amended complaint fourth - shifrin v. liberty...

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Complaint - 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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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Page 1: AMENDED COMPLAINT FOURTH - Shifrin v. Liberty …insureduninsured.com/resources/Complaint-LibertyMutual5.pdfCOMPLAINT Plaintiffs Brian Shifrin and Melanie Shifrin against Defendant

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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

Page 2: AMENDED COMPLAINT FOURTH - Shifrin v. Liberty …insureduninsured.com/resources/Complaint-LibertyMutual5.pdfCOMPLAINT Plaintiffs Brian Shifrin and Melanie Shifrin against Defendant

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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

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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.

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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”.

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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.

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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

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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

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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.