Preview
Filing # 128991737 E-Filed 06/17/2021 04:27:51 PM
IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
ANTONIO ALFARO and DIANA ARE-
CASE NO.: CACE21007201
VAL0,
Plaintiffs,
V
TYPTAP INSURANCE COMPANY,
Defendant.
DEFENDANT'S MOTION TO DISMISS COUNT Il
Defendant, TYPTAP INSURANCE COMPANY, ("TYPTAP"), by and through its
undersigned counsel, and pursuantto the Florida Rule of Civil Procedure hereby files this
Motion To Dismiss Count Il for failure to state a cause of action, and states as follows:
INTRODUCTION
1. This case arises out of a first party property claim related to damage reportedly
from a plumbing loss occurring on August 18,2020.
2.
Defendant's Field Adjuster inspected the subject property and concluded that
there was no evidence of water intrusion or ensuing physical damage to any of
the outer elevations or interior of the home from the cast iron plumbing or any
other covered peril. Therefore, no payment was made.
3. Thereafter, Plaintiffs filed this two-count Complaint for breach of contract and
declaratory relief. Count Il for declaratory relief should be dismissed for failure
to state a cause of action.
COLE, SCOTT & KISSANE, P.A.
ESPERANTEBUILDING - 222 LAKEVIEWAVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383-
9200 - (561) 683-8977 FAX
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/17/2021 04:27:51 PM.****
CASE NO.: CACE21007201
4. Count Il alleges nothing more than brief conclusions which attempt to mirror
the requirementsfor pleading a cause of action for declaratory relief. Count Il
is completely devoid of any specific allegations that would support declaratory
relief.
5.
For example, Plaintiffs do not allege or refer to a policy provision in need of
interpretation by this Court. Nor can they because the issue in this case is
purely a factual issue - whether Plaintiffs'property has damage from a covered
plumbing loss - an issue to be decided by the jury and not as a matter of law.
6.
Further, Plaintiffs incorrectly allege that "There is doubt between the Insured
and Insurer regarding coverage of the loss which affects the rights and/or priv-
ileges of the Parties" The Defendant is not in doubt, there was no coverage for
the Plaintiffs' claim under the policy. It is clear that the Plaintiffs also have no
doubt as admitted by the filing of Count I for breach of contract. See Plaintiffs
Complaint at 1[23.
7. Moreover, Count Il is duplicitous of Count I. There is no question that Plaintiffs
seek the monetary damages that are sought in Count I and thus they have an
adequate remedy at law.
LEGAL ARGUMENT
The main purpose of a motion to dismiss is to have the trial court determine
whether the complaint properly states a cause of action upon which relief can be granted;
and if it does not, to enter an order of dismissal. Provence v. Palm Beach Taverns, Inc.,
676 So.2d 1022 (Fla. 4th DCA 1996). In making this determination, the trial court must
2
COLE, SCOTT & KISSANE, P.A.
ESPERANTEBUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383-
9200 - (561) 683-8977 FAX
CASE NO.: CACE21007201
confine its review to the four corners of the complaint, accept all well-pleaded allegations
as true, and view all allegations in the light most favorable to the plaintiff. Bell v. Indian
RiverMemona/Hospita/,778So.2d 1030,1032 (Fla. 4th DCA 2001). A motion to dismiss
a count for declaratory relief does not go to the merits of Plaintiffs elam; rather, the motion
only goes to the question of whether Plaintiff is entitled to a declaration of rights. See
Gov't Employees ins. Co. v Anta, 379 So. 3d 1038, 1039-1040 (Fla. 3d DCA 1980.)
A. Plaintiffs fail to state a cause of action for declaratory relief.
To state a cause of action for declaratory relief, a party must allege that: (1) there
is a bona fide dispute between the parties; (2) the plaintiffhas a justiciable question as to
the existence or nonexistence of some right, status, immunity, power, or privilege, or as
to some fact upon which existence of such a claim may depend; (3) the plaintiffis doubt
as to the claim; and (4) there is a bona fide, actual, present need for the declaration.
Ribaya v. Board of Trustees of City Pension Fund for Firefighters and Police Officers in
City of Tampa, 162 So. 3d 348 (Fla. 2d DCA 2015). See also, Bryant v. Gray, 20 So.2d
581 (Fla. 1954); Flagship Real Estate Corp. v. Flagship Banks, Inc.,374 So.2d 1020 (Fla.
2d DCA 1979).
Here, the Plaintiffs have cited to no right, statute or policy provision which pre-
sents a justiciable question as to Plaintiffs' rights. The Plaintiffs merely attempt to mirror
the allegations required to state a cause of action. No factual support is included. Fur-
ther, Plaintiffs clearly have no doubts as to the existence or nonexistence of their rights
under the policy, which is why they filed a breach of contract count as well. Accordingly,
Plaintiffs do not suffer from the type of "doubt" that would entitle them to declaratory re-
\\ef. See Gables Insurance Recovery a/a/o Vivian A. Monteagudo Leiva v. Progressive
3
COLE, SCOTT & KISSANE, P.A.
ESPERANTEBUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383-
9200 - (561) 683-8977 FAX
CASE NO.: CACE21007201
American Insurance Company, 20 P\a. L. Weekly Supp. 810a (June 6,2013) (requests
by a plaintiff to determine whether coverage exists for a given loss "illustrate the under-
pinnings of an action for breach of contract," not a claim for declaratory relief). Like Ga-
bles Insurance Recovery, Plaintiffs' allegationsand request for relief asking the court to
determine whether the loss is covered under the policy illustrate the underpinningsof an
action for breach of contract, not declaratory relief.
Further, Plaintiffs have not cited any true ambiguities in the policy in need of inter-
pretation, nor can they because this is simply a breach of contract action involving a dis-
pute over the facts concerning the actual loss and its applicationto the policy.
It is well settled that a mere "doubt" due to a disputed question of fact is not suffi-
cient to make declaratory judgment available to litigants. Santa Rosa County v. Adminis-
trative Commission, 661 So.2d 1190 (Fla. 1995); Perez v. State Automobile Ins. Ass'n.,
270 So.2d 377 (Fla. 3rd DCA 1972). In Count Il, Plaintiffs are not asking the Court to
determine whether Defendanthas a contractual obligation to Plaintiffs pursuantto a policy
provision; rather, they are asking the Court to determine whether a given loss has trig-
gered those contractual obligations.
B. Count Il for Declaratory Relief is duplicative of Count I for Breach of Contract.
Plaintiff's count for declaratory relief serves no useful purpose and is duplicativeof
Count I for breach of contract. As explained in Legion Ins. Co. v. Moore, 846 So.2d 1183
(Fla. 4th DCA 2004), declaratory relief actions are inappropriate for first party insurance
claims by one of the contracting parties directly against the other when the issue is simply
whether the nature of loss places the claim within coverage. Under these circumstances,
neither party can "avoid a jury trial by simply filing a declaratory judgment action first in
4
COLE, SCOTT & KISSANE, P.A.
ESPERANTEBUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383-
9200 - (561) 683-8977 FAX
CASE NO.: CACE21007201
which the judge alone is to determine the disputed fact." /d. This is to be distinguished
from those cases, such as third-party claims against someone covered by the policy,
where there may be no evidence for the claimant to make out a prima facie case for
coverage. Under the circumstances of this case, where there is a clear prima facie show-
ing of the possibility of available coverage, a declaratory judgment action serves no "use-
ful purpose... and might impair or defeat rights of the parties." /d.
Plaintiffs will likely respond that citing Higgins v. State Farm Fire & Cas. Co.,894
So. 2d 5 (Fla. 2004). Higgins provides no guidance on whether declaratory relief actions
are appropriatefor determining coverage in first party insurance claims. Higgins involved
a third-party claim, where an insured was sued for assault and battery. The insurance
company filed an action for declaratory relief to determine whether it had the obligation to
defend and indemnify the insured. Ultimately, the Florida Supreme Court held, "the de-
claratory judgment statutes authorize declaratory judgments in respect to insurance pol-
icy indemnity coverage and defense obligations in cases in which it is necessary to re-
solve issues of fact in order to decide the declaratory judgment action." Higgins v. State
Farm Fire & Cas. Co., 894 So. 2d 5,15 (Fla. 2004). Higgins does not speak to the ap-
plicability of Legion Ins. Co. v. Moore, which specifically addresses concerns unique to
first party claims, where declaratory judgment actions serve no useful purpose.
Because Plaintiffs have not set forth any doubts as to the existence or nonexist-
ence of their rights under the policy; because the Petition for Declaratory Relief would
serve no purpose in resolving the parties' dispute, and because Plaintiffs have an ade-
quate remedy at law which is the monetary damages they are seeking in Count I for
breach of contract in their complaint. Count Il for declaratory relief should be dismissed.
5
COLE, SCOTT & KISSANE, P.A.
ESPERANTEBUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383-
9200 - (561) 683-8977 FAX
CASE NO.: CACE21007201
WHEREFORE, Defendant, TYPTAP INSURANCE COMPANY, respectfully re-
guests that this Honorable Court grant Defendant'smotion and enter an Order dismissing
Count Il of Plaintiffs' Complaint, and for any other relief deemed just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 17th day of June, 2021, a true and correct copy
of the foregoing was filed with the Clerk of County by using the Florida Courts e-Filing
Portal, which will send an automatic e-mail message to the following parties registered
with the e-Filing Portal system: Maximo A. Santiago, Esq,, Your Insurance Attorney,
PLLC,
2601
South Bayshore Drive, 18th Floor, Coconut Grove, FL 33133, (888) 570-5677/(888) 745-
5677 (F), Attorney for Plaintiffs, Diana Arevalo and Antonio Alfaro.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant
Esperante Building
222 Lakeview Avenue, Suite 120
West Palm Beach, Florida 33401
Telephone (561) 383-9252
Facsimile (561) 683-8977
Primary e-mail:
Secondarye-mail:
Alternate e-mail:
By: s/ Jacqueline P. Meyer
MIMI K. MCANDREWS
Florida Bar No.- 991368
JACQUELINE P. MEYER
Florida Bar No.: 1010785
6
COLE, SCOTT & KISSANE, P.A.
ESPERANTEBUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383-
9200 - (561) 683-8977 FAX
Preview
Filing # 128991737 E-Filed 06/17/2021 04:27:51 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA ANTONIO ALFARO and DIANA ARE- CASE NO.: CACE21007201 VAL0, Plaintiffs, V TYPTAP INSURANCE COMPANY, Defendant. DEFENDANT'S MOTION TO DISMISS COUNT Il Defendant, TYPTAP INSURANCE COMPANY, ("TYPTAP"), by and through its undersigned counsel, and pursuantto the Florida Rule of Civil Procedure hereby files this Motion To Dismiss Count Il for failure to state a cause of action, and states as follows: INTRODUCTION 1. This case arises out of a first party property claim related to damage reportedly from a plumbing loss occurring on August 18,2020. 2. Defendant's Field Adjuster inspected the subject property and concluded that there was no evidence of water intrusion or ensuing physical damage to any of the outer elevations or interior of the home from the cast iron plumbing or any other covered peril. Therefore, no payment was made. 3. Thereafter, Plaintiffs filed this two-count Complaint for breach of contract and declaratory relief. Count Il for declaratory relief should be dismissed for failure to state a cause of action. COLE, SCOTT & KISSANE, P.A. ESPERANTEBUILDING - 222 LAKEVIEWAVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383- 9200 - (561) 683-8977 FAX *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/17/2021 04:27:51 PM.**** CASE NO.: CACE21007201 4. Count Il alleges nothing more than brief conclusions which attempt to mirror the requirementsfor pleading a cause of action for declaratory relief. Count Il is completely devoid of any specific allegations that would support declaratory relief. 5. For example, Plaintiffs do not allege or refer to a policy provision in need of interpretation by this Court. Nor can they because the issue in this case is purely a factual issue - whether Plaintiffs'property has damage from a covered plumbing loss - an issue to be decided by the jury and not as a matter of law. 6. Further, Plaintiffs incorrectly allege that "There is doubt between the Insured and Insurer regarding coverage of the loss which affects the rights and/or priv- ileges of the Parties" The Defendant is not in doubt, there was no coverage for the Plaintiffs' claim under the policy. It is clear that the Plaintiffs also have no doubt as admitted by the filing of Count I for breach of contract. See Plaintiffs Complaint at 1[23. 7. Moreover, Count Il is duplicitous of Count I. There is no question that Plaintiffs seek the monetary damages that are sought in Count I and thus they have an adequate remedy at law. LEGAL ARGUMENT The main purpose of a motion to dismiss is to have the trial court determine whether the complaint properly states a cause of action upon which relief can be granted; and if it does not, to enter an order of dismissal. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla. 4th DCA 1996). In making this determination, the trial court must 2 COLE, SCOTT & KISSANE, P.A. ESPERANTEBUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383- 9200 - (561) 683-8977 FAX CASE NO.: CACE21007201 confine its review to the four corners of the complaint, accept all well-pleaded allegations as true, and view all allegations in the light most favorable to the plaintiff. Bell v. Indian RiverMemona/Hospita/,778So.2d 1030,1032 (Fla. 4th DCA 2001). A motion to dismiss a count for declaratory relief does not go to the merits of Plaintiffs elam; rather, the motion only goes to the question of whether Plaintiff is entitled to a declaration of rights. See Gov't Employees ins. Co. v Anta, 379 So. 3d 1038, 1039-1040 (Fla. 3d DCA 1980.) A. Plaintiffs fail to state a cause of action for declaratory relief. To state a cause of action for declaratory relief, a party must allege that: (1) there is a bona fide dispute between the parties; (2) the plaintiffhas a justiciable question as to the existence or nonexistence of some right, status, immunity, power, or privilege, or as to some fact upon which existence of such a claim may depend; (3) the plaintiffis doubt as to the claim; and (4) there is a bona fide, actual, present need for the declaration. Ribaya v. Board of Trustees of City Pension Fund for Firefighters and Police Officers in City of Tampa, 162 So. 3d 348 (Fla. 2d DCA 2015). See also, Bryant v. Gray, 20 So.2d 581 (Fla. 1954); Flagship Real Estate Corp. v. Flagship Banks, Inc.,374 So.2d 1020 (Fla. 2d DCA 1979). Here, the Plaintiffs have cited to no right, statute or policy provision which pre- sents a justiciable question as to Plaintiffs' rights. The Plaintiffs merely attempt to mirror the allegations required to state a cause of action. No factual support is included. Fur- ther, Plaintiffs clearly have no doubts as to the existence or nonexistence of their rights under the policy, which is why they filed a breach of contract count as well. Accordingly, Plaintiffs do not suffer from the type of "doubt" that would entitle them to declaratory re- \\ef. See Gables Insurance Recovery a/a/o Vivian A. Monteagudo Leiva v. Progressive 3 COLE, SCOTT & KISSANE, P.A. ESPERANTEBUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383- 9200 - (561) 683-8977 FAX CASE NO.: CACE21007201 American Insurance Company, 20 P\a. L. Weekly Supp. 810a (June 6,2013) (requests by a plaintiff to determine whether coverage exists for a given loss "illustrate the under- pinnings of an action for breach of contract," not a claim for declaratory relief). Like Ga- bles Insurance Recovery, Plaintiffs' allegationsand request for relief asking the court to determine whether the loss is covered under the policy illustrate the underpinningsof an action for breach of contract, not declaratory relief. Further, Plaintiffs have not cited any true ambiguities in the policy in need of inter- pretation, nor can they because this is simply a breach of contract action involving a dis- pute over the facts concerning the actual loss and its applicationto the policy. It is well settled that a mere "doubt" due to a disputed question of fact is not suffi- cient to make declaratory judgment available to litigants. Santa Rosa County v. Adminis- trative Commission, 661 So.2d 1190 (Fla. 1995); Perez v. State Automobile Ins. Ass'n., 270 So.2d 377 (Fla. 3rd DCA 1972). In Count Il, Plaintiffs are not asking the Court to determine whether Defendanthas a contractual obligation to Plaintiffs pursuantto a policy provision; rather, they are asking the Court to determine whether a given loss has trig- gered those contractual obligations. B. Count Il for Declaratory Relief is duplicative of Count I for Breach of Contract. Plaintiff's count for declaratory relief serves no useful purpose and is duplicativeof Count I for breach of contract. As explained in Legion Ins. Co. v. Moore, 846 So.2d 1183 (Fla. 4th DCA 2004), declaratory relief actions are inappropriate for first party insurance claims by one of the contracting parties directly against the other when the issue is simply whether the nature of loss places the claim within coverage. Under these circumstances, neither party can "avoid a jury trial by simply filing a declaratory judgment action first in 4 COLE, SCOTT & KISSANE, P.A. ESPERANTEBUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383- 9200 - (561) 683-8977 FAX CASE NO.: CACE21007201 which the judge alone is to determine the disputed fact." /d. This is to be distinguished from those cases, such as third-party claims against someone covered by the policy, where there may be no evidence for the claimant to make out a prima facie case for coverage. Under the circumstances of this case, where there is a clear prima facie show- ing of the possibility of available coverage, a declaratory judgment action serves no "use- ful purpose... and might impair or defeat rights of the parties." /d. Plaintiffs will likely respond that citing Higgins v. State Farm Fire & Cas. Co.,894 So. 2d 5 (Fla. 2004). Higgins provides no guidance on whether declaratory relief actions are appropriatefor determining coverage in first party insurance claims. Higgins involved a third-party claim, where an insured was sued for assault and battery. The insurance company filed an action for declaratory relief to determine whether it had the obligation to defend and indemnify the insured. Ultimately, the Florida Supreme Court held, "the de- claratory judgment statutes authorize declaratory judgments in respect to insurance pol- icy indemnity coverage and defense obligations in cases in which it is necessary to re- solve issues of fact in order to decide the declaratory judgment action." Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5,15 (Fla. 2004). Higgins does not speak to the ap- plicability of Legion Ins. Co. v. Moore, which specifically addresses concerns unique to first party claims, where declaratory judgment actions serve no useful purpose. Because Plaintiffs have not set forth any doubts as to the existence or nonexist- ence of their rights under the policy; because the Petition for Declaratory Relief would serve no purpose in resolving the parties' dispute, and because Plaintiffs have an ade- quate remedy at law which is the monetary damages they are seeking in Count I for breach of contract in their complaint. Count Il for declaratory relief should be dismissed. 5 COLE, SCOTT & KISSANE, P.A. ESPERANTEBUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383- 9200 - (561) 683-8977 FAX CASE NO.: CACE21007201 WHEREFORE, Defendant, TYPTAP INSURANCE COMPANY, respectfully re- guests that this Honorable Court grant Defendant'smotion and enter an Order dismissing Count Il of Plaintiffs' Complaint, and for any other relief deemed just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 17th day of June, 2021, a true and correct copy of the foregoing was filed with the Clerk of County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Maximo A. Santiago, Esq,, Your Insurance Attorney, PLLC, 2601 South Bayshore Drive, 18th Floor, Coconut Grove, FL 33133, (888) 570-5677/(888) 745- 5677 (F), Attorney for Plaintiffs, Diana Arevalo and Antonio Alfaro. COLE, SCOTT & KISSANE, P.A. Counsel for Defendant Esperante Building 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 Telephone (561) 383-9252 Facsimile (561) 683-8977 Primary e-mail: Secondarye-mail: Alternate e-mail: By: s/ Jacqueline P. Meyer MIMI K. MCANDREWS Florida Bar No.- 991368 JACQUELINE P. MEYER Florida Bar No.: 1010785 6 COLE, SCOTT & KISSANE, P.A. ESPERANTEBUILDING - 222 LAKEVIEW AVENUE, SUITE 120 - WEST PALM BEACH, FLORIDA33401 (561) 383- 9200 - (561) 683-8977 FAX