Berk, Merchant & Sims, PLC

Another win for team BMS!!

Victory for Frontline Insurance: Jury Verdict Affirmed in Bad Faith Case ? Today, the Fifth District Court of Appeal upheld a jury verdict in favor of our client, Frontline, rejecting the Insured's allegations of bad faith during the adjustment of its hurricane claim. This decision marks a significant victory for Frontline, affirming the diligent and proper handling of the claim. ? The case originated after Frontline’s initial adjustment, when the Insured’s public adjuster expressed disagreement with the payment and requested an appraisal of the damages. Although the public adjuster had not yet provided an estimate, Frontline agreed to the appraisal process and named its appraiser. ? During the appraisal, the public adjuster referred the Insured to an attorney, who subsequently filed a Civil Remedy Notice of Insurer Violation (“CRN”) against Frontline, alleging bad faith in the claims adjustment process. Shortly thereafter, the Insured presented a $2 million estimate—nearly three times the insured value of the property. In response, Frontline tendered its policy limits for property damage and made additional payments for damaged business personal property, including interest. After the appraisal concluded, Frontline discovered a mathematical error in a prior payment and issued further benefits for business personal property. However, this adjustment occurred after the expiration of the CRN and during the litigation for breach of contract for failing to pay all business personal property, prompting the Insured to file suit alleging bad faith and improper claims handling. ? Following a weeklong trial, the jury concluded there was no evidence of bad faith and a final judgment was entered in Frontline’s favor. The Insured appealed, asserting that the trial court erred by declining to use the Insured’s proposed customized jury instructions and by improperly ?admitting certain evidence and testimony. Notably, the Insured had introduced the challenged document and conducted its cross-examinations without objection during the trial. ? Today, the Fifth District Court of Appeal affirmed the jury’s verdict and the final judgment in favor of Frontline, solidifying the trial court’s handling of the case and rejecting the Insured’s claims. This result reflects the exceptional work of BMS partners Evelyn Merchant, Esq. and Andrew Genden, who successfully tried the case, and BMS partner Patrick Betar, who led the appeal.

BMS Partners Evelyn Merchant, Esq., Illon Kantro, and Associate Grant Chiappelli secured a highly favorable outcome in a recent arbitration held over a week in New York City. The Insured initially claimed covered damages totaling $16,864,873 and, after receiving over $2 million from the carriers, demanded more than $10 million. However, the arbitration panel ultimately awarded just $250,000 (plus approximately $37,000 in additional agreed damages). ? The Insured, a Florida condominium association serving high-net-worth individuals, claimed that Hurricane Irma had caused extensive damage to its roofs, exterior insulation and finish system (EIFS), and all windows, sliders, and doors. Their nearly $17 million demand also included significant post-loss remediation work and coverage for professional fees. Before the dispute escalated to arbitration, the Insurers had estimated the total loss at $4,249,691.76, factoring in the association’s $2,134,638.95 deductible. ? Prior to the arbitration, the Insurers also agreed to $37,571.45 for roof damages but disputed all other claims, asserting that payments had already been made in full. In response, the Insured reduced its demand to just over $10 million by the end of the proceedings. ? In the final award, the tribunal determined a total payout of $287,571.45. They concurred with the carriers that the EIFS and professional services claims were not covered and that the claimed window and door damage was due to wear and tear and age. They also found most of the claimed mitigation expenses to be unreasonable and unnecessary. ? The final award included $250,000 for post-loss mitigation and remediation, half of the claimed amount, plus the agreed $37,571.45 for roof repairs. This outcome was an outstanding result for our clients.

Yesterday, the Third District Court of Appeal affirmed a trial court order denying an insured’s motion to compel appraisal because the insured refused to comply with its post-loss obligations. ? Aspen and its insured’s public adjuster adjusted its insured’s hurricane claim, came to an agreed scope and estimate of repair, and paid the claim. Three years later, the insured retained a new public adjuster and attorney and submitted a supplemental claim that was over $1M more than was initially agreed by the parties. Aspen requested repair and historical maintenance records, as well as copies of board meeting minutes and a reinspection of the property. The insured refused, producing only its PA’s estimate and a new Proof of Loss, and demanded appraisal. After some back and forth, the Insured filed suit and moved to compel appraisal. ? In suit, the insured argued the documents requested did not exist anymore. However, at the hearing on the motion to compel appraisal, its representative confirmed that the documents did exist at the time Aspen requested them presuit. Still, the insured argued there was no prejudice to Aspen and the submission of an estimate and Proof of loss was all that was required of it to compel appraisal. ? The trial judge disagreed. He specifically found that only producing the Proof of Loss and estimate was not sufficient compliance with the policy’s post-loss obligations and denied the Insured’s request for appraisal. ? The Third DCA affirmed today and entered a separate order granting Aspen appellate fees based on its prior Proposal for Settlement/Offer of Judgment if Aspen ultimately prevails in the coverage case. BMS Partner Patrick Betar handled the appeal for Aspen, while BMS Partner Jonathan Tobin handled the case in the trial court.

What happens when an insured conceals documents detrimental to its case, tells the insurer they don’t exist, but then provides them to their own experts? A year after the storm, Lago West gave its first notice to American Coastal that it suffered loss from a hurricane. When American Coastal asked for an inspection, the insured’s representatives delayed for nearly a year. It waited 2 years to produce its Sworn Proof of Loss (for $2M) and claimed documentation related to the historical condition of the building were “stolen” by its court appointed receiver. All was not as it seemed, however. After suit was filed, American Coastal subpoenaed the insured’s experts. In their file, American Coastal found numerous repair records and invoices from before and after the storm provided to the experts by the insured – even though the insured told American Coastal they did not exist. Those documents confirmed the grounds for American Coastal’s coverage denial and supported its affirmative defenses. Of note, they showed that the roof had been altered several times between the storm and when American Coastal received notice of the loss and that many of the conditions claimed pre-existed the storm. Partner Jonathan Tobin argued on summary judgment that American Coastal’s presuit adjustment was prejudiced by the Insured’s late notice and failure to provide documentation. The trial court agreed and entered final judgment in American Coastal’s favor. Sadly, the insured and its agents forfeited any coverage there might have been because of gamesmanship. The insured and its new counsel did not appeal the judgment.

Join BMS partner Ricky Fernandez on August 21, when he’ll be part of a panel webinar discussing the complexities of handling property claims for condominium associations. This should be an interesting topic and a great way to earn CE and CLE credits, sponsored by the Windstorm Insurance Network! Link below: https://lnkd.in/eNzrmujR

Very proud of my partner and friend Melissa Sims. This honor is well earned and deserved.

We are proud to announce that Berk, Merchant & Sims and Melissa Sims have been recognized by Chambers, a global legal ranking service. We are thankful to the clients, colleagues, and those in the legal community who provided Chambers with feedback and are honored to be recognized by this select organization.

Berk, Merchant & Sims is hiring attorneys for its Tampa, Florida office! Company Description Berk, Merchant & Sims, PLC is a full service insurance defense law firm with offices in Miami and Tampa, Florida. We specialize in providing assistance in coverage, liability, and bad faith disputes. Our experienced attorneys work closely with clients to deliver effective legal solutions and ensure their rights are protected. Role Description This is a full-time on-site role for an Associate Attorney at Berk, Merchant & Sims, PLC in the Tampa office. The Associate Attorney will be responsible for handling a variety of legal matters, including researching and analyzing laws, providing legal advice, negotiating settlements, and representing clients in court. Additionally, the Associate Attorney will assist with case management, document preparation, and client communication. Qualifications Experience in conducting legal research and providing legal advice Negotiation skills Excellent written and verbal communication skills Ability to work well under pressure and meet deadlines Attention to detail and strong analytical skills Experience in litigation and court proceedings is a plus Admission to the Florida Bar is required