By Mark Phillips / Published May 2023
Editor’s Note: Part one was featured in the April 2023 issue of the Florida Community Association Journal on page 58. It can also be read online at www.fcapgroup.com.
In our second visit to Coconut Twist, we call attention to the heavy demands for prior years of maintenance records and other property damage repair records. It’s become known as “The Seven Year Ditch,” which many fiduciaries (board members) seeking recovery under their commercial insurance policy may fall erroneously into at great peril of their damages not being paid for or covered. We now continue in Part 2 to see the derailment of this association’s efforts to recover costs for damages caused by three separate hurricane events in 2004–2005.
As the Beechwood Insurance Company began its claim investigation for the first 2004 hurricane claim, its assigned independent adjuster, while hunting like a hound dog through these historical repair records with Sally’s help, noted the name of the J&H Roofing repair company. This triggered an alert in his mind because he thought he had handled another troublesome claim which involved roofing and window repairs by this same contractor several years ago on a condominium property wind claim in the same area. When he compared his records, he indeed confirmed that was the case. In reviewing that claim investigation and how it was concluded, his instinctive suspicion was proved right when the file records revealed that this same contractor had submitted a phony invoice for what was confirmed in his adjustment investigation to be for “no actual work” performed whatsoever. So, when he noted this activity in the Coconut Twist claim, his alarm bells naturally went off.
He contacted a trusted contractor friend who knew of the J&H Roofing company owners. He told him they were now doing business as ABCD Roofing since folding the other company two years ago into bankruptcy, but the names of the principals were still the same. Thus, the adjuster was able to make a few phone calls and direct some inquiries that divulged where their office was. His goal was to secure accurate work and invoicing records if they existed. He told Sally about this need, and she confirmed to him that this was another situation where Harvey had simply explained to her that he had paid cash for the minor repair jobs. Was she aware of the work scheduled and if the repair activity took place, the adjuster asked? No, she replied, since she was out of state on family vacation in California that month. She replied that it was only Harvey who would have had access to the funds in order to pay the bill of $14,800.
Thirty days later, Beechwood Insurance Company sent their first letter of denial of the 2004 wind claim, stating as grounds for denial that they suspected fraud and neglect of property maintenance. Sally was the first to read this letter, and when bringing it to Harvey’s attention, he promptly grabbed the original letter and abruptly dismissed her attention to it, saying he would bring that matter up at the next board meeting. This never happened, and yet the board, with Harvey’s prodding, agreed to further pursue their wind damage claim with a local attorney and to also let that attorney handle their claims activities on the other two wind claims in 2004 and 2005 against two other insurance companies.
What the board didn’t know was that Harvey had secretively taken old banking and maintenance records off site to a private storage facility. Now it’s 2008. Sally has spent the last four years of her life bombarded with daily anxiety and stress handling the exhaustive demands of each of the insurance companies, which are still investigating their claims. Because of the board’s decision to proceed with lawsuits against Gateway and Tumbleweed insurance companies for the second and third 2004 and 2005 wind claims, Sally has had triple the load of document research, adjuster interviews, long exhausting phone calls, constant inquiries from the board members, and late-into-the-night board meetings each month. This has created an unbearable demand on her 70-year-old body and mind, not to mention the examinations under oath that all three insurance company lawyers were requesting of her and board president Harvey, as they had a right to seek an answer to the mysterious “paid in cash” roofing and window repair events as well as explanations for missing maintenance records.
Now we witness the demise of what could’ve been a simple, straightforward claim process for legitimate damages from these storms. The association had paid their premiums, they submitted their claims, and they let all adjusters have access to the properties for all damage assessments. And yet the whole process spiraled out of control because one sweet lady, acting ethically and with accuracy of records, testified during her examination under oath that board president Harvey had told her that his brother-in-law had actually been taking care of repairs at Coconut Twist for several years prior to her arrival.
It all came to a head in the last board meeting. Most of the fellow board members realized in panic that their claims were heading south. One retired attorney on the board asked Harvey for an accounting of his own banking records during those specific repair and payment periods. Harvey stood up and lashed out, threatening the attorney that he would sue him for slander and resulting emotional distress if he continued those demands.
Another newly elected board member, John, had assumed the interim secretary /treasurer responsibilities in Sally’s absence. He was a sophisticated and retired business owner and had grown very suspicious of Harvey’s questionable manipulation of the board in past years and these allegations of bad faith performance. Immediately after Harvey’s tirade, he stood up to announce that a recall vote demanding the recall of Harvey had been received by certified mail to the board three days earlier. According to Florida Statute 718.112 Bylaws (1) (l) 1, “…a special meeting of the unit owners to recall a member or members of the board of administration may be called by 10 percent of the voting interests….” Due to the emergency needs of the association, John proceeded to hold a recall approval vote. A majority of the unit owners voted approval of this recall, and thus with statutory authority John proceeded to certify the recall of Harvey’s election as president. John authorized the dismissal and directed Harvey to leave the meeting immediately.
The sum effect of this action, as he explained to Harvey and the members, was that all association records and documents in Harvey’s possession, with emphasis on those records necessary for insurance claims action, must, by Statute mandates, be turned over to the board within five business days. John was also making it known to the board that a growing group of rightly disgruntled members had already met with legal counsel in regard to a possible action against the board for errors and omissions of their fiduciary duties to the association.
When the meeting adjourned, several board members, old pals of Harvey’s, immediately left the premises for a late bull session at Denny’s restaurant. Coconut Twist has indeed been appropriately named; twisted story lines, twisted records, twisted board events, twisted lives, and twisted insurance settlements.
This is no way to enjoy the other half of the sunshine!
The names of course have been changed to protect the innocent in recounting this true to life history of community association life.
Founder/Publisher, Claims GPS
With 30 years of expansive work in the property and casualty field of insurance, his claims adjusting experience since 1996 has dealt with large property damage and business interruption losses arising from numerous catastrophic disasters throughout America. He is author/creator of the Claims GPS educational system, which offers policyholders guidance, preparation, and success in fulfilling their duties during their claims recovery event.
He has created the innovative case study workshop titled “Duties of the Insured: Coconut Twist—The Truth and Trauma of a Hurricane Claim,” graphically displaying the errors and omissions liabilities for directors and officers due to lack of preparation for recovery under their commercial insurance policy.
For more information about Claims GPS, contact Mark Phillips at 813-532-5023 or email email@example.com.