HURRICANE UPDATE 10/18/2018
Fire Pump- I had the final meeting with FKAA (Water Company) and Gary’s plumbing at the Hawks Nest on Tuesday October 16, 2018. The FKAA insisted that the last permit not be handed over until they came to see the job site in person and not just on drawings. They gave us the final permit and the fire pump installation will begin on Wednesday, October 24, 2018. All other permits had been previously approved by the City of Marathon and the EPA.
Flood Claim– I reached out to our flood attorney to find out what was the response of Wright Flood to the filing of the proof of loss due on October 10th. This was his response
1.Wright Flood rejected the POL this week (just as we know they would).
2. FEMA will not let our contacts (their National Counsel) get involved until we file suit, so we’ll get that done early next week.
3. At that point, we will engage with their lawyers to get the case moving.
Wind Claim-I am going to recap the legal filings and then move on to what has happened since the last update. I think with all the filings, this will make it easier to follow.
August 3, 2018- Our attorney filed a Petition to Compel appraisal. Winchester Insurance was served with the Petition to Compel Appraisal on August 21, 2018. Defendant Westchester has not appeared, defended this action, or served or filed any document as required by law, although the time to do so expired on Tuesday, September 11, 2018.
September 12, 2018-Our attorney filed an Amended motion for Clerks entry of default.
September 13, 2018- A Clerks default was entered.
October 2, 2018- The attorney filed for the entry of a Default Judgement.
October 11, 2018-The Judge issued his order.
October 17, 2018- Our attorney received the order last night. I had scheduled a call with our attorney for today, but it was postponed until tomorrow after they speak to the attorney for Westchester that suddenly appeared. My take on the order is that Westchester Insurance has 20 days from October 11th to find an appraiser. Once they find an appraiser, they have 10 days to agree on an umpire with George Keys. If they can’t agree on one, then the judge will appoint one. The appraisal will then finally take place. I am not an attorney, so I am posting the judge’s order as it reads.
Here is the Judge’s order:
1.IT IS HEREBY ORDERED AND ADJUDGED as follows: 1.This Court has jurisdiction over the Plaintiff and Westchester in this matter;
This Court has jurisdiction over the subject matter at issue in the Petition, and the instant dispute otherwise satisfies the requirements of proper venue under Florida law;
1.At all times relevant hereto, the Policy was in full force and effect with respect to those physical losses arising from and/or as a result of the Loss;
2.Those physical losses to the Insured Premises as a result of the Loss, as more particularly described in the Petition, constitute a fully covered loss(es) under the Policy (subject only to the Policy’s stated and applicable Deductible);
3.By virtue of the terms and provisions of the Policy and Westchester’s failure to appear and file any papers in this matter, those Physical Losses to the Insured Premises as a result of the Loss, and as more particularly described in the Petition, are not otherwise excluded from that coverage afforded under the Policy;
4.The Plaintiff has complied with all conditions precedent and/or subsequent imposed by the Policy for this covered loss(es), including, but not limited to, the Plaintiff’s invocation of the Policy’s Appraisal Clause;
5.The Plaintiff has properly invoked its right to appraisal proceedings in accordance with the Policy’s Appraisal Clause, which states in relevant part:
If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will:
1.Pay its chosen appraiser; and
2.Bear the other expenses of the appraisal and umpire equally.. .
1.For purposes of setting the stated Amount of Loss in this matter, the Parties are hereby directed to binding Appraisal Proceedings; 1.This Court affirms the Plaintiff’s designation of George W. Keys of Keys Claims Consultants, Inc. as its appointed “competent and impartial” Appraiser in this matter;
2.Westchester is hereby directed to appoint its designated Appraiser in this matter within twenty (20) days from the entry of this Court’s Order;
3.The Parties are hereby ordered to require that their respective appraisers then select an Umpire for the ensuing Appraisal Proceedings within ten (10) days of Westchester’s designation of its appraiser in this matter; if the Parties’ appraisers are unable to agree upon an Umpire, the Court shall appoint an Umpire upon notification that the Parties’ appraisers are unable to agree upon an Umpire; 1.The Parties’ Appraisal Panel shall then enjoy that jurisdiction to conduct and conclude the Appraisal Proceedings with respect to those claims at issue in the Loss, including, without limitation, the Plaintiff’s right to pursue all claims for all benefits due under the Policy’s various coverages implicated by the Loss;
4.This Court shall retain its jurisdiction to confirm the Appraisal Award setting the stated Amount of the Loss and/or otherwise adjudicate the Parties’ rights and responsibilities under the Policy subsequent to the issuance of said Appraisal Award (if necessary);
5.This Court shall retain its jurisdiction to award the Plaintiff its reasonable attorney’s fees, legal assistant fees, and costs incurred in the prosecution of this action, as authorized under Florida law and/or pursuant to §§626.9373, 627.428,
57.104 and/or 57.041 FLA. STAT.; and
1.This Court shall further retain its jurisdiction for the entry of an award of any other consequential damages to which the Plaintiff may be entitled as a result of the Insurance Claim, including, without limitation, such other and further relief as this Court deems just and appropriate.
DONE and ORDERED at Monroe County, Florida, on October 11, 2018
MARK H JONES
Mark H. Jones Circuit Court Judge
HURRICANE UPDATE 10/1/2018
FLOOD CLAIM- A question from an owner about the flood claim was; Would you also please update us on the flood claim and clarify some information. According to prior reports George Keys filed a flood claim for a little more than $300,000 several months ago. Now it seems we have filed another claim thru an attorney that is roughly four times the size of the claim that Keys filed? What percentage are we paying this attorney? Are we also paying Keys in addition to the attorney? How does all of this impact the timing to start work versus the wind claim?
This attorney will be paid 25% of the recovery of any amount over $138,000 (The money we already received from FEMA) Mr. Keys will still be paid his 10% on the amount above the$138,000. It will be in addition to the 25% that the attorney will receive.
The attorney told me in the unlikely event that Wright Flood doesn’t re-inspect by the time the building is released for repairs on the wind claim, we would be able to start at the top of the building and work our way down since none of the flood damage is up high. That is what the plan is when the building is released anyway. He has asked the attorneys for Wright Insurance to move forward with their re-inspections as soon as reasonably possible in order to move forward with wind repairs.
Wright Flood has until October 10th to respond to the latest Proof of Loss filed on September 10th.
WIND CLAIM- The clerk has issued the default on the Motion for Clerks Entry of Default filed on September 11, 2018. The attorney has sent the default (per the service requirement) to Westchester Insurance. Meanwhile, they are in the process of getting the Motion for Default Judgment filed. Their paralegal is following up with the Judicial Assistant as to whether this will require a hearing or just a proposed order on the same. Once they hear back from the Judicial Assistant, I will let you know on the Hurricane Update and forum section of the website.
FIRE PUMP-The materials for the installation of the fire pump and the extension of the 6 inch water line have been delivered to the property. The only piece that still needs to be delivered is the fire pump itself. The fire pump is finished and is awaiting shipment. All permits have been issued including the one for the building that will house the fire pump that needed a revision from the City of Marathon. On Friday I delivered the notice of commencement to the contractor (Barracuda Builders) who will be building the pump structure. I will be attending a pre-construction meeting with the contractor (Gary’s Plumbing) and the Florida Keys Aqueduct Authority to pick up that permit as soon as they agree on a time for scheduling the meeting. The contractor told me that after that meeting happens, they will be starting immediately.