Preview
Filing # 125228111 E-Filed 04/20/2021 10:27:35 AM
IN THE CIRCUIT COURT OF THE 207
JUDICIAL CIRCUIT, IN AND FOR LEE
COUNTY, FLORIDA
CASE NO.: 20CA2268
IN Y. CHUNG AND MAL CHUNG,
Plaintiffs,
Vv.
CYPRESS PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
/
DEFENDANT’S MOTION TO DISMISS
AND MOTION FOR MORE DEFINITE STATEMENT
Defendant, CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY,
(“CYPRESS” or “Defendant”), by and through its undersigned counsel hereby files this, its
Motion to Dismiss and Motion for More Definite Statement and in support thereof states as
follows:
INTRODUCTION
1. Plaintiffs have filed and served a twenty four (24) paragraph Complaint upon
Defendant, which purports to state a cause of action for breach of contract.
2. Defendant seeks an order requiring the Plaintiffs to provide more definite
statements as to their allegations, as identified below and an order dismissing the action for failure
of the Plaintiffs to comply with the condition precedent of mediation.
MEMORANDUM OF LAW
I. MOTION FOR MORE DEFINITE STATEMENT
Rule 1.140(e), Fla.R.Civ.P., provides in material part:
Ifa pleading to which a responsive pleading is permitted is so vague
eFiled Lee County Clerk of Courts Page 1or ambiguous that a party cannot reasonably be required to frame a
responsive pleading, that party may move for a more definite
statement before interposing a responsive pleading.
In addition, Rule 1.110(b), Fla.R.Civ.P. requires that a complaint must contain a “short and
plain statement of the ultimate facts showing that the pleader is entitled to relief.”
Plaintiffs’ Complaint fails to plead ultimate facts in support of the claimed loss. A
Complaint must contain a short and plain statement if the ultimate facts showing that the pleader
is entitled to relief. “At the outset of a suit, litigants must state their pleadings with sufficient
particularity for a defense to be prepared.” Harowitz v. Laske, 855 So.2d 169, 173 (Fla. 5th DCA
2003); See also Ash v. Airport Mini-Storage, 782 So.2d 983 (Fla. 3d DCA 2001). Otherwise the
Complaint will be held insufficient. Dawson v. Blue Cross Ass’n, 293 So.2d 90, 92 (Fla. lst DCA
1974).
Plaintiffs Complaint is bereft of any facts or circumstances describing the event(s) which
allegedly give rise to the cause of action against CYPRESS. Plaintiffs merely assert, in paragraph
7 of their Complaint, that “The Insured Property sustained direct physical damage as a result of
Hurricane Irma.” Such “damage” may involve any number of causes such as, inter alia, water
damage which was caused by water flooding into the home from an outside source, a roof leak
resulting in damages to the interior of the subject property or an object hitting a wall or window
resulting in damage, each of which may trigger different applicable policy provisions and coverage
defenses.
CYPRESS’s obligations under the insurance policy, and any relevant coverage defenses
depend upon the cause, type and manner and location of the loss alleged. Without facts and
information regarding the claimed loss, Defendant cannot reasonably be required to respond to the
cause of action alleged against it.
eFiled Lee County Clerk of Courts Page 2The insurance policy contains different exclusions or limitations of coverage which may
apply depending upon the nature, cause and location of the damage. The Plaintiffs presumably
have knowledge of the facts regarding the cause of the claimed damage but have failed to provide
them.
Plaintiffs are required by law to plead ultimate facts in support of their cause of action in
order to place Defendant on sufficient notice of the allegations and to allow Defendant to respond
appropriately. Due to Plaintiffs’ failure to plead ultimate facts in support of their contentions and
to the vague and ambiguous assertions made within the Complaint, Defendant is not placed on
notice of the claim against it and cannot fashion an appropriate response or assert the appropriate
defenses.
In short, the allegations in Plaintiffs’ Complaint are bare bones allegations, devoid of the
statements of ultimate fact required by Rule 1.110, Fla.R.Civ.P., the net effect of which is the
failure to put CYPRESS on notice of the basic legal claim asserted including what actual damages
are at issue, what the purported cause of loss (or what cause is being pursued by Plaintiffs) is for
the alleged damage and the provision(s) of the insurance policy (i.e., the contract) which Plaintiffs
are asserting that CYPRESS breached. Without such basic, necessary information the Plaintiffs’
Complaint is rendered so vague and ambiguous that Defendant cannot reasonably frame a
responsive pleading. And, by “responsive pleading,” Defendant means an Answer and Affirmative
Defenses.
Thus, Plaintiffs should be required, at a minimum, to amend their Complaint to include
sufficient statements of ultimate fact relative to the deficiencies indicated above. Further, Plaintiffs
should be required to provide statements of ultimate fact as to the cause of the purported loss, or
at least the extent of the loss and damages, to put Defendant on notice of the particular claim
eFiled Lee County Clerk of Courts Page 3pursued. Only after such proper notice can Defendant determine and assert what defenses under
the policy might be available, and said defenses are required to be asserted as affirmative defenses.
With this information, Defendant should then be in a position to provide a responsive pleading.
IL. FAILURE TO COMPLY WITH CONDITION PRECEDENT TO SUIT
The policy allows the parties to submit the claims to mediation if they fail to agree on the
amount of the loss. The relevant portion of policy states, in pertinent part:
G. Suit Against Us is replaced by the following:
eek
G. Suit Against Us
If you and we fail to agree on the settlement regarding the
loss, prior to filing suit, you must notify us of your
disagreement in writing.
aK
...Mediation or Appraisal is required as a prerequisite
before an “Insured” can file suit related to Section 1 of this
policy regarding the amount of loss
ae
On April 12, 2021, Plaintiffs filed suit against CYPRESS and CYPRESS was served with
Plaintiff's Complaint for breach of contract on April 16, 2021. There is a disagreement over the
amount of loss, which disagreement is appropriate to be determined by mediation. The parties
are required by the clear and unambiguous terms of the policy to have amount of loss determined
by Mediation.
Mediation is a condition precedent to litigation. The mediation must be completed before
this matter can be litigated. Mediation is a judicially favored means of alternative dispute
eFiled Lee County Clerk of Courts Page 4resolution. CYPRESS therefore seeks to have this matter dismissed so that the amount of loss
may be determined pursuant to the policy’s mediation provision.
Florida law requires that a Court interpret the Policy according to its plain meaning. Taurus
Holdings, Inc. v. U.S. Fidelity and Guar. Co., 913 So. 2d 528 (Fla. 2005). The plain meaning of
the Policy herein is clear and incontrovertible that mediation a prerequisite to suit.
Accordingly, CYPRESS respectfully requests that this Honorable Court enter an Order
Dismissing this cause in favor of Mediation to resolve the dispute as to the amount of the loss
alleged in the Plaintiff's Complaint pursuant to the plain language of the Policy.
WHEREFORE, CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY
respectfully requests that this Honorable Court enter an order requiring Plaintiffs to provide more
definite statements, pursuant to Rule 1.140(e), Fla.R.Civ.P., and an Order dismissing this cause in
favor of mediation 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 the foregoing has been furnished
to Sullyng C. Ceballos, Esq. using the Florida Courts E-Filing Portal, to
sceballos@kpattorney.com; FirstPartyEService@kpattorney.com this 20" day of April, 2021.
GROELLE & SALMON, P.A.
Attorneys for Defendant
1601 Belvedere Road, Suite 403-S,
West Palm Beach, FL 33406
Phone: 561-588-3000/ Facsimile: 561-963-2265
Primary Email: gswcourtdocs@gspalaw.com
Email: jlinhart@gspalaw.com
(ELA
By
JACOB J. LINHART, ESQUIRE
Fla. Bar No.: 558982
eFiled Lee County Clerk of Courts Page 5
Preview
Filing # 125228111 E-Filed 04/20/2021 10:27:35 AM IN THE CIRCUIT COURT OF THE 207 JUDICIAL CIRCUIT, IN AND FOR LEE COUNTY, FLORIDA CASE NO.: 20CA2268 IN Y. CHUNG AND MAL CHUNG, Plaintiffs, Vv. CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. / DEFENDANT’S MOTION TO DISMISS AND MOTION FOR MORE DEFINITE STATEMENT Defendant, CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY, (“CYPRESS” or “Defendant”), by and through its undersigned counsel hereby files this, its Motion to Dismiss and Motion for More Definite Statement and in support thereof states as follows: INTRODUCTION 1. Plaintiffs have filed and served a twenty four (24) paragraph Complaint upon Defendant, which purports to state a cause of action for breach of contract. 2. Defendant seeks an order requiring the Plaintiffs to provide more definite statements as to their allegations, as identified below and an order dismissing the action for failure of the Plaintiffs to comply with the condition precedent of mediation. MEMORANDUM OF LAW I. MOTION FOR MORE DEFINITE STATEMENT Rule 1.140(e), Fla.R.Civ.P., provides in material part: Ifa pleading to which a responsive pleading is permitted is so vague eFiled Lee County Clerk of Courts Page 1or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading. In addition, Rule 1.110(b), Fla.R.Civ.P. requires that a complaint must contain a “short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” Plaintiffs’ Complaint fails to plead ultimate facts in support of the claimed loss. A Complaint must contain a short and plain statement if the ultimate facts showing that the pleader is entitled to relief. “At the outset of a suit, litigants must state their pleadings with sufficient particularity for a defense to be prepared.” Harowitz v. Laske, 855 So.2d 169, 173 (Fla. 5th DCA 2003); See also Ash v. Airport Mini-Storage, 782 So.2d 983 (Fla. 3d DCA 2001). Otherwise the Complaint will be held insufficient. Dawson v. Blue Cross Ass’n, 293 So.2d 90, 92 (Fla. lst DCA 1974). Plaintiffs Complaint is bereft of any facts or circumstances describing the event(s) which allegedly give rise to the cause of action against CYPRESS. Plaintiffs merely assert, in paragraph 7 of their Complaint, that “The Insured Property sustained direct physical damage as a result of Hurricane Irma.” Such “damage” may involve any number of causes such as, inter alia, water damage which was caused by water flooding into the home from an outside source, a roof leak resulting in damages to the interior of the subject property or an object hitting a wall or window resulting in damage, each of which may trigger different applicable policy provisions and coverage defenses. CYPRESS’s obligations under the insurance policy, and any relevant coverage defenses depend upon the cause, type and manner and location of the loss alleged. Without facts and information regarding the claimed loss, Defendant cannot reasonably be required to respond to the cause of action alleged against it. eFiled Lee County Clerk of Courts Page 2The insurance policy contains different exclusions or limitations of coverage which may apply depending upon the nature, cause and location of the damage. The Plaintiffs presumably have knowledge of the facts regarding the cause of the claimed damage but have failed to provide them. Plaintiffs are required by law to plead ultimate facts in support of their cause of action in order to place Defendant on sufficient notice of the allegations and to allow Defendant to respond appropriately. Due to Plaintiffs’ failure to plead ultimate facts in support of their contentions and to the vague and ambiguous assertions made within the Complaint, Defendant is not placed on notice of the claim against it and cannot fashion an appropriate response or assert the appropriate defenses. In short, the allegations in Plaintiffs’ Complaint are bare bones allegations, devoid of the statements of ultimate fact required by Rule 1.110, Fla.R.Civ.P., the net effect of which is the failure to put CYPRESS on notice of the basic legal claim asserted including what actual damages are at issue, what the purported cause of loss (or what cause is being pursued by Plaintiffs) is for the alleged damage and the provision(s) of the insurance policy (i.e., the contract) which Plaintiffs are asserting that CYPRESS breached. Without such basic, necessary information the Plaintiffs’ Complaint is rendered so vague and ambiguous that Defendant cannot reasonably frame a responsive pleading. And, by “responsive pleading,” Defendant means an Answer and Affirmative Defenses. Thus, Plaintiffs should be required, at a minimum, to amend their Complaint to include sufficient statements of ultimate fact relative to the deficiencies indicated above. Further, Plaintiffs should be required to provide statements of ultimate fact as to the cause of the purported loss, or at least the extent of the loss and damages, to put Defendant on notice of the particular claim eFiled Lee County Clerk of Courts Page 3pursued. Only after such proper notice can Defendant determine and assert what defenses under the policy might be available, and said defenses are required to be asserted as affirmative defenses. With this information, Defendant should then be in a position to provide a responsive pleading. IL. FAILURE TO COMPLY WITH CONDITION PRECEDENT TO SUIT The policy allows the parties to submit the claims to mediation if they fail to agree on the amount of the loss. The relevant portion of policy states, in pertinent part: G. Suit Against Us is replaced by the following: eek G. Suit Against Us If you and we fail to agree on the settlement regarding the loss, prior to filing suit, you must notify us of your disagreement in writing. aK ...Mediation or Appraisal is required as a prerequisite before an “Insured” can file suit related to Section 1 of this policy regarding the amount of loss ae On April 12, 2021, Plaintiffs filed suit against CYPRESS and CYPRESS was served with Plaintiff's Complaint for breach of contract on April 16, 2021. There is a disagreement over the amount of loss, which disagreement is appropriate to be determined by mediation. The parties are required by the clear and unambiguous terms of the policy to have amount of loss determined by Mediation. Mediation is a condition precedent to litigation. The mediation must be completed before this matter can be litigated. Mediation is a judicially favored means of alternative dispute eFiled Lee County Clerk of Courts Page 4resolution. CYPRESS therefore seeks to have this matter dismissed so that the amount of loss may be determined pursuant to the policy’s mediation provision. Florida law requires that a Court interpret the Policy according to its plain meaning. Taurus Holdings, Inc. v. U.S. Fidelity and Guar. Co., 913 So. 2d 528 (Fla. 2005). The plain meaning of the Policy herein is clear and incontrovertible that mediation a prerequisite to suit. Accordingly, CYPRESS respectfully requests that this Honorable Court enter an Order Dismissing this cause in favor of Mediation to resolve the dispute as to the amount of the loss alleged in the Plaintiff's Complaint pursuant to the plain language of the Policy. WHEREFORE, CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY respectfully requests that this Honorable Court enter an order requiring Plaintiffs to provide more definite statements, pursuant to Rule 1.140(e), Fla.R.Civ.P., and an Order dismissing this cause in favor of mediation 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 the foregoing has been furnished to Sullyng C. Ceballos, Esq. using the Florida Courts E-Filing Portal, to sceballos@kpattorney.com; FirstPartyEService@kpattorney.com this 20" day of April, 2021. GROELLE & SALMON, P.A. Attorneys for Defendant 1601 Belvedere Road, Suite 403-S, West Palm Beach, FL 33406 Phone: 561-588-3000/ Facsimile: 561-963-2265 Primary Email: gswcourtdocs@gspalaw.com Email: jlinhart@gspalaw.com (ELA By JACOB J. LINHART, ESQUIRE Fla. Bar No.: 558982 eFiled Lee County Clerk of Courts Page 5