Preview
Filing # 103955125 E-Filed 02/26/2020 03:05:14 PM
20-9562
MRP/fib
IN THE CIRCUIT COURT OF THE 17”
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
JIMMY AMAYA & AMELIS RAMOS, CASE NO. CACE 19-021027 (04)
(Judge Sandra Perlman)
Plaintiff,
v.
CITIZENS PROPERTY INSURANCE
CORPORATION,
Defendant.
/
DEFENDANT, CITIZENS PROPERTY INSURANCE CORPORATION’S
MOTION TO DISMISS COUNT I OF PLAINTIFF’S COMPLAIN’
COMES NOW, Defendant, CITIZENS PROPERTY INSURANCE
CORPORATION, a Florida government entity, pursuant to Fla. Stat. § 627.351 (6), (hereafter
“Citizens”), by and through its undersigned counsel, files it Motion to Dismiss Count II for
Declaratory Judgment and states as follows:
1. Citizens issued a homeowner’s policy of insurance to named insureds Jimmy Amaya
and Amelis Ramos bearing Policy No. 02411300-1, for the period of May 1, 2017 through May 1,
2018, for the property located at 6635 Hood Street, Hollywood, Florida 33024-2910 (since renamed
to Hope Street), that was at all times subject to the terms, conditions, limitations, exclusions, and
endorsements contained herein.
2. During the effective policy period, the Insured property allegedly sustained property
damage as the result of Hurricane Irma, which occurred on or around September 10, 2017. See copy
of Plaintiff's Complaint on file with the Court.
3. Following the report of the loss by the Plaintiff, Citizens assigned Claim Number
001-00-135685 to the reported loss and, after investigating the claim, Citizens has made multiple
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/26/2020 03:05:14 PM.****Jimmy Amaya & Amelis Ramos v. Citizens
CASE NO. CACE 19-021027 (04)
payments to the insured’s to cover their claim damages. [Exhibit B — payment letters dated October
3, 2017 and October 25, 2019.]
4. Thereafter, the Plaintiff initiated the instant action alleging breach of contract, as well
as seeking a declaration of coverage under the policy stemming from the exact same claim.
5. More specifically, the Complaint purports to set forth a cause of action for
declaratory relief but fails to state a valid cause of action under Florida law.
6. Prior to filing a responsive pleading, a Defendant may file a motion to dismiss for
failure to state a claim upon which relief can be granted. Fla. R. Civ. P. 1.140(b). In reviewing a
motion to dismiss, the court is confined to the allegations contained within the four corners of the
complaint and must accept all well plead allegations as true. Froom v. Rosen, 692 So. 2d 1006 (Fla.
3d DCA 1997); See Froonjian v. Ultimate Combatant, LLC, 169 So. 3d 151, 153 (Fla. 3d DCA
1998); Corbett v. Eastern Air Lines, Inc., 166 So. 2d 196, 203 (Fla. ls DCA 1964); The Fla. Bar v.
Greene, 926 So. 2d 1195, 1199 (Fla. 2006); Susan Fixel, Inc. V. Rosenthal & Rosenthal, Inc. 842 So.
2d 204, 206 (Fla. 3d DCA 2003).
7. The function of a motion to dismiss a complaint is to, as a matter of law, question the
sufficiency of the facts alleged to state a cause of action; moreover, a court is not permitted to
speculate as to whether a Plaintiff has any prospect of proving the allegations. Chaires v. North
Florida Nat. Bank, 432 So. 2d 183, 184 (Fla. 1* DCA 1983). Although a court should favorably
construe Plaintiffs’ factual allegation for purposes of a motion to dismiss, it need not accept
Plaintiffs’ conclusory allegations and unwarranted deductions of fact. See Valdes v. GAB Robins N.
Am., Inc., 924 So. 2d 862, 867 (Fla. 3d DCA 2006); Stander v. Dispoz-O-Prods., Inc., 973 So. 2d
603, 605 (Fla. 4" DCA 2008).
8. A declaratory judgment action is proper where it is used to settle the meaning of
ambiguous language, such as clauses in an insurance policy, with regards to which a Petitioner isJimmy Amaya & Amelis Ramos v. Citizens
CASE NO. CACE 19-021027 (04)
in doubt. Kelner v. Woody, 399 So.2d 35, 37 (Fla. 3d DCA 1981); see also, Conley v. Morley
Realty Corp 575 So 2d 253, 255 (Fla. 3d DCA 1991).
9. The Plaintiff specifically alleges that there is “doubt, that they are entitled to full
coverage under the policy,” See Plaintiff's Complaint, 17, and further state “the Plaintiffs believe,
but are in doubt, that the subject policy and Florida law require Citizens to restore the property to its
pre-loss condition,” see Plaintiff's Complaint, 18, “the Plaintiff's believe but are in doubt that the
subject policy and Fla. Stat. § 626.9744 requires Citizens to repair/replace any adjoining undamaged
portions of the home’s interior walls,” see Plaintiff's Complaint, § 19, and “the Plaintiff's believe but
are in doubt, that the policy and Fla. Stat. § 626.9744 requires Citizens to repair/replace any
adjoining undamaged portions of the home’s floors.” See Plaintiff's Complaint, 20.
10. Moreover, Plaintiff seemingly asked the Court to make various coverage
determinations in their “’Wherefore” clause sections A — K.
ll. However, Plaintiff's Count II for Declaratory Relief must be dismissed, as the
Plaintiff has failed to plead a valid cause of action upon which declaratory relief can be granted in
accordance with Florida Statute §86.021.
12. The Plaintiff fails to allege any ambiguity in the subject policy and fails to satisfy the
pleading requirements of Florida Statute §86.021. In this respect, Florida Statute §86.021 states in
pertinent part as follows:
Any person claiming to be interested or who may be in doubt about his or her rights
under a deed, will, contract, or other article, memorandum, or instrument in writing or
whose rights, status, or other equitable or legal relations are affected by a statute, or any
regulation made under statutory authority, or by municipal ordinance, contract, deed,
will, franchise, or other article, memorandum or instrument in writing may have
determined any question of construction or validity arising under such statute,
regulation, municipal ordinance, contract, deed, will, franchise, or other article,
memorandum, or instrument in writing, or any part thereof, and obtain a declaration of
rights, status, or other equitable or legal relations thereunder.
The standard for testing the sufficiency of a declaratory judgment claim is a follows:Jimmy Amaya & Amelis Ramos v. Citizens
CASE NO. CACE 19-021027 (04)
(a) There should be clearly made to appear that there is a bona fide, actual, present
and practical need for the declaration;
(b) That the declaration should deal with present, ascertained or ascertainable state of
facts or present controversy as to the state of facts;
(c) That some privilege or right of the complaining party is dependent upon fact or law
applicable to the facts;
(d) That there is some person(s) who have or reasonable may have actual, present,
adverse and antagonist interest in the subject matter, either in fact or in law; and
(e) The antagonistic and adverse interests are all before the Court by proper process
and that the relief sought is not solely giving legal advice by courts or answers to
questions propounded from curiosity.
13. The Plaintiffs claim for declaratory relief must be dismissed as Florida courts have
stated that declaratory relief is not available to a party seeking the determination of factual issues of a
clear and unambiguous insurance contract, where there is no need for the construction or
interpretation of legal rights. See Traveler’ Insurance Co. v. Kemp, 579 So. 2d 798 (Fla. Ist DCA
1991); Bums v. Hartford Ace. & Indem. Co., 157 So. 2d 84 (Fla. 1963); New Amsterdam Cas.
Co. v. Intercity Supply Corp., 212 So. 2d 110 (Fla. 1968). "Under fundamental principles of
separation of powers, courts cannot judicially alter the wording of statutes where the
Legislature clearly has not done so. A court's function is to interpret statutes as they are written
and give effect to each word in the statute." Department of Revenue v. Florida Municipal Power
Agency, 789 So. 2d 320,324 (Fla. 2001).
14. It is well settled in Florida that mere doubt, arising out of disputed questions of fact
(in contrast with a contractual ambiguity), is insufficient to render declaratory relief a proper remedy.
See Barrett v. Pickard, 85 So. 2d 630 (Fla. 1956); see also Perez v. State Automobile Ins. Ass’n, 270
So. 2d 377 (Fla. DCA 1972); Burns v. Hartford Accident & Indemnity Co., 157 So. 2d 84 (Fla. 3d
DCA 1963); Santa Rosa County v. Administrative Commissions, 661 So. 2d 1190 (Fla. 1995).
15. Moreover, actions seeking declaratory relief may not constitute advisory opinions and
are not meant to advise attorneys as to the proper path to pursue in any particular action. See KelnerJimmy Amaya & Amelis Ramos v. Citizens
CASE NO. CACE 19-021027 (04)
v. Woody, 399 So. 2d 38 (Fla. 3d DCA 1981); see also May v. Holley, 59 So. 2d 636 (Fla. 1952);
Deen v. Weaver, 47 So. 2d 539 (Fla. 1950).
16. In the instant matter, the Plaintiff fails to indicate a particular question of construction
or validity arising under the contract. Further, the Plaintiff fails to provide the ambiguous policy
provision and/or language allegedly rendering the contract unclear.
17. The Plaintiff is attempting to ask the Court to issue an advisory opinion to relieve its
alleged doubts as to the existence of coverage under the subject insurance policy, and to determine
that the property sustained a covered loss.
18. The instant action can be resolved in its entirety in the claim for breach of contract
and therefore the claim for declaratory relief is duplicative and should be dismissed. Pursuant to
Mcintosh v. Harbour Club Villas Condominium Ass'n, 468 So. 2d 1075 (Fla. 3d DCA 1985),
“a trial court should not entertain an action for declaratory judgment on issues which are properly
raised in other counts of the pleadings and already before the court through which the plaintiff will be
able to secure full, adequate and complete relief.” See also Kies v. Florida Insurance Guaranty
Association, 435 So. 2d 410, 411 (FI. 5" DCA 1983).
19. The instant policy of insurance is clear and unambiguous, and the Plaintiff fails to
set forth facts in the Complaint to the contrary. It is clear that the Plaintiff requests declaratory
relief to settle purely factual issues and, thus, under well settled Florida law, declaratory relief is
neither an available nor appropriate remedy for the relief sought by Plaintiff in this action.
20. Therefore, Plaintiff fails to state a cause of action which would entitle it to a
declaratory judgment against Citizens.
21. Here, the claim for declaratory relief presents the exact same issues of fact as
those presented in the claim for breach of contract. As such, the purported cause of action for
declaratory relief fails.Jimmy Amaya & Amelis Ramos v. Citizens
CASE NO. CACE 19-021027 (04)
22. It is clear Plaintiff is able to enforce the insurance policy as pled in Count I -Breach
of Contract, and therefore, declaratory relief is unwarranted.
23. Based on the foregoing, the Plaintiff has failed to state a cause of action for which
this Honorable Court can grant relief. Therefore, the claim for declaratory relief should be dismissed.
WHEREFORE, the Defendant, CITIZENS PROPERTY INSURANCE CORPORATION,
requests that this Honorable Court enter an Order dismissing Count II of Plaintiff's Complaint for
Declaratory Judgment, with prejudice, and grant any such relief this Court deems just and proper
under the circumstances.
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been sent
by e-mail on this the 26th day of February, 2020, to Daniel Cruz, Esq., The Diener Firm, P.A.,
Attorneys for Plaintiff, service@dienerfirm.com, daniel@dienerfirm.com, alissa@dienerfirm.com.
BRONSTEIN & CARMONA, P.A.
Attorneys for Defendant
8000 Peters Road, Suite A-200
Fort Lauderdale, FL 33324
(954) 358-0444 — Phone
(954) 358-0445 — Fax
service@bronstein-carmona.com
By: /s/
Michael R. Podolsky
Florida Bar No: 105484
Preview
Filing # 103955125 E-Filed 02/26/2020 03:05:14 PM 20-9562 MRP/fib IN THE CIRCUIT COURT OF THE 17” JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA JIMMY AMAYA & AMELIS RAMOS, CASE NO. CACE 19-021027 (04) (Judge Sandra Perlman) Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. / DEFENDANT, CITIZENS PROPERTY INSURANCE CORPORATION’S MOTION TO DISMISS COUNT I OF PLAINTIFF’S COMPLAIN’ COMES NOW, Defendant, CITIZENS PROPERTY INSURANCE CORPORATION, a Florida government entity, pursuant to Fla. Stat. § 627.351 (6), (hereafter “Citizens”), by and through its undersigned counsel, files it Motion to Dismiss Count II for Declaratory Judgment and states as follows: 1. Citizens issued a homeowner’s policy of insurance to named insureds Jimmy Amaya and Amelis Ramos bearing Policy No. 02411300-1, for the period of May 1, 2017 through May 1, 2018, for the property located at 6635 Hood Street, Hollywood, Florida 33024-2910 (since renamed to Hope Street), that was at all times subject to the terms, conditions, limitations, exclusions, and endorsements contained herein. 2. During the effective policy period, the Insured property allegedly sustained property damage as the result of Hurricane Irma, which occurred on or around September 10, 2017. See copy of Plaintiff's Complaint on file with the Court. 3. Following the report of the loss by the Plaintiff, Citizens assigned Claim Number 001-00-135685 to the reported loss and, after investigating the claim, Citizens has made multiple *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/26/2020 03:05:14 PM.****Jimmy Amaya & Amelis Ramos v. Citizens CASE NO. CACE 19-021027 (04) payments to the insured’s to cover their claim damages. [Exhibit B — payment letters dated October 3, 2017 and October 25, 2019.] 4. Thereafter, the Plaintiff initiated the instant action alleging breach of contract, as well as seeking a declaration of coverage under the policy stemming from the exact same claim. 5. More specifically, the Complaint purports to set forth a cause of action for declaratory relief but fails to state a valid cause of action under Florida law. 6. Prior to filing a responsive pleading, a Defendant may file a motion to dismiss for failure to state a claim upon which relief can be granted. Fla. R. Civ. P. 1.140(b). In reviewing a motion to dismiss, the court is confined to the allegations contained within the four corners of the complaint and must accept all well plead allegations as true. Froom v. Rosen, 692 So. 2d 1006 (Fla. 3d DCA 1997); See Froonjian v. Ultimate Combatant, LLC, 169 So. 3d 151, 153 (Fla. 3d DCA 1998); Corbett v. Eastern Air Lines, Inc., 166 So. 2d 196, 203 (Fla. ls DCA 1964); The Fla. Bar v. Greene, 926 So. 2d 1195, 1199 (Fla. 2006); Susan Fixel, Inc. V. Rosenthal & Rosenthal, Inc. 842 So. 2d 204, 206 (Fla. 3d DCA 2003). 7. The function of a motion to dismiss a complaint is to, as a matter of law, question the sufficiency of the facts alleged to state a cause of action; moreover, a court is not permitted to speculate as to whether a Plaintiff has any prospect of proving the allegations. Chaires v. North Florida Nat. Bank, 432 So. 2d 183, 184 (Fla. 1* DCA 1983). Although a court should favorably construe Plaintiffs’ factual allegation for purposes of a motion to dismiss, it need not accept Plaintiffs’ conclusory allegations and unwarranted deductions of fact. See Valdes v. GAB Robins N. Am., Inc., 924 So. 2d 862, 867 (Fla. 3d DCA 2006); Stander v. Dispoz-O-Prods., Inc., 973 So. 2d 603, 605 (Fla. 4" DCA 2008). 8. A declaratory judgment action is proper where it is used to settle the meaning of ambiguous language, such as clauses in an insurance policy, with regards to which a Petitioner isJimmy Amaya & Amelis Ramos v. Citizens CASE NO. CACE 19-021027 (04) in doubt. Kelner v. Woody, 399 So.2d 35, 37 (Fla. 3d DCA 1981); see also, Conley v. Morley Realty Corp 575 So 2d 253, 255 (Fla. 3d DCA 1991). 9. The Plaintiff specifically alleges that there is “doubt, that they are entitled to full coverage under the policy,” See Plaintiff's Complaint, 17, and further state “the Plaintiffs believe, but are in doubt, that the subject policy and Florida law require Citizens to restore the property to its pre-loss condition,” see Plaintiff's Complaint, 18, “the Plaintiff's believe but are in doubt that the subject policy and Fla. Stat. § 626.9744 requires Citizens to repair/replace any adjoining undamaged portions of the home’s interior walls,” see Plaintiff's Complaint, § 19, and “the Plaintiff's believe but are in doubt, that the policy and Fla. Stat. § 626.9744 requires Citizens to repair/replace any adjoining undamaged portions of the home’s floors.” See Plaintiff's Complaint, 20. 10. Moreover, Plaintiff seemingly asked the Court to make various coverage determinations in their “’Wherefore” clause sections A — K. ll. However, Plaintiff's Count II for Declaratory Relief must be dismissed, as the Plaintiff has failed to plead a valid cause of action upon which declaratory relief can be granted in accordance with Florida Statute §86.021. 12. The Plaintiff fails to allege any ambiguity in the subject policy and fails to satisfy the pleading requirements of Florida Statute §86.021. In this respect, Florida Statute §86.021 states in pertinent part as follows: Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder. The standard for testing the sufficiency of a declaratory judgment claim is a follows:Jimmy Amaya & Amelis Ramos v. Citizens CASE NO. CACE 19-021027 (04) (a) There should be clearly made to appear that there is a bona fide, actual, present and practical need for the declaration; (b) That the declaration should deal with present, ascertained or ascertainable state of facts or present controversy as to the state of facts; (c) That some privilege or right of the complaining party is dependent upon fact or law applicable to the facts; (d) That there is some person(s) who have or reasonable may have actual, present, adverse and antagonist interest in the subject matter, either in fact or in law; and (e) The antagonistic and adverse interests are all before the Court by proper process and that the relief sought is not solely giving legal advice by courts or answers to questions propounded from curiosity. 13. The Plaintiffs claim for declaratory relief must be dismissed as Florida courts have stated that declaratory relief is not available to a party seeking the determination of factual issues of a clear and unambiguous insurance contract, where there is no need for the construction or interpretation of legal rights. See Traveler’ Insurance Co. v. Kemp, 579 So. 2d 798 (Fla. Ist DCA 1991); Bums v. Hartford Ace. & Indem. Co., 157 So. 2d 84 (Fla. 1963); New Amsterdam Cas. Co. v. Intercity Supply Corp., 212 So. 2d 110 (Fla. 1968). "Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so. A court's function is to interpret statutes as they are written and give effect to each word in the statute." Department of Revenue v. Florida Municipal Power Agency, 789 So. 2d 320,324 (Fla. 2001). 14. It is well settled in Florida that mere doubt, arising out of disputed questions of fact (in contrast with a contractual ambiguity), is insufficient to render declaratory relief a proper remedy. See Barrett v. Pickard, 85 So. 2d 630 (Fla. 1956); see also Perez v. State Automobile Ins. Ass’n, 270 So. 2d 377 (Fla. DCA 1972); Burns v. Hartford Accident & Indemnity Co., 157 So. 2d 84 (Fla. 3d DCA 1963); Santa Rosa County v. Administrative Commissions, 661 So. 2d 1190 (Fla. 1995). 15. Moreover, actions seeking declaratory relief may not constitute advisory opinions and are not meant to advise attorneys as to the proper path to pursue in any particular action. See KelnerJimmy Amaya & Amelis Ramos v. Citizens CASE NO. CACE 19-021027 (04) v. Woody, 399 So. 2d 38 (Fla. 3d DCA 1981); see also May v. Holley, 59 So. 2d 636 (Fla. 1952); Deen v. Weaver, 47 So. 2d 539 (Fla. 1950). 16. In the instant matter, the Plaintiff fails to indicate a particular question of construction or validity arising under the contract. Further, the Plaintiff fails to provide the ambiguous policy provision and/or language allegedly rendering the contract unclear. 17. The Plaintiff is attempting to ask the Court to issue an advisory opinion to relieve its alleged doubts as to the existence of coverage under the subject insurance policy, and to determine that the property sustained a covered loss. 18. The instant action can be resolved in its entirety in the claim for breach of contract and therefore the claim for declaratory relief is duplicative and should be dismissed. Pursuant to Mcintosh v. Harbour Club Villas Condominium Ass'n, 468 So. 2d 1075 (Fla. 3d DCA 1985), “a trial court should not entertain an action for declaratory judgment on issues which are properly raised in other counts of the pleadings and already before the court through which the plaintiff will be able to secure full, adequate and complete relief.” See also Kies v. Florida Insurance Guaranty Association, 435 So. 2d 410, 411 (FI. 5" DCA 1983). 19. The instant policy of insurance is clear and unambiguous, and the Plaintiff fails to set forth facts in the Complaint to the contrary. It is clear that the Plaintiff requests declaratory relief to settle purely factual issues and, thus, under well settled Florida law, declaratory relief is neither an available nor appropriate remedy for the relief sought by Plaintiff in this action. 20. Therefore, Plaintiff fails to state a cause of action which would entitle it to a declaratory judgment against Citizens. 21. Here, the claim for declaratory relief presents the exact same issues of fact as those presented in the claim for breach of contract. As such, the purported cause of action for declaratory relief fails.Jimmy Amaya & Amelis Ramos v. Citizens CASE NO. CACE 19-021027 (04) 22. It is clear Plaintiff is able to enforce the insurance policy as pled in Count I -Breach of Contract, and therefore, declaratory relief is unwarranted. 23. Based on the foregoing, the Plaintiff has failed to state a cause of action for which this Honorable Court can grant relief. Therefore, the claim for declaratory relief should be dismissed. WHEREFORE, the Defendant, CITIZENS PROPERTY INSURANCE CORPORATION, requests that this Honorable Court enter an Order dismissing Count II of Plaintiff's Complaint for Declaratory Judgment, with prejudice, and grant any such relief this Court deems just and proper under the circumstances. I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been sent by e-mail on this the 26th day of February, 2020, to Daniel Cruz, Esq., The Diener Firm, P.A., Attorneys for Plaintiff, service@dienerfirm.com, daniel@dienerfirm.com, alissa@dienerfirm.com. BRONSTEIN & CARMONA, P.A. Attorneys for Defendant 8000 Peters Road, Suite A-200 Fort Lauderdale, FL 33324 (954) 358-0444 — Phone (954) 358-0445 — Fax service@bronstein-carmona.com By: /s/ Michael R. Podolsky Florida Bar No: 105484