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Filing # 130463218 E-Filed 07/12/2021 02:30:40 PM
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CASE NUMBER: 50-2021-CA-004373
PRINCE GREEN,
Plaintiffs,
v.
OLYMPUS INSURANCE COMPANY,
Defendant.
/
PLAINTIFF’S REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES
COMES NOW, Plaintiff, Prince Green, by and through the undersigned counsel, and
replies to Defendant’s Affirmative Defenses:
1. Plaintiff’s Reply to Defendant’s First Affirmative Defense: No reply is necessary to
the assertions raised by Defendant in its first affirmative defense.
2. Plaintiff’s Reply to Defendant’s Second Affirmative Defense: No reply is necessary to
the assertions raised by Defendant in its second affirmative defense.
3. Plaintiff’s Reply to Defendant’s Third Affirmative Defense: Plaintiffs deny that
Plaintiffs failed to give to prompt notice to Defendant following the loss.
4. Plaintiff’s Reply to Defendant’s Fourth Affirmative Defense: No reply is necessary to
the assertions raised by Defendant in its fourth affirmative defense.
5. Plaintiff's Reply to Defendant’s Fifth Affirmative Defense: Plaintiffs assert that the
subject damages are covered under the terms, conditions, and provisions of the subject policy.
6. Plaintiff’s Reply to Defendant’s Sixth Affirmative Defense: Plaintiffs assert that the
subject damages are covered under the terms, conditions, and provisions of the subject policy.
*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 07/12/2021 02:30:40 PM ***7. Plaintiff’s Reply to Defendant’s Seventh Affirmative Defense: Plaintiffs assert that the
subject damages are covered under the terms, conditions, and provisions of the subject policy.
8. Plaintiff’s Reply to Defendant’s Eighth Affirmative Defense: Plaintiffs assert that the
subject damages are covered under the terms, conditions, and provisions of the subject policy.
9. Plaintiff’s Reply to Defendant’s Ninth Affirmative Defense: No reply is necessary to
the assertions raised by Defendant in its ninth affirmative defense.
10. Plaintiff’s Reply to Defendant’s Tenth Affirmative Defense: Plaintiff denies that
Plaintiff failed to submit a signed, sworn proof of loss as Defendant waived the requirement.
Plaintiff's counsel sent Defendant a letter of representation on January 18, 2021 requesting all
correspondence, including emails, letters, and all other documents relating to the claim.
Defendant sent an acknowledgement letter on February 4, 2021 stating they would be providing
a copy of the Policy. On February 15, 2021 Defendant provided Plaintiff with a letter affirming
their decision to deny Plaintiff’s claim due to late reporting and their inspection finding damages
that were allegedly due to contractor foot fall and thermal expansion. The prior correspondences
on September 1, September 16, October 15, and November 23, 2020 were never provided per
Plaintiffs request, and as such, are waived.
11. Plaintiff’s Reply to Defendant’s Eleventh Affirmative Defense: Plaintiff denies that
Plaintiff failed to comply with Defendant’s request to take their Examination Under Oath, as
required by the Policy. Plaintiff's counsel sent Defendant a letter of representation on January
18, 2021 requesting all correspondence, including emails, letters, and all other documents
relating to the claim. Defendant sent an acknowledgement letter on February 4, 2021 stating they
would be providing a copy of the Policy. On February 15, 2021 Defendant provided Plaintiff
with a letter affirming their decision to deny Plaintiff's claim due to late reporting and theirinspection finding damages that were allegedly due to contractor foot fall and thermal expansion.
The prior correspondences on September 1, September 16, October 15, and November 23, 2020
were never provided per Plaintiff’s request, and as such, are waived.
12. Plaintiff’s Reply to Defendant’s Twelfth Affirmative Defense: Plaintiff asserts that the
subject damages are covered under the terms, conditions, and provisions of the subject policy.
13. Plaintiff’s Reply to Defendant’s Thirteenth Affirmative Defense: Plaintiff denies that
Plaintiff failed to comply with Defendant’s request to provide evidence of repairs. Plaintiff's
counsel sent Defendant a letter of representation on January 18, 2021 requesting all
correspondence, including emails, letters, and all other documents relating to the claim.
Defendant sent an acknowledgement letter on February 4, 2021 stating they would be providing
a copy of the Policy. On February 15, 2021 Defendant provided Plaintiff with a letter affirming
their decision to deny Plaintiff’s claim due to late reporting and their inspection finding damages
that were allegedly due to contractor foot fall and thermal expansion. The prior correspondences
on September 1, September 16, October 15, and November 23, 2020 were never provided per
Plaintiffs request, and as such, are waived.
14. Plaintiff’s Reply to Defendant’s Fourteenth Affirmative Defense: Plaintiff denies that
Plaintiff failed to comply with Defendant’s request to provide a mortgage statement, repair
invoices, estimates of repair or loss, photos of the damages and a sworn proof of loss. Plaintiff's
counsel sent Defendant a letter of representation on January 18, 2021 requesting all
correspondence, including emails, letters, and all other documents relating to the claim.
Defendant sent an acknowledgement letter on February 4, 2021 stating they would be providing
a copy of the Policy. On February 15, 2021 Defendant provided Plaintiff with a letter affirming
their decision to deny Plaintiff's claim due to late reporting and their inspection finding damagesthat were allegedly due to contractor foot fall and thermal expansion. The prior correspondences
on September 1, September 16, October 15, and November 23, 2020 were never provided per
Plaintiff’s request, and as such, are waived.
15. Plaintiff’s Reply to Defendant’s Fifteenth Affirmative Defense: Plaintiff asserts that
they have complied with all of the terms and provision of the policy.
16. Waiver: Defendant does not possess the right to freely amend or supplement its
affirmative defenses. A defense based on a policy exclusion or provision limiting recovery must
be raised an affirmative defense or it is waived. See St. Paul Mercury Ins. Co. v. Coucher, 837
So. 2d 483 (Fla. 5th DCA 2002). Every defense in law or fact to a claim for relief in a pleading
shall be asserted in the responsive pleading and any ground not stated shall be deemed to be
waived. Fla. R. Civ. P. 1.140(b); Heartwood 2, LLC v. Dori, 2019 Fla. App. LEXIS 212 (Fla. 3rd
DCA 2019) (“It is well-settled law in Florida that affirmative defenses not raised are waived.”);
Ohio & M.R. Co. v. McCarthy, 96 U.S. 258, 267-68 (1877).
[Certificate of Service on the Following Page]CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via
Florida’s E-Filing Portal to: Wayne Pratt, Esq., wpratt@gspalaw.com, on this 12th day of July,
2021.
/s/ Charles R. Frederick
COHEN LAW GROUP
Charles R. Frederick, Esq.
FOR THE FIRM
Florida Bar Number: 1010962
350 North Lake Destiny Road, Suite 200
Maitland, Florida 32751
Primary: cfrederick@itsaboutjustice.law
Secondary: anaesparza@itsaboutjustice.law
Phone: (407) 478-4878
Fax: (407) 478-0204
Attorneys for Plaintiffs
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Filing # 130463218 E-Filed 07/12/2021 02:30:40 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NUMBER: 50-2021-CA-004373 PRINCE GREEN, Plaintiffs, v. OLYMPUS INSURANCE COMPANY, Defendant. / PLAINTIFF’S REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES COMES NOW, Plaintiff, Prince Green, by and through the undersigned counsel, and replies to Defendant’s Affirmative Defenses: 1. Plaintiff’s Reply to Defendant’s First Affirmative Defense: No reply is necessary to the assertions raised by Defendant in its first affirmative defense. 2. Plaintiff’s Reply to Defendant’s Second Affirmative Defense: No reply is necessary to the assertions raised by Defendant in its second affirmative defense. 3. Plaintiff’s Reply to Defendant’s Third Affirmative Defense: Plaintiffs deny that Plaintiffs failed to give to prompt notice to Defendant following the loss. 4. Plaintiff’s Reply to Defendant’s Fourth Affirmative Defense: No reply is necessary to the assertions raised by Defendant in its fourth affirmative defense. 5. Plaintiff's Reply to Defendant’s Fifth Affirmative Defense: Plaintiffs assert that the subject damages are covered under the terms, conditions, and provisions of the subject policy. 6. Plaintiff’s Reply to Defendant’s Sixth Affirmative Defense: Plaintiffs assert that the subject damages are covered under the terms, conditions, and provisions of the subject policy. *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 07/12/2021 02:30:40 PM ***7. Plaintiff’s Reply to Defendant’s Seventh Affirmative Defense: Plaintiffs assert that the subject damages are covered under the terms, conditions, and provisions of the subject policy. 8. Plaintiff’s Reply to Defendant’s Eighth Affirmative Defense: Plaintiffs assert that the subject damages are covered under the terms, conditions, and provisions of the subject policy. 9. Plaintiff’s Reply to Defendant’s Ninth Affirmative Defense: No reply is necessary to the assertions raised by Defendant in its ninth affirmative defense. 10. Plaintiff’s Reply to Defendant’s Tenth Affirmative Defense: Plaintiff denies that Plaintiff failed to submit a signed, sworn proof of loss as Defendant waived the requirement. Plaintiff's counsel sent Defendant a letter of representation on January 18, 2021 requesting all correspondence, including emails, letters, and all other documents relating to the claim. Defendant sent an acknowledgement letter on February 4, 2021 stating they would be providing a copy of the Policy. On February 15, 2021 Defendant provided Plaintiff with a letter affirming their decision to deny Plaintiff’s claim due to late reporting and their inspection finding damages that were allegedly due to contractor foot fall and thermal expansion. The prior correspondences on September 1, September 16, October 15, and November 23, 2020 were never provided per Plaintiffs request, and as such, are waived. 11. Plaintiff’s Reply to Defendant’s Eleventh Affirmative Defense: Plaintiff denies that Plaintiff failed to comply with Defendant’s request to take their Examination Under Oath, as required by the Policy. Plaintiff's counsel sent Defendant a letter of representation on January 18, 2021 requesting all correspondence, including emails, letters, and all other documents relating to the claim. Defendant sent an acknowledgement letter on February 4, 2021 stating they would be providing a copy of the Policy. On February 15, 2021 Defendant provided Plaintiff with a letter affirming their decision to deny Plaintiff's claim due to late reporting and theirinspection finding damages that were allegedly due to contractor foot fall and thermal expansion. The prior correspondences on September 1, September 16, October 15, and November 23, 2020 were never provided per Plaintiff’s request, and as such, are waived. 12. Plaintiff’s Reply to Defendant’s Twelfth Affirmative Defense: Plaintiff asserts that the subject damages are covered under the terms, conditions, and provisions of the subject policy. 13. Plaintiff’s Reply to Defendant’s Thirteenth Affirmative Defense: Plaintiff denies that Plaintiff failed to comply with Defendant’s request to provide evidence of repairs. Plaintiff's counsel sent Defendant a letter of representation on January 18, 2021 requesting all correspondence, including emails, letters, and all other documents relating to the claim. Defendant sent an acknowledgement letter on February 4, 2021 stating they would be providing a copy of the Policy. On February 15, 2021 Defendant provided Plaintiff with a letter affirming their decision to deny Plaintiff’s claim due to late reporting and their inspection finding damages that were allegedly due to contractor foot fall and thermal expansion. The prior correspondences on September 1, September 16, October 15, and November 23, 2020 were never provided per Plaintiffs request, and as such, are waived. 14. Plaintiff’s Reply to Defendant’s Fourteenth Affirmative Defense: Plaintiff denies that Plaintiff failed to comply with Defendant’s request to provide a mortgage statement, repair invoices, estimates of repair or loss, photos of the damages and a sworn proof of loss. Plaintiff's counsel sent Defendant a letter of representation on January 18, 2021 requesting all correspondence, including emails, letters, and all other documents relating to the claim. Defendant sent an acknowledgement letter on February 4, 2021 stating they would be providing a copy of the Policy. On February 15, 2021 Defendant provided Plaintiff with a letter affirming their decision to deny Plaintiff's claim due to late reporting and their inspection finding damagesthat were allegedly due to contractor foot fall and thermal expansion. The prior correspondences on September 1, September 16, October 15, and November 23, 2020 were never provided per Plaintiff’s request, and as such, are waived. 15. Plaintiff’s Reply to Defendant’s Fifteenth Affirmative Defense: Plaintiff asserts that they have complied with all of the terms and provision of the policy. 16. Waiver: Defendant does not possess the right to freely amend or supplement its affirmative defenses. A defense based on a policy exclusion or provision limiting recovery must be raised an affirmative defense or it is waived. See St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483 (Fla. 5th DCA 2002). Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading and any ground not stated shall be deemed to be waived. Fla. R. Civ. P. 1.140(b); Heartwood 2, LLC v. Dori, 2019 Fla. App. LEXIS 212 (Fla. 3rd DCA 2019) (“It is well-settled law in Florida that affirmative defenses not raised are waived.”); Ohio & M.R. Co. v. McCarthy, 96 U.S. 258, 267-68 (1877). [Certificate of Service on the Following Page]CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via Florida’s E-Filing Portal to: Wayne Pratt, Esq., wpratt@gspalaw.com, on this 12th day of July, 2021. /s/ Charles R. Frederick COHEN LAW GROUP Charles R. Frederick, Esq. FOR THE FIRM Florida Bar Number: 1010962 350 North Lake Destiny Road, Suite 200 Maitland, Florida 32751 Primary: cfrederick@itsaboutjustice.law Secondary: anaesparza@itsaboutjustice.law Phone: (407) 478-4878 Fax: (407) 478-0204 Attorneys for Plaintiffs