amended complaint fourth - shifrin v. liberty...
TRANSCRIPT
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
Brian Shifrin and Melanie
Shifrin
Plaintiffs,
vs.
Liberty Insurance,
Defendant
) ) ) ) ) ) ) ) ) )
CASE NUMBER:
1:12-CV-1011 JMS-DKL
AMENDED COMPLAINT FOURTH
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TABLE OF CONTENTS
I. INTRODUCTION .................................................................... 3
II. JURISDICTION AND VENUE ........................................................ 6
III. CHOICE OF LAW ................................................................. 7
IV. GENERAL BACKGROUND ............................................................ 7
V. PROCEDURAL BACKGROUND .......................................................... 10
VI. FACTUAL BACKGROUND ........................................................... 10
VII. POLICY BACKGROUND ............................................................ 36
VIII. CLAIMS FOR RELIEF .......................................................... 37
IX. PRAYER FOR RELIEF ............................................................ 46
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COMPLAINT
Plaintiffs Brian Shifrin and Melanie Shifrin against Defendant
Liberty Insurance Corporation (“Liberty”) hereby alleges as follows:
I. INTRODUCTION
1. This lawsuit revolves around a failing Liberty Insurance
Corporation to stand behind and honor its products sold under
“Liberty Mutual” brand and its agents; and adjuster Scott
Fearrin and his supervisor Kevin Mae’s desperate and illegal
attempts to avoid paying for full amount due to plaintiffs on
the covered loss caused by tornado.
2. Plaintiffs Replacement Cash Value Policy (RCV) provides for
least of either (a) cost of the repairs at ACV and RCV
recovery when repair completed or (b) Replacement cost of that
part of the building using like construction on the same
premises and intended for the same occupancy and use without
stipulation of insurer / insured choice. Defendant
intentionally and malfeasant refusal to create proper estimate
to make replacement clause on the policy illusionary.
3. To accomplish that defendant executed simple strategy commonly
known as “Delay, delay, deny”.
4. What should have been a straightforward covered case with
defendant temporary securing roof and siding on the request of
the homeowners and defendant’s adjuster issuing good faith
complete estimate for flooded house so that insured select
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coverage (a) or (b) or applying for ACV under 180 days
provision the Policy, became an year long cat and mouse game.
5. Defendants thus devised, and have executed, a carefully-
conceived straightforward strategy: (a) hire loss-leader
company to perform initial repairs, that performed incomplete
and illusionary repairs (b) proclaim adjuster with nearly 20
years of experience “inspected” roof by only looking from
above and even take the pictures of incomplete and illusionary
repairs and not inform insured (c) making homeowner spend
years installing, replacing, maintaining tarps; in fact
plaintiffs maintained double tarps independently nailed
(d) refusal to adjust according to policy, and investigate
because there is a possibility of “future damages”, based on
mystical leaks adjuster thought exists (without him at most as
stepping one foot into the attic to see if leaks existed)
demanding homeowner to place new shingles on roof sheathing
that was fully exposed, uplifted and damaged during tornado;
and rafters that severely sagged due to trapped moisture in
the attic (e) invoke cooperation clause claiming it is
“reasonable” and “necessary” to commit economic waste of
nearly $7,000 on new shingles and tarps will not suffice in a
desperate attempt to avoid paying loss (f) delay investigating
(g) stall payments (h) eight and half months later calling
incompetent engineer and giving engineer narrow instructions
to only investigate only racking damage, when policy covers
any high-wind damage (i) engineer was able to “separate
damage” from fully exposed, deformed and uplifted sheathing
during tornado in addition to eight and half months of
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partially exposed by nature of trapped moisture and wet
insulation in the attic Liberty engineer proclaimed everything
was pre-existent (j) based on the report Liberty denied
payment to tornado damaged sheathing, rafters while still
demanding replacement, despite the existence of photographic
evidence.
6. After severe dispute over engineering, liability, causation,
coverage, timeliness and to avoid bad faith issues stemming
from its performance Liberty in the bad faith illegally
demands appraisal, to achieve tactical advantage and avoid
challenge to incompetent engineer report by hiring once again
incompetent adjuster based on recommendation of adjusters
personal friend of twenty years who happened to adjusted
claims for Liberty for the fact that he adjusted Liberty
claims.
7. Defendant’s strategy worked - with house dried up, moisture
report destroyed by adjuster (that adjuster apparently never
used), engineering report that nearly provide alternative
scenario and mixes term “pre-existing” with “efficient
proximate cause” supported under Indiana law there was no
proper, possible way to perform appraisement that would not
result material prejudice for insured, and adjuster claiming
that challenge to waiver of appraisal by insurer materially
violates policy in addition to court action is barred by
exculpatory clause even in event of intentional tort, bad
faith and gross negligence.
8. Defendants refusal to adjust according to the policy, refusal
to timely investigate constitutes a conscious wrongdoing for
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dishonest purpose, with ill will for normal obliquity,
deception, willful misconduct and was not in any way result of
a mistake of fact or law and is bad faith and a breach of the
duties of good faith and fair dealing for insurance claims
handling under Indiana law.
9. This Complaint is filed, and this action is instituted, to
recover the damages caused by Defendants’ past and continuing
violations of law as further detailed below.
II. JURISDICTION AND VENUE
10. Plaintiff is a citizen of the State of Indiana for purposes of
diversity jurisdiction under 28 U.S.C. § 1332.
11. Liberty Insurance Corporation is a Massachusetts company with
its principal place of business in Massachusetts.
12. This Court has original subject matter jurisdiction of this
action pursuant to 28 U.S.C. § 1332 as there exists complete
diversity of citizenship between Plaintiff and Defendant and
the amount in controversy exceeds Seventy Five Thousand
Dollars ($75,000.00), exclusive of interest and costs.
13. Plaintiffs aver that the amount in controversy exceeds the
jurisdictional limits.
14. Venue is proper in the United State District Court for the
Southern District of Indiana because the events and omissions
giving rise to this claim occurred within this district. See
28 U.S.C. §§ 118, 1391(a).
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III. CHOICE OF LAW
15. The Liberty policy (“Policy”) lacks a choice of law provision,
so in the forum state of Indiana, Indiana courts apply "most
intimate contacts" test: this policy has been contracted,
negotiated, as well as place of performance, location, and
residence of plaintiffs – all Indiana.
Applicable substantive law for this insurance policy
provisions are clearly governed by the Indiana law.
IV. GENERAL BACKGROUND
16. Property insurance is a multi-billion dollar industry in the
United States.
17. Property insurance policies are issued by insurance companies.
No other entities are authorized to provide property
insurance.
18. A potential insured will apply for property insurance, either
directly to a property insurance company or through a licensed
and authorized insurance agent.
19. Insurance policy purchased by people and entities to protect
themselves from unknown calamities, which may or may not even
occur.
20. Special nature of insurance and the role it played in our
society has been recognized by courts and legislatures for
many years.
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21. Insurance contracts continue to be contracts of adhesion where
insured is left little choice; it is take it or leave it.
22. Insured buys contract based on the television, internet ads
and claims made by agent without any real world knowledge of
company performance on the contract.
23. Policy holder pays premium, to buy this "LibertyGuard Deluxe
with Home Protector Plus" policy and expects to be protected
against calamity, in especially vulnerable economic and
personal position when calamity loss occurred.
24. The entire purpose of insurance is defeated if insurance
companies and adjusters can refuse or delay the prompt and
full payment of monies due under the contract.
25. In this case Liberty wholly owned by Liberty Mutual Group,
number three insurer, with annual earnings of 34 billion
dollars a year is in much more favorable of legal and
financial position then insured. Policy holder is completely
dependent on performance by the insurance company, and if
insurance company fails to fulfill its obligations completely,
it is the policyholder who suffers contractual and extra-
contractual damages.
26. Unfortunately in this case Liberty and its agents, who choose
to delay, deceit, refused to uphold they part of the bargain.
27. Liberty engaging in the sloppy, slow or deliberately bad
claims handling.
28. It does not take financial genius to figure out that insurance
companies can make more money by collecting premium and not
paying the claims.
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29. Unless insurance company faces prospects of paying all damages
caused by wrongful conduct it has no incentives to honor its
obligations.
30. Courts of Indiana recognized special nature of insurance
contracts, some case law calls it fiducial alike, some calls
it quasi-fiducial, others special relationship.
31. No matter how it is called Indiana courts recognizing duty to
insured to act in the good faith and fair.
32. State of Indiana laws are there to define "improper conduct"
to help insurer better and clearly understand its duties in
handling claims and how to avoid bad faith claims.
33. Indiana Supreme Court in Webb v. Jarvis established a
consistent formula for identifying a duty using tripartite
test: (1) relationship between parties, (2) the forseeability
of harm (3) public policy concerns.
34. In Erie v Hickman Supreme court of Indiana stated that
"Indiana law has long recognized that the insured deal in the
good faith with it’s insured", sited unique character of the
relationship foreseeability of harm to insured, and the public
policy of fair play between insurer and insured court
recognized cause of action for tortious breach of insurer duty
to deal with its insured in good faith as appropriate.
35. Stating punitive damages are only awarded if the plaintiff
shows that the defendant acted with malice, fraud, gross
negligence or oppressiveness that was not the result of a
mistake or other human failing.
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V. PROCEDURAL BACKGROUND
36. Case filed on 03/01/2012 in Madison County Circuit Court 6.
Case number 48C06-1203-PL-000034.
37. After that defendant’s counsel filed first “first enlargement
of time” to file answer, and answered on 05/01/2012, and
amended on 05/30/2012 as "WellsFargo Liberty Mutual".
38. On 07/20/2012 defendant filed second “first enlargement of
time” that was automatically granted.
39. On 07/23/2012 defendant removed to US District Court.
VI. FACTUAL BACKGROUND
40. On August 13th 2010 Plaintiffs Brian & Melanie Shifrin
purchased new residence from Fannie Mae located 10249 S 750 W,
Fortville IN 46040 for $123,700 located in Madison County IN
about six month prior to tornado described in this complaint.
41. Farm property included land, barn and the house.
42. On August 13, 2010 Brian Shifrin, from what was supposed to be
his former residence 11418 Altamount Dr Fortville IN 46040,
called agent Aaron Hill office located in Carmel, Indiana to
sign contract with Liberty to protect the newly purchased
residence against calamities for the consideration of $466.
43. “LibertyMutual” Policy “LibertyGuard Deluxe Homeowners Policy
with Home Protector Plus” No: H37248360452400 3 was issued by
the defendant.
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44. Liberty Insurance Corporation correct, complete, certified
instrument included with this complaint.
45. Prior to tornado house did not have: flooded fireplace or wet
ceiling above it, had working furnace, did not have flooded
ceilings anywhere, did not have flooded floors, flooded
sidewalls, severely damaged cedar siding.
46. House MLS listing stated: “Attractive cedar sided home
offering large living room, dining rm, eat-in kitchen, 3
bedrooms and 2 full baths”.
47. On February 28, 2011 the plaintiffs house and barn was
severely damaged by tornado. Tornado touchdown ripped the roof
off of the large barn behind the house, uprooted and broke a
great number of trees next to the barn, snapped in half tree
in left of the house, pulled shingles and sheathing off of the
roof of the house, uplifted house causing a crack in the
foundation, damaged cedar siding, broke French doors, knocked
down air-conditioner unit, flooded nearly all house ceilings
and floors, fireplace, damaged windows, flooded sidewalls,
flooded basement, and damaged soffits.
48. Plaintiffs were renovating kitchen, just painted family room,
and were in the process replacing tub.
49. EF1 – EF2 category tornado is registered in National Weather
Service database, as well as listed on most news networks.
50. In addition nearly entire property was covered with debris,
and plaintiffs also discovered that well was no longer working
properly and portion of the house lost power.
51. Basement 03/01/2011 had three or four inches of water by the
stairs and burned smell emanated from the furnace.
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52. Plaintiffs reported claim timely on 03/03/2011 06:29am.
53. Small claims adjuster Scott Fearrin with 19 years of
experience at that time was assigned to handle the claim.
54. Defendant hired Paul Davis Restoration (PDR) to perform
repairs. On 5:53pm Brian Shifrin received call from PDR and
was informed that they were just ready to leave to secure
property and plaintiffs don’t have to be on site.
55. It was later revealed from sundown event database for
Fortville, IN 03/03/2011 is 6:36pm, property located in the
country settings with no street lights anywhere contractor was
left between 0 – 36 minutes of light, and most likely worked
in the darkness.
56. Contractor also billed Liberty for 8 hours that day.
57. Next day plaintiff Brian Shifrin met with PDR contractor who
was finishing up nailing the siding and patching hole in the
siding he said: “he could not patch it in the dark the day
prior”.
58. Contractor performed roof repairs included placing four tarps,
and in addition number of places stuffing pieces of old bad
shingles that they found on the ground sideways where missing
shingle were; with no nailing, no glue strip or any other
method of fastening or attaching bad for shingles to the roof
– to avoid using / paying for tarps.
59. Brian Shifrin fixed shingles on the North corner of the house
that contractor forgot.
60. Adjuster arranged meeting on 03/08/2011.
61. On 03/08/2011 adjuster took pictures of the barn and
structures; quickly walked through the house; spent 5 minutes
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measuring roof; took some pictures and left – stating he would
like to start from replacing the roof. Brian Shifrin stopped
Scott Fearrin pointed to rafters that looked very sagged and
asked directly asked: “will you pay to fix sagged rafters,
decking?” Adjuster walked away without saying a single word.
Plaintiffs took it as a NO. At NO point adjuster agreed to
cover sagged rafters, or all damaged decking.
62. Before adjuster left, another contractor stopped by recognized
adjuster; told us he worked with Scott Fearrin decade ago,
stated he is known for really bad estimates and not paying for
open items, or things adjuster verbally promised. Advised us
to have only email/letter conversations with him. Asked how
much house appraised at – we stated $82,500; he stated - total
and walked away.
63. On 3/18/2011 plaintiffs hired amish contractor to fix barn
because it was missing entire roof and it rained almost daily.
Repairs completed on 3/22/2011, plaintiffs paid from they own
pocket for the large barn repairs waiting for check to be
cashed from the defendant.
64. Defendant never formally stated they coverage position.
65. No proof of loss form was ever required, requested, or
supplied.
66. On 3/25/2011 plaintiffs received check adjuster issued check
for outside structures in amount of $14,266, no estimate
(statement) was included.
67. Indiana unfair claims settlement act IC 24-4-1-4.5 defines
such unfair practices:
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“(10) Making claims payments to insureds or beneficiaries not accompanied by
a statement setting forth the coverage under which the payments are being
made.”
68. Flagstar bank refused to process check without paperwork.
Defendant knowingly and intentionally caused delay making
payments.
69. Later defendant provided another estimate that was incomplete
and improper and included roof of the house causing 50%
portion of payment to be stalled at the bank for nearly a
year. With 50% of check that plaintiffs received from the bank
in May, they were able to recoup only 33% of investment in the
barn.
70. On 3/25/2011 plaintiffs contacted GC contractor Larry Addams
(Larry Addams Assoc Inc). He pointed to the damaged soffits
and told plaintiffs that normal process is to remove 2’ of
drywall at the bottom of the walls so interior / exterior
walls could be properly dried out. He also stated that rain
water on the farm property contains bacteria, pathogens
(viruses), as well as fire retardants from insulation, led
from paint, mold, and later plaintiffs discovered asbestos
fibers. He stated wet floors should be removed. However on
3/29/2011 plaintiffs received bill and discovered that he
requires 50% deposit on all the repairs. Having two mortgages,
two utilities, two taxes, and rest of the money in the barn
were not able to afford his services.
71. On 4/13/2011 plaintiffs contacted adjuster by email
specifically because adjuster refused to comment about paying
for roof decking, rafters, soffits, and downspout. It was
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listed intentionally as a first entry, and plaintiffs realized
that adjuster does not want to pay for any of them. In
addition plaintiffs stated: “14) HVAC our contractor mentioned
that it is not possible to match SEER 11, to SEER 13 plus
furnace board was charred”.
72. On 4/14/2011 or earlier, three courses of shingles blew over
and caused a leak over damaged ceiling in the kitchen, ceiling
collapsed. Plaintiff’s first installed black plastic to
prevent water infiltration, and then two weeks later replaced
plastic with new shingles. Wet insulation, damaged drywall
felt on damaged already floor.
73. On 4/15/2011 adjuster request meeting to perform moisture
report. Brian Shifrin met with mr. Kevin Quigle, and john doe
(the true name is unknown currently to plaintiffs) of Service
Master Clean to performed moisture report. Adjuster was 10 to
15 minutes late, and by the time adjuster came in they
finished working on “office room”, hall. During moisture scan
Kevin Quigle showed Brian Shifrin flooded office walls, west
house wall above the French door had significant moisture
reading. When adjuster finally arrived, he went back to his
car to get laptop and laser measuring tool, tool that he could
not use because of dead/dying batteries. Adjuster went back
again to his car to get batteries and returned and went back
to get measuring tape, and while Service Master were working
on moisture reading adjuster was working on measuring house
and creating sketch. Adjuster asked Service Master Clean team
check with the attic but they refused, neither they would go
to the basement, gave him report and left.
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74. Brian Shifrin immediately requested copy of that report. Later
after requesting to cover damaged wet walls again and again,
plaintiffs demanded copy of the moisture report. Adjuster
replied that he don’t remember having it and never used it. He
proclaim: “that he did estimate from his memory”. He
additionally stated: “I am going to ask Kevin Quigle for
copy”. Plaintiffs contacted adjuster multiple times without
success requesting status with no response from adjuster. The
Defendant answer to the motion to produce stated – not
available.
75. During moisture measuring adjuster never paid any attention to
moisture scan, was late and worked on his laptop to create the
sketch of the house.
The purpose of this report was:
a) To make it look like moisture report was done, while
having no intent of using it
b) Unfavorable to the party report was intentionally
destroyed by the defendant.
In addition, about a year letter it was discovered that
inappropriate investigation took place.
76. On the same day 04/15/2011 Brian Shifrin requested coverage of
soffits reported damaged by Larry Addams. Adjuster with nearly
twenty years of experience proclaimed “he does not know what
he is looking at”. Brian Shifrin requested to cover clearly
damaged cedar ceiling in the office room – adjuster stated:
“only if contractor tells me”. Requested adjuster to dry
house. Adjuster refused stating it would be waste to dry
sidewalls without replacing the entire roof. However he would
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not pay to install tarps, he would not investigate rafters, or
pay for decking.
77. Adjuster sent estimate on 4/28/2011 ACV $22,713 /$29,486.08.
Estimate missed walls, windows, proclaimed all baseboards are
2” wide, specified removal of the floors but did not offer any
plumbing allowances, specified R13 insulation everywhere in
the attic, missed doors, refused to pay for paint and staining
doors, closet casing, windows, baseboards, exterior doors,
soffits, downspout, no mold remediation, no water remediation,
no basement mold treatments, no carpet removal plaintiffs
worked on for weeks, no statement about plaintiffs flooded
fireplace, no cleanup basement, no hallway drywall removal.
Damaged second bathroom was not listed, master bedroom damaged
floor was not listed. No matching moldings for closets, Office
room estimate falsely claimed “No water stains found to wall. Nted
moisture will be dried upon remediation. No damage to subfloor or Tile”.
78. Letter stated “This estimate reflects what I believe to be the
full repairs of the home with some open items. Specifically
the hvac repairs, possible chimney damages, any code
requirements, and the remediation of the premises once the
roof is replaced.”
79. Plaintiffs contacted adjuster and adjuster refused to change
anything on the estimate without Genral Contractor (“GC”) in
bad faith and clear breach of the policy “We will negotiate
with You” provision.
80. Brian Shifrin directly requested explanation why adjuster used
R13 insulation replacement everywhere in the attic. Adjuster
replied because current cellulose insulation is 6”-7” should
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be equivalent to R13, and your policy does not have code
upgrade statement. This part of the house was built 1969, and
insulation clearly settled in 41 years and obviously was more
than R13. In addition adjuster entire statement was simply
untrue, as plaintiff’s insurance policy “Special provisions –
INDIANA” page 2 included section 11. Ordinance law:
“You may use up to the limit of liability that applies to coverage A (or for
Form HO 00 04, you may use up to 10% of the limit of liability that applies to
Building Additions And Alterations) for the increased cost you incur due to the
enforcement of any ordinance or law which requires or regulates:
The construction, demolition, remodeling, renovation or repair of that
part of a covered building or other structure damaged by Peril Insured Against;
“.
81. In addition adjuster misrepresented terms and condition of the
policy by stating that policy did not include code upgrades
provision.
82. Adjuster stated in his log: “I reiterated I would not make any
changes to the estimate because it is my feeling that the
damages are going to continue as long as roof is not
replaced”.
83. However at no point did adjuster stepped one foot into the
attic to see IF there were in fact roof had any leaks.
84. Policy provisions that allows for replacement structure as
well as provision and one that allow making claim for ACV
became illusionary with adjuster willful and wanton refusal to
adjust according to policy.
85. Defendant used following unlawful techniques but not limited
to avoid paying true value:
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a. Claimed wrong baseboard width and wrong grade paint instead
of stain.
b. Avoided paying for staining casings and baseboards.
c. Deny statement of the pair for color match, to match closet
stained trim, shelves, casing.
d. Deny color matching stained baseboards and stained windows
e. Specify R13 insulation in the attic that no one can legally
install in the state of Indiana.
f. When replacing doors refused to pay for paint or staining
them.
g. When replacing ceilings defendant avoided paying for
removal of lights attached to those ceilings or clean
nearby windows
h. Defendant avoided paying mold remediation, sealing moldy
surfaces
i. Defendant demanded carpet laid over floors filled with
lead, bacteria, virus pathogens, asbestos and fire-
retardants.
j. Defendant refused to pay to clean up story below, basement,
basement shelves and drywall flooded with water containing
led, bacteria, virus pathogens, asbestos and fire-
retardants
k. Adjuster limited flooded exterior walls fix to paint
drywall exterior only. Ignoring the fact that anyone living
in the house most likely will suffer respiratory problems
and house even after full repair completed and house most
likely will not be insurable and will have to be sold as
is.
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l. Defendant only accounted for 4-5 days / single pickup
dumpster fee on four month restoration project. Software
clearly states to this fact and in no way it was a mistake.
m. Defendant refused to investigate or pay for expensive
projects like fireplace or cedar ceilings.
n. When replacing tile in one room that continues in the
closet defendant refused to pay for closet tile when
replacing tile in that room.
86. Defendants refusal to correct “errors” is violation of Indiana
Statue IC 24-4-1-4.5.(6)
"(6) Not attempting in good faith to effectuate prompt, fair,
and equitable settlements of claims in which liability has
become reasonably clear."
87. Defendant refusal caused delay in making payment.
88. On 4/29/2011 adjuster was informed that plaintiffs disagree
with his estimate, consider it fraudulent, and will not cash
the check.
89. On 4/29/2011 plaintiffs check shingles and verified that they
all resealed.
90. From 4/26/2011 plaintiff Brian Shifrin started having severe
chest pains, seeked medical attention, EKG, blood tested.
91. Daughter, Katie Shifrin three years old at the time, started
to develop severe rashes after entering / touching something
in the house.
92. Despite best effort plaintiffs were not able to find GC
willing to take repairs with some stating “is your adjuster on
crack?”, “have your adjuster been in this house?”, “He only
paid for materials with no labor”.
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93. Plaintiffs decided to use individual contractors to try to get
estimates, but even then only one out of four would submit
estimates.
94. On May 16th plaintiffs sent letter requesting to check on
horizontal crack in the foundation that started to visibly
leak water.
95. Engineer report confirmed uplift tornado damage on 06/09/2011
received by plaintiffs on 06/27/2011.
96. On 6/28/2011 Plaintiffs forwarded adjuster estimate from Vogt
Tile we received on 06/07/2011. Vogt tile rep stated all
flooring to be replaced because of mold and bacteria.
Plaintiffs called adjuster and adjuster declared only when
flooring severely damaged and only small section.
97. On 06/28/2011 plaintiffs in the separate email forwarded
adjuster estimate from Alpine Group for insulation removal
from Dave Adams received on 6/09/2011. Dave Adams suggested
plaintiffs to fix up the house and sell it move out of the
state, as most walls are flooded.
98. On 6/28/2011 plaintiffs in the separate email forwarded
estimate for drywall.
99. On 6/28/2011 plaintiffs in the separate email forwarded
estimate for asbestos removal from Delta Services 06/09/2011
after plaintiffs paid for asbestos test.
100. On 6/28/2011 plaintiffs in the separate email forwarded hvac
quote from Bryant Heating and Cooling
101. On 6/28/2011 Adjuster replied that he is waiting for all the
estimates.
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102. On 7/11/2011 plaintiffs forwarded Siding estimate for $18,000
siding repair.
103. On 8/29/2011 plaintiffs forwarded estimate from Don Kummick.
Don Kummick again as many others made multiple times statement
that house should have been totaled in front of both
plaintiffs and separately to his Office Manager Elizabeth
Hiles.
104. Don Kummick informed homeowners that flooded waterheater
should be replaced, in addition he stated that adjuster did
not include remediation on the estimate.
105. Adjuster decried that discount on the estimate expired.
106. On 7/29/2011 plaintiffs made complaint to Indiana Department
of Insurance.
107. On 8/13/2011 plaintiffs noticed no renewal notice from the
defendant, and called customer support. Customer support
stated that policy is not in danger of been not renewed.
108. However just two weeks later plaintiffs received message
stating that Liberty will not be renewing plaintiffs policy
without 30 days warning.
109. Plaintiffs were not able to find another insurance that would
insure the property.
110. Plaintiffs suffered additional losses due to vandalism.
111. Plaintiffs never ever filed claims before despite owning three
houses. The only claim they ever filed was this tornado claim.
112. The only change was the complaint to Indiana Department of
Insurance.
113. Liberty supervisor Kevin Mae later falsely answered Indiana
Department of Insurance complaint in the following form:
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“I asked Mr Shifrin if he has sent us any estimates to dispute
the damage, and he told me he just feels our estimate is not
inline with what he thinks needs to be done.”
114. After statement above supervisor doubled down.
“To this date, Mr Shifrin has not sent Liberty Mutual any
contractor estimates and states there is more damage.”
And …
“I trust the information I have provided will allow you to
close your file.”
And IDOI closed the file stating they limited power.
115. Department of Defense email system clearly recorded every
single message and estimate that was forwarded to defendant.
116. Plaintiffs contacted agent Aaron Hill, who promised to send
letter to the defendant on the behalf of plaintiffs.
117. On 7/28/30 plaintiffs started legal research for similar case
in any Indiana courtroom, or any district court where
insurance company refused to adjust, investigate on the
possibility of future damage pretense.
118. Based on the statement from Mr. Don Kummick, plaintiffs
contacted Rheem manufacturing, maker of the plaintiff’s water
heater that pointed plaintiffs to Gas Appliance Manufacturers
Association (“GAMA”) statement that flooded water heaters must
be replace because of possibility of explosion. Manufacture
stated that ALL insurance adjusters are aware of their
position.
119. Plaintiffs contacted to obtain estimate just to dry up partial
basement.
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120. On 9/28/2011 after attending conflict resolution class,
plaintiffs even decided to apologize to supervisor for
complaining to IDOC, for defendant basically defrauding
homeowners, acting in bad faith, and sitting comfortable
holding purse while plaintiffs suffer loss after loss. With
plaintiffs making mortgage payments month after month, paying
utilities, mowing farm, paying property taxes, suffered
vandalism, had to install gates to keep trespassers out,
theft, paying for tarp, twice a week driving to check on
tarps.
121. Defendant requested plaintiffs to select a single General
Contractor.
122. Plaintiffs tried once again get estimate in September 2011,
however with a house dried up getting complete estimate became
impossible.
123. Plaintiffs requested meeting with Mr. Don Kummick and
adjuster, who also previously stated that house should be
declared as total loss.
124. Adjuster agreed to the meeting 10/10/11. Contractor few weeks
prior said that he was going to show adjuster all the things
he missed, did not performed and stayed silent. Leaving
homeowner once again to point to damaged walls, improperly
accounted drywall, missed damaged ceiling, trim, baseboards,
closets, etc. Brian Shifrin requests adjuster again to look at
subfloors, this time adjuster can see that it needs to be
replaced, however once again said only if your contractor
tells me to. Contractor looks and quietly walks away without
saying single word. Plaintiffs showed flooded water heater, as
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was pointed out by Mr. Kummick, contractor remained silent and
adjuster walked away. Plaintiffs guessed that private
agreement was reached between contractor and insurance
company.
125. Adjuster stated he will not use anyone’s estimate but his own,
however requested insured provide estimate for asbestos test
lab result and remediation. Lab report and estimate was
forwarded to adjuster on 10/12/2011.
126. Adjuster later discovered more than $18,000 worth of his own
omissions. However list was incomplete due to adjuster not
taking notes, still missing walls, wrong trim sizes and
plaintiffs supplied adjuster with list of missing items and
once again adjuster refused to negotiate. Contractor now
proclaimed that he could spend two weeks adding items that
adjuster missed and it is important for contractor to work
with insurance companies. Estimate still was missing furnace,
casing, baseboard staining, closets, water remediation, mold
remediation, flooded fireplace, code upgrades, flooring,
staining doors, soffits, electrical, flooded walls, and many
others.
127. Adjuster continued to play games with the estimate: plaintiffs
noticed “paint 6.5 sq ft of siding” for the price of RCV $2.55
or ACV $1.86 that looked like size of shelf, and knew that
adjuster estimating software included “paint shelf” item -
$30. After plaintiffs complained, and told adjuster specific
code, adjuster switched it to another bulk rate of paint
plywood. It is clear that shelf is not painted in bulk,
painted on all sides, with multi-coats. Homeowners also
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realized that adjuster cheated on carpet removal, baseboards
removal and demanded to be compensated for weeks of work.
128. On or about September 10th homeowner installed new set of
tarps. The set was intentionally installed to allow adjuster
see that original tarps (1,2,4) are preserved, however tarp 3
had to be replaced. Tarp 3 was replaced with dual
independently nailed tarps. In fact, original tarps were
clearly visible in the photographs sent to Liberty in February
2012. However adjuster did not pay attention and falsely
claimed “mystical leaks” and additional damages.
129. Adjuster proclaimed that contractor agreed with everything, to
avoid totaling the house they would only pay moisture
remediation directly, in addition they would pay mold
remediation directly too.
130. Plaintiffs noticed additional foundation issued after uplift,
water stated to seep in from under the window in the bedroom
because support joist under the window cracked. Plaintiffs
requested to see if some sort of settlement could be worked
out.
131. Defendant sent letter signed by supervisor Kevin Mae, but
clearly was written by the adjuster Scott Fearrin, as it
contained following text: “If you have any questions or have
other information which might be used to reconsider our
coverage decision , please call me at 317-XXX-8340 or my
supervisor, Kevin May at 630-XXX-1493. If you prefer to
communicate by email my address
[email protected].” and “Sincerely Kevin May”.
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Letter falsely claimed that: “at no time we discussed or
agreed to replace a furnace”.
However this statement completely false as defendant well
aware of the loss:
4/14/2011: “14) HVAC our contractor mentioned that it is not
possible to match SEER 11, to SEER 13 plus furnace board was
charred”
4/25/2011 "I also made appointment to look at A/C and furnace,
do you want me to get multiple estimates? "
4/28/2011 Scott Fearrin stated: “This estimate reflects what I
believe to be the full repairs of the home with some open
items. Specifically the hvac repairs…”
In addition letter stated: “We will only consider roof
sheathing replacement from the original date of the loss. Any
sagged rafters or worn decking will not be considered for
reimbursement.”
Roof decking was damaged from the day one as it was completely
exposed. Adjuster was well aware of that.
4/25/2011 email to adjuster: “1) Roof, decking, two sagged rafters, porch, soffits, downspout“
132. October 2011 the Defendant paid and plaintiffs replaced
damaged well.
133. Plaintiffs requested siding estimate from Window and Siding Of
Indianapolis Inc. Siding estimate came at $35,000. Meaning
house is a total loss.
134. Defendant re-hired Patric Carl of Donan Engineering to
investigate. Plaintiffs were advised to allow even untimely
investigation. Plaintiffs arranged meeting between siding
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contractor and Liberty Engineer. On the premises dispute arose
between Brian Shifrin & Patric Carl. With plaintiff stating
that engineer should investigate ANY high wind damage and
engineer stating only racking damage. David Cremeans,
contractor from Windows and Siding of Indianapolis with 40
years of experience showed fresh cracks, siding stain holding,
and stated that siding is 12” cedar and difficult to match.
Homeowner also stated that south side already settled and off
limits. Homeowner cutout pieces from that side in six month
prior in attempt to find match. Siding contractor left and
engineer and homeowner went to inspect roof decking.
135. Engineer refused to use infrared camera, pocked decking in
four places with five inch screwdriver took some pictures,
crawled to south structure took some pictures and said he was
done.
136. On 12/04/2011 plaintiffs received “Reservation Of Rights
Letter” from the defendant. Vague letter specified we reserve
the rights, however did not specify as to what.
137. On 12/05/2011 plaintiffs responded with the Answer stating:
“We are voicing our official disagreement and respectfully
request a timely and detailed explanation of your position.”
Demanding explanation to insured position as well as stating:
“We fully cooperated with your requests. Scheduled meetings, took time off
work, invited a siding expert with 40 years of experience, who explained siding
type, that it is impossible to match, and explained details of installation and
staining. We demand you release your engineering report to us, so we could
asses statements that your engineer made. It has been over three weeks and no
report has been forthcoming.
138. On 12/07/2011 adjuster responded with the stating:
“Both Kevin May and I have received your recent correspondence. We are awaiting the written engineer’s report. I have verbally spoken with the
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engineer and he explained the report would be completed and sent by Friday of this week. Both Kevin and I will then review it and formalize a response to you by Monday of next week.”
139. After briefly agreeing, plaintiffs called engineer to find out
what was the source of the delay. Engineer stated: “I sent
addendum to your adjuster, and adjuster is aware of that.”
140. Plaintiffs followed with message to adjuster:
Scratch that. Engineer told me that you have that report, it is addendum to original. I still expect detail on following items by this friday: - Who inspected my roof in April, or if ever? - Copy of addendum that was sent to you today. - What was the subject and nature of that vague ROR, sounds like you have some information from Engineering Report that we didn't?
141. And to supervisor demanding adjuster change, because his
severe issues with ethics:
“Dear Kevin,
We requesting adjuster change. It is our wish, our desire, and our right under the policy. We lost any trust in Scott, and we request you replace him immediately. Brian & Melanie Shifrin”
142. Supervisor responded:
“We will not be switching adjusters at this time. Scott and I have discussed everything to this point.”
143. His addendum was missing number one item. Mystical leaks
claimed by adjuster for nearly 9 month. It did not claim
issues with tarps, unlike adjuster fantasy writings; it did
not claim additional wet insulation, as everything was dried
out.
In the addendum Liberty hired Engineer proclaimed the eight
and half month after tornado:
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Somehow with use of screwdriver and a camera and without taking
mold samples, to determine type of spores, age of spores, type of
OSB - engineer determined that the mold damage to the east side
of the south addition was “pre-existent” and not caused by wet
insulation.
Fully exposed sheathing during tornado, located above wet
insulation, sheathing that expanded and no longer has expansion
gaps, damage was “pre-existent”.
Engineer falsely claimed that: “several sheets of roof
sheathing were previously replaced, and mold is evident on the new and
old sheathing. The replaced sheathing indicates ventilation problems in
the attic is a long term problem and the present of mold on the new
sheathing indicates the ventilation problems is on-going”. However
only single piece of sheathing was ever replaced and damage, most
likely when previous owners building the addition; damaged
sheathing is clearly damaged by uplift; from engineer photographs
it is clearly visible that water was running down the rafters,
none of the adjacent sheathing in the nearly 40 feet gable are
experienced any of those “on-going” ventilation problems and none
are damaged by mold with exception of leak over the kitchen. In
addition, since it is commonly known that hot air is rising above
the cold and hot air can absorb more moisture because larger gap
between air molecules, if top sheathing would have been damaged
by moisture like Sr. Engineer claimed – it would have meant that
adjacent top sheet must be damaged as well. And it is not. For
engineer to error out on moisture damage vs. leak – could only be
due to either: a) biased b) incompetent. Since it is not possible
that independent engineer is biased just because of payments
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defendant made, past relationship, future profits – one possible
explanation remained: Defendant hired incompetent engineer.
144. In addition engineer claimed that softness of the plywood on
the south side of the gable is due to thickness. However
North side of the same gable is not experiencing same
“softness”, in the northern hemisphere – it would be the north
side experiencing those moisture issues.
145. Engineer proclaimed roof sag was caused by inferior roof
structure. Since the ceiling was flooded on the addition,
rafters only five and half inch thick as stated by engineer
and could not be insulated by specified by adjuster ten inch
of insulation plus 1” – 2” of air homeowner believed that
under code upgrade policy defendant is 100% liable for
repairs. In addition we don’t have to speculate whether
flooded ceiling could have been efficient proximate cause of
sagging: engineer stated moisture as an alternative cause.
146. Engineer declared that siding was not damaged by racking.
However refused to state anything if siding could have been
damaged high-winds. Homeowner bought property six month prior
to tornado. Defendant investigated eight and half month after.
Homeowner provided affidavits from Remax Realty and other
witness that siding did not looked anywhere near that six
month prior. Even *if* engineer racking claim allowed to
stand, defendant delayed investigation caused significant
deterioration of the siding.
147. Plaintiffs tried calling several engineering firms, however
due to December holidays, engineers were stating they can not
come to premises until middle January. In addition they stated
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in one voice that efficient proximate cause of the mold can
not be determined ten month after tornado, and final report
will be well into February. In addition engineer also stated
may not be possible to determine if exposed sheathing was
damaged by exposure to rain and ten month of moisture from wet
insulation or not.
148. After severe dispute over engineering report on 12/09/2011,
adjuster stated “Insured sent several emails disputing our
position and the engineer. We will be invoking appraisal
clause in the policy”. Dispute arose over causation, coverage,
liability, and timeline ( defendants waiver of appraisal).
149. Adjuster stated in the claims file: “Hired Paul Nash to
represent LM in the appraisal process. Paul came recommended
by local contractor who I worked with for 20 years. Paul also
worked LM claims in New Orleans for Katrina”.
150. Plaintiff content that adjuster improperly called for
appraisal. Indiana courts uniformly hold that the issues
relating to liability for a loss may not be determined by an
appraiser. Atlas Constr. Co. v. Indiana Ins. Co., 309 N.E.2d
810, 813 (Indiana Ct. of App. 1970).
151. In addition with the house dried up and adjuster destroying
moisture report defendant waived it's right to the appraisal:
By intentionally or negligently destroying unfavorable
evidence, Liberty cause tremendous loss for plaintiffs.
Tangible physical property that was otherwise been covered by
the policy issued by the defendant. The loss of moisture
report made it impossible for plaintiffs to recover correct
damages and perform appraisal.
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152. Appraisal was called to prevent bad faith action, and assert
tactical advantage over plaintiffs.
153. On 12/16/2012 Plaintiffs contacted siding company that
informed what defendant paid for siding will not cover
materials. Nearly $4/sq ft material, site delivery, taxes, 15%
overlap and 15% waste, stainless nails, tyvek, wall bracing,
trim, removal and disposal – and can not be possibly be
performed $3.91/SF ft.
154. On 1/06/2012 after conversation with another engineering firm,
engineer stated that in the flooded house it is exterior OSB
sheathing that get’s damaged by water; there would be little
point to investigate siding when it has to be removed anyway.
155. On 2/23/2012 plaintiffs sent courtesy notice of breach of
contract, stating each and every line adjuster improperly
estimated and in addition supplying picture evidence; adjuster
internally proclaimed it to be vague and not responded to
plaintiffs.
156. On 3/01/2012 lawsuit was filed to recover the damages.
157. On 3/10/2012 it was discovered that well pitless adapter,
replaced October 2011 by Liberty, sprung up leak, causing pump
to burn down and fail.
DISCOVERY ITEMS:
158. Adjuster and supervisor falsely declared that Liberty will pay for mold and moisture
remediation but only “directly” (“make sure that job performed correctly”) and
refused to negotiate, at the same time defendant’s adjuster wrote in the claims log that
made their intentions crystal clear: MOLD $0, further payment $0. Demand to pay to
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contractor directly - violated the Policy provisions: We will adjust all losses with you,
we will pay you, we pay repair or replace the damage, and the mold endorsement.
159. Defendant failed to produce written copy [phony] “agreement” for everything with
plaintiff’s contractor. On the bases of said agreement contractor – adjuster and
supervisor refused to adjust the claim. (In response to recent discovery motion
defendant stated that they provided everything they had, and plaintiffs conducted
search of contractor email, his new receptionist email and his old receptionist email
accounts and in addition physical locked cabinet with plaintiffs file.)
160. Defendant refused to adjust the claim, or use customary estimation software
Xactimate, refused to pay based on phony agreement and denied plaintiffs the
benefits of the contract. Indiana law requires agreement in the amount over $150 to
be in writing, so nearly $50,000 would qualify (that neither party has in the
possession). In addition Indiana law prohibits contractors from negotiating insurance
settlements. Contractor was unauthorized to enter into ANY agreements with the
defendant; the “agreement” was still missing numerous large items. In addition even
after plaintiffs stated they will not use this contractor defendant refused in bad faith
adjust the estimate, because they knew it would total the house (price of repairs
exceed price of the house). Such refusal was made in bad faith and fraud.
161. To execute appraisal defendant’s adjuster hired yet another biased contractor Mr.
Nash, owner of Nash Insurance Service, company that habitually used by insurers,
including Liberty, to perform claims adjusting. Defendant submitted affidavit that
claimed he only perform several claims for Liberty. That affidavit was patently false
and defendant knew that it was false. In fact Mr. Nash performed over 400 claims for
the Liberty Mutual. Based on statement in the claims log Liberty’s adjuster, Mr.
Fearrin, knew that such person could not serve as a competent appraiser and both Mr.
Nash and Mr. Fearrin withheld from plaintiffs information about said relationship.
162. In fact, this “appraiser” was hired due to biased, partisan, incompetent engineer visit
to plaintiff’s property. Engineer who declared pre-excitant even before entering the
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house, engineer who can apparently determine estimate growth and spread of said
mold in the wet attic, who thinks that moisture first condenses on the hot surface,
instead of cold. Same engineer who violated code of conduct by stating to plaintiffs
that he will consider the fact that roof plywood is original and survived 42 years
clearly disproved his “moisture issues” in the flooded attic, while quietly telling
adjuster he will declare all of it pre-existent. Same “expert” who couldn’t even tell
that 2x8 ridge supporting 25x25 rafter load is inferior and could not support roof
instead declared it rafters differentials. (Because it would have exposed the defendant
to code upgrade funds).
163. At this moment it is clear that defendant has not done anything in good faith:
defendant used inferior contractor to perform illusionary repairs, defendant was trying
to avoid total claim (or what he called cashout in the claims log) on the house by
refusing to adjust, trying to separate roof and moisture remediation from the rest of
the estimate, to force inferior settlement defendant intentionally included included
roof of the house to outside structures estimate, adjuster issued ridiculously low
estimate that new was false, adjuster immediately refused to negotiate this settlement
demanding contractor, breaching policy we will settle all losses with you, and code
upgrade clauses, declaring expensive items “open”, refusing to pay allowances,
installing R13 insulation in the attic, refusing to dry up plaintiffs house, preventing
plaintiffs from removing drywall to remove moisture in the walls, refused to include
moisture / mold remediation, correct numerous items; during next six month adjuster
again ignored plaintiffs estimates and blatantly refused to adjust because he was
hoping plaintiffs would get tired of losing mortgage payments. After complaint to
state and the agent Mr. Fearrin and Mr. May were forced to correct few items.
However even then they demanded contractor to “better understand the loss”. Of
course defendant used this opportunity to make phony written “agreement”, against
the will of homeowner, with contractor never to be seen again, that did not include
mold, moisture remediation, fireplace, soffits, proper 12” wavy cedar siding, furnace,
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sagged structural support floor joist, roof decking, furnace, water heater, etc.
Defendant followed with clear attempt to stuff the deck with biased engineer and
appraiser. Defendant lost unfavorable moisture report. No reasonable or sane juror
would consider this settlement practice as anything other than Institutional Bad Faith
due to constant involvement and direct approval of the defendant’s supervisor.
164. Considering that defendant ignored policy from the day one, and was preventing
plaintiffs from exercising contractual provisions – defendant materially breached the
policy.
VII. POLICY BACKGROUND
165. Defendants issued policy: “LibertyGuard Deluxe Home Owner Policy With Home
Protector Plus” and following coverage’s:
Coverage A Dwelling With Expanded Replacement Cost $123,700
Coverage B Other Structures On Residence Premises $12.370
Coverage C Personal Property With Replacement Cost $92,780
Loss of Use of Residence Premises Actual Loss Sustained
166. Home Protector Plus Endorsement stated the following in the Section 3(a)1:
The applicable limit of liability for the Buildings under A or B is a
replacement cost after application of deductable without deduction for
depreciation, subject of the following:
We will pay the cost of repair or replacement, but not exceeding:
(a) Replacement cost of that part of the building using like construction on
the same premises and intended for the same occupancy and use.
(b) With respect to Coverage A, and amount not exceeding 20% greater than
limit in liability stated in the declaration
(c) With respect to Coverage B…
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(d) The amount actually and necessary spent to repair and replace the
damage.
167. 10. Loss Payment: “We will adjust all losses with you. We will pay you
unless some other person named in the policy or entitled to receive payment.
Loss will be payable 60 days after we receive your proof of loss and:
a. Reach an agreement with you;
b. There is an entry of a final judgment; or
c. There is a filing of an appraisal award with us.
VIII. CLAIMS FOR RELIEF
FIRST CAUSE OF ACTION
( Declaratory Relief )
Plaintiff refers to and incorporates by reference sections 1 through 160 inclusive, as though fully
set forth herein, at length. An actual and justifiable controversy has arisen and now exists
between the parties herein which require a judicial declaration by the court. Plaintiff contends,
and is informed and believes that the defendants dispute one or more of the following:
( A. ) Defendant call for appraisal was invalid because Defendant failed to nominate
competent appraiser in this case. Defendant nominated Mr. Paul Nash the owner of Nash
Insurance Services. This company exclusively used by Liberty and other insurance companies to
adjust claims. Mr. Nash had extensive dealings with Liberty and has tremendous interest in
continuation of such relationship. Liberty adjuster, Mr. Fearrin knew from the start about said
relationship and recorded such in his “log”. Defendant even convinced Mr. Nash submit affidavit
to this Court stating that he only adjusted several claims for Liberty, that both Liberty and Mr.
Nash knew was false. In fact, he performed over 400 claims. Plaintiffs reasonably calculated this
from the start by guessing that no claims adjuster would be spending six month to a year
Complaint - 38
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adjusting claims in another state over several claim paying double housing, travel expenses, etc.
In Indiana appraiser “'must act free from bias, partiality, or prejudice in favor of either of the
parties.'” And Mr. Nash was a NOT competent appraiser in this case because additionally failed
disclosure as required by UNIFORM STANDARDS OF PROFESSIONAL APPRAISAL
PRACTICE (“USPAP”) 2010-2011 Edition.
( B. ) Defendant was not allowed to execute appraisal, appraisal can only be executed to
determine amount of loss where all other issues are resolved. Defendant executed appraisal
because to cover bad faith and biased / incompetent engineering investigation. Stemming from
the fact that defendant hired incompetent engineer who violated code of conduct and made
unsupported / partial conclusions. Defendant is not allowed to execute appraisal to avoid
questions of causation, coverage, and ultimately liability in addition to failure to timely
investigate the loss.
( C. ) Defendant waived its right to the appraisal by intentionally or negligently destroying
unfavorable evidence- moisture report, Liberty cause tremendous loss for plaintiffs. Tangible
physical property that was otherwise been covered by the policy issued by the defendant. The
loss of moisture report made it impossible for plaintiffs to recover correct damages and perform
appraisal.
( D. ) Defendants demand was NOT made within a reasonable time under the circumstances of
the case, and the right to demand appraisal waived by defendant.
( E. ) Defendant called for appraisal in the bad faith, in attempt to achieve tactical advantage over
plaintiff because house dried out and 10 month after the event, everything under the sun can be
declared pre-existent in the old house.
( F. ) Plaintiffs also contends that the Appraisal Clause deprives an insured of the right to jury
trial; that no order to appraise should be entertained while other issues are pending between the
parties; that Liberty cannot obtain specific performance of the Appraisal Clause because of its
"unclean hands"; that Liberty has not engaged in good faith dealings with its insured.
( F. ) Defendant is not entitle to appraisal because adjuster refused to follow the policy all
together. Defendant cannot unilaterally refuse to follow policy all together.
Complaint - 39
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( I. ) Defendants “cooperative clause” also known as sue and labor does not apply to permanent
repairs, or protecting siding from the sun exposure and plaintiffs maintaining double tarps
sufficiently complied with it.
( J. ) Defendant waived cooperative clause in the letter to plaintiff (if they were ever valid).
SECOND CAUSE OF ACTION
(Breach of Contract)
Plaintiff refers to and incorporates by reference sections 1 through 167 inclusive, as though
fully set forth herein, at length. Based upon the insurance contract which was entered into
between Liberty Insurance Company and Brian and Melanie Shifrin, Plaintiff made all premium
payments as required, maintained tarps to protect already damaged sheathing, wet insulation and
avoid additional damages, therefore fulfilling their obligations under the agreement. Based upon
the insurance agreement as entered into and noted above, Liberty undertook to owe an obligation
to pay damages with respect to any high wind loss incurred by Plaintiff which was covered by
the subject insurance agreement. That Defendant owed Plaintiff the obligation to act and to
conduct all such activities in good faith and in a competent manner. Defendant lost moisture
report, delayed investigation, refused or completely refused to follow the policy, misrepresented
the policy, refused to adjust in good faith, made untruthful statements, never acknowledged loss,
never provided proof of loss, reached written agreement with the contractor for “everything”
with wink and a nod (agreement was never discovered as neither adjuster nor supervisor nor
contractor were able to provide a copy of such) all in attempt to make policy total loss provision
illusionary. Indiana law requires all home improvement contracts over $150 to be in writing,
Indiana law does not permit contractor or public adjuster to negotiate on behalf of homeowner,
plaintiffs had to terminate contractor due to the defendant’s interference. And even after
informing defendant of termination – defendant refused to adjust citing this phony “agreement”.
Complaint - 40
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Defendant’s adjuster in the claims log stated: “It is my opinion that insured is trying to cashout
this loss and rebuild the property.” That is why adjuster did everything he could to prevent
insured from “cashing out”. Defendant breached their duties by failing to act timely and
favorably on Plaintiff's claim, and there from willfully, wrongfully, maliciously and
oppressively, withheld payment of benefits, which is a direct and proximate cause of plaintiff’s
damages. Plaintiff has sustained compensatory and continue damages; incurred court fees for the
collection of the benefits owed under the contract in an unknown amount. That Defendant
Liberty, by and through it's representative, Scott Fearrin, owed Plaintiff an obligation to fully and
completely investigate all the details of the claim, intentionally failed to properly and timely
investigate, thereby breaching the insurance contract, whereby Plaintiff was denied the benefits
under the subject agreement to which Plaintiff was entitled. That as a direct result of the
defendant’s willful, malicious and oppressive handling leading to the defendant’s breach of
contract as set forth above, Plaintiff has suffered contractual and extra-contractural damages,
which should be afforded to Plaintiff to fully, completely and properly replace / repair insured
property, cost to be determined by this court. Plaintiff has also incurred loss of monthly
mortgage interest, property taxes and will furnish the court with an accumulative total of this
amount at time of trial, and attorney/court fees in an amount not yet known, to enforce defendant
duties under the contract.
THIRD CAUSE OF ACTION
NEGLIGENCE
Plaintiff refers to and incorporates by reference sections 1 through 167 inclusive, as
though fully set forth herein, at length. Defendant failed to perform the duties in the written
contract in a safe and effective manner leading to the additional losses sustained by the Plaintiff.
Losses included mortgage payments, property taxes, utilities, upkeep; Plaintiff is entitled to be
compensated in an amount for same according to proof, at the time of trial.
Complaint - 41
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FOURTH CAUSE OF ACTION
NEGLIGENCE
Plaintiff refers to and incorporates by reference sections 1 through 167 inclusive, as
though fully set forth herein, at length. Defendant acted negligently when it informed insured on
August 13th
, 2011 that they will be renewing policy but instead it was cancelled without properly
notifying insured. Cancelation of the insurance policy caused insured not been able to claim
damages to the vandalized barn door. In addition insured was not able to get property insured
after untimely notification. Plaintiff is entitled to be compensated in an amount or $1200 or
alternatively defendant can choose hire licensed contractor and perform replacement within
month timeframe to replace 6’x12’ door.
FIFTH CAUSE OF ACTION
GROSS NEGLIGENCE
Plaintiff refers to and incorporates by reference sections 1 through 167 inclusive, as
though fully set forth herein, at length. Defendant failed to perform its duties and intentionally
waited nine months to investigate claim, letting insured sustain additional contractual and extra-
contractual damages to house, siding, etc. Plaintiff is entitled to be compensated in an amount for
same according to proof, at the time of trial.
SIX CAUSE OF ACTION
BREACH OF INSURER’S DUTY OF GOOD FAITH AND FAIR DEALING
Plaintiff refers to and incorporates by reference sections 1 through 167 inclusive, as
though fully set forth herein, at length. Defendant’s performance on the contract constitutes a
conscious wrongdoing for dishonest purpose, with ill will and moral obliquity, deception, gross
negligence, willful misconduct and exercise of an unfair advantage where there is no rational
bases for denial, malice, oppressiveness which was not result of a mistake of fact or law, and is a
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bad faith and the breach of duties of good faith and fair dealing for insurance claims handling
under Indiana law. Pursuant to IC 34-51-3-3 of total amount of damages is declared “unlimited”.
SEVENTH CAUSE OF ACTION
BREACH OF INSURER’S DUTY OF GOOD FAITH AND FAIR DEALING
Plaintiff refers to and incorporates by reference sections 1 through 167 inclusive, as
though fully set forth herein, at length. Defendant canceled insurance of the plaintiff’s property
with malice, oppressiveness and to punish homeowners for refusal to settle policy for pennies on
the dollar and because of homeowner’s complaint to Indiana Department of Insurance. Plaintiffs
never had insurance claim despite owning three houses in the last fourteen years. Pursuant to IC
34-51-3-3 of total amount of damages is declared “unlimited”.
EIGHT CAUSE OF ACTION
BREACH OF INSURER’S DUTY OF GOOD FAITH AND FAIR DEALING
Plaintiff refers to and incorporates by reference sections 1 through 167 inclusive, as
though fully set forth herein, at length. Defendant made untruthful statements to plaintiffs and
the Indiana department of Insurance. Pursuant to IC 34-51-3-3 of total amount of damages is
declared “unlimited”.
NINE CAUSE OF ACTION
BREACH OF INSURER’S DUTY OF GOOD FAITH AND FAIR DEALING
Plaintiff refers to and incorporates by reference sections 1 through 167 inclusive, as
though fully set forth herein, at length. Defendant executed appraisal in the bad faith after losing
/ destroying unfavorable moisture report, delaying investigation, giving engineer narrow
instruction to only investigate racking damage on the policy that clearly covered any high wind
damages, over liability. In attempt to avoid challenge over engineer report and bad faith claim
Complaint - 43
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based on adjuster performance on the contract. Adjuster willfully violated policy “we will settle
all losses with You provision”, “we will pay you” provision, “we pay for repairs or damage”
provisions. Adjuster willfully refused to adjust demanding contractor, declared some phony
written agreement with contractor that never existed. Adjuster knew that contractor was not
authorized, nor allowed to enter into any agreements. Even months after plaintiffs terminated
contractor, defendant willfully refused to settle citing phony agreement.
Adjuster executed appraisement by hiring incompetent appraiser. Pursuant to IC 34-51-3-
3 of total amount of damages is declared “unlimited”.
TEN CAUSE OF ACTION
Breach of Implied Covenant of Good Faith and Fair Dealing
Plaintiff refers to and incorporates by reference sections 1 through 167
inclusive, as though fully set forth herein, at length. That Defendant Liberty Insurance
Corporation has breached the covenant of good faith and fair dealing with respect to Plaintiff, in
that the claim as presented by Plaintiff shows it was proper and that despite the fact that Plaintiff
had informed Liberty of damage immediately following the tornado and following up thereafter
on multiple occasions with additional information as deemed necessary by Plaintiff or demanded
by Liberty's representative Scott Fearrin, that Liberty creating fictitious estimate, refusal to
correct it because of future damages, refusal to correctly secure property, refusal to further
investigate the information supplied by Plaintiff, but instead advised Plaintiff whereby Defendant
intentionally failed to investigate on Plaintiff's behalf, is also the direct result of Defendant
failure to properly and professionally handle Plaintiff's claim. Plaintiff is now aware of facts that
have been stated previously herein, that demonstrate defendants intentional and malicious actions
to cause plaintiff irreparable financial harm. Defendant Liberty were fully aware, that the policy
clause they relied upon in delaying and denying plaintiff's claim was improper under any
circumstance. That the refusal of Defendant to properly and professionally read the wording of
their own issued policy, wording of appraisal clause, cooperation clause, and to instead attempt
Complaint - 44
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to manufacture evidence to dismiss the claim without relying on same resulted in the wrongful
and improper denial of the claim as brought by Plaintiff. That the above described acts as
performed by Defendant were at all times material to this First Amended Petition. As a direct
and proximate result of the refusal of the Defendants, to act within the requirements of good faith
and fair dealing as provided by Indiana law, Plaintiff has been deprived of portion of the
insurance coverage to which he is entitled, in an amount presently known to be $44,000.00 for
property loss, and mortgage interest payments in the amount of $500.00 per month plus pre-
judgment interest at the rate of 12%, until the date of judgment on tornado claim, and in addition
to property taxes and other misc damages. In doing the acts as alleged above, Plaintiff has
suffered general damages and continue damages in an amount to be proven at the time of trial. In
doing the acts as alleged above, Defendant have acted with such oppression, fraud, and malice so
as to entitle Plaintiff to an award of punitive damages in an amount to be determined by the trier
of fact. Pursuant to IC 34-51-3-3 of total amount of damages is declared “unlimited”.
ELEVEN CAUSE OF ACTION
(Fraud/Constructive Fraud/Intentional Misrepresentation)
Plaintiff refers to and incorporates by reference sections 1 through 167
inclusive, as though fully set forth herein, at length. That said statements as made by defendant
were false, Defendants willfully, maliciously, and with evil intent placed their financial interests
ahead of those interests of their insured, a family with substantially less resources. That Plaintiff,
as having no experience with claims prior to the subject incident, justifiably relied upon the
defendant’s performance, and it was Defendants who purportedly possessed the degree and skill
of competent professionals. That as a direct and proximate result of the fraud and deceit
perpetuated by Defendants as herein alleged above, Plaintiff has suffered damages through the
refusal of Defendants to provide the insurance claims to which Plaintiff is entitled, in an amount
which is presently unknown, but will be provided to the court, at time of trial. As a direct and
proximate result of said Defendants' fraud and deceit, as alleged above, Plaintiff has suffered
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general damages in an amount to be shown according to proof. In so doing the acts as alleged,
including but not limited to, attempting to intentionally defraud Plaintiff by denying the claim for
their own financial gain, Defendants acted with such oppression, fraud, and malice as to entitle
Plaintiff to an award of punitive damages in an amount to be decided by the trier of fact.
Pursuant to IC 34-51-3-3 of total amount of damages is declared “unlimited”.
TWELVE CAUSE OF ACTION
(Intentional Infliction of Physical Pain and Emotional Distress)
Plaintiff refers to and incorporates by reference sections 1 through 167 inclusive, as
though fully set forth herein, at length. That beginning immediately following the claim filed by
Plaintiff in March 3rd, 2011, Defendant, began a knowing and intentional scheme to deprive
Plaintiff of insurance coverage to which he was entitled, thereby intentionally inflicting
emotional distress upon Plaintiff by delaying, devaluing, denying his claim, since Defendant,
knew that there was no rational basis for denying said coverage. Plaintiff Brian Shifrin had to
seek medical treatments due to severe chest pain, obtained EKG, blood tests. That the conduct of
Defendant to intentionally deny that which they know to be true is done with the intent to deny
Plaintiff the insurance coverage to which he is entitled. That Defendants have perpetuated the
scheme to cause Plaintiff severe emotional distress through the continued bad performance on
the Plaintiff's claim, and loss of his property and loss of mortgage payments, vandalism, and that
Defendants continue to perpetuate the scheme to cause Plaintiff severe emotional distress by
refusing to settle with Plaintiff claim.
That Defendant continue to cause Plaintiff severe emotional distress through the
continual turmoil which he has been put through and during the continued wrongful delaying and
denial of plaintiffs claim. That as a direct and proximate result of the conduct of the Defendant,
as described herein, proximately and directly caused Plaintiff to suffer severe emotional distress,
and continues to do so, and Plaintiff is entitled to be compensated in an amount as general
damages, according to proof at the time of trial. That the above described wrongful conduct of
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Defendants was malicious, oppressive and done with conscious disregard of Plaintiff's rights and
well being, justifying the imposition of punitive damages and exemplary damages in such sum as
the trier of fact shall deem appropriate. Pursuant to IC 34-51-3-3 of total amount of damages is
declared “unlimited”.
THRITEEN CAUSE OF ACTION
( Negligent Infliction of Emotional Distress)
Plaintiff refers to and incorporates by reference sections 1 through 167 inclusive, as
though fully set forth herein, at length. Defendant have breached the duty owed to Plaintiff to act
in a reasonable and competent manner, thereby constituting negligence. The conduct of the
Defendant, as described hereinabove, have proximately and directly caused, and continue to
cause, Plaintiff to suffer severe emotional, physical injury and upset in that Defendant, through
the negligent conduct as set forth above, have shown no care or regard to Plaintiff's well being.
That as a direct and proximate result of the above described conduct of Defendants, and each of
them, Plaintiff is entitled to be compensated in an amount for same according to proof, at the
time of trial.
IX. PRAYER FOR RELIEF
WHEREFORE, Plaintiff, prays judgment against Defendants, and each of them, on final trial of
this cause, as follows:
1. For all general, special, and consequential, stigma damages, to
the extent permitted under each of the plaintiffs' causes of
action;
2. Declaratory Relief as to the parties’ rights and obligations;
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3. For punitive and exemplary damages, where appropriate in an
amount to be decided by the trier of fact;
4. For costs of suit incurred in this action;
5. For pre-judgment interest which is accrued until the time of
adjudication;
6. For court / attorney fees where appropriate;
7. For such further and other relief as this court may deem just and
proper.
Dated this 26th day of December, 2012
Brian V Shifrin
Melanie G Shifrin
X.