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Filing # 117877137 E-Filed 12/08/2020 08:08:49 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
TOBIAS MACBETH & ANITA L. CASE NO.: CACE 20-017657
MACBETH, JUDGE: CAROL-LISA PHILLIPS
Plaintiffs,
v.
CAPITOL PREFERRED INSURANCE
COMPANY, INC.
Defendant.
/
DEFENDANT, CAPITOL PREFERRED INSURANCE COMPANY’S, AMENDED
ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL
COMES NOW, the Defendant, CAPITOL PREFERRED INSURANCE COMPANY,
INC., (hereinafter “CAPITOL PREFERRED”) by and through undersigned counsel, and hereby
files this, its Answer, Affirmative Defenses and Demand for Jury Trial to the Complaint filed by
TOBIAS MACBETH & ANITA L. MACBETH, (hereinafter “Plaintiffs”), and states as follows:
AS TO GENERAL ALLEGATIONS
1. Upon information and belief CAPITOL PREFERRED admits the allegations in
Paragraph 1 of the Complaint.
2. CAPITOL PREFERRED admits only that, on the date of the reported loss of
June 20, 2020, CAPITOL PREFERRED was a Florida corporation authorized to engage in
business in the State of Florida and asserts that on or about September 8, 2020, CAPITOL
PREFERRED merged with SOUTHERN FIDELITY INSURANCE COMPANY, which is a
Florida corporation authorized to engage in business in the State of Florida
3. CAPITOL PREFERRED admits the allegations in Paragraph 3 of the Complaint
for jurisdictional purposes only, and denies all substantive allegations and demands strict proof
thereof at trial.
Page 1 of 5
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/08/2020 08:08:49 PM.****AS TO COUNT I: BREACH OF CONTRACT
4. CAPITOL PREFERRED realleges and reincorporates its responses to the
complaint paragraphs 1 through 3 as if fully set forth herein.
5. CAPITOL PREFERRED admits the allegations in Paragraph 5 of the Complaint
for jurisdictional purposes only, and denies all substantive allegations and demands strict proof
thereof at trial.
6. CAPITOL PREFERRED admits only that, in exchange for a premium,
CAPITOL PREFERRED issued Policy No. CPH 2126118 02 55, with effective dates of June 6,
2020 through June 6, 2021 to Plaintiffs. CAPITOL PREFERRED asserts that coverage
provided under the policy was and is subject to its terms, conditions, limitations, exclusions,
and endorsements set forth in the Policy and the Policy, as a legal document, speaks for itself.
CAPITOL PREFERRED denies and demands strict proof thereof of all allegations inconsistent
therewith.
7. Admitted only that the Plaintiffs’ property sustained certain damages as a result
of the loss reported to have occurred on June 20, 2020. CAPITOL PREFERRED denies and
demands strict proof thereof of all allegations inconsistent therewith.
8. Admitted only that the Plaintiffs’ property sustained certain damages as a result
of the loss reported to have occurred on June 20, 2020. CAPITOL PREFERRED denies and
demands strict proof thereof of all allegations inconsistent therewith.
9. Admitted only that coverage was afforded for the loss reported to have occurred
on June 20, 2020. CAPITOL PREFERRED asserts that coverage provided under the policy was
and is subject to its terms, conditions, limitations, exclusions, and endorsements set forth in the
Page 2 of 5Policy and the Policy, as a legal document, speaks for itself. CAPITOL PREFERRED denies
and demands strict proof thereof of all allegations inconsistent therewith.
10. | Admitted only that the Plaintiffs’ property sustained certain damages as a result
of the loss reported to have occurred on June 20, 2020. CAPITOL PREFERRED denies all
remaining allegations and demands strict proof thereof of all allegations inconsistent therewith.
11. Admitted only that the Plaintiffs’ property sustained certain damages as a result
of the loss reported to have occurred on June 20, 2020. CAPITOL PREFERRED denies all
remaining allegations and demands strict proof thereof of all allegations inconsistent therewith.
12. CAPITOL PREFERRED denies the allegations in Paragraph 12 of the
Complaint and demands strict proof thereof at trial.
13. CAPITOL PREFERRED denies the allegations in Paragraph 13 of the
Complaint and demands strict proof thereof at trial.
14. CAPITOL PREFERRED denies the allegations in Paragraph 14 of the
Complaint and demands strict proof thereof at trial.
15. CAPITOL PREFERRED denies the allegations in Paragraph 15 of the
Complaint and demands strict proof thereof at trial.
16. CAPITOL PREFERRED denies the allegations in Paragraph 16 of the
Complaint and demands strict proof thereof at trial.
STATEMENT OF GENERAL DENI
CAPITOL PREFERRED denies any and all allegations set forth in the Plaintiffs’
Complaint that are not specifically admitted herein and demands strict proof of said allegations at
the time of trial.
FIRST AFFIRMATIVE DEFENSE
Page 3 of 5Without waiver of defenses to coverage, this action is barred to the extent that
indemnification is sought for claimed damage to the plumbing system itself from which water
allegedly escaped.
SECOND AFFIRMATIVE DEFENSE
CAPITOL PREFERRED asserts that Plaintiff's claim is barred and/or limited to the
extent the sums for which the Plaintiff seeks coverage under the subject Policy were not incurred
as a direct result of a covered peril. CAPITOL PREFERRED’S investigation revealed that the
tile flooring was not damaged as a result of the reported leak.
THIRD AFFIRMATIVE DEFENSE
CAPITOL PREFERRED, pursuant to the terms and conditions of the subject Policy of
insurance has paid any and all benefits due the Plaintiffs as a result of the June 20, 2020 loss.
CAPITOL PREFERRED refers to its payment letter dated October 7, 2020 which included a
copy of the estimate upon which payment was based.
FOURTH AFFIRMATIVE DEFENSE
CAPITOL PREFERRED asserts that the policy of insurance controls the rights and
obligations of the parties and coverage, if any, and is limited to all the terms, conditions,
limitations, exclusions, exceptions, deductible and other applicable provisions under the contract.
RESERVATION OF RIGHT TO AMEND
CAPITOL PREFERRED INSURANCE COMPANY, INC. reserves its right to
supplement and/or amend its Affirmative Defenses, in compliance with the Florida Rules of
Civil Procedure, as discovery and investigation is ongoing.
DEMAND FOR JURY TRIAL
Page 4 of 5CAPITOL PREFERRED demands a jury trial for all issues triable as a matter of right by
a jury.
WHEREFORE, the Respondent, CAPITOL PREFERRED INSURANCE COMPANY,
INC., respectfully requests this Honorable Court grant judgment in its favor, so that Plaintiffs
take nothing from this action and go henceforth without day, and award taxable costs incurred in
the defense of this action and all other relief as this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of December, 2020, I electronically filed the
foregoing with the Clerk of the Courts by using the ECF system, which will send a notice of
electronic filing to David D. Barnhill, Esq., McDonald & Barnhill, P.A.,
eservice@medonaldbarnhill.com
CAPITOL PREFERRED INSURANCE
COMPANY, INC.
In-House Litigation Counsel
2S. University Drive, Suite 110
Plantation, FL 33324
Phone: (850) 906-1251
pfernandez@pmains.com
KMcConnachie @pmains.com
By: /s/ Patricia E. Fernandez_
PATRICIA E. FERNANDEZ, ESQ.
Florida Bar No.: 98610
Page 5 of 5
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Filing # 117877137 E-Filed 12/08/2020 08:08:49 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA TOBIAS MACBETH & ANITA L. CASE NO.: CACE 20-017657 MACBETH, JUDGE: CAROL-LISA PHILLIPS Plaintiffs, v. CAPITOL PREFERRED INSURANCE COMPANY, INC. Defendant. / DEFENDANT, CAPITOL PREFERRED INSURANCE COMPANY’S, AMENDED ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL COMES NOW, the Defendant, CAPITOL PREFERRED INSURANCE COMPANY, INC., (hereinafter “CAPITOL PREFERRED”) by and through undersigned counsel, and hereby files this, its Answer, Affirmative Defenses and Demand for Jury Trial to the Complaint filed by TOBIAS MACBETH & ANITA L. MACBETH, (hereinafter “Plaintiffs”), and states as follows: AS TO GENERAL ALLEGATIONS 1. Upon information and belief CAPITOL PREFERRED admits the allegations in Paragraph 1 of the Complaint. 2. CAPITOL PREFERRED admits only that, on the date of the reported loss of June 20, 2020, CAPITOL PREFERRED was a Florida corporation authorized to engage in business in the State of Florida and asserts that on or about September 8, 2020, CAPITOL PREFERRED merged with SOUTHERN FIDELITY INSURANCE COMPANY, which is a Florida corporation authorized to engage in business in the State of Florida 3. CAPITOL PREFERRED admits the allegations in Paragraph 3 of the Complaint for jurisdictional purposes only, and denies all substantive allegations and demands strict proof thereof at trial. Page 1 of 5 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/08/2020 08:08:49 PM.****AS TO COUNT I: BREACH OF CONTRACT 4. CAPITOL PREFERRED realleges and reincorporates its responses to the complaint paragraphs 1 through 3 as if fully set forth herein. 5. CAPITOL PREFERRED admits the allegations in Paragraph 5 of the Complaint for jurisdictional purposes only, and denies all substantive allegations and demands strict proof thereof at trial. 6. CAPITOL PREFERRED admits only that, in exchange for a premium, CAPITOL PREFERRED issued Policy No. CPH 2126118 02 55, with effective dates of June 6, 2020 through June 6, 2021 to Plaintiffs. CAPITOL PREFERRED asserts that coverage provided under the policy was and is subject to its terms, conditions, limitations, exclusions, and endorsements set forth in the Policy and the Policy, as a legal document, speaks for itself. CAPITOL PREFERRED denies and demands strict proof thereof of all allegations inconsistent therewith. 7. Admitted only that the Plaintiffs’ property sustained certain damages as a result of the loss reported to have occurred on June 20, 2020. CAPITOL PREFERRED denies and demands strict proof thereof of all allegations inconsistent therewith. 8. Admitted only that the Plaintiffs’ property sustained certain damages as a result of the loss reported to have occurred on June 20, 2020. CAPITOL PREFERRED denies and demands strict proof thereof of all allegations inconsistent therewith. 9. Admitted only that coverage was afforded for the loss reported to have occurred on June 20, 2020. CAPITOL PREFERRED asserts that coverage provided under the policy was and is subject to its terms, conditions, limitations, exclusions, and endorsements set forth in the Page 2 of 5Policy and the Policy, as a legal document, speaks for itself. CAPITOL PREFERRED denies and demands strict proof thereof of all allegations inconsistent therewith. 10. | Admitted only that the Plaintiffs’ property sustained certain damages as a result of the loss reported to have occurred on June 20, 2020. CAPITOL PREFERRED denies all remaining allegations and demands strict proof thereof of all allegations inconsistent therewith. 11. Admitted only that the Plaintiffs’ property sustained certain damages as a result of the loss reported to have occurred on June 20, 2020. CAPITOL PREFERRED denies all remaining allegations and demands strict proof thereof of all allegations inconsistent therewith. 12. CAPITOL PREFERRED denies the allegations in Paragraph 12 of the Complaint and demands strict proof thereof at trial. 13. CAPITOL PREFERRED denies the allegations in Paragraph 13 of the Complaint and demands strict proof thereof at trial. 14. CAPITOL PREFERRED denies the allegations in Paragraph 14 of the Complaint and demands strict proof thereof at trial. 15. CAPITOL PREFERRED denies the allegations in Paragraph 15 of the Complaint and demands strict proof thereof at trial. 16. CAPITOL PREFERRED denies the allegations in Paragraph 16 of the Complaint and demands strict proof thereof at trial. STATEMENT OF GENERAL DENI CAPITOL PREFERRED denies any and all allegations set forth in the Plaintiffs’ Complaint that are not specifically admitted herein and demands strict proof of said allegations at the time of trial. FIRST AFFIRMATIVE DEFENSE Page 3 of 5Without waiver of defenses to coverage, this action is barred to the extent that indemnification is sought for claimed damage to the plumbing system itself from which water allegedly escaped. SECOND AFFIRMATIVE DEFENSE CAPITOL PREFERRED asserts that Plaintiff's claim is barred and/or limited to the extent the sums for which the Plaintiff seeks coverage under the subject Policy were not incurred as a direct result of a covered peril. CAPITOL PREFERRED’S investigation revealed that the tile flooring was not damaged as a result of the reported leak. THIRD AFFIRMATIVE DEFENSE CAPITOL PREFERRED, pursuant to the terms and conditions of the subject Policy of insurance has paid any and all benefits due the Plaintiffs as a result of the June 20, 2020 loss. CAPITOL PREFERRED refers to its payment letter dated October 7, 2020 which included a copy of the estimate upon which payment was based. FOURTH AFFIRMATIVE DEFENSE CAPITOL PREFERRED asserts that the policy of insurance controls the rights and obligations of the parties and coverage, if any, and is limited to all the terms, conditions, limitations, exclusions, exceptions, deductible and other applicable provisions under the contract. RESERVATION OF RIGHT TO AMEND CAPITOL PREFERRED INSURANCE COMPANY, INC. reserves its right to supplement and/or amend its Affirmative Defenses, in compliance with the Florida Rules of Civil Procedure, as discovery and investigation is ongoing. DEMAND FOR JURY TRIAL Page 4 of 5CAPITOL PREFERRED demands a jury trial for all issues triable as a matter of right by a jury. WHEREFORE, the Respondent, CAPITOL PREFERRED INSURANCE COMPANY, INC., respectfully requests this Honorable Court grant judgment in its favor, so that Plaintiffs take nothing from this action and go henceforth without day, and award taxable costs incurred in the defense of this action and all other relief as this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 8th day of December, 2020, I electronically filed the foregoing with the Clerk of the Courts by using the ECF system, which will send a notice of electronic filing to David D. Barnhill, Esq., McDonald & Barnhill, P.A., eservice@medonaldbarnhill.com CAPITOL PREFERRED INSURANCE COMPANY, INC. In-House Litigation Counsel 2S. University Drive, Suite 110 Plantation, FL 33324 Phone: (850) 906-1251 pfernandez@pmains.com KMcConnachie @pmains.com By: /s/ Patricia E. Fernandez_ PATRICIA E. FERNANDEZ, ESQ. Florida Bar No.: 98610 Page 5 of 5