Preview
Filing # 134258897 E-Filed 09/09/2021 11:11:15 AM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.: 502021CA009913XXXXMB
TERRIE COOPER,
Plaintiff,
v.
CYPRESS PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
BIW OU IUIN DU IOVS CUAINIUIPES UUW LALLY PUR PADUA
TO STATE A CAUSE OF ACTION
Defendant, CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY
(hereinafter “CYPRESS” or “Defendant”), by and through its undersigned counsel, and pursuant
to Rules 1.130(a), Rule 1.140(b\(6), and Rule 1.120(f), Fla.R.Civ.P., hereby files this, its Motion
to Dismiss and in support thereof states as follows:
INTRODUCTION
1. Plaintiff has filed and served a nineteen (19) paragraph Complaint upon
Defendant, which purports to state a cause of action for breach of contract. See Exhibit A
attached hereto.
2. Defendant seeks an order dismissing this action, as Plaintiff has failed to state a
valid cause of action because the Complaint fails to allege compliance with Section 627.70152,
Fla. Stat. (2021) and the notice requirement.
MEMORANDUM OF LAW
1. FAILURE TO COMPLY WITH THE NOTICE REQUIREMENT OF FLORIDA
STATUTE SECTION 627.70152
CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FLED naimnainnns 44.44.45 ANA
Pn. PAL DLA VUUINE TT, FL, vUOL I mDnuecy, ULUIAN, vorumdeue! Fit. to mi3. Section 627.70152, Fla. Stat. (2021), prescribes numerous notice requirements as
a condition precedent to filing a suit under a property insurance policy such as Plaintiff must
provide the Department of Financial Services with written notice of intent to initiate litigation on
a form provided by the department. Such notice must be given at least ten (10) business days
before filing suit under the policy, but may not be given before the insurer has made a
determination of coverage under s. 627.70131. Notice to the insurer must be provided by the
department to the e-mail address designated by the insurer under s. 624.422. Not only does
Plaintiff's Complaint fail to allege compliance with the aforementioned requirements, it fails to
allege compliance with any of the requirements set forth in section 627.70152.
LAW AND ANALYSIS
Legal Standard on a Motion to Dismiss
4. The question for the court to decide is simply whether, assuming all allegations in
the complaint are true, the plaintiff would be entitled to the relief requested. Sobi v. Fairfield
Resorts, Inc., 846 So.2d 1204, 1206 (Fla. Sth DCA 2003) (citing Provence v. Palm Beach
Taverns, Inc., 616 So.2d 1022, 1024 (Fla. 4th DCA 1996)). When a statute is clear and
unambiguous, the Court must use ihe piain ianguage and avoid rules of siaiutory construction.
Daniels y. Fla. Dept. of Health, 898 So. 2d 61, 64 (Fla. 2005). Failure to allege, even generally,
compliance with a condition precedent mandates dismissal. See, Southeast Land Developers, Inc.
v, All Florida Site and Utilities, Inc., 28 So. 3d 166, 168 (Fla. 1" DCA 2010) (Failure to allege
that conditions precedent have been met renders a complaint “fatally defective” for failing to
state a cause of action) and Nguyen v. Roth Realty, Inc., 550 So. 2d 490 (Fla. 5" DCA
1989)(Complaint without allegations regarding conditions precedent does not state a cause of
antinn\
acucny.New Condition Precedent for First Party Property Insurance Actions
5. The Florida Legislature passed SB 76 during the 2021 Legislative Session. The
bill, entitled “An act relating to residential property insurance”, created Section 627.70152 of the
Florida Statutes. The bill became effective on July 1, 2021, when the Governor signed the bill and
the new statute applies to suits arising under a property insurance policy filed on or after July 1
2021.' Section 627.70152 now sets forth a statutory scheme that mandates claimants to provide
specific information in their written notice of intent to initiate litigation and failure to provide the
required notice requires the Court to dismiss without prejudice. Additionally, section 627.70152
mandates that the Court may not award the claimant any incurred attorney fees for services
rendered before the dismissal of the lawsuit.
Analogous Laws Are Instructive
6. Currently there is no appellate case law interpreting this new statute. However,
other causes of action have statutory pre-suit notice requirements with abundant appellate case
law interpreting those requirements. One of those pre-suit statutory schemes applies to medical
malpractice actions and its pre-suit notice requirements are set forth in section 768.57(2), Florida
Statuies. Among other things, a prospecitve medical maipraciice piaintitt must give a
prospective defendant 90 days to investigate the situation before formal litigation may
commence and the prospective plaintiff must also secure an affidavit from an appropriate
expert/doctor saying there was truly malpractice. Failure of the plaintiff to allege compliance
with the medical malpractice pre-suit requirements will result in a dismissal of the lawsuit. For
example, in Nash v. Humana Sun Bay Community Hospital, Inc., 526 So. 2d 1036 (Fla. 2d DCA
1988), the court dismissed a medical malpractice complaint “because it contained no allegation
that the annallant had nranarly carvad tha natinas of intant tn initiate litiaatinn” Gaa alen
tide Wie appeuane nau propey Servea ule HOuceS C1 imei w lua uugaudn . OCC ais0,
' Plaintiff filed this action in St. Lucie County Circuit Court on July 8, 2021.Pearlstein v. Malunny, 500 So. 2d 585 (Fla. 2d DCA 1986) where trial court appropriately
dismissed the “defective complaint” that did not allege statutory notice requirement.
7. Additionally, a review of appellate case law interpreting Florida’s Personal Injury
Protection (“PIP”) statutory scheme yields similar results. Section 627.736(10), Florida Statutes,
requires an assignee who wants to sue an insurer for medical benefits to first send the insurer a
30-day notice before filing suit on assigned claims and failure to comply with this pre-suit notice
requirement is fatal. MRI Associates of America, LLC v. State Farm Fire and Casualty
Company, 61 So. 3d 462 (Fla. 4" DCA 2011)(summary judgment ordered to be entered in favor
of insurer where plaintiffs pre-suit demand letter sent prematurely, thus not complying with the
statutory condition precedent). Failure of the plaintiff to allege compliance with the PIP pre-suit
requirements will result in a dismissal of the lawsuit. See Fla. Stat. Sec. 627.736(10) (“As a
condition precedent to filing any action for benefits under this section, written notice of an intent
to initiate litigation must be provided to the insurer”.)
8. Similarly, section. 770.01, Florida Statutes, prescribes certain pre-suit notice
requirements for libel and slander actions. It states: “Before any civil action is brought for
pubiication or broadcast, in a newspaper, periodical, or other medium, of a iibel or siander, the
plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the
defendant, specifying the article or broadcast and the statements therein which he or she alleges
to be false and defamatory.” Florida law is clear that a plaintiff's failure to comply with this pre-
suit notice requirement will result in a dismissal of the lawsuit. See, Edward L. Nezelek, Inc. v.
Sunbeam Television Corp., 413 So. 2d 51, 56 (Fla. 3rd DCA 1982) (complaint properly
dismissed for failure to state a cause of action because it did not allege compliance with section
TINA Bla Ctat
\
PIMA, bia, Sanz.Conclusion
9. The same rationale applies here with section 627.70152. Because Plaintiff did not
comply with section 627.70152, the Complaint is therefore legally deficient and should be dismissed.
I. FAILURE TO COMPLY WITH SECTION 627.70152 F.S.
3
eee
Plorida Slatule 02 /./U1I2 Provides Ulal:
(3) NOTICE.-
(a) As a condition precedent to filing a suit under a property
insurance policy, a claimant must provide the department with
written notice of intent to initiate litigation on a form provided by
tha danartmant Guah natina met ha ativan at lanct 1M hnoinace
ule GUpalunent, Oucil TOUCG Tmust oe Zivell at wast 1y vUsieSS
days before filing suit under the policy, but may not be given
before the insurer has made a determination of coverage under
s. 627.70131. Notice to the insurer must be provided by the
department to the e-mail address designated by the insurer under
s. 624.422. The notice must state with specificity all of the
following information:
1. That the notice is provided pursuant to this section.
2. The alleged acts or omissions of the insurer giving rise to the
suit, which may include a denial of coverage.
3. If provided by an attorney or other representative, that a copy of
the notice was provided to the claimant.
4. If the notice is provided following a denial of coverage, an
estimate of damages. if known.
5. If the notice is provided following acts or omissions by the
insurer other than denial of coverage, both of the following:
a.The presuit settlement demand, which must itemize the
damages, attorney fees, and costs.
b. The disputed amount.
Documentation to support the information provided in this
paragraph may be provided along with the notice to the insurer.
(b) A claimant must serve a notice of intent to initiate litigation
within the time limits provided in s. 95.11. However, the notice is
not required if the suit is a counterclaim. Service of a notice tolls
the time limits provided in s. 95.11 for 10 business days if such
time limits will expire before the end of the 10-day notice period.11. In the instant case, the Plaintiff failed to provide notice of intent to initiate
litigation in violation of Section 627.70152(3).
WHEREFORE, CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY
respectfully requests that this Honorable Court enter an order dismissing Plaintiff's Complaint
pursuant to Rule 1.130(a), Rule 1.140(b)(6), and Rule 1.120(), Fla.R.Civ.P, and for any such
other additional or further relief that this Honorable Court may deem just and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of ihe foregoing has been Turnished
to Grant Grimes, Esq. by electronic mail to ggrimes@thepropertyadvocates.com;
pleadings@thepropertyadvocates. com and team | 5@thepropertyadvocates.com;
@thepropertyadvocates.com; this of day of September, 2021.
GROELLE & SALMON, P.A.
Attorneys for Defendant
VIII Atanahabas Dled Oaaned D
LLIUL URSECHOUEE DIVG., SECONG Foor
West Palm Beach, FL 33411
(561) 963-5500 / Facsimile: (561) 963-2265
Primary Email: gswcourtdocs@gspalaw.com
Email: tgroelle@gspalaw.com
/s/ Tyler R. Groelle
Ru
wy.
TYLER R. GROELLE, ESQUIRE
Fla. Bar No.: 1015859
40347EXHIBIT “A”onlee
i a
i ile
if i
i
Preview
Filing # 134258897 E-Filed 09/09/2021 11:11:15 AM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502021CA009913XXXXMB TERRIE COOPER, Plaintiff, v. CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. BIW OU IUIN DU IOVS CUAINIUIPES UUW LALLY PUR PADUA TO STATE A CAUSE OF ACTION Defendant, CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY (hereinafter “CYPRESS” or “Defendant”), by and through its undersigned counsel, and pursuant to Rules 1.130(a), Rule 1.140(b\(6), and Rule 1.120(f), Fla.R.Civ.P., hereby files this, its Motion to Dismiss and in support thereof states as follows: INTRODUCTION 1. Plaintiff has filed and served a nineteen (19) paragraph Complaint upon Defendant, which purports to state a cause of action for breach of contract. See Exhibit A attached hereto. 2. Defendant seeks an order dismissing this action, as Plaintiff has failed to state a valid cause of action because the Complaint fails to allege compliance with Section 627.70152, Fla. Stat. (2021) and the notice requirement. MEMORANDUM OF LAW 1. FAILURE TO COMPLY WITH THE NOTICE REQUIREMENT OF FLORIDA STATUTE SECTION 627.70152 CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FLED naimnainnns 44.44.45 ANA Pn. PAL DLA VUUINE TT, FL, vUOL I mDnuecy, ULUIAN, vorumdeue! Fit. to mi3. Section 627.70152, Fla. Stat. (2021), prescribes numerous notice requirements as a condition precedent to filing a suit under a property insurance policy such as Plaintiff must provide the Department of Financial Services with written notice of intent to initiate litigation on a form provided by the department. Such notice must be given at least ten (10) business days before filing suit under the policy, but may not be given before the insurer has made a determination of coverage under s. 627.70131. Notice to the insurer must be provided by the department to the e-mail address designated by the insurer under s. 624.422. Not only does Plaintiff's Complaint fail to allege compliance with the aforementioned requirements, it fails to allege compliance with any of the requirements set forth in section 627.70152. LAW AND ANALYSIS Legal Standard on a Motion to Dismiss 4. The question for the court to decide is simply whether, assuming all allegations in the complaint are true, the plaintiff would be entitled to the relief requested. Sobi v. Fairfield Resorts, Inc., 846 So.2d 1204, 1206 (Fla. Sth DCA 2003) (citing Provence v. Palm Beach Taverns, Inc., 616 So.2d 1022, 1024 (Fla. 4th DCA 1996)). When a statute is clear and unambiguous, the Court must use ihe piain ianguage and avoid rules of siaiutory construction. Daniels y. Fla. Dept. of Health, 898 So. 2d 61, 64 (Fla. 2005). Failure to allege, even generally, compliance with a condition precedent mandates dismissal. See, Southeast Land Developers, Inc. v, All Florida Site and Utilities, Inc., 28 So. 3d 166, 168 (Fla. 1" DCA 2010) (Failure to allege that conditions precedent have been met renders a complaint “fatally defective” for failing to state a cause of action) and Nguyen v. Roth Realty, Inc., 550 So. 2d 490 (Fla. 5" DCA 1989)(Complaint without allegations regarding conditions precedent does not state a cause of antinn\ acucny.New Condition Precedent for First Party Property Insurance Actions 5. The Florida Legislature passed SB 76 during the 2021 Legislative Session. The bill, entitled “An act relating to residential property insurance”, created Section 627.70152 of the Florida Statutes. The bill became effective on July 1, 2021, when the Governor signed the bill and the new statute applies to suits arising under a property insurance policy filed on or after July 1 2021.' Section 627.70152 now sets forth a statutory scheme that mandates claimants to provide specific information in their written notice of intent to initiate litigation and failure to provide the required notice requires the Court to dismiss without prejudice. Additionally, section 627.70152 mandates that the Court may not award the claimant any incurred attorney fees for services rendered before the dismissal of the lawsuit. Analogous Laws Are Instructive 6. Currently there is no appellate case law interpreting this new statute. However, other causes of action have statutory pre-suit notice requirements with abundant appellate case law interpreting those requirements. One of those pre-suit statutory schemes applies to medical malpractice actions and its pre-suit notice requirements are set forth in section 768.57(2), Florida Statuies. Among other things, a prospecitve medical maipraciice piaintitt must give a prospective defendant 90 days to investigate the situation before formal litigation may commence and the prospective plaintiff must also secure an affidavit from an appropriate expert/doctor saying there was truly malpractice. Failure of the plaintiff to allege compliance with the medical malpractice pre-suit requirements will result in a dismissal of the lawsuit. For example, in Nash v. Humana Sun Bay Community Hospital, Inc., 526 So. 2d 1036 (Fla. 2d DCA 1988), the court dismissed a medical malpractice complaint “because it contained no allegation that the annallant had nranarly carvad tha natinas of intant tn initiate litiaatinn” Gaa alen tide Wie appeuane nau propey Servea ule HOuceS C1 imei w lua uugaudn . OCC ais0, ' Plaintiff filed this action in St. Lucie County Circuit Court on July 8, 2021.Pearlstein v. Malunny, 500 So. 2d 585 (Fla. 2d DCA 1986) where trial court appropriately dismissed the “defective complaint” that did not allege statutory notice requirement. 7. Additionally, a review of appellate case law interpreting Florida’s Personal Injury Protection (“PIP”) statutory scheme yields similar results. Section 627.736(10), Florida Statutes, requires an assignee who wants to sue an insurer for medical benefits to first send the insurer a 30-day notice before filing suit on assigned claims and failure to comply with this pre-suit notice requirement is fatal. MRI Associates of America, LLC v. State Farm Fire and Casualty Company, 61 So. 3d 462 (Fla. 4" DCA 2011)(summary judgment ordered to be entered in favor of insurer where plaintiffs pre-suit demand letter sent prematurely, thus not complying with the statutory condition precedent). Failure of the plaintiff to allege compliance with the PIP pre-suit requirements will result in a dismissal of the lawsuit. See Fla. Stat. Sec. 627.736(10) (“As a condition precedent to filing any action for benefits under this section, written notice of an intent to initiate litigation must be provided to the insurer”.) 8. Similarly, section. 770.01, Florida Statutes, prescribes certain pre-suit notice requirements for libel and slander actions. It states: “Before any civil action is brought for pubiication or broadcast, in a newspaper, periodical, or other medium, of a iibel or siander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.” Florida law is clear that a plaintiff's failure to comply with this pre- suit notice requirement will result in a dismissal of the lawsuit. See, Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51, 56 (Fla. 3rd DCA 1982) (complaint properly dismissed for failure to state a cause of action because it did not allege compliance with section TINA Bla Ctat \ PIMA, bia, Sanz.Conclusion 9. The same rationale applies here with section 627.70152. Because Plaintiff did not comply with section 627.70152, the Complaint is therefore legally deficient and should be dismissed. I. FAILURE TO COMPLY WITH SECTION 627.70152 F.S. 3 eee Plorida Slatule 02 /./U1I2 Provides Ulal: (3) NOTICE.- (a) As a condition precedent to filing a suit under a property insurance policy, a claimant must provide the department with written notice of intent to initiate litigation on a form provided by tha danartmant Guah natina met ha ativan at lanct 1M hnoinace ule GUpalunent, Oucil TOUCG Tmust oe Zivell at wast 1y vUsieSS days before filing suit under the policy, but may not be given before the insurer has made a determination of coverage under s. 627.70131. Notice to the insurer must be provided by the department to the e-mail address designated by the insurer under s. 624.422. The notice must state with specificity all of the following information: 1. That the notice is provided pursuant to this section. 2. The alleged acts or omissions of the insurer giving rise to the suit, which may include a denial of coverage. 3. If provided by an attorney or other representative, that a copy of the notice was provided to the claimant. 4. If the notice is provided following a denial of coverage, an estimate of damages. if known. 5. If the notice is provided following acts or omissions by the insurer other than denial of coverage, both of the following: a.The presuit settlement demand, which must itemize the damages, attorney fees, and costs. b. The disputed amount. Documentation to support the information provided in this paragraph may be provided along with the notice to the insurer. (b) A claimant must serve a notice of intent to initiate litigation within the time limits provided in s. 95.11. However, the notice is not required if the suit is a counterclaim. Service of a notice tolls the time limits provided in s. 95.11 for 10 business days if such time limits will expire before the end of the 10-day notice period.11. In the instant case, the Plaintiff failed to provide notice of intent to initiate litigation in violation of Section 627.70152(3). WHEREFORE, CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY respectfully requests that this Honorable Court enter an order dismissing Plaintiff's Complaint pursuant to Rule 1.130(a), Rule 1.140(b)(6), and Rule 1.120(), Fla.R.Civ.P, and for any such other additional or further relief that this Honorable Court may deem just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of ihe foregoing has been Turnished to Grant Grimes, Esq. by electronic mail to ggrimes@thepropertyadvocates.com; pleadings@thepropertyadvocates. com and team | 5@thepropertyadvocates.com; @thepropertyadvocates.com; this of day of September, 2021. GROELLE & SALMON, P.A. Attorneys for Defendant VIII Atanahabas Dled Oaaned D LLIUL URSECHOUEE DIVG., SECONG Foor West Palm Beach, FL 33411 (561) 963-5500 / Facsimile: (561) 963-2265 Primary Email: gswcourtdocs@gspalaw.com Email: tgroelle@gspalaw.com /s/ Tyler R. Groelle Ru wy. TYLER R. GROELLE, ESQUIRE Fla. Bar No.: 1015859 40347EXHIBIT “A”onlee i a i ile if i i