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Filing # 132395679 E-Filed 08/10/2021 03:30:31 PM
IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT
IN AND FOR BAY COUNTY, FLORIDA
LPT RETAIL MANAGEMENT COMPANY, LLC,
A Florida limited liability company,
Plaintiff,
vs. CASE NO.: 21000998CA
PROXYSURE CORPORATION d/b/a
PROXYSURE, INC.. a Texas corporation,
Defendant.
COMPLAINT
COMES NOW Plaintiff, LPT RETAIL MANAGEMENT COMPANY, LLC, through
the undersigned counsel, and sues Defendant, PROXYSURE CORPORATION d/b/a
PROXYSURE, INC. a Texas corporation, and alleges:
GENERAL ALLEGATIONS
1. This is an action for damages which exceed the sum of $30,000.00, and
such other relief as is requested.
2. At all times herein, Plaintiff, LPT Retail Management Company, LLC (“LPT”)
was and is a corporation organized and existing under the laws of the State of Florida.
LPT leases and operates the truck stop located near the intersection of Highway 231 and
Highway 20, known as the “231 Plaza & Truck Stop” at 15821 US-231, Youngstown,
Florida 32466 (‘the Truck Stop’).
3. At all times herein, Defendant, ProxySure Corporation d/b/a ProxySure, Inc.
(“ProxySure”) was and is a foreign corporation registered in Texas as an insurance broker
or agency who, as part of its regular business practices, employed an agent licensed inFlorida, solicited and sold insurance policies for Florida properties, and communicated
with Florida residents for these purposes, including the relevant insurance policy for the
Truck Stop and LPT as a Florida resident.
4, This Court has personal jurisdiction over ProxySure because:
(a) ProxySure operated, conducted, engaged in and carried on business in Florida
in the form of solicitation and selling of insurance policies for real property located in
Florida;
(b) ProxySure specifically contracted with LPT to obtain insurance for the Truck
Stop, a property located in Florida;
(c) ProxySure committed a tortious act in Florida causing damages to a Florida
company and its property by failing to continue and maintain insurance coverage for the
Truck Stop prior to Hurricane Michael and failing to timely inform LPT of a lapse in
coverage;
(d) ProxySure caused injury to persons and property in Florida while engaged in
insurance solicitation activities directed to Florida properties; and
(e) ProxySure breached a contract in Florida by failing to continue and maintain
insurance coverage for the Truck Stop prior to Hurricane Michael and failing to timely
inform LPT of a lapse in coverage.
5. Venue is proper in Bay County because the real property at issue is located
in Bay County, the relevant insurance policy covered a property in Bay County, the loss
occurred and claims accrued in Bay County, and the primary evidence and witnesses as
to damages are located in Bay County.FACTS
6. For years LPT had a relationship with ProxySure through its brokers and
agents, including Thomas “Clint” Cheek and Cody Honeycutt, wherein ProxySure served
as LPT’s broker or agent for purposes of procuring liability, commercial, property and
other insurance needs for the operation of LPT’s facilities, including the Truck Stop in
Florida.
7. Specifically, LPT entrusted and ProxySure undertook to give advice to LPT
regarding the type of insurance needs that were required and/or suggested, to shop for
appropriate coverages, to manage any financing relating to premium payments, to handle
the funds for processing of insurance policies and payment of financed premiums, to
request any endorsements or changes to the policy as necessary, to advise LPT of any
changes to its policies, and otherwise make sure that LPT was appropriately insured at
all locations, including the Truck Stop in Florida.
8. As such, ProxySure developed a special relationship with its client/insured,
LPT, and served as a fiduciary with LPT in its procurement or continuation of insurance
needs.
9. Insurance coverage for property damage is required for the Truck Stop as
part of LPT’s lease and obligation to maintain the premises, which was known to
ProxySure’s agents and/or brokers.
10. By undertaking these responsibilities on behalf of LPT and receiving
commission payments as a result, ProxySure assumed a duty to investigate and adviseProxySure of its insurance needs and to provide information to LPT regarding any
changes to or cancellations of its policies.
11. Regarding premium payments, ProxySure advised LPT that it could finance
its premium payments with Capital Premium Finance (“Capital)”. ProxySure arranged for
this financing and for policy year 2018, Capital paid in full the insurance premiums for
LPT and LPT then made periodic installment payments to Capital.
12. In the Spring of 2018, LPT advised ProxySure that LPT no longer needed
insurance coverage for certain locations in Washington and California. ProxySure then
advised the insurance carrier to remove these locations, which reduced the policy
premium. A refund for this premium was issued directly to ProxySure from the insurance
carrier.
13. LPT continued to make payments to Capital until the final amount due
matched the refund from the insurance company.
14. Knowing that the insurance refund was issued to ProxySure and that
ProxySure was familiar with the financing arrangement with Capital, LPT believed in good
faith that ProxySure would remit the refund to Capital in a timely manner as was
customary practice.
15. However, Capital provided notice in July 2018 that the final payment from
LPT was overdue. LPT contacted ProxySure’s agents and brokers who promised that the
refund would be properly and timely remitted to Capital.
16. During this time, Cheek and Honeycutt were in a dispute over Honeycutt’s
role and employment with ProxySure, although both personally assured LPT that the
issue of payment to Capital would be resolved.17. Contrary to the representations of Cheek and Honeycutt on behalf of
ProxySure, and unbeknownst to LPT, the refund was not remitted to Capital and Capital
requested that the insurer cancel the policy for nonpayment.
18. Upon information and belief, notice was sent to ProxySure confirming that
the insurance policy for the Truck Stop was cancelled in July 2018 per the request of
Capital, with either the insurance carrier or Capital selecting which locations to cancel
and which locations to keep insured.
19. Notice was never sent to LPT and LPT believed in good faith that its
locations, including the Truck Stop, were properly insured.
20. LPT placed special reliance upon the agents and brokers associated with
ProxySure to handle the refund and properly remit the funds in a timely manner based
upon its special long-standing relationship with ProxySure and the active knowledge by
Honeycutt and Cheek of LPT’s specific insurance needs, including property coverage on
the Truck Stop per the requirements of LPT’s lease.
21. On October 10, 2018, Hurricane Michael struck Bay County and
significantly damaged and destroyed the Truck Stop.
22. LPT submitted wind loss claims to its insurer and received a response letter
advising that the insurance for this location was cancelled in July 2018.
23. LPT then learned that the agents and employees of ProxySure failed to
maintain the policy insuring the Truck Stop as requested by LPT, failed to timely
communicate with and remit payment to Capital on behalf of LPT per the customary and
usual practice of the parties, and failed to notify LPT of the policy cancellation.24. As aresult of ProxySure’s failures, the insurer has denied all coverage for
the losses at issue and LPT has been deprived of the benefits of coverage under its policy
with the property insurer. LPT has also been deprived of the benefit of its contractual
agreement with ProxySure wherein ProxySure agreed to act as its agent and broker in
maintaining coverage, assisting with the financing arrangement with Capital, and
providing timely notice to LPT of significant changes to its policies, including cancellation.
25. All conditions precedent to this action have been performed by Plaintiff or
waived by Defendants.
|. BREACH OF CONTRACT BY PROXYSURE
26. LPT repeats and realleges the allegations contained in Paragraphs 1 — 25
above as if fully set forth herein.
27. Through its agents and brokers, ProxySure promised and contracted with
LPT to give advice to LPT regarding the type of insurance needs that were required and/or
suggested, to shop for appropriate coverages, to manage any financing relating to
premium payments, to handle the funds for processing of insurance policies and payment
of financed premiums, to request any endorsements or changes to the policy as
necessary, to advise LPT of any policy changes, and otherwise make sure that LPT was
appropriately insured at all locations, including the Truck Stop in Florida.
28. As part of this contract, ProxySure specifically promised LPT that the
insurance refund would be remitted to Capital in a timely manner.
29. LPT accepted these promises given the long-standing agency relationship
between the parties. LPT reasonably relied on ProxySure to perform as agreed, however,payment was not remitted and the policy for the Truck Stop was cancelled unbeknownst
to LPT.
30. ProxySure is liable for the acts of its agents and brokers and was
contractually obligated to ensure proper coverage did not lapse for the Truck Stop
because of their actions.
31. ProxySure’s failure to maintain coverage, failure to ensure that the insurer's
refund was timely remitted to Capital, and failure to notify LPT of the policy cancellation
in a timely manner was and is a breach of the parties’ agreement.
32. As a result of ProxySure’s breach, LPT has been injured and has been
forced to pay out-of-pocket to repair portions of the Truck Stop to make it operable. There
are still unrepaired damages, and LPT has lost the use and benefit of the funds it
expended. LPT also incurred lost profits and lost business income due, at least in part, to
the delay in receipt of insurance funds to fully repair the facility in a timely manner after
the loss. These losses are continuing.
33. | These damages were expected and foreseeable as a result of ProxySure’s
conduct, and therefore ProxySure is liable to LPT for payment of these damages.
WHEREFORE, LPT prays that this Court enter judgment in its favor for all
monetary damages associated with this breach of contract, inclusive of pre-judgement
interest, and for such other and further relief as is allowed by law.
ll. PROFESSIONAL NEGLIGENCE BY PROXYSURE
34. LPT repeats and realleges the allegations contained in Paragraphs 1 — 25
above as if fully set forth herein.35. | ProxySure was under a duty to procure and maintain the coverage
requested by LPT, to ensure that the refund from the insurer was timely remitted to the
correct entity, and to otherwise notify LPT of any changes to its policy, particularly
cancellation.
36. | ProxySure breached these duties when it failed to maintain the coverage
requested, failed to timely remit the refund to Capital as specifically requested by LPT,
and failed to notify LPT in a timely manner that the policy for the Truck Stop was
cancelled.
37. These breaches violated the standard of care required of persons and
organizations within the insurance agency industry.
38. As aresult of ProxySure’s breaches, LPT has been injured and has been
forced to pay out-of-pocket to repair portions of the Truck Stop to make it operable. There
are still unrepaired damages, and LPT has lost the use and benefit of the funds it
expended. LPT also incurred lost profits and lost business income due, at least in part, to
the delay in receipt of insurance funds to fully repair the facility in a timely manner after
the loss. These losses are continuing.
39. These damages were expected and foreseeable as a result of ProxySure’s
conduct, and therefore ProxySure is liable to LPT for payment of these damages.
WHEREFORE, LPT prays that this Court enter judgment in its favor for all
monetary damages, inclusive of pre-judgement interest, and for such other and further
relief as is allowed by law.
Demand for Jury Trial
Plaintiff demands a trial by jury of all issues so triable.HAND ARENDALL HARRISON SALE
Ope Nou
SN
Julia K. Maddalena, Esq.
FL Bar No. 111932
P.O. Drawer 1579
Panama City, Florida 32402
Telephone: (850) 769-3434
Fax: (850) 769-6121
jmaddalena@handfirm.com
viseminger@handfirm.com
cmartin@handfirm.com
ATTORNEYS FOR PLAINTIFF
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Filing # 132395679 E-Filed 08/10/2021 03:30:31 PM IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA LPT RETAIL MANAGEMENT COMPANY, LLC, A Florida limited liability company, Plaintiff, vs. CASE NO.: 21000998CA PROXYSURE CORPORATION d/b/a PROXYSURE, INC.. a Texas corporation, Defendant. COMPLAINT COMES NOW Plaintiff, LPT RETAIL MANAGEMENT COMPANY, LLC, through the undersigned counsel, and sues Defendant, PROXYSURE CORPORATION d/b/a PROXYSURE, INC. a Texas corporation, and alleges: GENERAL ALLEGATIONS 1. This is an action for damages which exceed the sum of $30,000.00, and such other relief as is requested. 2. At all times herein, Plaintiff, LPT Retail Management Company, LLC (“LPT”) was and is a corporation organized and existing under the laws of the State of Florida. LPT leases and operates the truck stop located near the intersection of Highway 231 and Highway 20, known as the “231 Plaza & Truck Stop” at 15821 US-231, Youngstown, Florida 32466 (‘the Truck Stop’). 3. At all times herein, Defendant, ProxySure Corporation d/b/a ProxySure, Inc. (“ProxySure”) was and is a foreign corporation registered in Texas as an insurance broker or agency who, as part of its regular business practices, employed an agent licensed inFlorida, solicited and sold insurance policies for Florida properties, and communicated with Florida residents for these purposes, including the relevant insurance policy for the Truck Stop and LPT as a Florida resident. 4, This Court has personal jurisdiction over ProxySure because: (a) ProxySure operated, conducted, engaged in and carried on business in Florida in the form of solicitation and selling of insurance policies for real property located in Florida; (b) ProxySure specifically contracted with LPT to obtain insurance for the Truck Stop, a property located in Florida; (c) ProxySure committed a tortious act in Florida causing damages to a Florida company and its property by failing to continue and maintain insurance coverage for the Truck Stop prior to Hurricane Michael and failing to timely inform LPT of a lapse in coverage; (d) ProxySure caused injury to persons and property in Florida while engaged in insurance solicitation activities directed to Florida properties; and (e) ProxySure breached a contract in Florida by failing to continue and maintain insurance coverage for the Truck Stop prior to Hurricane Michael and failing to timely inform LPT of a lapse in coverage. 5. Venue is proper in Bay County because the real property at issue is located in Bay County, the relevant insurance policy covered a property in Bay County, the loss occurred and claims accrued in Bay County, and the primary evidence and witnesses as to damages are located in Bay County.FACTS 6. For years LPT had a relationship with ProxySure through its brokers and agents, including Thomas “Clint” Cheek and Cody Honeycutt, wherein ProxySure served as LPT’s broker or agent for purposes of procuring liability, commercial, property and other insurance needs for the operation of LPT’s facilities, including the Truck Stop in Florida. 7. Specifically, LPT entrusted and ProxySure undertook to give advice to LPT regarding the type of insurance needs that were required and/or suggested, to shop for appropriate coverages, to manage any financing relating to premium payments, to handle the funds for processing of insurance policies and payment of financed premiums, to request any endorsements or changes to the policy as necessary, to advise LPT of any changes to its policies, and otherwise make sure that LPT was appropriately insured at all locations, including the Truck Stop in Florida. 8. As such, ProxySure developed a special relationship with its client/insured, LPT, and served as a fiduciary with LPT in its procurement or continuation of insurance needs. 9. Insurance coverage for property damage is required for the Truck Stop as part of LPT’s lease and obligation to maintain the premises, which was known to ProxySure’s agents and/or brokers. 10. By undertaking these responsibilities on behalf of LPT and receiving commission payments as a result, ProxySure assumed a duty to investigate and adviseProxySure of its insurance needs and to provide information to LPT regarding any changes to or cancellations of its policies. 11. Regarding premium payments, ProxySure advised LPT that it could finance its premium payments with Capital Premium Finance (“Capital)”. ProxySure arranged for this financing and for policy year 2018, Capital paid in full the insurance premiums for LPT and LPT then made periodic installment payments to Capital. 12. In the Spring of 2018, LPT advised ProxySure that LPT no longer needed insurance coverage for certain locations in Washington and California. ProxySure then advised the insurance carrier to remove these locations, which reduced the policy premium. A refund for this premium was issued directly to ProxySure from the insurance carrier. 13. LPT continued to make payments to Capital until the final amount due matched the refund from the insurance company. 14. Knowing that the insurance refund was issued to ProxySure and that ProxySure was familiar with the financing arrangement with Capital, LPT believed in good faith that ProxySure would remit the refund to Capital in a timely manner as was customary practice. 15. However, Capital provided notice in July 2018 that the final payment from LPT was overdue. LPT contacted ProxySure’s agents and brokers who promised that the refund would be properly and timely remitted to Capital. 16. During this time, Cheek and Honeycutt were in a dispute over Honeycutt’s role and employment with ProxySure, although both personally assured LPT that the issue of payment to Capital would be resolved.17. Contrary to the representations of Cheek and Honeycutt on behalf of ProxySure, and unbeknownst to LPT, the refund was not remitted to Capital and Capital requested that the insurer cancel the policy for nonpayment. 18. Upon information and belief, notice was sent to ProxySure confirming that the insurance policy for the Truck Stop was cancelled in July 2018 per the request of Capital, with either the insurance carrier or Capital selecting which locations to cancel and which locations to keep insured. 19. Notice was never sent to LPT and LPT believed in good faith that its locations, including the Truck Stop, were properly insured. 20. LPT placed special reliance upon the agents and brokers associated with ProxySure to handle the refund and properly remit the funds in a timely manner based upon its special long-standing relationship with ProxySure and the active knowledge by Honeycutt and Cheek of LPT’s specific insurance needs, including property coverage on the Truck Stop per the requirements of LPT’s lease. 21. On October 10, 2018, Hurricane Michael struck Bay County and significantly damaged and destroyed the Truck Stop. 22. LPT submitted wind loss claims to its insurer and received a response letter advising that the insurance for this location was cancelled in July 2018. 23. LPT then learned that the agents and employees of ProxySure failed to maintain the policy insuring the Truck Stop as requested by LPT, failed to timely communicate with and remit payment to Capital on behalf of LPT per the customary and usual practice of the parties, and failed to notify LPT of the policy cancellation.24. As aresult of ProxySure’s failures, the insurer has denied all coverage for the losses at issue and LPT has been deprived of the benefits of coverage under its policy with the property insurer. LPT has also been deprived of the benefit of its contractual agreement with ProxySure wherein ProxySure agreed to act as its agent and broker in maintaining coverage, assisting with the financing arrangement with Capital, and providing timely notice to LPT of significant changes to its policies, including cancellation. 25. All conditions precedent to this action have been performed by Plaintiff or waived by Defendants. |. BREACH OF CONTRACT BY PROXYSURE 26. LPT repeats and realleges the allegations contained in Paragraphs 1 — 25 above as if fully set forth herein. 27. Through its agents and brokers, ProxySure promised and contracted with LPT to give advice to LPT regarding the type of insurance needs that were required and/or suggested, to shop for appropriate coverages, to manage any financing relating to premium payments, to handle the funds for processing of insurance policies and payment of financed premiums, to request any endorsements or changes to the policy as necessary, to advise LPT of any policy changes, and otherwise make sure that LPT was appropriately insured at all locations, including the Truck Stop in Florida. 28. As part of this contract, ProxySure specifically promised LPT that the insurance refund would be remitted to Capital in a timely manner. 29. LPT accepted these promises given the long-standing agency relationship between the parties. LPT reasonably relied on ProxySure to perform as agreed, however,payment was not remitted and the policy for the Truck Stop was cancelled unbeknownst to LPT. 30. ProxySure is liable for the acts of its agents and brokers and was contractually obligated to ensure proper coverage did not lapse for the Truck Stop because of their actions. 31. ProxySure’s failure to maintain coverage, failure to ensure that the insurer's refund was timely remitted to Capital, and failure to notify LPT of the policy cancellation in a timely manner was and is a breach of the parties’ agreement. 32. As a result of ProxySure’s breach, LPT has been injured and has been forced to pay out-of-pocket to repair portions of the Truck Stop to make it operable. There are still unrepaired damages, and LPT has lost the use and benefit of the funds it expended. LPT also incurred lost profits and lost business income due, at least in part, to the delay in receipt of insurance funds to fully repair the facility in a timely manner after the loss. These losses are continuing. 33. | These damages were expected and foreseeable as a result of ProxySure’s conduct, and therefore ProxySure is liable to LPT for payment of these damages. WHEREFORE, LPT prays that this Court enter judgment in its favor for all monetary damages associated with this breach of contract, inclusive of pre-judgement interest, and for such other and further relief as is allowed by law. ll. PROFESSIONAL NEGLIGENCE BY PROXYSURE 34. LPT repeats and realleges the allegations contained in Paragraphs 1 — 25 above as if fully set forth herein.35. | ProxySure was under a duty to procure and maintain the coverage requested by LPT, to ensure that the refund from the insurer was timely remitted to the correct entity, and to otherwise notify LPT of any changes to its policy, particularly cancellation. 36. | ProxySure breached these duties when it failed to maintain the coverage requested, failed to timely remit the refund to Capital as specifically requested by LPT, and failed to notify LPT in a timely manner that the policy for the Truck Stop was cancelled. 37. These breaches violated the standard of care required of persons and organizations within the insurance agency industry. 38. As aresult of ProxySure’s breaches, LPT has been injured and has been forced to pay out-of-pocket to repair portions of the Truck Stop to make it operable. There are still unrepaired damages, and LPT has lost the use and benefit of the funds it expended. LPT also incurred lost profits and lost business income due, at least in part, to the delay in receipt of insurance funds to fully repair the facility in a timely manner after the loss. These losses are continuing. 39. These damages were expected and foreseeable as a result of ProxySure’s conduct, and therefore ProxySure is liable to LPT for payment of these damages. WHEREFORE, LPT prays that this Court enter judgment in its favor for all monetary damages, inclusive of pre-judgement interest, and for such other and further relief as is allowed by law. Demand for Jury Trial Plaintiff demands a trial by jury of all issues so triable.HAND ARENDALL HARRISON SALE Ope Nou SN Julia K. Maddalena, Esq. FL Bar No. 111932 P.O. Drawer 1579 Panama City, Florida 32402 Telephone: (850) 769-3434 Fax: (850) 769-6121 jmaddalena@handfirm.com viseminger@handfirm.com cmartin@handfirm.com ATTORNEYS FOR PLAINTIFF