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wes CASE NUMBER: 502021CA010075XXXXMB Div: AN ****
Filing # 133401114 E-Filed 08/25/2021 02:35:46 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT,
IN AND FOR PALM BEACH COUNTY, FLORIDA
DOMINIQUE HOWARD,
Plaintiff,
v. CASE NO.:
munT AR TET ALTA FAK AAT
LIP LAr UNSURANUB CUTAN TI,
Defendant.
/
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff sues Defendant and alleges:
1. This is an action for damages that exceeds Thirty Thousand Dollars ($30,000.00) exclusive
of interest, costs, and attorney's fees.
2. At all times material hereto, in consideration of a premium paid by Plaintiff, there was in
full force and effect a certain nronerty insurance nolicv issued hy Defendant with a nolicv
number of 12- 1009137-01 (Policy). A copy of the Policy is incorporated by reference as
Plaintiff does not have a full copy of the Policy in Plaintiff's possession, custody, or
control.
3. Accordingly, under the terms of the Policy, Defendant agreed to provide insurance
coverage to Plaintiffs property against certain losses.
4. Plaintiff's property is located at 690 West 37th Street, West Palm Beach, FL 33404
(Property).
5. While the Policy was in full force and effect, the Property was damaged (Loss).
6. Promptly thereafter Plaintiff reported the Loss to Defendant.
7. Accordingly, Defendant assigned claim number 12-3000218-19 to the Loss and
investigated the Loss.
CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FLED NainEINNN, NO.26- Ae DNA
PILL. PAL DLA VUUINE TT, PL, JUOL IE mDNUeeY, ULLIAN, Yureui2ue | Ue.0u.tU Fit8. Subsequently, Defendant failed to adjust the Loss pursuant to the unambiguous terms of
the Policy.
9. By failing to adjust the Loss pursuant to the unambiguous terms of the Policy, Defendant
has materially breached the Policy.
10. Plaintiff suffered and continues to suffer damages resulting from Defendant’s material
breach of the Policy.
11. All (a) conditions precedent and (b) conditions subsequent to the filing of this action have
been satisfied or waived.
12. At least ten (10) business days prior to the filing of this lawsuit, pursuant to Fla. Stat. §
627.70152 Plaintiff sent a presuit settlement demand to Defendant.
13. Defendant failed to properly respond to said presuit settlement demand.
COUNT I~ BREACH OF CONTRACT
14. Plaintiff reincorporates paragraphs one (1) through thirteen (13) in Count I.
15. By failing to adjust the Loss pursuant to the unambiguous terms of the Policy and by failing
to properly respond to said presuit settlement demand, Defendant has materially breached
the Policy.
16. Plaintiff suffered, and continues to suffer, damages resulting from Defendant’s material
breach of the Policy.
17. Plaintiff was obligated to retain the undersigned attorneys for the prosecution of this action
amid is entitled to reasonable attorneys’ fees pursuant to Pla. Stat. § 627.428, Fla. Siat.
626.9373, and/or Fla. Stat. § 627.70152.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter
judgment against Defendant for damages, plus interest, court costs, and reasonable attorneys’
fees pursuant to Fla. Stat. § 627.428, Fla. Stat. 626.9373, and/or Fla. Stat. § 627.70152.COUNT II - PETITION FOR DECLARATORY RELIEF
18. Plaintift remcorporates paragraphs one (1) through thirteen (13) in Count Ii.
19. This is a first party action for property insurance benefits to which Florida law applies.
20. The State of Florida enacted new legislation, Florida Senate Bill 76, which seeks to
regulate, in part, first party lawsuits for property insurance benefits.
21. As part of Florida Senate Bill 76, a new statute was created, Fla. Stat. § 627.70152, and
two existing statutes were amended, Fla. Stat. § 627.428(1) and Fla. Stat. 626.9373(1).
22. Collectively, the new statute and the amendments create a new condition precedent to the
filina of a firct narty actian far nranerty inenrance hanafite and nlacac ractriatinne and
tulag Ox @ aot palty acucu 101 property tlourance Ocueiits Gita Piaces TeouICUOS Cnt
limitations on an insured’s right to recover attorney’s fees.
23. Florida Senate Bill 76, Section 15, states the Bill shall take effect July 1, 2021.
24. Previously, the Florida Supreme Court held where the legislature passes new legislation
changing an insured’s rights or ability to recovery attorney’s fees in a first party action,
such legislation may only apply prospectively to insurance policies issued after the
effective date of the legislation (even where the legislature expressed an intent for their
legislation to apply retroactively). See Menendez v. Progressive Exp. Ins. Co., Inc., 35 So.
3d 873, 878 (Fla. 2010).
25. Plaintiff believes, but is in doubt, that the changes in Florida Senate Bill 76 do not apply in
this action as the subject policy has an effective date prior to July 1, 2021.
26. In this action, Plaintiff retained the undersigned attorneys, in part, to determine Plaintiff's
rights as potentially modified by Florida Senate Bill 76 and against the Defendant,
therefore Plaintiff demands Plaintiffs reasonable attorney’s fees are paid pursuant Fla.
Stat. § 627.428, Fla. Stat. 626.9373, and/or Fla. Stat. § 627.70152.WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter declaratory
judgment against Defendant determining that the changes in the law established by Florida Senate
Bill 76 do not apply to this action and for Plaintiffs reasonable attorneys’ fees pursuant to Fla.
Stat. § 627.428, Fla. Stat. 626.9373, and/or Fla. Stat. § 627.70152.
DEMAND FOR JURY TRIAL
Plaintiff demands trial by jury of all issues triable as a matter of right.
Dated: August 25, 2021.
Respectfully submitted,
by: isi Kevin Weisser
KEVIN WEISSER
Florida Bar No: 98828
WEISSER ELAZAR & KANTOR, PLLC
Attorneys for Plaintiff
800 East Broward Boulevard, Suite 510
Fort Lauderdale, FL 33301
T. (OSA\ AQK 9692
Li (IT) TOU-LULI
F: (954) 572-8695
Email: KW@WEKLaw.com
JK@WEKLaw.com
DG@WEKLaw.com
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wes CASE NUMBER: 502021CA010075XXXXMB Div: AN **** Filing # 133401114 E-Filed 08/25/2021 02:35:46 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA DOMINIQUE HOWARD, Plaintiff, v. CASE NO.: munT AR TET ALTA FAK AAT LIP LAr UNSURANUB CUTAN TI, Defendant. / COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff sues Defendant and alleges: 1. This is an action for damages that exceeds Thirty Thousand Dollars ($30,000.00) exclusive of interest, costs, and attorney's fees. 2. At all times material hereto, in consideration of a premium paid by Plaintiff, there was in full force and effect a certain nronerty insurance nolicv issued hy Defendant with a nolicv number of 12- 1009137-01 (Policy). A copy of the Policy is incorporated by reference as Plaintiff does not have a full copy of the Policy in Plaintiff's possession, custody, or control. 3. Accordingly, under the terms of the Policy, Defendant agreed to provide insurance coverage to Plaintiffs property against certain losses. 4. Plaintiff's property is located at 690 West 37th Street, West Palm Beach, FL 33404 (Property). 5. While the Policy was in full force and effect, the Property was damaged (Loss). 6. Promptly thereafter Plaintiff reported the Loss to Defendant. 7. Accordingly, Defendant assigned claim number 12-3000218-19 to the Loss and investigated the Loss. CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FLED NainEINNN, NO.26- Ae DNA PILL. PAL DLA VUUINE TT, PL, JUOL IE mDNUeeY, ULLIAN, Yureui2ue | Ue.0u.tU Fit8. Subsequently, Defendant failed to adjust the Loss pursuant to the unambiguous terms of the Policy. 9. By failing to adjust the Loss pursuant to the unambiguous terms of the Policy, Defendant has materially breached the Policy. 10. Plaintiff suffered and continues to suffer damages resulting from Defendant’s material breach of the Policy. 11. All (a) conditions precedent and (b) conditions subsequent to the filing of this action have been satisfied or waived. 12. At least ten (10) business days prior to the filing of this lawsuit, pursuant to Fla. Stat. § 627.70152 Plaintiff sent a presuit settlement demand to Defendant. 13. Defendant failed to properly respond to said presuit settlement demand. COUNT I~ BREACH OF CONTRACT 14. Plaintiff reincorporates paragraphs one (1) through thirteen (13) in Count I. 15. By failing to adjust the Loss pursuant to the unambiguous terms of the Policy and by failing to properly respond to said presuit settlement demand, Defendant has materially breached the Policy. 16. Plaintiff suffered, and continues to suffer, damages resulting from Defendant’s material breach of the Policy. 17. Plaintiff was obligated to retain the undersigned attorneys for the prosecution of this action amid is entitled to reasonable attorneys’ fees pursuant to Pla. Stat. § 627.428, Fla. Siat. 626.9373, and/or Fla. Stat. § 627.70152. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment against Defendant for damages, plus interest, court costs, and reasonable attorneys’ fees pursuant to Fla. Stat. § 627.428, Fla. Stat. 626.9373, and/or Fla. Stat. § 627.70152.COUNT II - PETITION FOR DECLARATORY RELIEF 18. Plaintift remcorporates paragraphs one (1) through thirteen (13) in Count Ii. 19. This is a first party action for property insurance benefits to which Florida law applies. 20. The State of Florida enacted new legislation, Florida Senate Bill 76, which seeks to regulate, in part, first party lawsuits for property insurance benefits. 21. As part of Florida Senate Bill 76, a new statute was created, Fla. Stat. § 627.70152, and two existing statutes were amended, Fla. Stat. § 627.428(1) and Fla. Stat. 626.9373(1). 22. Collectively, the new statute and the amendments create a new condition precedent to the filina of a firct narty actian far nranerty inenrance hanafite and nlacac ractriatinne and tulag Ox @ aot palty acucu 101 property tlourance Ocueiits Gita Piaces TeouICUOS Cnt limitations on an insured’s right to recover attorney’s fees. 23. Florida Senate Bill 76, Section 15, states the Bill shall take effect July 1, 2021. 24. Previously, the Florida Supreme Court held where the legislature passes new legislation changing an insured’s rights or ability to recovery attorney’s fees in a first party action, such legislation may only apply prospectively to insurance policies issued after the effective date of the legislation (even where the legislature expressed an intent for their legislation to apply retroactively). See Menendez v. Progressive Exp. Ins. Co., Inc., 35 So. 3d 873, 878 (Fla. 2010). 25. Plaintiff believes, but is in doubt, that the changes in Florida Senate Bill 76 do not apply in this action as the subject policy has an effective date prior to July 1, 2021. 26. In this action, Plaintiff retained the undersigned attorneys, in part, to determine Plaintiff's rights as potentially modified by Florida Senate Bill 76 and against the Defendant, therefore Plaintiff demands Plaintiffs reasonable attorney’s fees are paid pursuant Fla. Stat. § 627.428, Fla. Stat. 626.9373, and/or Fla. Stat. § 627.70152.WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter declaratory judgment against Defendant determining that the changes in the law established by Florida Senate Bill 76 do not apply to this action and for Plaintiffs reasonable attorneys’ fees pursuant to Fla. Stat. § 627.428, Fla. Stat. 626.9373, and/or Fla. Stat. § 627.70152. DEMAND FOR JURY TRIAL Plaintiff demands trial by jury of all issues triable as a matter of right. Dated: August 25, 2021. Respectfully submitted, by: isi Kevin Weisser KEVIN WEISSER Florida Bar No: 98828 WEISSER ELAZAR & KANTOR, PLLC Attorneys for Plaintiff 800 East Broward Boulevard, Suite 510 Fort Lauderdale, FL 33301 T. (OSA\ AQK 9692 Li (IT) TOU-LULI F: (954) 572-8695 Email: KW@WEKLaw.com JK@WEKLaw.com DG@WEKLaw.com