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Filing # 117360465 E-Filed 11/30/2020 01:23:31 PM
IN THE CIRCUIT COURT OF THE 17™
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE-19-026028
MLADEN MALOVIC and NEDA MALOVIC,
Plaintiffs,
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FAMILY SECURITY
INSURANCE COMPANY, INC.,
Defendant.
DEFENDANT’S MOTION FOR LEAVE TO FILE AMENDED ANSWER AND
AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT
Defendant, FAMILY SECURITY INSURANCE COMPANY, INC., (“FSIC” or
“Defendant”), by and through its undersigned counsel, and pursuant to Florida Rule of Civil
Procedure 1.190, moves for leave to file its Amended Answer and Affirmative Defenses to
Plaintiffs’ Amended Complaint, and states as follows:
1. This is a first party property insurance action wherein Plaintiffs, Mladen and Neda
Malovic (“Plaintiffs”), alleged two Breaches of Contract. The first Breach of Contract is based on
Plaintiffs’ allegation that FSIC breached the subject policy by denying coverage for damages
allegedly resulting from Hurricane Irma on September 10, 2017, and the second Breach of Contract
is based on Plaintiffs’ allegation that FSIC breached the subject policy by failing to provide
adequate payment for alleged water damage with a reported date of loss of June 20, 2019.
2. The subject property is Plaintiffs’ residence, located at 9575 Southwest 59" Street,
Cooper City, Florida, 33328.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/30/2020 01:23:31 PM.****3. FSIC investigated each loss individually, and in accordance with the terms of the
policy, made two separate coverage determinations.
4. Dissatisfied with FSIC’s coverage determination in each claim, Plaintiffs filed suit.
5. FSIC now seeks leave to amend its Answer and Affirmative Defenses in order to
assert additional affirmative defenses, which have developed as discovery has been ongoing in
litigation and provided additional grounds for FSIC’s defense in this action.
6. Defendant files this Motion For Leave to Amend in good faith and not for purposes
of delay.
7. Florida law favors litigation that includes the adjudication of any and all substantive
issues that the parties plead as relevant and material arguments, and therefore Florida law provides
for the liberal granting of Motions for Leave to Amend where no prejudice to a party can be shown.
“Leave shall be given freely when justice so requires.” Rule 1.190(a), Fla.R.Civ.P.
8. Defendant would be unfairly prejudiced if it were not permitted to conform its
affirmative defenses to the evidence in this matter. Conversely, there would be no prejudice to
Plaintiffs, as the Plaintiffs’ deposition of the Defendant’s Corporate Representative has not yet
been scheduled, and Plaintiffs may examine the Corporate Representative regarding these
Amended Affirmative Defenses.
9. Defendant’s proposed amended pleading is attached hereto as required by Florida
Rule of Civil Procedure 1.190(a), as Exhibit A.
WHEREFORE, FAMILY SECURITY INSURANCE COMPANY respectfully requests
this Honorable Court grant it leave to file its Amended Answer and Affirmative Defenses, and for
all such other and further relief as this Court deems just and proper.CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-mail
via the Florida Courts E-Filing Portal on November 30, 2020 upon: Aaron D. Silvers, Esq.,
Weisser Elazar & Kantor, PLLC, Counsel for Plaintiffs, 800 East Broward Blvd, Ste 510, Fort
Lauderdale, FL 33301; Service E-Mails: as@weklaw.com, cb@weklaw.com & pb@weklaw.com.
BRESSLER, AMERY & Ross, P.C.
200 East Las Olas Blvd.
Suite 1500
Fort Lauderdale, Florida 33301
T: 954.499.7979
F: 954.499.7969
E-Mail: miainsurance@bressler.com
gplasencia@bressler.com
hzelinger@bressler.com
By: /s/__Gabriela A. Plasencia
GABRIELA A. PLASENCIA
Florida Bar No.: 115788
HOPE C. ZELINGER
Florida Bar No.: 92173
woe neenneceeeeeeeeseeeee-INTENTIONALLY LEFT BLANK --n02-202-202-2-2n2onneonoo=EXHIBIT “A”
IN THE CIRCUIT COURT OF THE
17™ JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-19-026028
MLADEN MALOVIC AND NEDA MALOVIC
Plaintiffs,
FAMILY SECURITY INSURANCE
COMPANY, INC.
Defendant.
DEFENDANT’S AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFFS’ AMENDED COMPLAINT
The Defendant, FAMILY SECURITY INSURANCE COMPANY, INC. (hereinafter
“FSIC” or “Defendant”), by and through undersigned counsel and pursuant to the applicable rules
of civil procedure, hereby files its Answer and Affirmative Defenses to Plaintiffs’ Amended
Complaint, and states as follows:
1. It is admitted only that the Plaintiffs have alleged an amount sufficient to satisfy
the Court’s jurisdictional threshold.
2. Admitted for the purposes of the instant litigation only.
3. Without knowledge, and therefore denied.
4. Denied.
COUNT I—BREACH OF CONTRACT
Defendant readopts and reasserts Paragraphs 1 through 4 as if fully set forth herein.5. Denied as phrased. Defendant admits only that it received notice on June 24, 2019,
of alleged roof and interior damage that first occurred at the subject property on September 10,
2017, as a result of Hurricane Irma. Defendant assigned Claim Number 2019FL229542 to its
investigation of that loss. Defendant further asserts that the Plaintiffs failed to timely report the
loss. Except as expressly admitted, the allegations in Paragraph 5 are denied.
6. Denied.
7. Denied.
8. Denied.
9. Denied.
10. Denied.
11. Denied.
The Defendant denies the “WHEREFORE” Clause in Count I Of Plaintiffs’ Complaint,
and any other allegations contained within the Complaint that have not been expressly responded
to.
COUNT II-BREACH OF CONTRACT
Defendant readopts and reasserts Paragraphs | through 11 as if fully set forth herein.
12. Denied as phrased. Defendant admits only that it received notice on June 24, 2019,
of alleged water damage at the subject property on June 20, 2019, as a result of a pipe burst.
Defendant assigned Claim Number 2019FL229541 to its investigation of that loss. Defendant
further asserts that the Plaintiffs failed to timely report the loss. Except as expressly admitted, the
allegations in Paragraph 12 are denied.
13. Denied.
14. Denied.15. Denied.
16. Denied.
17. Denied.
18. Denied.
The Defendant denies the “WHEREFORE” Clause in Count II of Plaintiffs’ Complaint,
and any other allegations contained within the Complaint that have not been expressly responded
to.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Based upon information known to date, Defendant believes that the Plaintiffs are relying
upon an inflated estimates that does not accurately reflect the costs to complete the reasonable and
necessary repairs associated with the subject loss, and that contain overlapping repairs. By relying
on an inflated estimate, the Plaintiffs stand to be unjustly enriched.
SECOND AFFIRMATIVE DEFENSE
Portions of Plaintiffs’ claims are barred because the Policies does not provide coverage for
general wear and tear or deterioration. FSIC’s investigation revealed damages to portions of the
Property consistent with wear, tear and deterioration. Portions of Plaintiffs’ claim are also barred
because the Policy does not provide coverage for damage that results from mechanical breakdown,
latent defect, inherent vice, or any quality in property that causes it to damage or destroy itself.
FSIC’s investigation revealed damages to portions of the Property consistent with general wear
and tear, latent defect, inherent give, or quality in materials that caused the materials to damage or
destroy themselves. The Policies state:
SECTION I—PERILS INSURED AGAINST
A. Coverage A—Dwelling and Coverage B—Other Structures
1. We insure against sudden and accidental direct physical loss to
property described in Coverages A and B.2. We do not insure, however, for loss:
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C. Caused by:
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(6) Any of the following:
(a) Wear and tear, marring, deterioration;
(b) Mechanical breakdown, latent defect, inherent vice or any
quality in property that causes it to damage or destroy itself;
(c) Smog, rust or other corrosion;
THIRD AFFIRMATIVE DEFENSE
Plaintiffs’ claims are not covered as outlined by the Policies’ express exclusions, as such
losses did not result from a covered peril. Portions of the subject Property were not damaged as a
result of either Hurricane Irma or the alleged pipe leak, but instead were damaged as a result of
faulty design, workmanship, renovation, and remodeling. The Policies state, in relevant part, as
follows:
SECTION I —- EXCLUSIONS
A.
We do not insure for loss caused directly or indirectly by any of the
following. Such loss is excluded regardless of any other cause or event
contributing concurrently or in any sequence to the loss. These
exclusions apply whether or not the loss event results in widespread
damage or affects a substantial area.
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We do not insure for loss to property described in Coverages A and B
caused by any of the following. However, any ensuing loss to property
described in Coverages A and B not precluded any other provision in
this policy is covered.
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Faulty, inadequate, or defective:
a
b. Design, specifications, workmanship, repair, construction,
renovation, remodeling, grading, compaction;
c. Materials used in repair, construction, renovation or remodeling;AFFIRMATIVE DEFENSES SPECIFIC TO COUNT I
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim is barred because the reported damages were not sudden or fortuitous and
therefore not covered under the subject insurance policy. Furthermore, the investigation did not
reveal a physical loss resulting from Hurricane Irma. The Policy states:
SECTION I- PERILS INSURED AGAINST
A. Coverage A — Dwelling And Coverage B — Other
Structures
1. We insure against sudden and accidental direct physical
loss to property described in Coverage A and B.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are not covered as outlined by the Policy’s express exclusions, as such
loss did not result from a covered peril. Portions of the subject Property were not damaged as a
result of Hurricane Irma, but instead were damaged as a result of Plaintiffs’ negligence and failure
to protect the property from further damage. The Policy states, in relevant part, as follows:
SECTION I- EXCLUSIONS
A. We do not insure for loss caused directly or indirectly by any of the
following. Such loss is excluded regardless of any other cause or event
contributing concurrently or in any sequence to the loss. These
exclusions apply whether or not the loss event results in widespread
damage or affects a substantial area.
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5. Neglect
Neglect means neglect of an “insured” to use all reasonable means to
save and preserve property at and after the time of a loss.
SIXTH AFFIRMATIVE DEFENSE
Portions of Plaintiffs’ claim are barred because the Policy does not provide coverage for
damage resulting from constant or repeated seepage or leakage of water. FSIC’s investigationrevealed that at least some of the claimed damages were the result of constant or repeated seepage
or leakage of water. The Policy states:
SECTION I—PERILS INSURED AGAINST
A. Coverage A—Dwelling and Coverage B—Other Structures
1. We insure against sudden and accidental direct physical loss to
property described in Coverages A and B.
2. We do not insure, however, for loss:
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c. Caused by:
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(5) Constant or repeated seepage or leakage of water or steam or the
presence or condensation of humidity, moisture or vapor, over a
period of 14 or more days, whether hidden or not.
SEVENTH AFFIRMATIVE DEFENSE
The Plaintiffs’ claim is barred because the investigation did not reveal an opening to the
roof system or wall as a result of a covered peril through which water intruded the home. The
policy states:
SECTION I—PERILS INSURED AGAINST
B. Coverage A—Dwelling and Coverage B—Other Structures
1. We insure against sudden and accidental direct physical loss to
property described in Coverages A and B.
2. We do not insure, however, for loss:
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C. Caused by:
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(8) Rain, snow, sleet or dust to the interior of a building unless a covered
peril first damages the building causing an opening in a roof or outside
wall, door or window and the rain, snow, sleet, sand or dust enters
through the opening.
CALENDAR YEAR HURRICANE
DEDUCTIBLE (PERCENTAGE) WITH SUPPLEMENTAL
RECORD-KEEPING REQUIREMENT — FLORIDA
A. Loss by Windstorm During A Hurricane
With respect to Paragraphs B. and C., coverage for
loss caused by the peril of windstorm during a
hurricane which occurs anywhere in the state of
Florida includes loss to:1. The inside of a building; or
2. The property contained in a building caused by:
a. Rain;
b. Snow;
c. Sleet;
d. Hail;
e. Sand; or
f. Dust;
if the direct force of the windstorm damages the building, causing an
opening in a roof or wall and the rain, snow, sleet, hail, sand or dust enters
through this opening.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim is barred as Plaintiffs failed to comply with the Policy’s post-loss
obligations, which prejudiced FSIC’s investigation of Plaintiffs’ insurance claim. Specifically,
Plaintiffs failed to protect the property from further damage at and after the loss allegedly occurred,
which caused an exacerbation of Plaintiffs’ alleged damages. Further, the alleged date of loss is
September 10, 2017, but Plaintiffs did not file a claim until June 24, 2019. The Policy states:
SECTION I—CONDITIONS
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C. Duties After Loss
In case of a loss to covered property, we have no duty to provide coverage
under this policy if the failure to comply with the following duties is
prejudicial to us. These duties must be performed by either you or an
“insured” seeking coverage, or a representative of either:
1. Give prompt notice to us or our agent.
Except for Reasonable Emergency Measures taken under Additional
Coverages 2., there is no coverage for repairs that begin before the earlier
oft
a. 72 hours after we are notified of the loss;
b. The time of loss inspection by us; or
c. The time of other approval by us;
2. To the degree reasonably possible:
a. Retain the damaged property; and
b. Allow us to inspect, subject to 2.a. above, all damaged property
prior to its removal from the “residence premises”;
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5. Protect the covered property from further damage. The following must
be performed:
10a. Take reasonable emergency measures that are necessary to protect
the covered property from further damage, as provided under
Additional Coverage E.2.
A reasonably emergency measure under 5.a. above may include a
permanent repair when necessary to protect the covered property
from further damage or to prevent unwanted entry to the property.
To the degree reasonably possibly, the damaged property must be
retained for us to inspect; and
b. Keep an accurate record of repair expenses.
NINTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim is barred because Plaintiffs filed suit prior to complying with the Policy’s
express conditions. Specifically, before filing the instant lawsuit, Plaintiffs failed to provide
prompt notice of the claimed loss; and Plaintiffs failed to protect the Property from further damage.
The Policy states:
SECTION I - CONDITIONS
ORR
H. Legal Action Against Us
No action can be brought against us unless there has been full
compliance with all of the terms under this policy and the action is
started within five years after the date of loss.
Mediation or Appraisal is required as a prerequisite before an
“insured” can file suit related to Section I of this policy as it relates
to the amount of the loss.
AFFIRMATIVE DEFENSES SPECIFIC TO COUNT II
TENTH AFFIRMATIVE DEFENSE
Plaintiffs fail to state a cause of action as Plaintiffs have been indemnified in full. Prior to
suit, Defendant acknowledged coverage for the portions of Plaintiffs’ claim covered by the Policy.
FSIC’s coverage determination on the subject insurance claim was made in accordance with the
Policy’s express terms, conditions, limitations and deductible provisions.
11ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim is barred as Plaintiffs failed to comply with the Policy’s post-loss
obligations, which prejudiced FSIC’s investigation of Plaintiffs’ insurance claim. Specifically,
Plaintiffs failed to protect the property from further damage at and after the loss allegedly occurred,
which caused an exacerbation of Plaintiffs’ alleged damages. Further, the alleged date of loss is
June 20, 2019, but Plaintiffs did not file a claim until June 24, 2019, and FSIC’s investigation has
revealed that the alleged damages had occurred several months prior to June 20, 2019. The Policy
states:
SECTION I—CONDITIONS
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C. Duties After Loss
In case of a loss to covered property, we have no duty to provide coverage
under this policy if the failure to comply with the following duties is
prejudicial to us. These duties must be performed by either you or an
“insured” seeking coverage, or a representative of either:
1. Give prompt notice to us or our agent.
Except for Reasonable Emergency Measures taken under Additional
Coverages 2., there is no coverage for repairs that begin before the earlier
of:
d. 72 hours after we are notified of the loss;
e. The time of loss inspection by us; or
f. The time of other approval by us;
2. To the degree reasonably possible:
a. Retain the damaged property; and
b. Allow us to inspect, subject to 2.a. above, all damaged property
prior to its removal from the “residence premises”;
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5. Protect the covered property from further damage. The following must
be performed:
a. Take reasonable emergency measures that are necessary to protect
the covered property from further damage, as provided under
Additional Coverage E.2.
A reasonably emergency measure under 5.a. above may include a
permanent repair when necessary to protect the covered property
from further damage or to prevent unwanted entry to the property.
To the degree reasonably possibly, the damaged property must be
retained for us to inspect; and
b. Keep an accurate record of repair expenses.
12TWELFTH AFFIRMATIVE DEFENSE
Defendant has satisfied and performed all of its obligations under the policy and in
accordance with Florida Statute §627.7011(3)(a). To date, Plaintiffs has failed to demonstrate that
additional amounts are due and owed under the policy pursuant to the loss settlement provisions
contained within the Conditions section of the subject policy. The policy states:
SECTION I- CONDITIONS
* RK
D. Loss Settlement.
In this Condition D., the terms "cost to repair or replace" and "replacement
cost" do not include
a. Any compensation for actual or perceived reduction in the market value
of any property; or
b. The increased costs incurred to comply with the enforcement of any
ordinance or law, except to the extent that coverage for these increased
costs is provided in E.11. Ordinance Or Law under Section I —Property
Coverages.
Covered property losses, after the application of the deductible, are settled
as follows:
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2. Buildings covered under Coverage A or B at replacement cost without
deduction for depreciation, subject to the following:
a. If, at any time of loss, the amount of insurance in this policy on the
damaged building is 80% or more of the full replacement cost of the
building immediately before the loss, we will pay the cost to repair or
replace, without deduction for depreciation, but not more than the least of
the following amounts:
(1) The limit of liability under this policy that applies to the building;
(2) The replacement cost of that part of the building damaged with
material of like kind and quality and for like use; or
(3) The necessary amount actually spent to repair or replace the
damaged building.
If the building is rebuilt at a new premises, the cost described in (2) above
is limited to the cost which would have been incurred if the building had
been built at the original premises.
b. If, at the time of loss, the amount of insurance in this policy in the
damaged building is less than 80% of the full replacement cost of the
building immediately before the loss, we will pay the greater of the
following amounts, but not more than the limit of liability under this policy
that applies to the building:
(1) The actual cash value of that part of the building damaged; or
13(2) That proportion of the cost to repair or replace, without deduction
for depreciation, that part of the building damaged, which the total
amount of insurance in this policy on the damaged building bears to
80% off the replacement cost of the building.
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d. We will initially pay the actual cash value of the loss, less any applicable
deductible. We will then pay any remaining amounts necessary to perform
the actual repair or replacement as work is performed and expenses are
incurred subject to D.2.a. and D.2.b. If a total loss occurs, we will pay the
full replacement cost without reservation or holdback of any depreciation
in value.
THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim is barred because Plaintiffs filed suit prior to complying with the Policy’s
express conditions. Specifically, before filing the instant lawsuit, Plaintiffs failed to provide
prompt notice of the claimed loss; Plaintiffs failed to protect the Property from further damage;
and Plaintiffs failed to comply with the Policy’s Loss Settlement condition. The Policy states:
SECTION I - CONDITIONS
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H. Legal Action Against Us
If you and we fail to agree on the settlement regarding the loss,
prior to filing suit, you must notify us of your disagreement and
intent to file suit in writing to allow us an opportunity to exercise
our right to demand mediation.
No action can be brought against us unless there has been full
compliance with all of the terms under this policy and the action is
started within 5 years after the date of loss.
RESERVATION OF RIGHTS
Plaintiffs’ loss may not have been fully disclosed, and therefore Defendant reserves the
right to amend or supplement these Affirmative Defenses with additional information if and when
such information is discovered.
14DEMAND FOR JURY TRIAL
Defendant, FAMILY SECURITY INSURANCE COMPANY, hereby demands a trial by
jury as to all issues so triable as a matter of right.
WHEREFORE the Defendant, FAMILY SECURITY INSURANCE COMPANY, having
answered the Plaintiffs’ Complaint and set forth its Affirmative Defenses, hereby demands
judgment in its favor and against the Plaintiffs and prays that this cause be dismissed with costs
and expenses taxed against the Plaintiffs.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-mail
via the Florida Courts E-filing Portal system on this 24" day of February, 2020, upon: Aaron D.
Silvers, Esq., Weisser Elazar & Kantor, PLLC, Counsel for Plaintiffs, 800 East Broward Blvd.,
Suite 510, Fort Lauderdale, FL; Service E-mail: as@weklaw.com; cbh@weklaw.com &
pb@weklaw.com.
BRESSLER, AMERY & Ross, P.C.
200 East Las Olas Blvd.
Suite 1500
Fort Lauderdale, Florida 33301
T: 954.499.7979
F: 954.499.7969
E-Mail: miainsurance@bressler.com
gplasencia@bressler.com
hzelinger@bressler.com
By: /s/_ DRAFT
GABRIELA A. PLASENCIA
Florida Bar No.: 115788
HOPE C. ZELINGER
Florida Bar No.: 92173
15
Preview
Filing # 117360465 E-Filed 11/30/2020 01:23:31 PM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-19-026028 MLADEN MALOVIC and NEDA MALOVIC, Plaintiffs, vi FAMILY SECURITY INSURANCE COMPANY, INC., Defendant. DEFENDANT’S MOTION FOR LEAVE TO FILE AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT Defendant, FAMILY SECURITY INSURANCE COMPANY, INC., (“FSIC” or “Defendant”), by and through its undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.190, moves for leave to file its Amended Answer and Affirmative Defenses to Plaintiffs’ Amended Complaint, and states as follows: 1. This is a first party property insurance action wherein Plaintiffs, Mladen and Neda Malovic (“Plaintiffs”), alleged two Breaches of Contract. The first Breach of Contract is based on Plaintiffs’ allegation that FSIC breached the subject policy by denying coverage for damages allegedly resulting from Hurricane Irma on September 10, 2017, and the second Breach of Contract is based on Plaintiffs’ allegation that FSIC breached the subject policy by failing to provide adequate payment for alleged water damage with a reported date of loss of June 20, 2019. 2. The subject property is Plaintiffs’ residence, located at 9575 Southwest 59" Street, Cooper City, Florida, 33328. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/30/2020 01:23:31 PM.****3. FSIC investigated each loss individually, and in accordance with the terms of the policy, made two separate coverage determinations. 4. Dissatisfied with FSIC’s coverage determination in each claim, Plaintiffs filed suit. 5. FSIC now seeks leave to amend its Answer and Affirmative Defenses in order to assert additional affirmative defenses, which have developed as discovery has been ongoing in litigation and provided additional grounds for FSIC’s defense in this action. 6. Defendant files this Motion For Leave to Amend in good faith and not for purposes of delay. 7. Florida law favors litigation that includes the adjudication of any and all substantive issues that the parties plead as relevant and material arguments, and therefore Florida law provides for the liberal granting of Motions for Leave to Amend where no prejudice to a party can be shown. “Leave shall be given freely when justice so requires.” Rule 1.190(a), Fla.R.Civ.P. 8. Defendant would be unfairly prejudiced if it were not permitted to conform its affirmative defenses to the evidence in this matter. Conversely, there would be no prejudice to Plaintiffs, as the Plaintiffs’ deposition of the Defendant’s Corporate Representative has not yet been scheduled, and Plaintiffs may examine the Corporate Representative regarding these Amended Affirmative Defenses. 9. Defendant’s proposed amended pleading is attached hereto as required by Florida Rule of Civil Procedure 1.190(a), as Exhibit A. WHEREFORE, FAMILY SECURITY INSURANCE COMPANY respectfully requests this Honorable Court grant it leave to file its Amended Answer and Affirmative Defenses, and for all such other and further relief as this Court deems just and proper.CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-mail via the Florida Courts E-Filing Portal on November 30, 2020 upon: Aaron D. Silvers, Esq., Weisser Elazar & Kantor, PLLC, Counsel for Plaintiffs, 800 East Broward Blvd, Ste 510, Fort Lauderdale, FL 33301; Service E-Mails: as@weklaw.com, cb@weklaw.com & pb@weklaw.com. BRESSLER, AMERY & Ross, P.C. 200 East Las Olas Blvd. Suite 1500 Fort Lauderdale, Florida 33301 T: 954.499.7979 F: 954.499.7969 E-Mail: miainsurance@bressler.com gplasencia@bressler.com hzelinger@bressler.com By: /s/__Gabriela A. Plasencia GABRIELA A. PLASENCIA Florida Bar No.: 115788 HOPE C. ZELINGER Florida Bar No.: 92173 woe neenneceeeeeeeeseeeee-INTENTIONALLY LEFT BLANK --n02-202-202-2-2n2onneonoo=EXHIBIT “A” IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-19-026028 MLADEN MALOVIC AND NEDA MALOVIC Plaintiffs, FAMILY SECURITY INSURANCE COMPANY, INC. Defendant. DEFENDANT’S AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ AMENDED COMPLAINT The Defendant, FAMILY SECURITY INSURANCE COMPANY, INC. (hereinafter “FSIC” or “Defendant”), by and through undersigned counsel and pursuant to the applicable rules of civil procedure, hereby files its Answer and Affirmative Defenses to Plaintiffs’ Amended Complaint, and states as follows: 1. It is admitted only that the Plaintiffs have alleged an amount sufficient to satisfy the Court’s jurisdictional threshold. 2. Admitted for the purposes of the instant litigation only. 3. Without knowledge, and therefore denied. 4. Denied. COUNT I—BREACH OF CONTRACT Defendant readopts and reasserts Paragraphs 1 through 4 as if fully set forth herein.5. Denied as phrased. Defendant admits only that it received notice on June 24, 2019, of alleged roof and interior damage that first occurred at the subject property on September 10, 2017, as a result of Hurricane Irma. Defendant assigned Claim Number 2019FL229542 to its investigation of that loss. Defendant further asserts that the Plaintiffs failed to timely report the loss. Except as expressly admitted, the allegations in Paragraph 5 are denied. 6. Denied. 7. Denied. 8. Denied. 9. Denied. 10. Denied. 11. Denied. The Defendant denies the “WHEREFORE” Clause in Count I Of Plaintiffs’ Complaint, and any other allegations contained within the Complaint that have not been expressly responded to. COUNT II-BREACH OF CONTRACT Defendant readopts and reasserts Paragraphs | through 11 as if fully set forth herein. 12. Denied as phrased. Defendant admits only that it received notice on June 24, 2019, of alleged water damage at the subject property on June 20, 2019, as a result of a pipe burst. Defendant assigned Claim Number 2019FL229541 to its investigation of that loss. Defendant further asserts that the Plaintiffs failed to timely report the loss. Except as expressly admitted, the allegations in Paragraph 12 are denied. 13. Denied. 14. Denied.15. Denied. 16. Denied. 17. Denied. 18. Denied. The Defendant denies the “WHEREFORE” Clause in Count II of Plaintiffs’ Complaint, and any other allegations contained within the Complaint that have not been expressly responded to. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Based upon information known to date, Defendant believes that the Plaintiffs are relying upon an inflated estimates that does not accurately reflect the costs to complete the reasonable and necessary repairs associated with the subject loss, and that contain overlapping repairs. By relying on an inflated estimate, the Plaintiffs stand to be unjustly enriched. SECOND AFFIRMATIVE DEFENSE Portions of Plaintiffs’ claims are barred because the Policies does not provide coverage for general wear and tear or deterioration. FSIC’s investigation revealed damages to portions of the Property consistent with wear, tear and deterioration. Portions of Plaintiffs’ claim are also barred because the Policy does not provide coverage for damage that results from mechanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage or destroy itself. FSIC’s investigation revealed damages to portions of the Property consistent with general wear and tear, latent defect, inherent give, or quality in materials that caused the materials to damage or destroy themselves. The Policies state: SECTION I—PERILS INSURED AGAINST A. Coverage A—Dwelling and Coverage B—Other Structures 1. We insure against sudden and accidental direct physical loss to property described in Coverages A and B.2. We do not insure, however, for loss: see C. Caused by: ek (6) Any of the following: (a) Wear and tear, marring, deterioration; (b) Mechanical breakdown, latent defect, inherent vice or any quality in property that causes it to damage or destroy itself; (c) Smog, rust or other corrosion; THIRD AFFIRMATIVE DEFENSE Plaintiffs’ claims are not covered as outlined by the Policies’ express exclusions, as such losses did not result from a covered peril. Portions of the subject Property were not damaged as a result of either Hurricane Irma or the alleged pipe leak, but instead were damaged as a result of faulty design, workmanship, renovation, and remodeling. The Policies state, in relevant part, as follows: SECTION I —- EXCLUSIONS A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area. sie We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not precluded any other provision in this policy is covered. soho Faulty, inadequate, or defective: a b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; c. Materials used in repair, construction, renovation or remodeling;AFFIRMATIVE DEFENSES SPECIFIC TO COUNT I FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ claim is barred because the reported damages were not sudden or fortuitous and therefore not covered under the subject insurance policy. Furthermore, the investigation did not reveal a physical loss resulting from Hurricane Irma. The Policy states: SECTION I- PERILS INSURED AGAINST A. Coverage A — Dwelling And Coverage B — Other Structures 1. We insure against sudden and accidental direct physical loss to property described in Coverage A and B. FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are not covered as outlined by the Policy’s express exclusions, as such loss did not result from a covered peril. Portions of the subject Property were not damaged as a result of Hurricane Irma, but instead were damaged as a result of Plaintiffs’ negligence and failure to protect the property from further damage. The Policy states, in relevant part, as follows: SECTION I- EXCLUSIONS A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area. wee 5. Neglect Neglect means neglect of an “insured” to use all reasonable means to save and preserve property at and after the time of a loss. SIXTH AFFIRMATIVE DEFENSE Portions of Plaintiffs’ claim are barred because the Policy does not provide coverage for damage resulting from constant or repeated seepage or leakage of water. FSIC’s investigationrevealed that at least some of the claimed damages were the result of constant or repeated seepage or leakage of water. The Policy states: SECTION I—PERILS INSURED AGAINST A. Coverage A—Dwelling and Coverage B—Other Structures 1. We insure against sudden and accidental direct physical loss to property described in Coverages A and B. 2. We do not insure, however, for loss: wae c. Caused by: red (5) Constant or repeated seepage or leakage of water or steam or the presence or condensation of humidity, moisture or vapor, over a period of 14 or more days, whether hidden or not. SEVENTH AFFIRMATIVE DEFENSE The Plaintiffs’ claim is barred because the investigation did not reveal an opening to the roof system or wall as a result of a covered peril through which water intruded the home. The policy states: SECTION I—PERILS INSURED AGAINST B. Coverage A—Dwelling and Coverage B—Other Structures 1. We insure against sudden and accidental direct physical loss to property described in Coverages A and B. 2. We do not insure, however, for loss: see C. Caused by: see (8) Rain, snow, sleet or dust to the interior of a building unless a covered peril first damages the building causing an opening in a roof or outside wall, door or window and the rain, snow, sleet, sand or dust enters through the opening. CALENDAR YEAR HURRICANE DEDUCTIBLE (PERCENTAGE) WITH SUPPLEMENTAL RECORD-KEEPING REQUIREMENT — FLORIDA A. Loss by Windstorm During A Hurricane With respect to Paragraphs B. and C., coverage for loss caused by the peril of windstorm during a hurricane which occurs anywhere in the state of Florida includes loss to:1. The inside of a building; or 2. The property contained in a building caused by: a. Rain; b. Snow; c. Sleet; d. Hail; e. Sand; or f. Dust; if the direct force of the windstorm damages the building, causing an opening in a roof or wall and the rain, snow, sleet, hail, sand or dust enters through this opening. EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ claim is barred as Plaintiffs failed to comply with the Policy’s post-loss obligations, which prejudiced FSIC’s investigation of Plaintiffs’ insurance claim. Specifically, Plaintiffs failed to protect the property from further damage at and after the loss allegedly occurred, which caused an exacerbation of Plaintiffs’ alleged damages. Further, the alleged date of loss is September 10, 2017, but Plaintiffs did not file a claim until June 24, 2019. The Policy states: SECTION I—CONDITIONS wie C. Duties After Loss In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed by either you or an “insured” seeking coverage, or a representative of either: 1. Give prompt notice to us or our agent. Except for Reasonable Emergency Measures taken under Additional Coverages 2., there is no coverage for repairs that begin before the earlier oft a. 72 hours after we are notified of the loss; b. The time of loss inspection by us; or c. The time of other approval by us; 2. To the degree reasonably possible: a. Retain the damaged property; and b. Allow us to inspect, subject to 2.a. above, all damaged property prior to its removal from the “residence premises”; IK 5. Protect the covered property from further damage. The following must be performed: 10a. Take reasonable emergency measures that are necessary to protect the covered property from further damage, as provided under Additional Coverage E.2. A reasonably emergency measure under 5.a. above may include a permanent repair when necessary to protect the covered property from further damage or to prevent unwanted entry to the property. To the degree reasonably possibly, the damaged property must be retained for us to inspect; and b. Keep an accurate record of repair expenses. NINTH AFFIRMATIVE DEFENSE Plaintiffs’ claim is barred because Plaintiffs filed suit prior to complying with the Policy’s express conditions. Specifically, before filing the instant lawsuit, Plaintiffs failed to provide prompt notice of the claimed loss; and Plaintiffs failed to protect the Property from further damage. The Policy states: SECTION I - CONDITIONS ORR H. Legal Action Against Us No action can be brought against us unless there has been full compliance with all of the terms under this policy and the action is started within five years after the date of loss. Mediation or Appraisal is required as a prerequisite before an “insured” can file suit related to Section I of this policy as it relates to the amount of the loss. AFFIRMATIVE DEFENSES SPECIFIC TO COUNT II TENTH AFFIRMATIVE DEFENSE Plaintiffs fail to state a cause of action as Plaintiffs have been indemnified in full. Prior to suit, Defendant acknowledged coverage for the portions of Plaintiffs’ claim covered by the Policy. FSIC’s coverage determination on the subject insurance claim was made in accordance with the Policy’s express terms, conditions, limitations and deductible provisions. 11ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claim is barred as Plaintiffs failed to comply with the Policy’s post-loss obligations, which prejudiced FSIC’s investigation of Plaintiffs’ insurance claim. Specifically, Plaintiffs failed to protect the property from further damage at and after the loss allegedly occurred, which caused an exacerbation of Plaintiffs’ alleged damages. Further, the alleged date of loss is June 20, 2019, but Plaintiffs did not file a claim until June 24, 2019, and FSIC’s investigation has revealed that the alleged damages had occurred several months prior to June 20, 2019. The Policy states: SECTION I—CONDITIONS wae C. Duties After Loss In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed by either you or an “insured” seeking coverage, or a representative of either: 1. Give prompt notice to us or our agent. Except for Reasonable Emergency Measures taken under Additional Coverages 2., there is no coverage for repairs that begin before the earlier of: d. 72 hours after we are notified of the loss; e. The time of loss inspection by us; or f. The time of other approval by us; 2. To the degree reasonably possible: a. Retain the damaged property; and b. Allow us to inspect, subject to 2.a. above, all damaged property prior to its removal from the “residence premises”; OI 5. Protect the covered property from further damage. The following must be performed: a. Take reasonable emergency measures that are necessary to protect the covered property from further damage, as provided under Additional Coverage E.2. A reasonably emergency measure under 5.a. above may include a permanent repair when necessary to protect the covered property from further damage or to prevent unwanted entry to the property. To the degree reasonably possibly, the damaged property must be retained for us to inspect; and b. Keep an accurate record of repair expenses. 12TWELFTH AFFIRMATIVE DEFENSE Defendant has satisfied and performed all of its obligations under the policy and in accordance with Florida Statute §627.7011(3)(a). To date, Plaintiffs has failed to demonstrate that additional amounts are due and owed under the policy pursuant to the loss settlement provisions contained within the Conditions section of the subject policy. The policy states: SECTION I- CONDITIONS * RK D. Loss Settlement. In this Condition D., the terms "cost to repair or replace" and "replacement cost" do not include a. Any compensation for actual or perceived reduction in the market value of any property; or b. The increased costs incurred to comply with the enforcement of any ordinance or law, except to the extent that coverage for these increased costs is provided in E.11. Ordinance Or Law under Section I —Property Coverages. Covered property losses, after the application of the deductible, are settled as follows: RK 2. Buildings covered under Coverage A or B at replacement cost without deduction for depreciation, subject to the following: a. If, at any time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately before the loss, we will pay the cost to repair or replace, without deduction for depreciation, but not more than the least of the following amounts: (1) The limit of liability under this policy that applies to the building; (2) The replacement cost of that part of the building damaged with material of like kind and quality and for like use; or (3) The necessary amount actually spent to repair or replace the damaged building. If the building is rebuilt at a new premises, the cost described in (2) above is limited to the cost which would have been incurred if the building had been built at the original premises. b. If, at the time of loss, the amount of insurance in this policy in the damaged building is less than 80% of the full replacement cost of the building immediately before the loss, we will pay the greater of the following amounts, but not more than the limit of liability under this policy that applies to the building: (1) The actual cash value of that part of the building damaged; or 13(2) That proportion of the cost to repair or replace, without deduction for depreciation, that part of the building damaged, which the total amount of insurance in this policy on the damaged building bears to 80% off the replacement cost of the building. IK d. We will initially pay the actual cash value of the loss, less any applicable deductible. We will then pay any remaining amounts necessary to perform the actual repair or replacement as work is performed and expenses are incurred subject to D.2.a. and D.2.b. If a total loss occurs, we will pay the full replacement cost without reservation or holdback of any depreciation in value. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ claim is barred because Plaintiffs filed suit prior to complying with the Policy’s express conditions. Specifically, before filing the instant lawsuit, Plaintiffs failed to provide prompt notice of the claimed loss; Plaintiffs failed to protect the Property from further damage; and Plaintiffs failed to comply with the Policy’s Loss Settlement condition. The Policy states: SECTION I - CONDITIONS ae ok H. Legal Action Against Us If you and we fail to agree on the settlement regarding the loss, prior to filing suit, you must notify us of your disagreement and intent to file suit in writing to allow us an opportunity to exercise our right to demand mediation. No action can be brought against us unless there has been full compliance with all of the terms under this policy and the action is started within 5 years after the date of loss. RESERVATION OF RIGHTS Plaintiffs’ loss may not have been fully disclosed, and therefore Defendant reserves the right to amend or supplement these Affirmative Defenses with additional information if and when such information is discovered. 14DEMAND FOR JURY TRIAL Defendant, FAMILY SECURITY INSURANCE COMPANY, hereby demands a trial by jury as to all issues so triable as a matter of right. WHEREFORE the Defendant, FAMILY SECURITY INSURANCE COMPANY, having answered the Plaintiffs’ Complaint and set forth its Affirmative Defenses, hereby demands judgment in its favor and against the Plaintiffs and prays that this cause be dismissed with costs and expenses taxed against the Plaintiffs. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-mail via the Florida Courts E-filing Portal system on this 24" day of February, 2020, upon: Aaron D. Silvers, Esq., Weisser Elazar & Kantor, PLLC, Counsel for Plaintiffs, 800 East Broward Blvd., Suite 510, Fort Lauderdale, FL; Service E-mail: as@weklaw.com; cbh@weklaw.com & pb@weklaw.com. BRESSLER, AMERY & Ross, P.C. 200 East Las Olas Blvd. Suite 1500 Fort Lauderdale, Florida 33301 T: 954.499.7979 F: 954.499.7969 E-Mail: miainsurance@bressler.com gplasencia@bressler.com hzelinger@bressler.com By: /s/_ DRAFT GABRIELA A. PLASENCIA Florida Bar No.: 115788 HOPE C. ZELINGER Florida Bar No.: 92173 15