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Filing # 125689422 E-Filed 04/27/2021 02:25:05 PM
IN THE CIRCUIT COURT FOR THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
Maria Ventura, CASE NO.: CACE-21-003783
Plaintiff,
Vv.
Universal Property and Casualty Insurance
Company,
Defendant.
/
PLAINTIFF’S REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES
Plaintiff, Maria Ventura, by and through the undersigned attorney, pursuant to Florida Rule
of Civil Procedure 1.100(a), hereby file this Reply to Defendant’s Affirmative Defenses and states
as follows:
I Factual Background / Procedural History.
This is an action for breach of contract and declaratory relief arising out of a first party
insurance claim under a policy (“Plaintiffs Policy”) issued to the homeowner Plaintiff, by
Defendant, Universal Property and Casualty Insurance Company. Defendant insurance company
wrongfully denied full payment of the Plaintiff’s insurance claim.
Plaintiff's Complaint was served upon Defendant after which Defendant filed its Answer.
Through its Answer, Defendant has asserted various affirmative defenses which Plaintiff denies
and, in the alternative, seeks to avoid pursuant to Florida Rule of Civil Procedure 1.100(a).
IL. Legal Standard.
Florida Rule of Civil Procedure 1.100(a) provides that “[i]f an answer or third-party
complaint contains an affirmative defense and the opposing party seeks to avoid it the opposing
party shall file a reply containing the avoidance.” The Committee Notes associated with the 1972
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#** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/27/2021 02:25:05 PM.**#**
amendment of Rule 1.100(a) specify that a reply is “mandatory when a party seeks to avoid an
affirmative defense in an answer or third-party answer” in order to avoid the procedural problems
that existed prior to 1972. Fla. R. Civ. P. 1.100, Committee Notes, 1972 Amendment (citing
Dickerson v. Orange State Oil Co., 123 So.2d 562 (Fla. 2d DCA 1960) (allowing a plaintiff to
raise affirmative defenses for the first time at trial in situations where the plaintiff was not required
to respond to defendant's answer or cross-claim)).
Florida Rule of Civil Procedure 1.110(d) provides, in relevant part: “In pleading to a
preceding pleading a party shall set forth affirmatively . . any other matter constituting an
avoidance or affirmative defense.” See also, Coral Ridge Props., Inc. v. Playa Del Mar Ass'n, Inc.,
505 So.2d 414, 416-17 (Fla.1987) (discussing the requirement for a party to plead an avoidance
of the affirmative defense); Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust
Co., 105 So.3d 602, 607 (Fla. 4th DCA 2013) (noting that Rule 1.110(d) requires a party to include
any affirmative defense or avoidance in the initial pleadings); Kitchen v. Kitchen, 404 So.2d 203,
205 (Fla. 2d DCA 1981) (“[I]t is only when ‘new matter’ is sought to be asserted to avoid the
affirmative defense that a reply is required.”). “Where a party files no reply to an affirmative
defense, this merely denies (as opposed to avoids) the affirmative defense.” Lazar v. Allen, 347
So.2d 457, 458 (Fla. 2d DCA 1977) (citing Fla. R. Civ. P. 1.110(e)).
Til. The Nature of Plaintiffs’ Reply in the Instant Case.
In the instant case, Defendant’s affirmative defenses have been denied by Plaintiff by
operation of law. See, Moore Meats, Inc. v. Strawn In and For Seminole County, 313 So. 2d 660,
662 (Fla. 1975)(noting that the applicable “rule specifically does not require a reply merely to deny
the allegations of the defense or to show that the pleader lacks knowledge of the truth of those
allegations” and, as such, “a simple denial implicit in the rule without reply [i]s sufficient” to deny
any and all affirmative defenses.) Having denied each and every of Defendant’s affirmative
2|Page
defenses, Plaintiff hereby replies in the alternative and in avoidance of Defendant’s affirmative
defenses. See, e.g., DiChristopher v. Bd. of County Com'rs, 908 So. 2d 492, 495 (Fla. 5th Dist.
App. 2005)(“if a plaintiff is unsure of the correct legal basis for relief, he may plead in the
alternative.”); Quality Type & Graphics v. Guetzloe, 513 So.2d 1110 (Fla. 5th DCA 1987)(Holding
that a plaintiff “may set out the facts of the occurrence or transaction and demand judgment in his
favor on several bases, even mutually exclusive ones.”)
As the Florida Supreme Court has explained:
Avoid means ‘to make legally void; to prevent the . . . effectiveness
of.’ In pleading, avoidance means ‘an allegation of new matter in
opposition to a former pleading that admits the facts alleged in the
former pleading and shows cause why they should not have their
ordinary legal effect.’
Moore Meats, Inc., 313 So. 2d at 661 (quoting Trawick, “To Reply Or Not to Reply?,” 47 Fla.B.J.
703 (1973).
Iv. Plaintiff’s Allegations Pleaded in the Alternative and in Avoidance of
Defendant’s Affirmative Defenses.
Consistent with authorities cited supra and as an alternative to its denial of Defendant’s
affirmative defenses, Plaintiff's hereby alleges as follows in support of the instant Reply in
avoidance of Defendant’s affirmative defenses:
a. Absence of Coverage / Policy Exclusion Defenses
Plaintiff alleges that the policy exclusions relied upon by Defendant’s in its affirmative
defenses are unenforceable as the policy exclusions at issue are vague, ambiguous
and/or unclear. Specifically, the exclusions at issue are subject to differing
interpretations and render the intent to provide coverage under the facts of this case not
easily discernable. As such, the Court must adopt the construction which provides the
most coverage and decline to permit Defendant to rely upon the exclusions referenced
in its affirmative defenses. See, e.g., Oliver v. United States Fidelity & Guaranty Co.,
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309 So.2d 237 (Fla. 2d DCA), cert. denied, 322 So.2d 913 (Fla.1975); Coleman v.
Valley Forge Ins. Co., 432 So. 2d 1368, 1370 (Fla. 2d Dist. App. 1983).
Plaintiff alleges that Defendant’s affirmative defenses based upon the absence of
coverage and/or the existence of policy exclusions are barred by the doctrine of laches.
Specifically, Plaintiff alleges that Defendant failed to diligently investigate and respond
the loss at issue only to claim an absence of coverage and/or the existence of policy
exclusions after substantial and unreasonable delay. Defendant’s delay has prejudiced
Plaintiff by inhibiting Plaintiff’s ability to present evidence directly relevant to and
probative of Defendant’s liability.
Plaintiff alleges that the policy exclusions relied upon by Defendant’s in its affirmative
defenses are unenforceable as they are contrary to public policy. Specifically, the policy
exclusions relied upon by Defendant are clearly injurious to the public good and/or
contravene an established interest of society as the types losses sought to be excluded
by the provisions relied upon by Defendant are precisely the type of losses for which
property insurance is purchased. Coverage for these types of losses is reasonably relied
upon by purchasers of Defendant’s policies and was reasonably relied upon by Plaintiff
in purchasing Plaintiff’s Policy. The policy exclusions relied upon by Defendant’s in
its affirmative defenses are greatly prejudicial to the dominant public interest.
Plaintiff alleges that the policy exclusions relied upon by Defendant in its affirmative
defenses are unconscionable. Specifically, the circumstances surrounding the
transaction which gave rise to the issuance of the insurance policy at issue demonstrate
that the Plaintiffs had no meaningful choice at the time Plaintiff entered into the
underlying contract with Defendant. Plaintiff did not have a realistic opportunity to
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bargain regarding the terms of the contract. Instead, the contract was presented to
Plaintiff by Defendant on a take-it-or-leave-it basis. Moreover, the policy exclusions at
issue are so outrageously unfair as to shock the judicial conscience.
b. Conditions Precedent/Post-Loss Obligation Defenses.
Plaintiff alleges that Defendant’s affirmative defense(s) premised upon any alleged
failure to perform conditions precedent and/or alleged failure comply with post-loss
obligations contravene sound public policy. As Florida’s Second District Court of
Appeal has explained:
[I]t is imprudent to place insured parties in the untenable
position of waiting for the insurance company to assess
damages any time a loss occurs. Repairing a home after an
unexpected loss event is often a time-sensitive procedure.
An insured simply cannot afford to wait for an insurance
claim to be adjusted to address that loss, and insurance
benefits represent the most ready means of paying for post-
loss emergency repairs.
Bioscience W., Inc. v. Gulfstream Prop. and Cas. Ins. Co., 185 So. 3d 638, 643 (Fla.
2d Dist. App. 2016), reh’g denied (Mar. 9, 2016).
For the reasons articulated in Bioscience W., Inc., the conditions precedent and/or post-
loss obligations relied upon by Defendant are clearly injurious to the public good,
contravene an established interest of society and are greatly prejudicial to the dominant
public interest.
Plaintiff alleges that the conditions precedent and/or post-loss obligations relied upon
by Defendant in support of its affirmative defenses are unconscionable. Specifically,
the circumstances surrounding the transaction which gave rise to the issuance of
Plaintiff's Policy demonstrate that the Plaintiff had no meaningful choice at the time
Plaintiff entered into the underlying contract with Defendant. Plaintiff did not have a
realistic opportunity to bargain regarding the terms of the contract. Instead, the contract
5|Page
was presented to Plaintiff by Defendant on a take-it-or-leave-it basis. Moreover, the
conditions precedent and/or post-loss obligations at issue are so outrageously unfair as
to shock the judicial conscience for the reasons detailed by Florida’s Second District
Court of Appeal in Bioscience W., Inc., supra.
Plaintiff alleges that the conditions precedent and/or post-loss obligations relied upon
by Defendant in support of its affirmative defenses must fail as Defendant has waived
its ability to assert such defenses and/or is estopped from asserting such defenses by its
pre-suit conduct in acknowledging coverage and tendering partial payment. See, e.g.,
Citizens Prop. Ins. Corp. v. Demetrescu, 137 So. 3d 500, 503 (Fla. 4th Dist. App. 2014);
Makryllos v. Citizens Prop. Ins. Corp., 103 So. 3d 1032, 1034 (Fla. 2d Dist. App. 2012).
Plaintiff alleges that the conditions precedent and/or post-loss obligations relied upon
by Defendant in support of its affirmative defenses are barred by partial compliance in
that there was no material breach of the Policy by the Plaintiff. See, e.g., Haiman v.
Fed. Ins. Co., 798 So. 2d 811, 812 (Fla. 4th Dist. App. 2001); Makryllos v. Citizens
Prop. Ins. Corp., 103 So. 3d 1032, 1034 (Fla. 2d Dist. App. 2012).
Vv. Reservation of Right to Amend.
Plaintiff hereby expressly reserves the right to amend this Reply to Defendant’s
Affirmative Defenses pursuant to Florida Rule of civil Procedure 1.190.
WHEREFORE, the Plaintiff, Maria Ventura, by and through the undersigned counsel,
demands judgment against Defendant, Universal Property and Casualty Insurance Company, for
all unpaid bills with interest on any overdue payments, costs, attorneys’ fees pursuant to Fla. Stat.
§ 627.428, and for all other remedies the Court sees fit to grant, and the Plaintiff demands trial by
jury.
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CERTIFICATION OF SERVICE
IDO HEREBY CERTIFY that on April 27, 2021 a true and correct copy of this document
was filed with the Clerk of Court using the Florida e-portal which will send notice of electronic
filing and a copy of this document to all counsel of record.
Respectfully submitted by:
/s/ Clayton T. Kuhn
CLAYTON T. KUHN, ESQ.
Florida Bar No.: 97982
KUHN RASLAVICH, P.A.
2110 West Platt Street
Tampa, Florida 33606
Telephone: (813) 422 - 7782
Facsimile: (813) 422 - 7783
Clay@theKRfirm.com
Counsel for Plaintiff
7|Page
Preview
Filing # 125689422 E-Filed 04/27/2021 02:25:05 PM IN THE CIRCUIT COURT FOR THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA Maria Ventura, CASE NO.: CACE-21-003783 Plaintiff, Vv. Universal Property and Casualty Insurance Company, Defendant. / PLAINTIFF’S REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES Plaintiff, Maria Ventura, by and through the undersigned attorney, pursuant to Florida Rule of Civil Procedure 1.100(a), hereby file this Reply to Defendant’s Affirmative Defenses and states as follows: I Factual Background / Procedural History. This is an action for breach of contract and declaratory relief arising out of a first party insurance claim under a policy (“Plaintiffs Policy”) issued to the homeowner Plaintiff, by Defendant, Universal Property and Casualty Insurance Company. Defendant insurance company wrongfully denied full payment of the Plaintiff’s insurance claim. Plaintiff's Complaint was served upon Defendant after which Defendant filed its Answer. Through its Answer, Defendant has asserted various affirmative defenses which Plaintiff denies and, in the alternative, seeks to avoid pursuant to Florida Rule of Civil Procedure 1.100(a). IL. Legal Standard. Florida Rule of Civil Procedure 1.100(a) provides that “[i]f an answer or third-party complaint contains an affirmative defense and the opposing party seeks to avoid it the opposing party shall file a reply containing the avoidance.” The Committee Notes associated with the 1972 1|Page #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/27/2021 02:25:05 PM.**#** amendment of Rule 1.100(a) specify that a reply is “mandatory when a party seeks to avoid an affirmative defense in an answer or third-party answer” in order to avoid the procedural problems that existed prior to 1972. Fla. R. Civ. P. 1.100, Committee Notes, 1972 Amendment (citing Dickerson v. Orange State Oil Co., 123 So.2d 562 (Fla. 2d DCA 1960) (allowing a plaintiff to raise affirmative defenses for the first time at trial in situations where the plaintiff was not required to respond to defendant's answer or cross-claim)). Florida Rule of Civil Procedure 1.110(d) provides, in relevant part: “In pleading to a preceding pleading a party shall set forth affirmatively . . any other matter constituting an avoidance or affirmative defense.” See also, Coral Ridge Props., Inc. v. Playa Del Mar Ass'n, Inc., 505 So.2d 414, 416-17 (Fla.1987) (discussing the requirement for a party to plead an avoidance of the affirmative defense); Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105 So.3d 602, 607 (Fla. 4th DCA 2013) (noting that Rule 1.110(d) requires a party to include any affirmative defense or avoidance in the initial pleadings); Kitchen v. Kitchen, 404 So.2d 203, 205 (Fla. 2d DCA 1981) (“[I]t is only when ‘new matter’ is sought to be asserted to avoid the affirmative defense that a reply is required.”). “Where a party files no reply to an affirmative defense, this merely denies (as opposed to avoids) the affirmative defense.” Lazar v. Allen, 347 So.2d 457, 458 (Fla. 2d DCA 1977) (citing Fla. R. Civ. P. 1.110(e)). Til. The Nature of Plaintiffs’ Reply in the Instant Case. In the instant case, Defendant’s affirmative defenses have been denied by Plaintiff by operation of law. See, Moore Meats, Inc. v. Strawn In and For Seminole County, 313 So. 2d 660, 662 (Fla. 1975)(noting that the applicable “rule specifically does not require a reply merely to deny the allegations of the defense or to show that the pleader lacks knowledge of the truth of those allegations” and, as such, “a simple denial implicit in the rule without reply [i]s sufficient” to deny any and all affirmative defenses.) Having denied each and every of Defendant’s affirmative 2|Page defenses, Plaintiff hereby replies in the alternative and in avoidance of Defendant’s affirmative defenses. See, e.g., DiChristopher v. Bd. of County Com'rs, 908 So. 2d 492, 495 (Fla. 5th Dist. App. 2005)(“if a plaintiff is unsure of the correct legal basis for relief, he may plead in the alternative.”); Quality Type & Graphics v. Guetzloe, 513 So.2d 1110 (Fla. 5th DCA 1987)(Holding that a plaintiff “may set out the facts of the occurrence or transaction and demand judgment in his favor on several bases, even mutually exclusive ones.”) As the Florida Supreme Court has explained: Avoid means ‘to make legally void; to prevent the . . . effectiveness of.’ In pleading, avoidance means ‘an allegation of new matter in opposition to a former pleading that admits the facts alleged in the former pleading and shows cause why they should not have their ordinary legal effect.’ Moore Meats, Inc., 313 So. 2d at 661 (quoting Trawick, “To Reply Or Not to Reply?,” 47 Fla.B.J. 703 (1973). Iv. Plaintiff’s Allegations Pleaded in the Alternative and in Avoidance of Defendant’s Affirmative Defenses. Consistent with authorities cited supra and as an alternative to its denial of Defendant’s affirmative defenses, Plaintiff's hereby alleges as follows in support of the instant Reply in avoidance of Defendant’s affirmative defenses: a. Absence of Coverage / Policy Exclusion Defenses Plaintiff alleges that the policy exclusions relied upon by Defendant’s in its affirmative defenses are unenforceable as the policy exclusions at issue are vague, ambiguous and/or unclear. Specifically, the exclusions at issue are subject to differing interpretations and render the intent to provide coverage under the facts of this case not easily discernable. As such, the Court must adopt the construction which provides the most coverage and decline to permit Defendant to rely upon the exclusions referenced in its affirmative defenses. See, e.g., Oliver v. United States Fidelity & Guaranty Co., 3|Page 309 So.2d 237 (Fla. 2d DCA), cert. denied, 322 So.2d 913 (Fla.1975); Coleman v. Valley Forge Ins. Co., 432 So. 2d 1368, 1370 (Fla. 2d Dist. App. 1983). Plaintiff alleges that Defendant’s affirmative defenses based upon the absence of coverage and/or the existence of policy exclusions are barred by the doctrine of laches. Specifically, Plaintiff alleges that Defendant failed to diligently investigate and respond the loss at issue only to claim an absence of coverage and/or the existence of policy exclusions after substantial and unreasonable delay. Defendant’s delay has prejudiced Plaintiff by inhibiting Plaintiff’s ability to present evidence directly relevant to and probative of Defendant’s liability. Plaintiff alleges that the policy exclusions relied upon by Defendant’s in its affirmative defenses are unenforceable as they are contrary to public policy. Specifically, the policy exclusions relied upon by Defendant are clearly injurious to the public good and/or contravene an established interest of society as the types losses sought to be excluded by the provisions relied upon by Defendant are precisely the type of losses for which property insurance is purchased. Coverage for these types of losses is reasonably relied upon by purchasers of Defendant’s policies and was reasonably relied upon by Plaintiff in purchasing Plaintiff’s Policy. The policy exclusions relied upon by Defendant’s in its affirmative defenses are greatly prejudicial to the dominant public interest. Plaintiff alleges that the policy exclusions relied upon by Defendant in its affirmative defenses are unconscionable. Specifically, the circumstances surrounding the transaction which gave rise to the issuance of the insurance policy at issue demonstrate that the Plaintiffs had no meaningful choice at the time Plaintiff entered into the underlying contract with Defendant. Plaintiff did not have a realistic opportunity to 4|Page bargain regarding the terms of the contract. Instead, the contract was presented to Plaintiff by Defendant on a take-it-or-leave-it basis. Moreover, the policy exclusions at issue are so outrageously unfair as to shock the judicial conscience. b. Conditions Precedent/Post-Loss Obligation Defenses. Plaintiff alleges that Defendant’s affirmative defense(s) premised upon any alleged failure to perform conditions precedent and/or alleged failure comply with post-loss obligations contravene sound public policy. As Florida’s Second District Court of Appeal has explained: [I]t is imprudent to place insured parties in the untenable position of waiting for the insurance company to assess damages any time a loss occurs. Repairing a home after an unexpected loss event is often a time-sensitive procedure. An insured simply cannot afford to wait for an insurance claim to be adjusted to address that loss, and insurance benefits represent the most ready means of paying for post- loss emergency repairs. Bioscience W., Inc. v. Gulfstream Prop. and Cas. Ins. Co., 185 So. 3d 638, 643 (Fla. 2d Dist. App. 2016), reh’g denied (Mar. 9, 2016). For the reasons articulated in Bioscience W., Inc., the conditions precedent and/or post- loss obligations relied upon by Defendant are clearly injurious to the public good, contravene an established interest of society and are greatly prejudicial to the dominant public interest. Plaintiff alleges that the conditions precedent and/or post-loss obligations relied upon by Defendant in support of its affirmative defenses are unconscionable. Specifically, the circumstances surrounding the transaction which gave rise to the issuance of Plaintiff's Policy demonstrate that the Plaintiff had no meaningful choice at the time Plaintiff entered into the underlying contract with Defendant. Plaintiff did not have a realistic opportunity to bargain regarding the terms of the contract. Instead, the contract 5|Page was presented to Plaintiff by Defendant on a take-it-or-leave-it basis. Moreover, the conditions precedent and/or post-loss obligations at issue are so outrageously unfair as to shock the judicial conscience for the reasons detailed by Florida’s Second District Court of Appeal in Bioscience W., Inc., supra. Plaintiff alleges that the conditions precedent and/or post-loss obligations relied upon by Defendant in support of its affirmative defenses must fail as Defendant has waived its ability to assert such defenses and/or is estopped from asserting such defenses by its pre-suit conduct in acknowledging coverage and tendering partial payment. See, e.g., Citizens Prop. Ins. Corp. v. Demetrescu, 137 So. 3d 500, 503 (Fla. 4th Dist. App. 2014); Makryllos v. Citizens Prop. Ins. Corp., 103 So. 3d 1032, 1034 (Fla. 2d Dist. App. 2012). Plaintiff alleges that the conditions precedent and/or post-loss obligations relied upon by Defendant in support of its affirmative defenses are barred by partial compliance in that there was no material breach of the Policy by the Plaintiff. See, e.g., Haiman v. Fed. Ins. Co., 798 So. 2d 811, 812 (Fla. 4th Dist. App. 2001); Makryllos v. Citizens Prop. Ins. Corp., 103 So. 3d 1032, 1034 (Fla. 2d Dist. App. 2012). Vv. Reservation of Right to Amend. Plaintiff hereby expressly reserves the right to amend this Reply to Defendant’s Affirmative Defenses pursuant to Florida Rule of civil Procedure 1.190. WHEREFORE, the Plaintiff, Maria Ventura, by and through the undersigned counsel, demands judgment against Defendant, Universal Property and Casualty Insurance Company, for all unpaid bills with interest on any overdue payments, costs, attorneys’ fees pursuant to Fla. Stat. § 627.428, and for all other remedies the Court sees fit to grant, and the Plaintiff demands trial by jury. 6|Page CERTIFICATION OF SERVICE IDO HEREBY CERTIFY that on April 27, 2021 a true and correct copy of this document was filed with the Clerk of Court using the Florida e-portal which will send notice of electronic filing and a copy of this document to all counsel of record. Respectfully submitted by: /s/ Clayton T. Kuhn CLAYTON T. KUHN, ESQ. Florida Bar No.: 97982 KUHN RASLAVICH, P.A. 2110 West Platt Street Tampa, Florida 33606 Telephone: (813) 422 - 7782 Facsimile: (813) 422 - 7783 Clay@theKRfirm.com Counsel for Plaintiff 7|Page