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Filing # 129956772 E-Filed 07/01/2021 11:19:03 PM
OLY-35316/EVB
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CASE NO.: 502021CA004410XXXXMB
FERNANDO AND CECILIA
WOLF,
Plaintiffs,
v.
OLYMPUS INSURANCE
COMPANY,
Defendant.
/
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES
TO PLAINTIFFS' COMPLAINT,
Defendant, OLYMPUS INSURANCE COMPANY (“Olvmnns”), files its answer and
affirmative defenses to plaintiffs' complaint, and states:
1. Admitted for jurisdictional purposes only that this purports to be an action within
the jurisdictional limits of this Court, but denied that Olympus is liable for any damages in this
action.
2. Without knowledge and, therefore, denied.
3. Denied as stated. Admitted only that Olympus is a licensed insurance company
authorized to transact business in the State of Florida, including its Palm Beach County.
4. Admitted only that jurisdiction and venue are proper. Denied that Olympus is
liable for any damages in this matter.
5. Admitted only that Olympus issued Policy O1C30005348-00 to Fernando and
Aawt. WIE fo I td ee AT A NIT A A nO wa ta
Ueciia WOU tor Ue polly period wom April 24, 2U1/, WW April 24, 2U10, alu proviaca
CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FLED A7INAINAN 44.40-N2 DMA
Pm. PAL DLA VUUINE TT, PL, VUOL II monuecy, ULUIAN, Uru eue! 1g. citCase No.: 2021-004350-CA-01
Page 2
insurance coverage to the property located at 1485 Stonehaven Estates Drive, West Palm Beach,
FL 33411, subject to its terms, conditions, exceptions, exclusions and endorsements. The Policy
speaks for itself.
6. Admitted only that Olympus issued Policy OIC30005348-00 to Fernando and
Cecilia Wolf for the policy period from April 24, 2017, to April 24, 2018, and provided
insurance coverage to the property located at 1485 Stonehaven Estates Drive, West Palm Beach,
FL 33411, subject to its terms, conditions, exceptions, exclusions and endorsements. The Policy
speaks for itself. Olympus is without knowledge as to plaintiffs possession of the policy.
Admitted that Olympus is in the possession of the policy. All other allegations and inferences are
denied
7. Denied that the property was damaged by Hurricane. The Policy speaks for itself.
8. Admitted only that it is purported to be an action for breach of contract but denied
as to any liability therefor.
COUNT I- BREACH OF CONTRACT AGAINST DEFENDANT
9. Olympus re-alleges and re-incorporates its responses to the allegations in
paragraphs | through 8 as if fuily set forth herein and responds to further allegations as follows:
10. Admitted only the Policy O1C30005348-00 issued to Fernando and Cecilia Wolf
was in effect from April 24, 2017, to April 24, 2018, subject to its terms, conditions, exceptions,
exclusions and endorsements. All other allegations and inferences are denied.
11. Denied. Plaintiffs are precluded from recovering under the policy since the
insureds failed to comply with their duties after loss, which are conditions precedent to
coverage under the policy, by failing to timely report the loss event and by failing to showCase No.: 2021-004350-CA-01
Page 3
Olympus the damaged property in close proximity to the date of the alleged loss. Further, any
waiver of policy conditions must be in writing and no such waiver was ever given by Olympus.
12. Denied.
13. Denied.
14. Denied.
15. Without knowledge and, therefore, denied.
16. Without knowledge as to plaintiffs’ retention of counsel. Denied in that Florida
Statutes speak for themselves. Denied the remaining allegations.
17. Denied in that Florida Statutes speak for themselves. Denied that plaintiffs are
entitled to recovery of attorney’s fees in this action.
Regarding the “WHEREFORE” clause in the complaint, or any other allegations
contained within the complaint that have not been expressly responded to, Olympus denies each
and every such allegation contained therein. Plaintiffs’ request for jury trial requires no response
from Olympus.
AFFIRMATIVE DEFENSES
First Affirmative Defense — re to Comply with Duties Aiter Loss
Plaintiff is precluded from recovering under the policy since he failed to comply with his
duties after loss by failing to timely report the loss event and by failing to show Olympus the
damaged property. The insured reported the loss to Olympus 1087 days after the alleged loss
event and did not allow the inspection of the property until three years after the alleged date of
loss. The insureds’ late reporting and failure to show the damaged property prejudiced Olympus
in its claim investigation in that Olympus was prevented from verifying the cause of the loss or
tha avtant af the damanas fram tha alaimed Ince avant ifany in alace aravimity ta the date af
ure Caine O1 ure Gamages woth wie Caine 1055 Oven, i any, in Croc Proauuiry vw ure Gare OrCase No.: 2021-004350-CA-01
Page 4
the alleged loss. See Policy HO 00 03 10 00 (page 13 of 22) as amended by Endorsement OL HO
100 12 13 (page 5 of 11), Section I — Conditions, Duties After Loss, par. B. Hence, there is no
coverage for the damages at issue in this case for the Plaintiffs.
Second Affirmative Defense — Wear and Tear
This policy provides no coverage for damage caused by wear, tear, marring or
deterioration. See Policy HO 00 03 10 00 Section I — Perils Insured Against, Coverage A —
Dwelling and Coverage B — Other Structures, par. A.(6)(a) (page 9 of 22). Here, Omega Forensic
Engineering, an expert engineer retained by Olympus, observed numerous replaced roof tiles of
different color, different color adhesive used to repair tiles indicative of multiple repairs
indicative of the breakage occurred at different times. The minor ceiling leak in the family room
is likely produced by a failure in the aging base sheet or leaks around a single fastener holding a
field tile in place. Therefore, there is no coverage for the insured to the extent that the damages
were caused by wear, tear, deterioration of the roofing materials over the roof’s 19-year life span.
Third Affirmative Defense — Latent Defect/Mechanical Breakdown
The Policy provides no coverage for damage caused by inherent vice, latent defect or
mechanical breakdown. See Policy HO 00 03 i0 00 Section i — Periis Insured Against, Coverage
A — Dwelling and Coverage B — Other Structures, par. A.(6)(b) (page 9 of 22). Omega Forensic
Engineering determined that the interior damage to the family room ceiling was caused by at
least 2 exposures to moisture and is beneath a flashed valley due to latent installation deficiency
in the flashing. The minor ceiling leak in the family room is likely produced by a failure in the
aging base sheet or leaks around a single fastener holding a field tile in place. Additionally, the
expert observed cracked tiles due to differential movement of roof tiles resulting from thermal
aynancian and anateantinn and frat teafFin Dinintiffo tharafars nanant rannuar fam Ahmmnne
Cxpanoion aia COntacuon ait 100t Waiiic. A ialieilis, WICTe1O1e, Caiioe ICCO VEL MOI U1y tps.Case No.: 2021-004350-CA-01
Page 5
Fourth Affirmative Defense - Settling, Shrinking, Bulging or Expansion
This policy provides no coverage for damage caused by settling, shrinking, bulging or
expansion, including resultant cracking of the roof. See Policy HO 00 03 10 00 Section I — Perils
Insured Against, Coverage A — Dwelling and Coverage B — Other Structures, par. A.(6)(f) (page
9 of 22). Here, Omega Forensic Engineering had determined that the claimed damages in part
were caused by natural thermal expansion and contraction of the roofing materials. Therefore,
Plaintiffs cannot recover from Olympus to the extent that damage was caused by settling,
shrinking, bulging or expansion, including resultant cracking of the roof.
Fifth Affirmative Defense - Faulty, Inadequate or Defective
Installation, Repair or Maintenance
The Policy provides no coverage for damage caused by faulty, inadequate or defective
1) planning, zoning, development, surveying, siting; 2) design, specifications, workmanship,
repair, construction; 3) materials used in repair, construction, renovation or remodeling; or, 4)
maintenance. See Policy HO 00 03 10 00 Section I — Exclusions, par. B.3. (page 12 of 22).
Omega Forensic Engineering observed cracked and chipped tiles but none of them was damaged
by wind. Some of the cracks were repaired, some not and some were still in the formation
process and did not extend through the tile surface. Additionally, the engineer documented an
improper repair near the northeast hip, where a partial field tile is fastened with adhesive over a
broken original tile. The black adhesive has failed in a manner consistent with age-related
12. TL
1008S. 1M
eta al lctole tot
Cr AISO ODSEIVEU a
this roof. Plaintiffs, therefore, cannot recover from Olympus to the extent that any damage was
caused by any of the causes enumerated above.Case No.: 2021-004350-CA-01
Page 6
Sixth Affirmative Defense - No Roof Opening Caused by Covered Peril
The policy provides no coverage for rain, snow, sleet, hail, sand, or dust to the interior of
the building unless a direct force of the windstorm first damages the building, causing an
opening through which rain, snow, sleet, hail, sand, or dust enters and causes damage. See Policy
Endorsement HO 03 52 01 06. Here, Omega Forensic Engineering determined that the roof on
the Plaintiffs’ home did not sustain damage from Hurricane Irma and no storm-created openings
in the roof covering or walls were found that would allow rainwater to penetrate the building and
damage the interior. Therefore, Plaintiffs cannot recover from Olympus for any alleged interior
damages.
Seventh Affirmative Defense — No Coverage for Damage Caused by Neglect
This policy provides no coverage for damage caused by neglect of any insured to use all
reasonable means to save and preserve the property at and after the time of the loss. See Policy
HO 00 03 10 00 Section I -Exclusions, par.5 (page 12 of 22). Here, the Plaintiffs did not present
any documents to show that they took any action to protect the property from further damages
after the time of the alleged loss. Such loss is excluded regardless of any other cause or event
contributing concurrently or in anv sequence to the Ings, Therefore, the Plaintiffs cannot recover
from Olympus to the extent any of the damages were due to their failure to protect the property
from further damage.
Eighth Affirmative Defense - Failure to Cooperate
Olympus has no duty to provide coverage under the policy if plaintiff fails to cooperate in
investigation of the loss and show the damaged property. See Policy HO 00 03 10 00 (page 13 of
22) as amended by Endorsement OL HO 100 12 13 (page 5 of 11), Section I — Conditions,
Duties After Loss, par. B. Here, the insured failed to provide requested documents and submitCase No.: 2021-004350-CA-01
Page 7
sworn proof of loss within 60 days from the date it was requested. Therefore, there is no
coverage for the Plaintiffs.
Ninth Affirmative Defense — Direct Physical Loss
In the event the Court finds that covered property is damaged by an applicable Peril
Insured Against, the plaintiffs are not entitled to recovery in whole or in part for matching costs
or the replacement costs of undamaged property. Pursuant to the Policy and applicable Florida
Statutes, Olympus’s liability under the policy for a covered loss is limited to actual damages. The
Policy insures against “direct physical loss to property...” See Policy Section I — Perils Insured
Against, par A.1. (page 8 of 22). The phrase “direct physical loss” has been defined to mean
actual damage. Actual damage is visible physical damage that can be observed. See Homeowners
Choice Property & Casualty v. Maspons, 211 So.3d 1967 (Fla. 3d DCA 2017) (“Direct” and
“physical” modify loss and impose the requirement that the damage be actual”).
Tenth Affirmative Defense - Actual Value of Repairs
Tn the event the Court finds that covered property is damaged by an applicable Peril
Insured Against, insured is only entitled to recover the actual cash value of the insured loss after
application of the $7,520 hurricane deductibie. The remaining amounis necessary to perform
such repairs are paid as work is performed and expenses are incurred. See Policy Endorsement
OL HO 100 12 13, Section I - Conditions, paragraph C.1.d. (page 6 of 11). The insured has not
submitted any documents to support the cost of completed repairs that exceed the policy
deductible. Therefore, Plaintiffs cannot recover from Olympus.
Eleventh Affirmative Defense — Overstated Damages
Tn the event the Court determines that covered property was damaged by an applicable
Dasil Taonead Anainst Alumane io any ahlaated ta nau the amaunt aveaading tha daduatihla that
aU ansurea agai, Viyoipus is Oimy Oougarca wo pay ue anu CACCCaing Wie GCGuCtiow uaeCase No.: 2021-004350-CA-01
Page 8
is necessary to perform repairs and return the property to its pre-loss condition. See OL HO 100
12 13, Section I - Conditions, paragraph C.1.d. (page 6 of 11). Here, the repair costs Plaintiffs
seek are severely overstated and/or are not reasonable nor necessarily related to the reported loss
event. In the event the court determines that the damage to the roof is covered by the policy, it is
repairable under Florida Building Code (7" Edition), including the use of salvaged slate, clay or
concrete tiles as long as the salvaged tiles is of like kind both material and profile. Overstating
the damages is deemed a material misrepresentation and/or false statement relating to the
insurance and voids coverage under the policy. See Policy Endorsement OL HO 100 12 13
Section I — Conditions, par. Q (page 8 of 11). Therefore, Plaintiffs are not entitled to the damages
claimed in full or in part.
Twelfth Affirmative Defense -Ordinance or Law
The Plaintiffs’ recovery, if any, is subject to the Ordinance or Law provision, which
provides for payment, up to the percentage shown on the Declarations that applies to Coverage
A, for the increased costs incurred due to the enforcement of any ordinance or law, which
requires or regulates the construction, demolition, remodeling, renovation or repair of that party
of a covered building or other structure damaged by a Peril insured Against. See Policy
Endorsement OL HO 100 12 13, par 11.a. (page 3 of 11). Defendant’s investigation of the claim
revealed the following: 1) there was no storm-related damage to the roof; and 2) Plaintiffs have
not made or completed repairs to trigger coverage under the Ordinance or Law provision of the
Policy. To the extent Plaintiffs seek coverage under the Ordinance or Law provision of the
policy, no amounts are due and owing ftom Olympus, since Plaintiffs have not incurred any
increased costs due to the enforcement of any ordinance or law.Case No.: 2021-004350-CA-01
Page 9
Thirteenth Affirmative Defense - Failure to Comply with
Policy Terms Prior to Filing Lawsuit
The insured failed to fully comply with all the terms of the policy and, therefore, no
action can be brought against Olympus. See Policy Endorsement OL HO 100 12 13 Section I—
Conditions, par. G (page 7 of 11). Plaintiff did not comply with his duties after loss as more
specifically stated in the affirmative defenses above. Therefore, Plaintiffs cannot recover from
Olympus.
Reservation of Defenses
Defendant, Olympus, expressly reserves the right to amend and/or add additional
defenses and affirmative defenses as discovery and investigation is ongoing.
WHEREFORE, Olympus Insurance Company seeks entry of judgment in its favor and
for such other relief as this court deems mete.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via Electronic Mail, to all counsel of record on the attached Service List, this Ist day of July,
2021.
LUKS, SANTANIELLO, PETRILLO &
COHEN
Atiomeys for Defendant
110 SE 6TH STREET
20TH FLOOR
FORT LAUDERDALE, FL 33301
Telephone: (954) 761-9900
Facsimile: (954) 761-9940
Dee LI av eee Deine nae
DYy:__/5/ BVgEiIya ¥. DUTrZandVa
William J. PeterfriendSERVICE LIST
Patrick Cassady, Esq.
Cohen Law Group
350 North Lake Destiny Road
Maitland, FL 32751
pcassady@itsaboutjustice.law
jorden@itsaboutjustice.law
Case No.: 2021-004350-CA-01
Page 10
Florida Bar No.: 544647
Evgeniya V. Burganova
Florida Bar No.: 74132
LUKSFLL-Pleadings@LS-Law.com
EBurganova@insurnacedefense.net
DAlvarado@insurancedefense.net
Preview
Filing # 129956772 E-Filed 07/01/2021 11:19:03 PM OLY-35316/EVB IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502021CA004410XXXXMB FERNANDO AND CECILIA WOLF, Plaintiffs, v. OLYMPUS INSURANCE COMPANY, Defendant. / DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS' COMPLAINT, Defendant, OLYMPUS INSURANCE COMPANY (“Olvmnns”), files its answer and affirmative defenses to plaintiffs' complaint, and states: 1. Admitted for jurisdictional purposes only that this purports to be an action within the jurisdictional limits of this Court, but denied that Olympus is liable for any damages in this action. 2. Without knowledge and, therefore, denied. 3. Denied as stated. Admitted only that Olympus is a licensed insurance company authorized to transact business in the State of Florida, including its Palm Beach County. 4. Admitted only that jurisdiction and venue are proper. Denied that Olympus is liable for any damages in this matter. 5. Admitted only that Olympus issued Policy O1C30005348-00 to Fernando and Aawt. WIE fo I td ee AT A NIT A A nO wa ta Ueciia WOU tor Ue polly period wom April 24, 2U1/, WW April 24, 2U10, alu proviaca CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FLED A7INAINAN 44.40-N2 DMA Pm. PAL DLA VUUINE TT, PL, VUOL II monuecy, ULUIAN, Uru eue! 1g. citCase No.: 2021-004350-CA-01 Page 2 insurance coverage to the property located at 1485 Stonehaven Estates Drive, West Palm Beach, FL 33411, subject to its terms, conditions, exceptions, exclusions and endorsements. The Policy speaks for itself. 6. Admitted only that Olympus issued Policy OIC30005348-00 to Fernando and Cecilia Wolf for the policy period from April 24, 2017, to April 24, 2018, and provided insurance coverage to the property located at 1485 Stonehaven Estates Drive, West Palm Beach, FL 33411, subject to its terms, conditions, exceptions, exclusions and endorsements. The Policy speaks for itself. Olympus is without knowledge as to plaintiffs possession of the policy. Admitted that Olympus is in the possession of the policy. All other allegations and inferences are denied 7. Denied that the property was damaged by Hurricane. The Policy speaks for itself. 8. Admitted only that it is purported to be an action for breach of contract but denied as to any liability therefor. COUNT I- BREACH OF CONTRACT AGAINST DEFENDANT 9. Olympus re-alleges and re-incorporates its responses to the allegations in paragraphs | through 8 as if fuily set forth herein and responds to further allegations as follows: 10. Admitted only the Policy O1C30005348-00 issued to Fernando and Cecilia Wolf was in effect from April 24, 2017, to April 24, 2018, subject to its terms, conditions, exceptions, exclusions and endorsements. All other allegations and inferences are denied. 11. Denied. Plaintiffs are precluded from recovering under the policy since the insureds failed to comply with their duties after loss, which are conditions precedent to coverage under the policy, by failing to timely report the loss event and by failing to showCase No.: 2021-004350-CA-01 Page 3 Olympus the damaged property in close proximity to the date of the alleged loss. Further, any waiver of policy conditions must be in writing and no such waiver was ever given by Olympus. 12. Denied. 13. Denied. 14. Denied. 15. Without knowledge and, therefore, denied. 16. Without knowledge as to plaintiffs’ retention of counsel. Denied in that Florida Statutes speak for themselves. Denied the remaining allegations. 17. Denied in that Florida Statutes speak for themselves. Denied that plaintiffs are entitled to recovery of attorney’s fees in this action. Regarding the “WHEREFORE” clause in the complaint, or any other allegations contained within the complaint that have not been expressly responded to, Olympus denies each and every such allegation contained therein. Plaintiffs’ request for jury trial requires no response from Olympus. AFFIRMATIVE DEFENSES First Affirmative Defense — re to Comply with Duties Aiter Loss Plaintiff is precluded from recovering under the policy since he failed to comply with his duties after loss by failing to timely report the loss event and by failing to show Olympus the damaged property. The insured reported the loss to Olympus 1087 days after the alleged loss event and did not allow the inspection of the property until three years after the alleged date of loss. The insureds’ late reporting and failure to show the damaged property prejudiced Olympus in its claim investigation in that Olympus was prevented from verifying the cause of the loss or tha avtant af the damanas fram tha alaimed Ince avant ifany in alace aravimity ta the date af ure Caine O1 ure Gamages woth wie Caine 1055 Oven, i any, in Croc Proauuiry vw ure Gare OrCase No.: 2021-004350-CA-01 Page 4 the alleged loss. See Policy HO 00 03 10 00 (page 13 of 22) as amended by Endorsement OL HO 100 12 13 (page 5 of 11), Section I — Conditions, Duties After Loss, par. B. Hence, there is no coverage for the damages at issue in this case for the Plaintiffs. Second Affirmative Defense — Wear and Tear This policy provides no coverage for damage caused by wear, tear, marring or deterioration. See Policy HO 00 03 10 00 Section I — Perils Insured Against, Coverage A — Dwelling and Coverage B — Other Structures, par. A.(6)(a) (page 9 of 22). Here, Omega Forensic Engineering, an expert engineer retained by Olympus, observed numerous replaced roof tiles of different color, different color adhesive used to repair tiles indicative of multiple repairs indicative of the breakage occurred at different times. The minor ceiling leak in the family room is likely produced by a failure in the aging base sheet or leaks around a single fastener holding a field tile in place. Therefore, there is no coverage for the insured to the extent that the damages were caused by wear, tear, deterioration of the roofing materials over the roof’s 19-year life span. Third Affirmative Defense — Latent Defect/Mechanical Breakdown The Policy provides no coverage for damage caused by inherent vice, latent defect or mechanical breakdown. See Policy HO 00 03 i0 00 Section i — Periis Insured Against, Coverage A — Dwelling and Coverage B — Other Structures, par. A.(6)(b) (page 9 of 22). Omega Forensic Engineering determined that the interior damage to the family room ceiling was caused by at least 2 exposures to moisture and is beneath a flashed valley due to latent installation deficiency in the flashing. The minor ceiling leak in the family room is likely produced by a failure in the aging base sheet or leaks around a single fastener holding a field tile in place. Additionally, the expert observed cracked tiles due to differential movement of roof tiles resulting from thermal aynancian and anateantinn and frat teafFin Dinintiffo tharafars nanant rannuar fam Ahmmnne Cxpanoion aia COntacuon ait 100t Waiiic. A ialieilis, WICTe1O1e, Caiioe ICCO VEL MOI U1y tps.Case No.: 2021-004350-CA-01 Page 5 Fourth Affirmative Defense - Settling, Shrinking, Bulging or Expansion This policy provides no coverage for damage caused by settling, shrinking, bulging or expansion, including resultant cracking of the roof. See Policy HO 00 03 10 00 Section I — Perils Insured Against, Coverage A — Dwelling and Coverage B — Other Structures, par. A.(6)(f) (page 9 of 22). Here, Omega Forensic Engineering had determined that the claimed damages in part were caused by natural thermal expansion and contraction of the roofing materials. Therefore, Plaintiffs cannot recover from Olympus to the extent that damage was caused by settling, shrinking, bulging or expansion, including resultant cracking of the roof. Fifth Affirmative Defense - Faulty, Inadequate or Defective Installation, Repair or Maintenance The Policy provides no coverage for damage caused by faulty, inadequate or defective 1) planning, zoning, development, surveying, siting; 2) design, specifications, workmanship, repair, construction; 3) materials used in repair, construction, renovation or remodeling; or, 4) maintenance. See Policy HO 00 03 10 00 Section I — Exclusions, par. B.3. (page 12 of 22). Omega Forensic Engineering observed cracked and chipped tiles but none of them was damaged by wind. Some of the cracks were repaired, some not and some were still in the formation process and did not extend through the tile surface. Additionally, the engineer documented an improper repair near the northeast hip, where a partial field tile is fastened with adhesive over a broken original tile. The black adhesive has failed in a manner consistent with age-related 12. TL 1008S. 1M eta al lctole tot Cr AISO ODSEIVEU a this roof. Plaintiffs, therefore, cannot recover from Olympus to the extent that any damage was caused by any of the causes enumerated above.Case No.: 2021-004350-CA-01 Page 6 Sixth Affirmative Defense - No Roof Opening Caused by Covered Peril The policy provides no coverage for rain, snow, sleet, hail, sand, or dust to the interior of the building unless a direct force of the windstorm first damages the building, causing an opening through which rain, snow, sleet, hail, sand, or dust enters and causes damage. See Policy Endorsement HO 03 52 01 06. Here, Omega Forensic Engineering determined that the roof on the Plaintiffs’ home did not sustain damage from Hurricane Irma and no storm-created openings in the roof covering or walls were found that would allow rainwater to penetrate the building and damage the interior. Therefore, Plaintiffs cannot recover from Olympus for any alleged interior damages. Seventh Affirmative Defense — No Coverage for Damage Caused by Neglect This policy provides no coverage for damage caused by neglect of any insured to use all reasonable means to save and preserve the property at and after the time of the loss. See Policy HO 00 03 10 00 Section I -Exclusions, par.5 (page 12 of 22). Here, the Plaintiffs did not present any documents to show that they took any action to protect the property from further damages after the time of the alleged loss. Such loss is excluded regardless of any other cause or event contributing concurrently or in anv sequence to the Ings, Therefore, the Plaintiffs cannot recover from Olympus to the extent any of the damages were due to their failure to protect the property from further damage. Eighth Affirmative Defense - Failure to Cooperate Olympus has no duty to provide coverage under the policy if plaintiff fails to cooperate in investigation of the loss and show the damaged property. See Policy HO 00 03 10 00 (page 13 of 22) as amended by Endorsement OL HO 100 12 13 (page 5 of 11), Section I — Conditions, Duties After Loss, par. B. Here, the insured failed to provide requested documents and submitCase No.: 2021-004350-CA-01 Page 7 sworn proof of loss within 60 days from the date it was requested. Therefore, there is no coverage for the Plaintiffs. Ninth Affirmative Defense — Direct Physical Loss In the event the Court finds that covered property is damaged by an applicable Peril Insured Against, the plaintiffs are not entitled to recovery in whole or in part for matching costs or the replacement costs of undamaged property. Pursuant to the Policy and applicable Florida Statutes, Olympus’s liability under the policy for a covered loss is limited to actual damages. The Policy insures against “direct physical loss to property...” See Policy Section I — Perils Insured Against, par A.1. (page 8 of 22). The phrase “direct physical loss” has been defined to mean actual damage. Actual damage is visible physical damage that can be observed. See Homeowners Choice Property & Casualty v. Maspons, 211 So.3d 1967 (Fla. 3d DCA 2017) (“Direct” and “physical” modify loss and impose the requirement that the damage be actual”). Tenth Affirmative Defense - Actual Value of Repairs Tn the event the Court finds that covered property is damaged by an applicable Peril Insured Against, insured is only entitled to recover the actual cash value of the insured loss after application of the $7,520 hurricane deductibie. The remaining amounis necessary to perform such repairs are paid as work is performed and expenses are incurred. See Policy Endorsement OL HO 100 12 13, Section I - Conditions, paragraph C.1.d. (page 6 of 11). The insured has not submitted any documents to support the cost of completed repairs that exceed the policy deductible. Therefore, Plaintiffs cannot recover from Olympus. Eleventh Affirmative Defense — Overstated Damages Tn the event the Court determines that covered property was damaged by an applicable Dasil Taonead Anainst Alumane io any ahlaated ta nau the amaunt aveaading tha daduatihla that aU ansurea agai, Viyoipus is Oimy Oougarca wo pay ue anu CACCCaing Wie GCGuCtiow uaeCase No.: 2021-004350-CA-01 Page 8 is necessary to perform repairs and return the property to its pre-loss condition. See OL HO 100 12 13, Section I - Conditions, paragraph C.1.d. (page 6 of 11). Here, the repair costs Plaintiffs seek are severely overstated and/or are not reasonable nor necessarily related to the reported loss event. In the event the court determines that the damage to the roof is covered by the policy, it is repairable under Florida Building Code (7" Edition), including the use of salvaged slate, clay or concrete tiles as long as the salvaged tiles is of like kind both material and profile. Overstating the damages is deemed a material misrepresentation and/or false statement relating to the insurance and voids coverage under the policy. See Policy Endorsement OL HO 100 12 13 Section I — Conditions, par. Q (page 8 of 11). Therefore, Plaintiffs are not entitled to the damages claimed in full or in part. Twelfth Affirmative Defense -Ordinance or Law The Plaintiffs’ recovery, if any, is subject to the Ordinance or Law provision, which provides for payment, up to the percentage shown on the Declarations that applies to Coverage A, for the increased costs incurred due to the enforcement of any ordinance or law, which requires or regulates the construction, demolition, remodeling, renovation or repair of that party of a covered building or other structure damaged by a Peril insured Against. See Policy Endorsement OL HO 100 12 13, par 11.a. (page 3 of 11). Defendant’s investigation of the claim revealed the following: 1) there was no storm-related damage to the roof; and 2) Plaintiffs have not made or completed repairs to trigger coverage under the Ordinance or Law provision of the Policy. To the extent Plaintiffs seek coverage under the Ordinance or Law provision of the policy, no amounts are due and owing ftom Olympus, since Plaintiffs have not incurred any increased costs due to the enforcement of any ordinance or law.Case No.: 2021-004350-CA-01 Page 9 Thirteenth Affirmative Defense - Failure to Comply with Policy Terms Prior to Filing Lawsuit The insured failed to fully comply with all the terms of the policy and, therefore, no action can be brought against Olympus. See Policy Endorsement OL HO 100 12 13 Section I— Conditions, par. G (page 7 of 11). Plaintiff did not comply with his duties after loss as more specifically stated in the affirmative defenses above. Therefore, Plaintiffs cannot recover from Olympus. Reservation of Defenses Defendant, Olympus, expressly reserves the right to amend and/or add additional defenses and affirmative defenses as discovery and investigation is ongoing. WHEREFORE, Olympus Insurance Company seeks entry of judgment in its favor and for such other relief as this court deems mete. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic Mail, to all counsel of record on the attached Service List, this Ist day of July, 2021. LUKS, SANTANIELLO, PETRILLO & COHEN Atiomeys for Defendant 110 SE 6TH STREET 20TH FLOOR FORT LAUDERDALE, FL 33301 Telephone: (954) 761-9900 Facsimile: (954) 761-9940 Dee LI av eee Deine nae DYy:__/5/ BVgEiIya ¥. DUTrZandVa William J. PeterfriendSERVICE LIST Patrick Cassady, Esq. Cohen Law Group 350 North Lake Destiny Road Maitland, FL 32751 pcassady@itsaboutjustice.law jorden@itsaboutjustice.law Case No.: 2021-004350-CA-01 Page 10 Florida Bar No.: 544647 Evgeniya V. Burganova Florida Bar No.: 74132 LUKSFLL-Pleadings@LS-Law.com EBurganova@insurnacedefense.net DAlvarado@insurancedefense.net