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Filing # 100848337 E-Filed 12/27/2019 09:41:30 AM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA.
JESUS VILLEDA and JHANETH VILLEDA,
Plaintiffs,
v. CASE NUMBER: CACE-19-021344
CITIZENS PROPERTY INSURANCE CORPORATION,
Defendant. /
DEFENDANTS’ ANSWER, AFFIRMATIVE DEFENSES,
AND DEMAND FOR JURY TRIAL
COMES NOW Defendant Citizens Property Insurance Corporation, hereinafter
“Citizens” or “Defendant”, by and through its undersigned counsel, and files this Answer,
Affirmative Defenses and Demand for Jury Trial in response to Plaintiff's Complaint and, in
support thereof, states:
PARTIES, JURISDICTION AND VENUE
1. Defendant admits that Plaintiffs are alleging damages in excess of $15,000.00, as set
forth in Paragraph 1 of Plaintiffs’ Complaint for jurisdictional purposes only, but denies
all other allegations set forth in Paragraph 1 of Plaintiffs’ Complaint.
2. Defendant is without knowledge as to the allegations set forth in Paragraph 2 of the
Plaintiff's Complaint and therefore denies same and demands strict proof thereof.
3. Defendant admits, in part, that it is a non-profit government entity that is an integral
part of the State of Florida, as stated in Florida Statute § 627.351(6) and is authorized
to insure all properties located in the State of Florida. Defendant denies the remaining
allegations in Paragraph 3 of the Plaintiff's Amended Complaint.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/27/2019 09:41:30 AM.****. Defendant denies the allegations in Paragraph 4. Citizens is entitled to home venue
privilege; however, Citizens waives this right and will procced with litigation in
Broward County, Florida.
. Defendant denies the allegations set forth in Paragraph 5 of the Plaintiff's Complaint
and demands strict proof thereof.
GENERAL ALLEGATIONS
. Defendant admits that in consideration for the premiums paid to it, Defendant issued a
homeowner’s insurance policy, policy number 02178693 with effective dates of
coverage from October 16, 2018 to October 16, 2019, to Jesus Villeda and Jhaneth
Villeda, subject to the provisions, conditions, limitations, and exclusions of the policy
for the property located at 12708 NW 15" St., Sunrise, Florida 33323. Defendant
denies all other allegations in Paragraph 6 of Plaintiffs’ Complaint.
. Defendant admits that in consideration for the premiums paid to it, Defendant issued a
homeowner’s insurance policy, policy number 02178693 with effective dates of
coverage from October 16, 2018 to October 16, 2019, to Jesus Villeda and Jhaneth
Villeda, subject to the provisions, conditions, limitations, and exclusions of the policy
for the property located at 12708 NW 15" St., Sunrise, Florida 33323. Defendant
denies all other allegations in Paragraph 7 of Plaintiffs’ Complaint.
. Defendant admits that in consideration for the premiums paid to it, Defendant issued a
homeowner’s insurance policy, policy number 02178693 with effective dates of
coverage from October 16, 2018 to October 16, 2019, to Jesus Villeda and Jhaneth
Villeda, subject to the provisions, conditions, limitations, and exclusions of the policy10.
12.
13.
14.
15.
17.
for the property located at 12708 NW 15" St., Sunrise, Florida 33323. Defendant
denies all other allegations in Paragraph 8 of Plaintiffs’ Complaint.
Defendant denies the allegations set forth in Paragraph 9 of the Plaintiff's Complaint
and demands strict proof thereof.
. Defendant admits that it assigned Claim number ES to this matter.
Defendant denies all other allegations set forth in Paragraph 10 of Plaintiffs’
Complaint.
. Defendant admits it paid the Policy Limit to the Insureds and related parties. Defendant
denies all other allegations set forth in Paragraph 11 of Plaintiffs’ Complaint and
demands strict proof thereof.
Defendant is without knowledge as to the allegations set forth in Paragraph 12 of the
Plaintiff's Complaint and therefore denies same and demands strict proof thereof.
Defendant denies the allegations set forth in Paragraph 13 of the Plaintiff's Complaint
and demands strict proof thereof.
Defendant is without knowledge as to the allegations set forth in Paragraph 14 of the
Plaintiff's Complaint and therefore denies same and demands strict proof thereof.
Defendant is without knowledge as to the allegations set forth in Paragraph 15 of the
Plaintiff's Complaint and therefore denies same and demands strict proof thereof.
COUNT I~ BREACH OF CONTRACT
. Defendant restates and incorporates paragraphs 1 through 15 as if fully set forth herein.
Defendant admits that in consideration for the premiums paid to it, Defendant issued a
homeowner’s insurance policy, policy number 02178693 with effective dates of
coverage from October 16, 2018 to October 16, 2019, to Jesus Villeda and JhanethVilleda, subject to the provisions, conditions, limitations, and exclusions of the policy
for the property located at 12708 NW 15" St., Sunrise, Florida 33323. Defendant
denies all other allegations in Paragraph 17 of Plaintiffs’ Complaint.
18. Defendant denies the allegations set forth in Paragraph 18 of the Plaintiff's Complaint
and demands strict proof thereof.
19. Defendant denies the allegations set forth in Paragraph 19 of the Plaintiff's Complaint
and demands strict proof thereof.
20. Defendant denies the allegations set forth in Paragraph 20 of the Plaintiff's Complaint
and demands strict proof thereof.
21. Defendant denies the allegations set forth in Paragraph 21 of the Plaintiff's Complaint
and demands strict proof thereof.
AFFIRMATIVE DEFENSES
Citizens pleads limited affirmative defenses to Plaintiffs’ Complaint. Under Florida law,
a defendant is entitled to defend its case in two ways: (1) by challenging a Plaintiffs’ ability to
prove the essential elements of his or her claims, and (2) by asserting affirmative defenses that
seek to justify allegedly improper conduct, rather than to disprove it. In State v. Cohen, 568 So.
2d 49 (Fla. 1990), the Florida Supreme Court explained the difference between affirmative
defenses and defenses to liability as follows:
An “affirmative defense” is any defense that assumes the complaint
or charges to be correct but raises other facts that, if true, would
establish a valid excuse or justification or a right to engage in the
conduct in question. An affirmative defense does not concern itself
with elements of the offense at all; it concedes them.
Id. at 51-52. The Court explained that defenses that argue “Yes, I did it, but I had a good reason”
are affirmative defenses, while those that simply argue “I did not do it” are not affirmativedefenses. Id. See also Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992) (explaining that,
under Florida law, “a ‘defense’ is any allegation raised by the defendant that, if true, would defeat
or avoid the Plaintiffs’ cause of action”). That said, Citizens pleads the following affirmative
defenses:
FIRST AFFIRMATIVE DEFENSE
The liability of Defendant to Plaintiff(s), if any, is limited by the terms and conditions of
the Policy, including all exclusions, limitations, definitions and deductible provisions contained
therein. Specifically, DP-3 08 18 CITIZENS DWELLING PROPERTY 3 — SPECIAL FORM,
PERILS INSURED AGAINST, beginning on page 9 of 26 and provision A. 2. b. (7), under “We
do not cover loss:” letter (a) which outlines the applicable policy language regarding the system
or appliance which was the cause of loss and reads, in part:
(7) Accidental discharge or overflow of water or steam, unless loss to property
covered under Coverage A or B results from an accidental discharge or overflow
of water or steam from within a plumbing, heating, air conditioning or automatic
fire protective sprinkler system or household appliance on the Described
Location, subject to the $10,000 limit as set forth in 3. below.
Loss to property covered under Coverage A or B that results from an accidental
discharge or overflow of water or steam from within a plumbing, heating, air
conditioning or automatic fire protective sprinkler system or household appliance
on the Described Location includes, subject to the $10,000 limit as set forth in 3.
below, the cost to tear out and repair only that part or portion of a building or
other structure covered under Coverage A or B, on the Described Location,
necessary to access the system or appliance.
(a) The cost that we will pay for the tear out and repair of the part
or portion of the building or other structure covered under Coverage A or
B as specified above is limited to only that part or portion of the covered
building or other structure which is necessary to provide access to the part
or portion of the system or appliance that caused the covered loss, whether
the system or appliance, or any part or portion of the system or appliance,
is repairable or not.(b) In no event will we pay for the repair or the replacement of the
system or appliance that caused the covered loss.
SECON.
FFIRAMTIVE DEFENSE
The liability of Defendant to Plaintiff(s), if any, is limited by the terms and conditions of
the Policy, including all exclusions, limitations, definitions and deductible provisions contained
therein. Specifically, the Policy provision PERILS INSURED AGAINST A. Coverage A —
Dwelling And Coverage B — Other Structures reads:
3. A $10,000 limit on coverage applies and is the most we will pay for: a. Each
covered direct physical loss from all water or steam in paragraphs 2.b.(7) and
2.b.(10) above; and b. All cosmetic and aesthetic damage, which occurs in the
same loss as 3.a. above, including any repair or replacement of items to match
quality, color, or size. Payment for Reasonable Emergency Measures under
Coverages paragraph G.1., which occurs in the same loss as 3.a. above, will be
deducted from the $10,000 limit on coverage.
4. The $10,000 limit on coverage in 3. above does not apply if: a. At our option
we offer and you consent to participate in the services described under CIT 05
86; or b. Prior either to your incurring any costs for covered repairs or your
starting any covered repairs, you request and we do not offer the services
described under CIT 05 86 to you. In the event the $10,000 limit on coverage
does not apply, the Coverage A Limit Of Liability or Coverage B Limit Of
Liability, applicable to the damaged covered property, is the most we will pay.
THIRD AFFIRMATIVE DEFENSE
The liability of Defendant to Plaintiff(s), if any, is limited by the terms and conditions of
the Policy, including all exclusions, limitations, definitions and deductible provisions contained
therein. Specifically, Defendant offered to Plaintiff, and the Plaintiff did not accept or otherwise
independently request, the option to elect the Managed Repair Contractor Network Program as
described in the Policy Endorsement entitled “THIS ENDORSEMENT CHANGES THEPOLICY. PLEASE READ IT CAREFULLY. MANAGED REPAIR CONTRACTOR
NETWORK PROGRAM?” paragraph 4 reads:
4. This “Endorsement” does not increase the limit of liability or any other limit
that applies to the covered property. However, if at our option we offer and you
consent to participate in the Program, or prior either to your incurring any costs
for covered repairs or your starting any covered repairs, you request and we do
not offer the Program to you, the $10,000 limit on coverage set forth in
paragraphs A.3. and A.5. in CIT DP-3 under PERILS INSURED AGAINST, A.
Coverage A — Dwelling And Coverage B — Other Structures does not apply. In
the event the $10,000 limit on coverage does not apply, the Coverage A Limit Of
Liability or Coverage B Limit Of Liability, applicable to the damaged covered
property, is the most we will pay as provided in your Policy. 5. This
“Endorsement” does not in any manner alter or change the deductible provision in
your Policy.
FOURTH AFFIRMATIVE DEFENSE
Defendant affirmatively alleges that the subject claim includes repairs, services and/or
amounts that are excessive, unreasonable, unnecessary and/or unrelated to the reported loss.
Therefore, any recovery should be reduced by said excessive, unreasonable, unnecessary and/or
unrelated repairs.
SETOFF
Defendant affirmatively alleges that it is entitled to a setoff for all previous payments
totaling $10,000.00 issued under the controlling Policy.
RESERVATION OF DEFENSES
Citizens expressly reserves the right to amend and/or add additional defenses and
affirmative defenses as discovery and investigation continues.
DEMAND FOR JURY TRIAL
Citizens demands trial by jury on all issues it is entitled to as matter of right.CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been provided
via electronic correspondence to: Annette Del Aguila, Esq. at eservice@mellawyers.com and
mellaw7@mellawyers.com, on this 27" day of December, 2019.
RUBINTON & ASSOCIATES, P.A.
Bank of America Building
3801 Hollywood Blvd, Suite 300
Hollywood, Florida 33021
Telephone: 954-251-5500
Fax: 954-251-5501
By: /s/ Vida Jasaitis
JEFFREY A. RUBINTON, ESQ.
Florida Bar: 821756
VIDA JASAITIS, ESQ.
Florida Bar: 245800
Primary E-Mail: vjasaitis@rubintonlaw.com
Secondary E-Mail: jlarsen@rubintonlaw.com
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Filing # 100848337 E-Filed 12/27/2019 09:41:30 AM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA. JESUS VILLEDA and JHANETH VILLEDA, Plaintiffs, v. CASE NUMBER: CACE-19-021344 CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. / DEFENDANTS’ ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL COMES NOW Defendant Citizens Property Insurance Corporation, hereinafter “Citizens” or “Defendant”, by and through its undersigned counsel, and files this Answer, Affirmative Defenses and Demand for Jury Trial in response to Plaintiff's Complaint and, in support thereof, states: PARTIES, JURISDICTION AND VENUE 1. Defendant admits that Plaintiffs are alleging damages in excess of $15,000.00, as set forth in Paragraph 1 of Plaintiffs’ Complaint for jurisdictional purposes only, but denies all other allegations set forth in Paragraph 1 of Plaintiffs’ Complaint. 2. Defendant is without knowledge as to the allegations set forth in Paragraph 2 of the Plaintiff's Complaint and therefore denies same and demands strict proof thereof. 3. Defendant admits, in part, that it is a non-profit government entity that is an integral part of the State of Florida, as stated in Florida Statute § 627.351(6) and is authorized to insure all properties located in the State of Florida. Defendant denies the remaining allegations in Paragraph 3 of the Plaintiff's Amended Complaint. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/27/2019 09:41:30 AM.****. Defendant denies the allegations in Paragraph 4. Citizens is entitled to home venue privilege; however, Citizens waives this right and will procced with litigation in Broward County, Florida. . Defendant denies the allegations set forth in Paragraph 5 of the Plaintiff's Complaint and demands strict proof thereof. GENERAL ALLEGATIONS . Defendant admits that in consideration for the premiums paid to it, Defendant issued a homeowner’s insurance policy, policy number 02178693 with effective dates of coverage from October 16, 2018 to October 16, 2019, to Jesus Villeda and Jhaneth Villeda, subject to the provisions, conditions, limitations, and exclusions of the policy for the property located at 12708 NW 15" St., Sunrise, Florida 33323. Defendant denies all other allegations in Paragraph 6 of Plaintiffs’ Complaint. . Defendant admits that in consideration for the premiums paid to it, Defendant issued a homeowner’s insurance policy, policy number 02178693 with effective dates of coverage from October 16, 2018 to October 16, 2019, to Jesus Villeda and Jhaneth Villeda, subject to the provisions, conditions, limitations, and exclusions of the policy for the property located at 12708 NW 15" St., Sunrise, Florida 33323. Defendant denies all other allegations in Paragraph 7 of Plaintiffs’ Complaint. . Defendant admits that in consideration for the premiums paid to it, Defendant issued a homeowner’s insurance policy, policy number 02178693 with effective dates of coverage from October 16, 2018 to October 16, 2019, to Jesus Villeda and Jhaneth Villeda, subject to the provisions, conditions, limitations, and exclusions of the policy10. 12. 13. 14. 15. 17. for the property located at 12708 NW 15" St., Sunrise, Florida 33323. Defendant denies all other allegations in Paragraph 8 of Plaintiffs’ Complaint. Defendant denies the allegations set forth in Paragraph 9 of the Plaintiff's Complaint and demands strict proof thereof. . Defendant admits that it assigned Claim number ES to this matter. Defendant denies all other allegations set forth in Paragraph 10 of Plaintiffs’ Complaint. . Defendant admits it paid the Policy Limit to the Insureds and related parties. Defendant denies all other allegations set forth in Paragraph 11 of Plaintiffs’ Complaint and demands strict proof thereof. Defendant is without knowledge as to the allegations set forth in Paragraph 12 of the Plaintiff's Complaint and therefore denies same and demands strict proof thereof. Defendant denies the allegations set forth in Paragraph 13 of the Plaintiff's Complaint and demands strict proof thereof. Defendant is without knowledge as to the allegations set forth in Paragraph 14 of the Plaintiff's Complaint and therefore denies same and demands strict proof thereof. Defendant is without knowledge as to the allegations set forth in Paragraph 15 of the Plaintiff's Complaint and therefore denies same and demands strict proof thereof. COUNT I~ BREACH OF CONTRACT . Defendant restates and incorporates paragraphs 1 through 15 as if fully set forth herein. Defendant admits that in consideration for the premiums paid to it, Defendant issued a homeowner’s insurance policy, policy number 02178693 with effective dates of coverage from October 16, 2018 to October 16, 2019, to Jesus Villeda and JhanethVilleda, subject to the provisions, conditions, limitations, and exclusions of the policy for the property located at 12708 NW 15" St., Sunrise, Florida 33323. Defendant denies all other allegations in Paragraph 17 of Plaintiffs’ Complaint. 18. Defendant denies the allegations set forth in Paragraph 18 of the Plaintiff's Complaint and demands strict proof thereof. 19. Defendant denies the allegations set forth in Paragraph 19 of the Plaintiff's Complaint and demands strict proof thereof. 20. Defendant denies the allegations set forth in Paragraph 20 of the Plaintiff's Complaint and demands strict proof thereof. 21. Defendant denies the allegations set forth in Paragraph 21 of the Plaintiff's Complaint and demands strict proof thereof. AFFIRMATIVE DEFENSES Citizens pleads limited affirmative defenses to Plaintiffs’ Complaint. Under Florida law, a defendant is entitled to defend its case in two ways: (1) by challenging a Plaintiffs’ ability to prove the essential elements of his or her claims, and (2) by asserting affirmative defenses that seek to justify allegedly improper conduct, rather than to disprove it. In State v. Cohen, 568 So. 2d 49 (Fla. 1990), the Florida Supreme Court explained the difference between affirmative defenses and defenses to liability as follows: An “affirmative defense” is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question. An affirmative defense does not concern itself with elements of the offense at all; it concedes them. Id. at 51-52. The Court explained that defenses that argue “Yes, I did it, but I had a good reason” are affirmative defenses, while those that simply argue “I did not do it” are not affirmativedefenses. Id. See also Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992) (explaining that, under Florida law, “a ‘defense’ is any allegation raised by the defendant that, if true, would defeat or avoid the Plaintiffs’ cause of action”). That said, Citizens pleads the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE The liability of Defendant to Plaintiff(s), if any, is limited by the terms and conditions of the Policy, including all exclusions, limitations, definitions and deductible provisions contained therein. Specifically, DP-3 08 18 CITIZENS DWELLING PROPERTY 3 — SPECIAL FORM, PERILS INSURED AGAINST, beginning on page 9 of 26 and provision A. 2. b. (7), under “We do not cover loss:” letter (a) which outlines the applicable policy language regarding the system or appliance which was the cause of loss and reads, in part: (7) Accidental discharge or overflow of water or steam, unless loss to property covered under Coverage A or B results from an accidental discharge or overflow of water or steam from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance on the Described Location, subject to the $10,000 limit as set forth in 3. below. Loss to property covered under Coverage A or B that results from an accidental discharge or overflow of water or steam from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance on the Described Location includes, subject to the $10,000 limit as set forth in 3. below, the cost to tear out and repair only that part or portion of a building or other structure covered under Coverage A or B, on the Described Location, necessary to access the system or appliance. (a) The cost that we will pay for the tear out and repair of the part or portion of the building or other structure covered under Coverage A or B as specified above is limited to only that part or portion of the covered building or other structure which is necessary to provide access to the part or portion of the system or appliance that caused the covered loss, whether the system or appliance, or any part or portion of the system or appliance, is repairable or not.(b) In no event will we pay for the repair or the replacement of the system or appliance that caused the covered loss. SECON. FFIRAMTIVE DEFENSE The liability of Defendant to Plaintiff(s), if any, is limited by the terms and conditions of the Policy, including all exclusions, limitations, definitions and deductible provisions contained therein. Specifically, the Policy provision PERILS INSURED AGAINST A. Coverage A — Dwelling And Coverage B — Other Structures reads: 3. A $10,000 limit on coverage applies and is the most we will pay for: a. Each covered direct physical loss from all water or steam in paragraphs 2.b.(7) and 2.b.(10) above; and b. All cosmetic and aesthetic damage, which occurs in the same loss as 3.a. above, including any repair or replacement of items to match quality, color, or size. Payment for Reasonable Emergency Measures under Coverages paragraph G.1., which occurs in the same loss as 3.a. above, will be deducted from the $10,000 limit on coverage. 4. The $10,000 limit on coverage in 3. above does not apply if: a. At our option we offer and you consent to participate in the services described under CIT 05 86; or b. Prior either to your incurring any costs for covered repairs or your starting any covered repairs, you request and we do not offer the services described under CIT 05 86 to you. In the event the $10,000 limit on coverage does not apply, the Coverage A Limit Of Liability or Coverage B Limit Of Liability, applicable to the damaged covered property, is the most we will pay. THIRD AFFIRMATIVE DEFENSE The liability of Defendant to Plaintiff(s), if any, is limited by the terms and conditions of the Policy, including all exclusions, limitations, definitions and deductible provisions contained therein. Specifically, Defendant offered to Plaintiff, and the Plaintiff did not accept or otherwise independently request, the option to elect the Managed Repair Contractor Network Program as described in the Policy Endorsement entitled “THIS ENDORSEMENT CHANGES THEPOLICY. PLEASE READ IT CAREFULLY. MANAGED REPAIR CONTRACTOR NETWORK PROGRAM?” paragraph 4 reads: 4. This “Endorsement” does not increase the limit of liability or any other limit that applies to the covered property. However, if at our option we offer and you consent to participate in the Program, or prior either to your incurring any costs for covered repairs or your starting any covered repairs, you request and we do not offer the Program to you, the $10,000 limit on coverage set forth in paragraphs A.3. and A.5. in CIT DP-3 under PERILS INSURED AGAINST, A. Coverage A — Dwelling And Coverage B — Other Structures does not apply. In the event the $10,000 limit on coverage does not apply, the Coverage A Limit Of Liability or Coverage B Limit Of Liability, applicable to the damaged covered property, is the most we will pay as provided in your Policy. 5. This “Endorsement” does not in any manner alter or change the deductible provision in your Policy. FOURTH AFFIRMATIVE DEFENSE Defendant affirmatively alleges that the subject claim includes repairs, services and/or amounts that are excessive, unreasonable, unnecessary and/or unrelated to the reported loss. Therefore, any recovery should be reduced by said excessive, unreasonable, unnecessary and/or unrelated repairs. SETOFF Defendant affirmatively alleges that it is entitled to a setoff for all previous payments totaling $10,000.00 issued under the controlling Policy. RESERVATION OF DEFENSES Citizens expressly reserves the right to amend and/or add additional defenses and affirmative defenses as discovery and investigation continues. DEMAND FOR JURY TRIAL Citizens demands trial by jury on all issues it is entitled to as matter of right.CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been provided via electronic correspondence to: Annette Del Aguila, Esq. at eservice@mellawyers.com and mellaw7@mellawyers.com, on this 27" day of December, 2019. RUBINTON & ASSOCIATES, P.A. Bank of America Building 3801 Hollywood Blvd, Suite 300 Hollywood, Florida 33021 Telephone: 954-251-5500 Fax: 954-251-5501 By: /s/ Vida Jasaitis JEFFREY A. RUBINTON, ESQ. Florida Bar: 821756 VIDA JASAITIS, ESQ. Florida Bar: 245800 Primary E-Mail: vjasaitis@rubintonlaw.com Secondary E-Mail: jlarsen@rubintonlaw.com