John Koon – Appeal to Ethical & Professional Responsibility

John Koon’s reports and input were critical to ProSight’s denial. Every professional involved after his report, identified numerous errors and inaccurate assertions. After significant debate and counsel from others, we decided to offer John an opportunity to make it right and sent him the email similar to the one sent to Larry Montgomery on Dec 31, 2017.

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Response

January 6, John Koon responded

“I am open to reevaluating original findings. Please send me the reports from Bill & Jay to confirm details of alternative conclusions. I have great respect for both of them! 
That said, I would have arrived at my same initial conclusions based on the general condition of the vessel under any circumstance of request to conduct survey, by you, or Larry Montgomery. 
Again, send more information & I will remain open to reevaluation.

Next Steps

We provided him the information on January 18, 2018. John responded on January 26th “have started looking it over & giving it much thought.” We thanked him for his consideration. Now we wait again….

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Larry Montgomery – Appeal to NAMS Ethical Responsibility

We decided to appeal to Larry Montgomery’s ethical responsibility to communicate what he witnessed in January, 2017. Below is the letter we sent on December 31, 2017. As expected responded “Thank you for this status report. I have forwarded a copy to the Underwriter’s representatives for their review and onward distribution.

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Letter to Larry

Larry,

 We wanted to update you regarding the status of our dismasting claim May 1, 2016 and appeal to your NAMS ethical obligations and good sense to make this right.

Our insurance claims were denied as a result of leveraging the July 11, 2016 damage report written by John Koon with you in attendance. ProSight, the Lloyd’s underwriting syndicate, acquired the “advice” of Hill Dickinson, a large law firm in London. Even though there were “No immediate conclusions …. as to the probable cause of the dismasting” in the report Hill Dickinson cherry picked false assertions from the report and combined them with outlandish judgments by unqualified Underwriters. The result was labeling Dragonfly as unseaworthy and a breach of warranty. The breach of warranty “invalidated” the policy resulting in the denial of the dismasting claim, $15,000 damage and $20,000 theft that occurred at the Ala Wai dock while we waited for a settlement.

You stated during our conversations in May 2016, that the insurance company was there to make us “whole.” During numerous conversations you reassured us that a settlement was coming. We did not expect that you would be the one who would help them keep from doing that by withholding your findings during the inspection on January 17, 2017.

The purpose of the John Koon June 2016 survey you described to us was to “constitute an acceptable “best practice” repair, insuring a proper replacement” We were shocked to discover the real objective when reading the actual report. The report contained no mention of this objective or specific recommendations. We would never have authorized a survey with the actual intent without our presence if we had been properly informed. Misrepresenting this reeks of an ethics violation.

We understand that Dragonfly’s appearance at that time of your initial visit and during the John Koon survey could imply a lack of maintenance. However, it should have been obvious that the appearance was the result of the situation and not typical as Bill Trenkle and you observed later and many previous guests and crew attest to.

The areas in the report identified as potentially relevant to the dismasting were the rigging and “platform / main beam / compression path-post”. We have proof that all the rigging ages were within the NVIC 2-16 guidelines. A main beam load test that was performed completely eliminates the possibility of a main beam compression path-post or yielding structural deficiency.

The John Koon report dated July 11 was quite negative and full of proven false assertions. However, the word “unseaworthy” was never used. Based on the new evidence isn’t it appropriate to state that the term “unseaworthy” is obviously not applicable as Bill Trenkle stated?

Were you aware that the ProSight Syndicate 1110, who paid for your services are no longer in business? They went into run-off in June 2017. It’s time to meet your NAMS ethical obligations.

We are now beginning a Stage 2 review. The Society of Lloyd’s is reviewing the claim. We have provided a significant amount of evidence that contradict or disprove the assertions in the John Koon report, and the Underwriter assertions. You witnessed the majority of them, but have yet to report your observations. It’s time for you to do so.

Inspections which contradicts John Koon’s assertions by Bill Trenkle, Jay Butler and yourself; a dismasting analysis by Bill Trenkle and Bill Leneman and maintenance invoices demonstrate the following:

  • Proof that the saddle brackets for the forward beam did not move.
  • Proof that platform / main beam / compression path-post or yielding failure did not occur. This was based on
  1. 12-ton main beam load test with a deflection of 1/16th of inch, meeting the design specs of Kurt Hughes and providing absolute proof that a “failure of the main beam in way of mast compression” was not possible.
  2. Percussion testing
  3. Absence of cracks in any of the primary main beam seams not inspected by John Koon.
  4. No physical evidence of compression once the mast step was removed.
  5. Proof that the turnbuckles had threads left, proving tightening was possible
  6. Proof that the turnbuckles were turned to the position because of a rigging change, not because of mast compression.
  7. Proof that the gennaker turnbuckle did not strip or self-release as you suggested based on
  8. A picture of it still in place when Dragonfly arrived in Honokohau.
  9. Physical inspection by experts reporting that it was in good condition and operational.
  • Proof that all remaining rigging was in good condition and operational except for damage as a result of the dismasting based on
  1. Evidence from British Stainless Steel Association that the wire strength is not degraded when not under stress. Dragonfly’s rigging was removed and unstressed for an average of 5-6 months each year and in a fresh water environment, when we were hauled in Florida.
  2. Invoice evidence that rigging was replaced 2008-2014 therefore well within the guidelines you were involved in creating for the USCG. Especially considering that 5-6 months per year it was unstressed and in a fresh water environment.
  3. Physical inspection by experts reporting that all were in good condition and operational.
  • Proof that the diamonds suspected of causing the dismasting were removed and inspected less than 2 weeks prior to the dismasting, demonstrating an awareness and small likelihood that they were to blame for the dismasting.
  • Proof that the original mast-section was well suited and designed by Kurt Hughes. It is the same as the replacement as recommended by Art Nelson.
  • Proof that the “hardware/anchoring points“ / chain-plates were “suited for sustained offshore use” when able to support 120,000 lbs., which is three times the strength of the stainless wire and ten times the expected maximum load.
  • Proof that the Norseman fitting identified in “disrepair” is a swageless fitting. Replacing the wire and cone is a standard practice.
  • Proof that the only explanation for the dismasting considering the physical evidence, experience and eyewitness descriptions by the crew was a rogue wave violently pushing the vessel to windward buckling the mast below the boom first. John K agreed with this in the report when stating “An opposing wave impact in the conditions, described by Mr. Wigginton, would also impose an additional thrust on the mast tube, at the height of the diamond shrouds inserts/penetrations on both sides of the mast, in a lateral direction to port.”
  • Proof that a failure of the diamonds was not the cause of the dismasting based on graphical analysis of physical evidence and eyewitness descriptions.
  • Proof that Dragonfly is seaworthy based on expert opinions and by safely sailing her to CA in July 2017 with a temporary mast.

 

This has been a 20+ month financial and emotional nightmare for us, and a significant amount of time for a 77-year old man.

You have opportunity to make this right and demonstrate that your actions were without malice. Provide an email, letter or document stating that after reviewing the input provided by others and based on your own observations, John Koon’s report and assertions were incorrect. This would eliminate the basis for their denial.

We feel that you have an ethical and professional obligation to set the record straight. Reporting what you witnessed would seem like the prudent action. We expect the review to begin by January 8thth.

Looking forward to hearing from you soon and can be available anytime to discuss this.

Alan & Jill Wigginton

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Marine Surveyor Ethics Violations

Lloyds of London syndicates or any insurance company require information that they can point to when denying an insurance claim. Our claim denial was based on false statements and suppositions in a report written by John Koon and witnessed by Larry Montgomery. We also believe that Larry Montgomery withheld exculpatory evidence. It is our belief that they are both guilty of marine surveyor ethics violations defined by the organizations (ACMS & NAMS) they belong to.

We decided to pursue professional consequences against both of them. Hopefully, they will be held accountable for their actions which has caused us to experience this unjustified nightmare .

John Koon’s Ethics Violations

We have multiple credibility issues with John Koon. He is the surveyor who wrote the “damage” survey filled with false statements and unsupported assertions. He lists the following memberships on his bio/CV

However, his name is not on the SAMS website. Per an individual at SAMS he has never been a member of SAMS. This is a significant mis-representation of credentials. We identified this (and other) credibility issues to ProSight and Hill Dickinson. They apparently ignored them because they continued to accept the findings in his report.

Below is the Code of Ethics for members of CMS, which John is a member of.

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Marine Surveyor Ethics Violations - ACMS Code of Ethics

We believe that the phrase “honest appraisal” exposes him to a marine surveyor ethics violation due to the numerous factually incorrect things stated in the report he created.  Therefore, we filed a violation complaint on the ACMS website on John Koon.

We contacted the ACMS after the filing. They received the complaint, but their expulsion procedures are not based on the significance of the violation. They follow the “three strike rule” and  would not disclose the number of violation complaints he has so far.



NAMS emblem which should represent a high ethical standardLarry Montgomery – Ethics Violations

Larry was the Lloyd’s agent assigned to our claims. He is also a NAMS (National Association for Marine Surveyors) surveyor

The NAMS Code of Ethics is broader than the ACMS. They have a grievance procedure. The procedure involves a board who reviews the complaint and makes a decision based upon the facts and evidence presented.

Marine Surveyor Ethics Violations - NAMS Code of Ethics

Examples of Larry’s Ethics Violations

We believe that Larry has violated the code on numerous counts. Here are some examples.

  • We believe he was not truthful when he told us that the purpose of the survey by John Koon was to “determine a best practice repair“.  The report that we received later stated the purpose was to determine the cause of the dismasting.  We were not in attendance during the survey, as a result of Larry’s mis-representation. A flagrantly erroneous survey resulted which was the basis for the claim denial.
  • We believe Larry was not truthful and objective when he allowed the factually incorrect survey report be turned in. There were basic things within the report that any surveyor should have recognized as an error. Especially one who was on site when the survey was done.
  • We believe Larry was not being truthful and objective when stating to us that he concurred with our surveyor’s findings and would report his findings. These findings were in direct contradiction to the John Koon report. To the best of our knowledge did not report his revelations and admissions to ProSight, LJJ Associates or Blue Water Insurance. Larry withheld exculpatory evidence
  • We believe he was not being truthful and objective from the beginning when he repeatedly told us that we would be made whole again by the insurance company. He should have known he did not have that authority to state the things he did. HIs statements caused us to have mis-placed trust.
  • We believe Larry took a position contrary to his own knowledge or opinion for a direct gain. By providing reports that they used to deny our claim and withholding evidence, he promoted his likelihood of getting future business with ProSight, LJJ Associates and Blue Water Insurance.

As a result we filed a complaint with NAMS and are waiting to hear from them.

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Complaint Response from ProSight

On May 24, 2017 we received an acknowledgement of our complaint from Satvinder K Ajimal (Satty) a Conduct & Compliance Manager for ProSight Specialty Managing Agency – Syndicate 1110. Satty apologized that we felt the need to file a complaint. She assured us that it would be dealt with promptly and we would receiving a response soon.

Follow-up regarding response

July 14 was eight weeks from the date we submitted our complaint to ProSight and our understanding of their deadline. We did not want to irritate them by following up sooner than we should expect a response. On July 11, we sent a follow-up email to Satty to see if they would have a response to us by the deadline. We received the following from Satty on July 12th.

“ProSight provided a response to your complaint on 6th June 2017., which was sent by post addressed to Mr A Wigginton c/o Crew’s Mess Limited.  I have attached a copy of the complaint response, as it would appear that this was not passed on to you by Crew’s Mess.”

WHO THE HECK IS CREW”S MESS?

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Why didn’t Satty send us an email as promised!

 

Rubber Stamped Response

The letter stated the “on the basis of the reports provided by the surveyors, yacht was deemed unseaworthy at the time of the initial incident in May 2016 and that this would have equally been the case on 1 April 2016, when your insurance policy incepted. Hill Dickinson further advised that the unseaworthiness of the vessel at the inception represented a breach of warranty and the contract of insurance was consequently and properly treated void ad initio (and that the premium paid would be returned to you). Accordingly both claims have been rejected for the reason that there is no insurance policy in force against which a claim may be made.

Having reviewd this matter, I note that no new evidence or other information has been provided to counter the position set out by our lawyers. Accordingly, I do not consider there to be any grounds to change our position and can confirm that this represents our final decision on this matter.

Should you wish to pursue the matter further, you may refer the matter to the Indiana Deparment of Insurance. 

Paul Longville, Head of Compliance, ProSight Managing Specialty Managing Agency Ltd

Our complaint was clearly not reviewed

WHAT!!?? We spent thousands of dollars more and taken two months to compile and reply to every allegation, innuendo and false statement that Hill Dickenson had in their claim denial. How can the letter say there is “no new evidence or other information“? However, Satty had stated that they would review it promptly, not thoroughly or fairly.

We also thought that sending it to Crew’s Mess was a clear indicator of their lack of concern. They sent it to a company we had never heard of. Satty told us that she would respond to us.

Why are they referring us to the Indiana Department of Insurance? This is policy was written by a UK-based insurance company

Response to their response

angry typing.jpgWe responded on July 14th lambasting them for sending a letter to a company we don’t even know. It also outlined all the new evidence provided:

  • Documentation demonstrating that the rigging age was within the USCG standards
  • Statement from the location that Dragonfly was hauled and mast unstepped annually
  • Statements by the British Stainless Steel regarding the lack of fatigue on unstressed stainless as the rigging would have been due to the annual hauling.
  • Report and photographic evidence by Bill Trenkle addressing the seaworthiness of Dragonfly
  • Report from an international rigger regarding the condition of the remaining rigging
  • Financial records of the significant annual maintenance records
  • Photographic proof of John Koon’s false statement regarding the stripping of the gennaker turnbuckle
  • The statements made by Larry Montgomery (their agent) refuting John Koon’s report.
  • Email logs with the USCG
  • Passage logs for the trip as requested.

July 21, 2016 we received an acknowledgement from Satty of our July 14th email stating that she would “review your comments and respond as soon as possible.”

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More Unethical Actions by Agent

Two-Faced Unethical Actions - Larry MontgomeryJanuary 23rd we received an email from Larry providing an overview of his visit. He listed the things that he looked at, but did not include the condition of what he saw. More unethical actions from Larry Montgomery. He repeatedly stated that the items he saw were in contradiction to the John Koon report. We responded:

“We are disappointed that you did not convey that the items shown to you were in the original John Koon survey. Also that they were reported differently in the report than what you repeatedly acknowledged the actual condition to be. We expect that if there are questions about these by Mr Scott or the underwriters, you as a qualified NAMS surveyor, are prepared to convey that the issues Mr Koon reported did not have evidence of the problems he identified.”

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Addressed the unethical actions offline

After receiving no response from him regarding his lack of transparency with LJJ Associates and ProSight regarding the items he witnessed on Dragonfly, we sent him a direct email on Feb 2, 2017 The email suggested that he had an ethical responsibility as a NAMS surveyor to communicate what he saw.

He responded and said that he was providing the pictures and a copy of our email to Mr Spink and Wayne Scott. We do not know if an email was ever sent to them. Larry had always cc’d us on emails like this. However it didn’t happen this time. Therefore we are very suspicious that it was not done. If it was, we suspect that it didn’t represent what he told us. If it contained the truth, why not share it?

No justified vindication

We clearly expected Larry to be honest, join the experts and confirm that the John Koon report had a significant number of false statements in it. He apparently did not do this so his inexcusable unethical actions continue to be a roadblock.

Daniel, our solicitor submitted our response on Feb 2, 2017. So now we wait. Hoping that someone will see reason.

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Olive Branch – Seeking Shared Truth

Olive Branch - Seeking Shared TruthWe contacted Larry on Jan 14, 2017 and invited him to come on board to review the findings of Bill Trenkle with us and take the theft and damage claims. We were extending an olive branch to work together to determine what was the truth.

On Jan 16, Wayne Scott authorized him to come on board and told him to  “investigate and report to underwriters on all matters listed please.”

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Inspection of Areas and Items in Dispute

Larry came on board on Jan 17. He inspected, verbally confirmed and took pictures of the following and other areas:

  • Main beam – No stress cracks in the anchor lockers or in the berths where attached to the main beam. He admitted they did not get into the anchor locker during the June survey since there were lines and fenders in the lockers.
  • Forward beam – No movement of the forward beam brackets evident on the outside or inside. Larry acknowledged that the forward beam design allowed it to twist on the bracket when under load from the anchor.
  • Minor mast surround leak – was due to the salon roof flexing, not the main beam flexing.
  • Minor water leaks around the front windows was due to the curved designed of the surface, resulting in it being difficult to get a good seal. It had nothing to do with the beam flexing.
  • The remaining turnbuckles, were not stripped, in good condition and functional.

Larry wrote up the claims for the damage and theft which Al signed and told us that he would send all of this information to Wayne Scott.

Vindication!

We felt vindicated. Larry openly admitted that John Koon’s report, which he was involved with, was incorrect. He agreed one-by-one that each of major flaws portrayed in the report did NOT exist.

We thought this mess would soon be over. Finally, the truth would be shared.

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WTF! – Survey with Significant Errors and Baseless Suppositions!

report with lies.jpgAugust 12 ,2016 we received a copy of John Koon’s “damage” survey, dated July 11, 2016. Larry Montgomery clearly misled us on the intent of the report. But worse than that, the report was filled with significant errors, untruths and baseless suppositions. Some of the erroneous items were:

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  • Margionally maintained hull platform, machinery, electrical systems, de-watering equipment and pollution control prevention.”  A loose broad statement with no evidence provided in the report. Was Dragonfly a mess? Yes, but you would expect her to be based on the dismasting and issues dealt with after.
  • Indicates that the vessel may have been compromised from failure of main beam in way of mast-compression path.”  Mast compression is an issue on monohulls NOT catamarans with tri-pod rigs.
  • Vessel may have been fitted with a mast-section not well suited for vessel’s beam, inherent stability, righting moment, displacement and reported sail area” The mast was designed by a marine engineer who designed the boat. Dragonfly had been sailed over 100,000 miles for 18 years with no issues in much worse conditions. This statement made no sense.
  • He states that the remaining rigging was stored with other “failed rigging equipment“. We do not store failed rigging equipment, we store partially used rigging equipment as emergency spares like all long distance cruisers do. It’s like when you get a new frying pan, don’t you keep the old one just in case?
  • He identified “fractured weld seams and weeping fasteners”  the weld was for aesthetic purposes and not load related. The surface of the deck bolts had some rust, but there was no evidence of them weeping inside the vessel, nor did he offer any.
  • He stated “Both beam brackets show indications of racking. Possibly due to the hulls articulating vertically and independently of each other” This is absurd. How could the boat navigated the distances it had if this was true. There was also no evidence of this thru stress fractures or where the brackets connected to the beam.
  • He stated that the “genaker turn buckle had stripped“. There was no evidence of this, in fact it was completely functional and still attached when they arrived in Honokohau Harbor.

False Handshake - Shady CharacterShocked & Confused

We were shocked! He made statement after statement that could be misleading to a unknowledgeable reader with no basis for questioning them. Would they have a marine savvy person reviewing the claim? Larry had also been in attendance during the “survey”. He had never given us any impression that there might be an issue. Every time we talked with him or exchanged emails, he was very encouraging. Was Larry being open and honest with us?

We realized that this would have a significant impact on our claim and we probably had a fight on our hands. But surely a knowledgeable person looking at the report with our counter arguments would realize the inaccuracies. We just needed to make our response clear. But in the back of our minds was the question… was this done on purpose, to give them a reason to deny our claim?

list of significant errors

During Al’s flight he outlined all the false statements, significant errors and unsupportable suppositions in an email to Larry and told him that we would provide a more detailed response after he returned to Indianapolis.

 

 Gotta Move Dragonfly from Honokohau

 

No Availability at marinasBut we had a more time critical issue to address. Time was up and we had to move Dragonfly. Al flew to Hawaii on August 14 to find another location for her. We had called all the marinas and they told us they had no space.  Ken Fairchild offered to go with Al and help him find a place to dock her. He had spent a lot of time in Hawaii and advised that you had a better chance of finding a place if you just showed up.

Dfly at Ala Wai harborAfter stopping at multiple locations Al and Ken were able to find temporary dock space in Ala Wai Harbor in Honoloulu. Since it was temporary, a person had to go to the office every 14 days and pay for the dock for the next 14 days. Al found John Dukesherer who would do this for us. Fortunately he was familiar with the process and people involved. He was also familiar with boats and could assist us with any long distance maintenance required.

Al returned to Indianapolis August 24.

Our complete detailed response was submitted on August 31.

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