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Filing # 127705515 E-Filed 05/27/2021 04:42:52 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
ERIC DEININGER AND MARIE
GENERAL JURISDICTION DIV.
DEININGER,
CASE NO.:CACE 20-017353 (18)
Plaintiffs,
VS.
GULFSTREAM PROPERTY & CASUALTY
INSURANCE COMPANY, a Florida Corporation
Defendant.
PLAINTIFF'S RULE 1.140 (b) & (f) MOTION TO STRIKE
INSUFFICIENT LEGAL DEFENSES
COMES NOW, the Plaintiffs', ERIC DEININGER and MARIE DEININGER, by
and through its undersigned attorneys, pursuant to Rules 1.110(d), 1.140(b),1.140(f)
and 1.340(a), Florida Rules of Civil Procedure, and move the Court to issue an Order
Striking the Affirmative Defenses obtained in the Answer filed and served by the
Defendant, GULFSTREAM PROPERTY & CASUALTY INSURANCE COMPANY, and
as grounds therefore states:
1)
Rule 1.110(d), Affirmative Defenses, states:
In pleading to a preceding pleading, a party shall set forth affirmatively accord
and satisfaction, arbitration and award, assumption of risk, contributory negligence,
discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury
by fellow servant, Iaches, license, payment, release, res judicata, statute of frauds,
statute of
limitations, waiver and any other matter constituting an avoidance or
affirmative defense.
2)
Rule 1.140(b), How Presented, states:
If a pleading sets forth a claim for relief to which the adverse party is not required
to serve a responsive pleading, he may assert any defense in law or fact to that claim
for a relief at the trial, except that the objection of failure to state a legal defense in an
answer or reply shall be asserted by motion to strike the defense within twenty (20) days
after service of the answer or reply.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/27/2021 04:42:52 PM.****
3)
Rule 1.140(f), Motion to Strike, states:
A party may move to strike or the Court may strike redundant, immaterial,
impertinent or scandalous matter from any pleading at any time.
4)
Rule 1.140, The Committee Note, states:
Motions to Strike under subdivision (f) are divided into two categories so
subdivision (a) is also amended to accommodate this change by eliminating motions to
strike under the new subdivision (f) as motions that tell the running to time. A Motion to
Strike an insufficient Legal Defense will now be available under subdivision (b) and
continue to toll the time for responsive pleading. Subdivision (b) is amended to include
the defense of failure to state a sufficient legal defense. The proper method of attack for
failure to state a legal defense remains a Motion to Strike. Subdivision (f) is changes to
accommodate the two types of Motions to Strike. The Motion to Strike an Insufficient
Legal Defense is now in subdivision (b). The Motion to Strike under subdivision (f) does
not toll the time for responsive pleading, can be made at any time and the matter can be
stricken from the Court on its initiative at any time.
5)
In addition to the admissions, denials and allegations of without
knowledge in an answer, the pleader must assert any affirmative defenses that
he has to each cause of action alleged in the preceding pleading. An affirmative
defenses is one that admits the cause of action asserted by the preceding
pleading, but a avoids liability, wholly or partly, by new allegations of sufficient
excuse, justification or other matter negating the cause of action.
What constitutes an affirmative defense is a matter of substantive law.
Substantive law also determines the elements of each defense.
A defense that is a denial should not be pleaded affirmatively.
The Motion to Strike parts of an Affirmative Defense can be made at any time.
Trawick, Florida Practice & Procedure, {11-4, affirmative defenses} (1984) [citations
omitted, emphasis supplied], see also, Moore Meats, Inc. vs. Strawn 313 So. 2d 660
(Fla. 1975).
Defendant's"Affirmative Defenses" are, at best, denials, but in no event do they avoid
liability in whole or in part by allegationsof excuse, justificationor other matter negating
the cause of action.
6-
Defendant has also failed to state any facts to support the affirmative
defenses and therefore the affirmative defenses plead should be stricken as a matter of
law.
WHEREFORE, for the foregoing reasons, Plaintiffs', ERIC DEININGER and
MARIE DEININGER, hereby respectfully request that this Honorable Court enter an
Order Striking the Affirmative Defenses filed and served by the Defendant, Gulfstream
Property & Casualty Insurance Company, a Florida Corporation.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via
email delivery, upon: SERIC J. FALLON, ESQUIRE Gulfstream Property & Casualty
Ins. Co., Attorneys for Defendant, 1401 NW 136th Avenue, Suite 200, Sunrise, FL 33323
on this 27h day of May, 2021.
The Glassman Legal Group
Attorneys for Plaintiffs
2200 N. Commerce Parkway, Ste. 105
Fort Lauderdale, Florida 33326
Telephone No.: (954) 915-8800
Facsimile: (954) 915-8900
Email:
By:
/s/ Monica E. McWilliams
LEE D. GLASSMAN, ESQ.
FLORIDA BAR NO.: 0999954
MONICA E MCWILLIAMS, ESQ.
FLORIDA BAR NO.: 105385
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Filing # 127705515 E-Filed 05/27/2021 04:42:52 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA ERIC DEININGER AND MARIE GENERAL JURISDICTION DIV. DEININGER, CASE NO.:CACE 20-017353 (18) Plaintiffs, VS. GULFSTREAM PROPERTY & CASUALTY INSURANCE COMPANY, a Florida Corporation Defendant. PLAINTIFF'S RULE 1.140 (b) & (f) MOTION TO STRIKE INSUFFICIENT LEGAL DEFENSES COMES NOW, the Plaintiffs', ERIC DEININGER and MARIE DEININGER, by and through its undersigned attorneys, pursuant to Rules 1.110(d), 1.140(b),1.140(f) and 1.340(a), Florida Rules of Civil Procedure, and move the Court to issue an Order Striking the Affirmative Defenses obtained in the Answer filed and served by the Defendant, GULFSTREAM PROPERTY & CASUALTY INSURANCE COMPANY, and as grounds therefore states: 1) Rule 1.110(d), Affirmative Defenses, states: In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, Iaches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver and any other matter constituting an avoidance or affirmative defense. 2) Rule 1.140(b), How Presented, states: If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert any defense in law or fact to that claim for a relief at the trial, except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within twenty (20) days after service of the answer or reply. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/27/2021 04:42:52 PM.**** 3) Rule 1.140(f), Motion to Strike, states: A party may move to strike or the Court may strike redundant, immaterial, impertinent or scandalous matter from any pleading at any time. 4) Rule 1.140, The Committee Note, states: Motions to Strike under subdivision (f) are divided into two categories so subdivision (a) is also amended to accommodate this change by eliminating motions to strike under the new subdivision (f) as motions that tell the running to time. A Motion to Strike an insufficient Legal Defense will now be available under subdivision (b) and continue to toll the time for responsive pleading. Subdivision (b) is amended to include the defense of failure to state a sufficient legal defense. The proper method of attack for failure to state a legal defense remains a Motion to Strike. Subdivision (f) is changes to accommodate the two types of Motions to Strike. The Motion to Strike an Insufficient Legal Defense is now in subdivision (b). The Motion to Strike under subdivision (f) does not toll the time for responsive pleading, can be made at any time and the matter can be stricken from the Court on its initiative at any time. 5) In addition to the admissions, denials and allegations of without knowledge in an answer, the pleader must assert any affirmative defenses that he has to each cause of action alleged in the preceding pleading. An affirmative defenses is one that admits the cause of action asserted by the preceding pleading, but a avoids liability, wholly or partly, by new allegations of sufficient excuse, justification or other matter negating the cause of action. What constitutes an affirmative defense is a matter of substantive law. Substantive law also determines the elements of each defense. A defense that is a denial should not be pleaded affirmatively. The Motion to Strike parts of an Affirmative Defense can be made at any time. Trawick, Florida Practice & Procedure, {11-4, affirmative defenses} (1984) [citations omitted, emphasis supplied], see also, Moore Meats, Inc. vs. Strawn 313 So. 2d 660 (Fla. 1975). Defendant's"Affirmative Defenses" are, at best, denials, but in no event do they avoid liability in whole or in part by allegationsof excuse, justificationor other matter negating the cause of action. 6- Defendant has also failed to state any facts to support the affirmative defenses and therefore the affirmative defenses plead should be stricken as a matter of law. WHEREFORE, for the foregoing reasons, Plaintiffs', ERIC DEININGER and MARIE DEININGER, hereby respectfully request that this Honorable Court enter an Order Striking the Affirmative Defenses filed and served by the Defendant, Gulfstream Property & Casualty Insurance Company, a Florida Corporation. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via email delivery, upon: SERIC J. FALLON, ESQUIRE Gulfstream Property & Casualty Ins. Co., Attorneys for Defendant, 1401 NW 136th Avenue, Suite 200, Sunrise, FL 33323 on this 27h day of May, 2021. The Glassman Legal Group Attorneys for Plaintiffs 2200 N. Commerce Parkway, Ste. 105 Fort Lauderdale, Florida 33326 Telephone No.: (954) 915-8800 Facsimile: (954) 915-8900 Email: By: /s/ Monica E. McWilliams LEE D. GLASSMAN, ESQ. FLORIDA BAR NO.: 0999954 MONICA E MCWILLIAMS, ESQ. FLORIDA BAR NO.: 105385