20 Fla. L. Weekly Supp. 141a

Online Reference: FLWSUPP 2002ORTAInsurance — Homeowners — Attorney’s fees — Homeowner who filed suit after appraisal clause was invoked by insurer is entitled to attorney’s fees under totality of circumstances, including passage of six years between claim and final payment, effect of turn-over of insurer’s employees handling claim, multiple times homeowner sent documentation of claim, insurer’s conduct in allowing claim to remain dormant despite pending expiration of statute of limitations, and numerous threats by homeowner to resort to litigation

JULIO PEREZ ORTA, Plaintiff, vs. CAPITOL PREFERRED INSURANCE COMPANY, INC., Defendant. Circuit Court, 9th Judicial Circuit in and for Osceola County, Civil Division. Case No. 2009-CA-008251, Division 22. December 16, 2011. Margaret T. Waller, Judge. Counsel: James J. Dye, Morgan & Morgan, Orlando, for Plaintiff. William L. Sundberg, Sundberg PA, Tallahassee, for Defendant.

ORDER GRANTING ATTORNEY’S FEES AND COSTS

THIS CAUSE came before the Court for hearing on September 15, 2011 upon Plaintiff’s Motion for Attorney’s Fees and Costs, and the Court having received evidence, heard witnesses and arguments of counsel, finds as follows:

1. Plaintiff’s claim arose as a result of damages sustained to Plaintiff’s rental property by Hurricane Charlie in August, 2004. Because Plaintiff did not write or type in English and because he resided in Venezuela, he granted his daughter, Ana Marie Penaloza, a Power of Attorney, dated September 14, 2004, giving her authority to pursue his claim against Defendant on his behalf. She created an email address in her father’s name ([Editor’s Note: Email Address Omitted]) for purposes of corresponding with Defendant concerning his claim¹. She maintained a separate personal email account. Using her father’s email account, she sent emails to the Defendant, specifically to Joe Graganella (Claims Manager) and Don Brooks (Claims Adjuster), receiving responses from them, which automatically added their email addresses to her email account.

2. Defendant did not dispute coverage and initially paid Plaintiff $12,552.56 by check number 11683 dated September 17, 2004; and a second check, number 28186, to Plaintiff dated August 2, 2005, in the amount of $19,776.57 representing loss of personal property and rent.

3. Plaintiff completed and paid for (out of pocket) the repairs to the property in 2005 after receipt of the two previously described checks received from Defendant. On September 22, 2006, Defendant daughter, Penaloza, wrote to Defendant’s claim manager, Joe Graganella, explaining that she had tried to communicate with Defendant via voice messages, letters, and faxes, including a package sent certified mail containing detailed information about various invoices and estimates to which she received no response. In the letter, she also estimates the amount she believed her father was owed for the repairs to the property. Interestingly, she demanded an immediate response to her letter to avoid “legal actions to resolve and protect the rights of my father”. It is obvious from the letter that Plaintiff had not heard from the Defendant since the date of the last check, August 2, 2005.

4. In May, 2007, Plaintiff sent another letter to “James” Graganella, Claims Manager of Capitol Preferred Insurance Company, Inc., informing him that information had been sent to Defendant several times concerning his claim on his property without receiving any response. At that time, Plaintiff informed Defendant that continuing to send more letters was a waste of time and that legal action would be taken to protect his rights, again demanding a response within ten business days, or he would be forced to take legal action against the Defendant. At that time, Plaintiff also requested that any future communication from Defendant should be by formal letter response to “Julio Perez Orta — [Editor’s Note: Address Omitted], Brandon, Florida 33511.

5. Defendant, through its Claims Manager, Joe Graganella, responded to Plaintiff’s correspondence of May, 2007 by letter dated June 19, 2007, in which Defendant outlines its evaluation of Plaintiff’s claim and informs Plaintiff that based on that evaluation no further monies were due Plaintiff. Defendant further informs Plaintiff that it has enclosed a report from its independent adjuster dated June 9, 2005, and a brochure outlining the parties’ right to mediation. By email dated June 27, 2007, Plaintiff acknowledged receipt of the Graganella letter, but not the report, and again states that all invoices and copy of checks will be sent to Defendant. Graganella responded on the same day by email attaching the report referred to in the letter dated June 19, 2007.

6. A letter was sent to the Defendant, attention John Graganella, on February 24, 2008, requesting a response as soon as possible by email or mail. On May 6, 2008, Plaintiff emailed Claims Manager Graganella reminding him that all the information about the repairs to his property had been sent to him two months prior, and inquiring why nothing had been done, requesting another answer as soon as possible. Graganella responded by email the next day informing Plaintiff that a Don Brooks, who inspected Plaintiff’s property in 2005, was examining the material sent by Plaintiff. Graganella stated in the letter that the last correspondence with Plaintiff had been in June, 2007, but he would let Plaintiff know their position “very soon”. Plaintiff responded that the last correspondence sent to Graganella was in early 2008, not June, 2007. There were additional emails back and forth in May and June, 2008. Plaintiff was contacted by Donald Brooks, Claims Adjuster, on July 1, 2008, outlining additional questions he had concerning the documents submitted by the Plaintiff, to which Plaintiff provided answers by email dated February 17, 2009. Graganella replied by email on February 18, 2009, informing Plaintiff that Donald Brooks no longer worked for the defendant, but that he, Graganella would have the documentation looked over even though the file had been “dormant” for 7½ months, and it would take more than a few days to have the file re-examined. Plaintiff sent another email on March 26, 2009, requesting the status of the case. Graganella responded by email on March 27, 2009, telling Plaintiff that he has reviewed the file with Sudhir Shrestha, a senior examiner, who made some suggestions regarding the claim, which Graganella outlined in the email. One of the suggestions was a re-inspection of the property in person, by a contractor rather than an adjuster. Graganella offered to meet with Plaintiff or other person of his choice, and the senior examiner, Shrestha at a mutually agreeable time.

7. Plaintiff responded by email dated April 24, 2009, that Defendant was delaying payment of his claim, and Plaintiff was going to take legal actions to protect his rights. In addition, he was going to report Defendant to the Better Business Bureau and the Consumer Protection Report Office in Florida. Plaintiff explained that he had provided more than 150 photographs, videos showing damages, invoices that support all the repairs, credit card statements, copies of cashed checks and receipts for cash payments; that legal action would be taken to receive the money spent to make the repairs and that he had no interest in discussing the situation in person. Five days later, Defendant emailed his Senior Examiner, Sudhir Shrestha, to prepare the file for appraisal.

8. Thereafter, on July 27, 2009, suit was filed by Plaintiff against Defendant. However, Defendants argue that by letter dated May 1, 2009, it informed Plaintiff that it was invoking the appraisal clause of the policy. This notice was initially sent to [Editor’s Note: Email Address Omitted] from “SSHRESTHA” with no “cc” noted thereon. As noted in paragraph 1 above, Plaintiff’s daughter testified that she responded to emails from Gargranella and Brooks because she had sent them emails and her computer recognized their email accounts; however, since she had never corresponded with SSHRESTHA, her computer was set to automatically send this email to SPAM, and she never received it nor did she receive the same letter sent by him sent via regular mail. Mr. Shrestha testified that he personally typed the email and the letter dated May 1, 2009. While he testified that he would have followed the usual procedure for mailing out letters, he could not say that the letter was actually mailed or received by Plaintiff. He also testified that his email stated at the top that it was from “SSHRESTHA” with no further identifying information until the last line of the email which read [Editor’s Note: Email Address Omitted]. The Court also notes that Graganells’s email of March 27, 2009, to the Plaintiff says nothing about Sudhir Shrestha contacting the Plaintiff directly, but merely tells the Plaintiff that Sudhir Shrestha, one of the senior examiners, had reviewed the file and made some suggestions which were listed in the email. Shrestha sent the May 1, 2009, letter by regular mail and did not call the Plaintiff to verify receipt of the email or the letter, even after the twenty (20) days had passed for the Plaintiff to name an appraiser and he had heard nothing from the Plaintiff. Shrestha left the Defendant’s employment in July, 2009. The only steps Shrestha took after being assigned this claim in May, 2009, was to send out one email and one letter with no follow up prior to leaving the Defendant’s employment in July, 2009. Neither had a date for the appraisal been set.

9. On September 10, 2009, after suit had been filed, another claims adjuster for the Defendant, Linda Besmer, contacted Plaintiff’s attorney informing him that there was an impasse regarding the value of Plaintiff’s claim, enclosing a copy of the May 1, 2009, letter to Plaintiff, and again invoking the appraisal clause of the policy. The appraisal did not take place until July, 2010, at which time $63,087.32 was awarded to the Plaintiff, and a check delivered to Plaintiff’s attorney on August 18, 2010 (over a year after suit was filed) for the balance due Plaintiff.

The Court recognizes that typically attorney’s fees and cost are not awarded to a Plaintiff if suit is filed after invocation of an appraisal clause in an insurance policy, however, this is not a typical case. Based on the totality of the circumstances of this case, including but not limited to the timing in this case (claim arose in 2004 and final payment to insured made in 2010); turn over in employees in handling this claim; the number of times Plaintiff sent supporting information for the claim; allowing the claim to remain dormant, knowing that the Statue of Limitations was close; and the numerous threats by Plaintiff to resort to litigation, the Court finds that Plaintiff is entitled to attorney’s fees and costs. It is, therefore,

ORDERED AND ADJUDGED that Plaintiff’s Motion for Attorney’s Fees and Costs is GRANTED. The Court reserves jurisdiction to determine the amount of attorney’s fees and costs.

__________________

¹For purposes of clarity, the Court is using the Plaintiff and his daughter interchangeably due to the Power of Attorney.

* * *