to the individual owners, and possibly having outstanding debt on the books. We're just very reluctant to involve lawyers (no offense), and would like to find another way to get this resolved. So only question in this ramble is back to the beginning: how do we convince the COA prez to back us against the agent and the big insurance companies? If we had her on our side, would the agent and Firemens Fund be more inclined to honor the coverage, or is it still their option to try to get a different carrier to pay it?

Expert:  William B. Esq. replied 10 months ago.
The only way to notify future buyers (and to ensure that there are any "teeth" behind a claim against the insurance agent) is to actually sue the COA.

You most likely do have a right to demand mediation with the COA and attempt to resolve the dispute with them in that format short of litigation. Check your governing documents to ensure, but usually a simple demand for mediation in a written letter is sufficient.

The issue with the COA liability is that you can show they were negligent in not getting insurance certificates etc. following the payment to the agent (it is unlikely that this negligence by the agent was entirely one sided - if it was the COA is the true holder of the claim).

The only way to notify other buyers is to file a lawsuit - that must be disclosed to potential buyers. It also must be disclosed to other owners.

I do wish I had some other option - but other than writing formal demand letters or demanding mediation against the COA, I do not have anything further to offer. I understand an aversion to hiring counsel - attorneys are expensive and it often takes far more time than you expect (this is usually due to the procedure itself and not counsel, but it is often attributed to the law firm - I provide my services on this forum in an effort to help individuals such as yourself to mitigate those costs, but I must advise that hiring counsel for these types of matters generally maximizes your opportunities for a successful resolution, but retaining counsel is not necessary.
William B. Esq., Lawyer
Satisfied Customers: 3055
Experience: I am a civil litigation attorney with experience representing individuals and businesses.
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Customer: replied 10 months ago.

This is our last reply (and we'll give you a top rating). Is our claim date of 9/6/12 the date that the state of FL recognizes? Or is there leeway? If there's leeway for the insurance company to say that damage occurred before 9/6/12, then it would make the agent negligent. But if 9/6/12 is the date that the state recognizes, and the agent supposedly did have insurance in place on that date, then it would seem that he could claim he wasn't negligent, that the COA was covered on the date of the claim, and that the carrier on that date should pay instead of his Errors and Omissions coverage.

Expert:  William B. Esq. replied 10 months ago.
Your statute of limitations is based on discovery. Meaning the date on which you discovered, or reasonably should have discovered the negligent conduct by the agent (and for your purposes - more importantly, the conduct of the COA). This start date may extend beyond even the 9/6/12 date, but statutes of limitations require careful calculations and local counsel is the best source to ensure you stay within them).

The statute of limitations for negligence in Florida is: 4 years.

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