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Filing # 121582244 E-Filed 02/17/2021 04:26:40 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE-20-017800
MAXINE VIRTUE THOMAS,
Plaintiff,
Vv.
SAFEPOINT INSURANCE COMPANY,
Defendant.
/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES AS TO COUNT |
AND MOTION TO DISMISS AS TO COUNT Il OF THE COMPLAINT
COMES NOW Defendant, SAFEPOINT INSURANCE COMPANY, by and through
its undersigned counsel, files its Answer and Affirmative Defenses as to Count | and
Motion to Dismiss as to Count Il of the Complaint. For purposes of this Answer, all
allegations not specifically admitted are deemed denied.
PARTIES, JURISDICTION AND VENUE
1. Admitted for jurisdictional purposes only; otherwise, denied.
2. Without knowledge; therefore, denied.
3. Admitted.
4. Admitted for venue purposes only; otherwise, denied.
5. Denied.
Page 1
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/17/2021 04:26:41 PM.****CASE NO.: CACE-20-017800
GENERAL ALLEGATIONS
6. Admitted only that Defendant issued Policy No.: SFLH1023093 to the insured
Maxine Virtue Thomas, for the policy period from May 5, 2019, through May 5,
2020, and which remains subject to the terms, limitations, exclusions, and
conditions listed therein, and which provided certain coverages to the property
located at 7704 NW 21* Drive, Hollywood, Florida 33024; otherwise, denied.
7. Admitted only that Defendant is in possession of the subject policy; otherwise,
denied.
8. Admitted only that Defendant issued Policy No.: SFLH1023093 to the insured
Maxine Virtue Thomas, for the policy period from May 5, 2019, through May 5,
2020, and which remains subject to the terms, limitations, exclusions, and
conditions listed therein, and which provided certain coverages to the property
located at 7704 NW 21* Drive, Hollywood, Florida 33024; otherwise, denied.
9. Denied.
10. Admitted only that Defendant received a claim and assigned claim number 35845;
otherwise, denied.
11.Denied as phrased.
12. Denied.
13. Denied.
COUNT | - BREACH OF CONTRACT
14. Defendant realleges paragraphs 1 through 13 as if fully set forth herein.
Page 2
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800
15.Admitted only that Defendant issued Policy No.: SFLH1023093 to the insured
Maxine Virtue Thomas, for the policy period from May 5, 2019, through May 5,
2020, and which remains subject to the terms, limitations, exclusions, and
conditions listed therein, and which provided certain coverages to the property
located at 7704 NW 21* Drive, Hollywood, Florida 33024; otherwise, denied.
16. Denied as phrased.
17.Admitted only that Defendant issued Policy No.: SFLH1023093 to the insured
Maxine Virtue Thomas, for the policy period from May 5, 2019, through May 5,
2020, and which remains subject to the terms, limitations, exclusions, and
conditions listed therein, and which provided certain coverages to the property
located at 7704 NW 21* Drive, Hollywood, Florida 33024; otherwise, denied.
18. Denied.
19. Denied.
20. Denied.
WHEREFORE, Defendant demands judgment in its favor and for this Honorable
Court to deny Plaintiff actual and compensatory damages, pre-judgment interest, costs
of this action, attorney’s fees, and such other further relief as this Court may deem
appropriate.
COUNT II — PETITION FOR DECLARATORY RELIEF
MOTION TO DISMISS COUNT II
1. This first party action arises out of a claim made by Plaintiff pursuant to a
homeowners’ insurance policy issued by Defendant.
2. Plaintiff filed a Petition for Declaratory Relief in Count II of their Complaint.
Page 3
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800
3. In the Petition, Plaintiff states, “Defendant has failed to make any payment of
insurance proceeds to the insured.” See {| 19 of the Complaint.
4. However, the Plaintiff fails to delineate any policy provisions that are necessary for
this Court's interpretation.
5. Pursuant to Fla. Stat. § 86.011, the purpose of declaratory judgment is to afford
relief from uncertainty with respect to rights, status and other equitable or legal relations
between the parties.
6. In third party actions, declaratory actions afford an important remedy.
7. On the one hand, a prompt determination of coverage allows the insurer to make
a judgment as to whether to settle the claim if coverage does exist, and on the other hand,
allows the plaintiff to choose to discontinue litigation against a defendant who lacks
coverage, if coverage does not exist. Higgins v. State Farm Fire & Cas. Co., 788 So. 2d
992, 1004 (Fla. 2001).
8. The instant case differs from Higgins, as this is a first party insurance claim.
9. In first party insurance claims, the essential disputed fact underlying the Plaintiff's
claim is whether the alleged loss places the claim within the coverage of the policy. In
these circumstances, a declaratory action does not “serve any useful purpose under the
circumstances . . . and might impair or defeat the rights of the parties.” Legion Ins. Co. v.
Moore, 846 So. 2d 1183 (Fla. 4th DCA 2003) (Distinguishing Higgins from first party
actions and upholding the dismissal of a declaratory judgment action regarding first party
insurance coverage).
Page 4
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800
10.In Miami Yacht Charters, LLC. v. National Union Fire Ins. Co. of Pittsburgh Pa.,
2012 WL 1416428 (S.D. Fla. 2012), the court held that where a purported declaratory
relief claims would require resolution of the same factual issues underlying Plaintiff's
breach of contract claim, the claim for declaratory relief must be dismissed.
11.Seeking declaratory relief is improper where, as here, there are only disputed
questions of fact, the determination of which, control whether there is coverage for
Plaintiff's purported loss under the subject policy. See Halpert v. Oleksy, 65 So. 2d 762,
763 (Fla. 1953) (doubt based on disputed questions of fact alone not sufficient to support
declaratory judgment proceeding, especially when only relief sought is damages).
12.On its face, the Petition is simply a claim for breach of contract and nothing more.
13.In Legion, the Fourth District upheld the dismissal of a declaratory judgment action
regarding first party insurance coverage.
14. In distinguishing its decision in State Farm Fire & Cas. Co. v. Higgins, 788 So. 2d
992 (Fla. 4th DCA 2001), approved, Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5
(Fla. 2004), the Fourth District in Legion noted significantly,
a. “Declaratory judgment actions afford an important
remedy in regard to insurance coverage questions, especially
as to claims made by third parties against someone covered
by the policy. Where a question of coverage is raised in that
circumstance, there is a delicate problem between the insured
and the carrier relating to the defense of the suit by the third
party. It is important then that the question of coverage be
expeditiously determined, if possible, so that the parties under
the contract of insurance may achieve the benefit of their
bargain of contractual rights and obligations, which might be
lost otherwise. . . .”
Page 5
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800
b. “In this case, however, we face not a third party but a
first party claim by one of the contracting parties directly
against the other party under the policy of insurance. . . .”
c. “Unlike the circumstances arising with third party
claims in which the issue of a defense of a suit against the
insured is at stake, here we face nothing more than a mine-
run, disputed UM claim as to which the issue is whether the
nature of the accident places the claim within such coverage
. . . [ijn short, there is a logical basis for the court's
determination that a declaratory judgment action would not
serve any useful purpose under the circumstances of this
case and might impair or defeat rights of the parties.”
15.Id. at 1186-87. Legion involved a first party and not a third party action where the
defense of the underlying suit was at stake. The court found that in those circumstances
a declaratory judgment action was inappropriate.
16. Like the suit in Legion, this case involves a “mine run disputed [first party] claim.”
Therefore, the issue is whether the nature of the alleged loss places the claim within the
coverage of the subject policy. Accordingly, this is simply a breach of contract action
disguised as a petition for declaratory relief.
17.Last, in order to state a proper cause of action for declaratory relief, the Plaintiffs
must plead and show the following:
a. There is a bona fide, actual, present practical need for
the declaration;
b. That the declaration deals with a present, ascertained
or ascertainable state of facts or present controversy as to a
state of facts;
c. That some immunity, power, privilege or right to the
complaining party is dependent upon the facts or the law
applicable to the facts;
d. That there is some person or persons who have, or
reasonably may have, an actual, present, adverse and
antagonistic interest in the subject matter, either in fact or law;
Page 6
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800
e. That the antagonistic and adverse interests are all
before the Court by property process or class representation;
a That the relief sought is not merely giving of legal
advice by the Court or the answer to questions propounded
from curiosity. Coal. for Adequacy & Fairness in Sch. Funding,
Inc. v. Chiles, 680 So. 2d 400, 404 (Fla. 1996).
18. Additionally, the Plaintiff must show that they are in doubt as to the existence or
nonexistence of some right or status, and that they are entitled to have such doubt
removed. Kelner v. Woody, 399 So. 2d 35, 37 (Fla. 3d DCA 1981).
19.In this case, the Plaintiff's Petition is devoid of any true ambiguities which are
necessary for the court to interpret the subject policy.
20. Indeed, the Plaintiff fails to cite any policy provisions that are in need of this Court’s
interpretation. Rather, the Plaintiffs simply state Defendant has failed to provide complete
coverage for the physical damages that occurred during the contract period. See
Plaintiffs’ Petition {| 19. Therefore, Plaintiff does not set forth any ambiguity in the terms
of the insurance contract in doubt or in need of construction.
21.Accordingly, the Petition does not satisfy the aforementioned essential pleading
requirement, as it does not identify any provision of the insurance contract, which is in
doubt or in need or construction. Without satisfying this requirement, the Court is unable
to offer an interpretation of how the facts alleged in the Petition relate to coverage under
the policy and Defendant is unable to respond to and/or defend Plaintiff's allegations.
22. Accordingly, the Plaintiff has failed to state of cause of action for declaratory relief.
23.Rather, the Count for Declaratory Judgment is simply a disguised breach of
contract action, alleging that Defendant failed to extend coverage and make a payment
Page 7
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800
to Plaintiff under the policy of insurance. Indeed, whether Defendant breached the
insurance contract by its alleged failure to pay the claim is a question for the jury to
determine.
24. Therefore, the Plaintiffs Petition for Declaratory Relief must be dismissed.
WHEREFORE, Defendant requests that this Court dismiss Count II of Plaintiffs’
Complaint and grant such further relief as it deems just.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Plaintiff's claim is barred and/or limited to the extent that Plaintiff failed to comply
with the conditions of the subject policy. In support, Defendant refers to the policy, which
states:
SECTION 1 - CONDITIONS
B. Duties After Loss.
In case of a loss to covered property, we have no duty to
provide coverage under this policy if the failure to comply with
the following duties is prejudicial to us. These duties must be
performed either by you, an "insured" seeking coverage, or a
representative of either:
(Endorsement SIC HO 09 SP 04 16 Special Provisions —
Florida):
B.1. is deleted and replaced by the following:
1. Give prompt notice to us or our agent. Except for
Reasonable Emergency Measures taken under Additional
Coverages E.2., there is no coverage for repairs that begin
before the earlier of:
a. 72 hours after we are notified of the loss;
b. The time of loss inspection by us; or
c. The time of other approval by us.
4. Protect the property from further damage. If repairs to the
property are required, you must:
(Endorsement SIC HO 09 SP 04 16):
Page 8
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (054) 473-1112 (054) 474-7979 FAXCASE NO.: CACE-20-017800
B.4.a is deleted and replaced by the following:
a. Take reasonable emergency measures that are necessary
to protect the covered property from further damage, as
provided under Additional Coverages E.2.
A reasonable emergency measure under 4.a. above may
include a permanent repair when necessary to protect the
covered property from further damage or to prevent unwanted
entry to the property. To the degree reasonably possible, the
damaged property must be retained for us to inspect;
b. Keep an accurate record of repair expenses;
5. Cooperate with us in the investigation of a claim;
6. Prepare an inventory of damaged personal property
showing the quantity, description, actual cash value and
amount of loss. Attach all bills, receipts and related
documents that justify the figures in the inventory;
7. As often as we reasonably require:
a. Show the damaged property;
b. Provide us with records and documents we request and
permit us to make copies; and
c. Submit to examination under oath, while not in the presence
of another "insured", and sign the same;
8. Send to us, within 60 days after our request, your signed,
sworn proof of loss which sets forth, to the best of your
knowledge and belief:
a. The time and cause of loss;
b. The interests of all "insureds" and all others in the property
involved and all liens on the property;
c. Other insurance which may cover the loss;
d. Changes in title or occupancy of the property during the
term of the policy;
e. Specifications of damaged buildings and detailed repair
estimates;
f. The inventory of damaged personal property described in 6.
above;
SECOND AFFIRMATIVE DEFENSE
Plaintiff's claim is barred and/or limited under the subject policy’s SIC HO 09 SP
04 16 Endorsement. In support, Defendant refers to the policy, which states:
SPECIAL PROVISIONS — FLORIDA
SECTION I - PERILS INSURED AGAINST
Page 9
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800
A. Coverage A — Dwelling And Coverage B - Other
Structures
Paragraph 2.c.(8) and (9) are added as follows:
[2. We do not insure, however, for loss:
c. Caused by:
(9) Rain, snow, sleet, sand or dust to the interior of a building
unless a covered peril first damages the building causing an
opening in a roof or wall and the rain, snow, sleet, sand or
dust enters through this opening.
THIRD AFFIRMATIVE DEFENSE
Plaintiff's claim is barred and/or limited to the extent that the alleged loss and/or
damage was the result of wear and tear, mechanical breakdown, or age-related
deterioration, which are not covered under the subject policy. In support, Defendant refers
to the policy, which states:
SECTION I — PERILS INSURED AGAINST
A. Coverage A — Dwelling And Coverage B —
Other Structures
1. We insure against risk of direct physical loss to property
described in Coverages A and B.
2. We do not insure, however, for loss:
c. Caused by:
(6) Any of the following:
(a) Wear and tear, marring, deterioration;
(b) Mechanical breakdown, latent defect, inherent vice, or
any quality in property that causes it to damage or destroy
itself
(f) Settling, shrinking, bulging, or expansion, including
resultant cracking, of bulkheads, pavements, patios,
footings, foundations, walls, floors, roofs or ceilings;
Page 10
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs claim is barred and/or limited to the extent that the alleged loss and/or
damage was the result of inadequate workmanship, materials, or maintenance, which
are excluded under the subject policy. In support, Defendant refers to the policy, which
states:
SECTION I - EXCLUSIONS
B. We do not insure for loss to property described in
Coverages A and B caused by any of the following.
However, any ensuing loss to property described in
Coverages A and B not precluded by any other provision in
this policy is covered.
3. Faulty, inadequate or defective:
b. Design, specifications, workmanship, repair, construction,
renovation
remodeling, grading, compaction;
c. Materials used in repair, construction, renovation or
remodeling; or
d. Maintenance;
of part or all of any property whether on or off the "residence
premises".
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs claim is barred and/or limited to the extent that the alleged loss and/or
damage was the result of constant or repeated seepage or leakage of water, which is
excluded under the subject policy. In support, Defendant refers to the policy, which states:
SPECIAL PROVISIONS - FLORIDA
SECTION I —- PERILS INSURED AGAINST
A. Coverage A - Dwelling And Coverage B - Other
Structures
Page 11
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800
Paragraph 2.c.(7) is added as follows:
[2. We do not insure, however, for loss:
c. Caused by:
(7) Constant or repeated seepage or leakage of water or
steam over a period of 14 or more days from within a
plumbing, heating, air conditioning or automatic fire protection
sprinkler system or from within or around any household
appliance, shower stall, shower tub or bathtub installation,
unless the resulting damage is unknown to all insureds and is
hidden within the walls or ceilings or beneath the floors or
above the ceilings of a structure.
SIXTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss and/or
damage was the result of rust or other corrosion, mold, or wet or dry rot. In support,
Defendant refers to the policy, which states:
SPECIAL PROVISIONS - FLORIDA
SECTION I —- PERILS INSURED AGAINST
A. Coverage A — Dwelling And Coverage B — Other
Structures
Paragraph 2.¢.(6)(c) is deleted and replaced by the following:
[2. We do not insure, however, for loss:
c. Caused by:
(6) Any of the following:
]
(c) Smog, rust or other corrosion, “fungi”, mold, wet or dry rot.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff's claim is limited to the extent of coverage provided under the terms of the
subject policy's Limited Fungi, Mold, Wet or Dry Rot, or Bacteria Coverage endorsement.
Page 12
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800
EIGTH AFFIRMATIVE DEFENSE
Plaintiffs claim is barred and/or limited to the extent that the cost of the alleged
loss and/or damage was in an amount below the deductible as set forth in the policy.
GENERAL DENIAL
All allegations not specifically admitted herein, including the un-enumerated
“WHEREFORE” clause, are denied and Defendant demands strict proof thereof.
RESERVATION OF RIGHTS
Defendant reserves the right to amend and/or assert additional defenses upon
further particularization of Plaintiffs claims and/or further discovery concerning the nature
of Plaintiff's claims.
[CERTIFICATE OF SERVICE ON FOLLOWING PAGE]
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COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 17th day of February, 2021, a true and correct
copy of the foregoing was filed with the Clerk of Broward 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, yia3@yourinsuranceattorney.com;
eservice@yourinsuranceattorney.com, 2601 South Bayshore Drive, 18th Floor, Coconut
Grove, FL 33133, (888) 570-5677/(888) 745-5677 (F), Attorney for Plaintiff, Maxine Virtue
Thomas.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant SAFEPOINT
INSURANCE COMPANY
Lakeside Office Center, Suite 500
600 North Pine Island Road
Plantation, Florida 33324
Telephone (954) 703-3706
Facsimile (954) 474-7979
Primary e-mail: jose.campos@csklegal.com
Secondary e-mail:
ryan.weissmark@csklegal.com
Alternate e-mail:
christy.christopher@csklegal.com
By: _s/ Ryan Weissmark
JOSE F. CAMPOS
Florida Bar No.: 110733
RYAN WEISSMARK
Florida Bar No.: 1024747
0546.0746-00/22845851
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COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX
Preview
Filing # 121582244 E-Filed 02/17/2021 04:26:40 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-20-017800 MAXINE VIRTUE THOMAS, Plaintiff, Vv. SAFEPOINT INSURANCE COMPANY, Defendant. / DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES AS TO COUNT | AND MOTION TO DISMISS AS TO COUNT Il OF THE COMPLAINT COMES NOW Defendant, SAFEPOINT INSURANCE COMPANY, by and through its undersigned counsel, files its Answer and Affirmative Defenses as to Count | and Motion to Dismiss as to Count Il of the Complaint. For purposes of this Answer, all allegations not specifically admitted are deemed denied. PARTIES, JURISDICTION AND VENUE 1. Admitted for jurisdictional purposes only; otherwise, denied. 2. Without knowledge; therefore, denied. 3. Admitted. 4. Admitted for venue purposes only; otherwise, denied. 5. Denied. Page 1 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/17/2021 04:26:41 PM.****CASE NO.: CACE-20-017800 GENERAL ALLEGATIONS 6. Admitted only that Defendant issued Policy No.: SFLH1023093 to the insured Maxine Virtue Thomas, for the policy period from May 5, 2019, through May 5, 2020, and which remains subject to the terms, limitations, exclusions, and conditions listed therein, and which provided certain coverages to the property located at 7704 NW 21* Drive, Hollywood, Florida 33024; otherwise, denied. 7. Admitted only that Defendant is in possession of the subject policy; otherwise, denied. 8. Admitted only that Defendant issued Policy No.: SFLH1023093 to the insured Maxine Virtue Thomas, for the policy period from May 5, 2019, through May 5, 2020, and which remains subject to the terms, limitations, exclusions, and conditions listed therein, and which provided certain coverages to the property located at 7704 NW 21* Drive, Hollywood, Florida 33024; otherwise, denied. 9. Denied. 10. Admitted only that Defendant received a claim and assigned claim number 35845; otherwise, denied. 11.Denied as phrased. 12. Denied. 13. Denied. COUNT | - BREACH OF CONTRACT 14. Defendant realleges paragraphs 1 through 13 as if fully set forth herein. Page 2 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800 15.Admitted only that Defendant issued Policy No.: SFLH1023093 to the insured Maxine Virtue Thomas, for the policy period from May 5, 2019, through May 5, 2020, and which remains subject to the terms, limitations, exclusions, and conditions listed therein, and which provided certain coverages to the property located at 7704 NW 21* Drive, Hollywood, Florida 33024; otherwise, denied. 16. Denied as phrased. 17.Admitted only that Defendant issued Policy No.: SFLH1023093 to the insured Maxine Virtue Thomas, for the policy period from May 5, 2019, through May 5, 2020, and which remains subject to the terms, limitations, exclusions, and conditions listed therein, and which provided certain coverages to the property located at 7704 NW 21* Drive, Hollywood, Florida 33024; otherwise, denied. 18. Denied. 19. Denied. 20. Denied. WHEREFORE, Defendant demands judgment in its favor and for this Honorable Court to deny Plaintiff actual and compensatory damages, pre-judgment interest, costs of this action, attorney’s fees, and such other further relief as this Court may deem appropriate. COUNT II — PETITION FOR DECLARATORY RELIEF MOTION TO DISMISS COUNT II 1. This first party action arises out of a claim made by Plaintiff pursuant to a homeowners’ insurance policy issued by Defendant. 2. Plaintiff filed a Petition for Declaratory Relief in Count II of their Complaint. Page 3 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800 3. In the Petition, Plaintiff states, “Defendant has failed to make any payment of insurance proceeds to the insured.” See {| 19 of the Complaint. 4. However, the Plaintiff fails to delineate any policy provisions that are necessary for this Court's interpretation. 5. Pursuant to Fla. Stat. § 86.011, the purpose of declaratory judgment is to afford relief from uncertainty with respect to rights, status and other equitable or legal relations between the parties. 6. In third party actions, declaratory actions afford an important remedy. 7. On the one hand, a prompt determination of coverage allows the insurer to make a judgment as to whether to settle the claim if coverage does exist, and on the other hand, allows the plaintiff to choose to discontinue litigation against a defendant who lacks coverage, if coverage does not exist. Higgins v. State Farm Fire & Cas. Co., 788 So. 2d 992, 1004 (Fla. 2001). 8. The instant case differs from Higgins, as this is a first party insurance claim. 9. In first party insurance claims, the essential disputed fact underlying the Plaintiff's claim is whether the alleged loss places the claim within the coverage of the policy. In these circumstances, a declaratory action does not “serve any useful purpose under the circumstances . . . and might impair or defeat the rights of the parties.” Legion Ins. Co. v. Moore, 846 So. 2d 1183 (Fla. 4th DCA 2003) (Distinguishing Higgins from first party actions and upholding the dismissal of a declaratory judgment action regarding first party insurance coverage). Page 4 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800 10.In Miami Yacht Charters, LLC. v. National Union Fire Ins. Co. of Pittsburgh Pa., 2012 WL 1416428 (S.D. Fla. 2012), the court held that where a purported declaratory relief claims would require resolution of the same factual issues underlying Plaintiff's breach of contract claim, the claim for declaratory relief must be dismissed. 11.Seeking declaratory relief is improper where, as here, there are only disputed questions of fact, the determination of which, control whether there is coverage for Plaintiff's purported loss under the subject policy. See Halpert v. Oleksy, 65 So. 2d 762, 763 (Fla. 1953) (doubt based on disputed questions of fact alone not sufficient to support declaratory judgment proceeding, especially when only relief sought is damages). 12.On its face, the Petition is simply a claim for breach of contract and nothing more. 13.In Legion, the Fourth District upheld the dismissal of a declaratory judgment action regarding first party insurance coverage. 14. In distinguishing its decision in State Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992 (Fla. 4th DCA 2001), approved, Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004), the Fourth District in Legion noted significantly, a. “Declaratory judgment actions afford an important remedy in regard to insurance coverage questions, especially as to claims made by third parties against someone covered by the policy. Where a question of coverage is raised in that circumstance, there is a delicate problem between the insured and the carrier relating to the defense of the suit by the third party. It is important then that the question of coverage be expeditiously determined, if possible, so that the parties under the contract of insurance may achieve the benefit of their bargain of contractual rights and obligations, which might be lost otherwise. . . .” Page 5 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800 b. “In this case, however, we face not a third party but a first party claim by one of the contracting parties directly against the other party under the policy of insurance. . . .” c. “Unlike the circumstances arising with third party claims in which the issue of a defense of a suit against the insured is at stake, here we face nothing more than a mine- run, disputed UM claim as to which the issue is whether the nature of the accident places the claim within such coverage . . . [ijn short, there is a logical basis for the court's determination that a declaratory judgment action would not serve any useful purpose under the circumstances of this case and might impair or defeat rights of the parties.” 15.Id. at 1186-87. Legion involved a first party and not a third party action where the defense of the underlying suit was at stake. The court found that in those circumstances a declaratory judgment action was inappropriate. 16. Like the suit in Legion, this case involves a “mine run disputed [first party] claim.” Therefore, the issue is whether the nature of the alleged loss places the claim within the coverage of the subject policy. Accordingly, this is simply a breach of contract action disguised as a petition for declaratory relief. 17.Last, in order to state a proper cause of action for declaratory relief, the Plaintiffs must plead and show the following: a. There is a bona fide, actual, present practical need for the declaration; b. That the declaration deals with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; c. That some immunity, power, privilege or right to the complaining party is dependent upon the facts or the law applicable to the facts; d. That there is some person or persons who have, or reasonably may have, an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; Page 6 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800 e. That the antagonistic and adverse interests are all before the Court by property process or class representation; a That the relief sought is not merely giving of legal advice by the Court or the answer to questions propounded from curiosity. Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 404 (Fla. 1996). 18. Additionally, the Plaintiff must show that they are in doubt as to the existence or nonexistence of some right or status, and that they are entitled to have such doubt removed. Kelner v. Woody, 399 So. 2d 35, 37 (Fla. 3d DCA 1981). 19.In this case, the Plaintiff's Petition is devoid of any true ambiguities which are necessary for the court to interpret the subject policy. 20. Indeed, the Plaintiff fails to cite any policy provisions that are in need of this Court’s interpretation. Rather, the Plaintiffs simply state Defendant has failed to provide complete coverage for the physical damages that occurred during the contract period. See Plaintiffs’ Petition {| 19. Therefore, Plaintiff does not set forth any ambiguity in the terms of the insurance contract in doubt or in need of construction. 21.Accordingly, the Petition does not satisfy the aforementioned essential pleading requirement, as it does not identify any provision of the insurance contract, which is in doubt or in need or construction. Without satisfying this requirement, the Court is unable to offer an interpretation of how the facts alleged in the Petition relate to coverage under the policy and Defendant is unable to respond to and/or defend Plaintiff's allegations. 22. Accordingly, the Plaintiff has failed to state of cause of action for declaratory relief. 23.Rather, the Count for Declaratory Judgment is simply a disguised breach of contract action, alleging that Defendant failed to extend coverage and make a payment Page 7 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800 to Plaintiff under the policy of insurance. Indeed, whether Defendant breached the insurance contract by its alleged failure to pay the claim is a question for the jury to determine. 24. Therefore, the Plaintiffs Petition for Declaratory Relief must be dismissed. WHEREFORE, Defendant requests that this Court dismiss Count II of Plaintiffs’ Complaint and grant such further relief as it deems just. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiff's claim is barred and/or limited to the extent that Plaintiff failed to comply with the conditions of the subject policy. In support, Defendant refers to the policy, which states: SECTION 1 - CONDITIONS B. Duties After Loss. In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an "insured" seeking coverage, or a representative of either: (Endorsement SIC HO 09 SP 04 16 Special Provisions — Florida): B.1. is deleted and replaced by the following: 1. Give prompt notice to us or our agent. Except for Reasonable Emergency Measures taken under Additional Coverages E.2., there is no coverage for repairs that begin before the earlier of: a. 72 hours after we are notified of the loss; b. The time of loss inspection by us; or c. The time of other approval by us. 4. Protect the property from further damage. If repairs to the property are required, you must: (Endorsement SIC HO 09 SP 04 16): Page 8 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (054) 473-1112 (054) 474-7979 FAXCASE NO.: CACE-20-017800 B.4.a is deleted and replaced by the following: a. Take reasonable emergency measures that are necessary to protect the covered property from further damage, as provided under Additional Coverages E.2. A reasonable emergency measure under 4.a. above may include a permanent repair when necessary to protect the covered property from further damage or to prevent unwanted entry to the property. To the degree reasonably possible, the damaged property must be retained for us to inspect; b. Keep an accurate record of repair expenses; 5. Cooperate with us in the investigation of a claim; 6. Prepare an inventory of damaged personal property showing the quantity, description, actual cash value and amount of loss. Attach all bills, receipts and related documents that justify the figures in the inventory; 7. As often as we reasonably require: a. Show the damaged property; b. Provide us with records and documents we request and permit us to make copies; and c. Submit to examination under oath, while not in the presence of another "insured", and sign the same; 8. Send to us, within 60 days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief: a. The time and cause of loss; b. The interests of all "insureds" and all others in the property involved and all liens on the property; c. Other insurance which may cover the loss; d. Changes in title or occupancy of the property during the term of the policy; e. Specifications of damaged buildings and detailed repair estimates; f. The inventory of damaged personal property described in 6. above; SECOND AFFIRMATIVE DEFENSE Plaintiff's claim is barred and/or limited under the subject policy’s SIC HO 09 SP 04 16 Endorsement. In support, Defendant refers to the policy, which states: SPECIAL PROVISIONS — FLORIDA SECTION I - PERILS INSURED AGAINST Page 9 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800 A. Coverage A — Dwelling And Coverage B - Other Structures Paragraph 2.c.(8) and (9) are added as follows: [2. We do not insure, however, for loss: c. Caused by: (9) Rain, snow, sleet, sand or dust to the interior of a building unless a covered peril first damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening. THIRD AFFIRMATIVE DEFENSE Plaintiff's claim is barred and/or limited to the extent that the alleged loss and/or damage was the result of wear and tear, mechanical breakdown, or age-related deterioration, which are not covered under the subject policy. In support, Defendant refers to the policy, which states: SECTION I — PERILS INSURED AGAINST A. Coverage A — Dwelling And Coverage B — Other Structures 1. We insure against risk of direct physical loss to property described in Coverages A and B. 2. We do not insure, however, for loss: c. Caused by: (6) Any of the following: (a) Wear and tear, marring, deterioration; (b) Mechanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage or destroy itself (f) Settling, shrinking, bulging, or expansion, including resultant cracking, of bulkheads, pavements, patios, footings, foundations, walls, floors, roofs or ceilings; Page 10 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800 FOURTH AFFIRMATIVE DEFENSE Plaintiffs claim is barred and/or limited to the extent that the alleged loss and/or damage was the result of inadequate workmanship, materials, or maintenance, which are excluded under the subject policy. In support, Defendant refers to the policy, which states: SECTION I - EXCLUSIONS B. We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered. 3. Faulty, inadequate or defective: b. Design, specifications, workmanship, repair, construction, renovation remodeling, grading, compaction; c. Materials used in repair, construction, renovation or remodeling; or d. Maintenance; of part or all of any property whether on or off the "residence premises". FIFTH AFFIRMATIVE DEFENSE Plaintiffs claim is barred and/or limited to the extent that the alleged loss and/or damage was the result of constant or repeated seepage or leakage of water, which is excluded under the subject policy. In support, Defendant refers to the policy, which states: SPECIAL PROVISIONS - FLORIDA SECTION I —- PERILS INSURED AGAINST A. Coverage A - Dwelling And Coverage B - Other Structures Page 11 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800 Paragraph 2.c.(7) is added as follows: [2. We do not insure, however, for loss: c. Caused by: (7) Constant or repeated seepage or leakage of water or steam over a period of 14 or more days from within a plumbing, heating, air conditioning or automatic fire protection sprinkler system or from within or around any household appliance, shower stall, shower tub or bathtub installation, unless the resulting damage is unknown to all insureds and is hidden within the walls or ceilings or beneath the floors or above the ceilings of a structure. SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss and/or damage was the result of rust or other corrosion, mold, or wet or dry rot. In support, Defendant refers to the policy, which states: SPECIAL PROVISIONS - FLORIDA SECTION I —- PERILS INSURED AGAINST A. Coverage A — Dwelling And Coverage B — Other Structures Paragraph 2.¢.(6)(c) is deleted and replaced by the following: [2. We do not insure, however, for loss: c. Caused by: (6) Any of the following: ] (c) Smog, rust or other corrosion, “fungi”, mold, wet or dry rot. SEVENTH AFFIRMATIVE DEFENSE Plaintiff's claim is limited to the extent of coverage provided under the terms of the subject policy's Limited Fungi, Mold, Wet or Dry Rot, or Bacteria Coverage endorsement. Page 12 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800 EIGTH AFFIRMATIVE DEFENSE Plaintiffs claim is barred and/or limited to the extent that the cost of the alleged loss and/or damage was in an amount below the deductible as set forth in the policy. GENERAL DENIAL All allegations not specifically admitted herein, including the un-enumerated “WHEREFORE” clause, are denied and Defendant demands strict proof thereof. RESERVATION OF RIGHTS Defendant reserves the right to amend and/or assert additional defenses upon further particularization of Plaintiffs claims and/or further discovery concerning the nature of Plaintiff's claims. [CERTIFICATE OF SERVICE ON FOLLOWING PAGE] Page 13 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAXCASE NO.: CACE-20-017800 CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 17th day of February, 2021, a true and correct copy of the foregoing was filed with the Clerk of Broward 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, yia3@yourinsuranceattorney.com; eservice@yourinsuranceattorney.com, 2601 South Bayshore Drive, 18th Floor, Coconut Grove, FL 33133, (888) 570-5677/(888) 745-5677 (F), Attorney for Plaintiff, Maxine Virtue Thomas. COLE, SCOTT & KISSANE, P.A. Counsel for Defendant SAFEPOINT INSURANCE COMPANY Lakeside Office Center, Suite 500 600 North Pine Island Road Plantation, Florida 33324 Telephone (954) 703-3706 Facsimile (954) 474-7979 Primary e-mail: jose.campos@csklegal.com Secondary e-mail: ryan.weissmark@csklegal.com Alternate e-mail: christy.christopher@csklegal.com By: _s/ Ryan Weissmark JOSE F. CAMPOS Florida Bar No.: 110733 RYAN WEISSMARK Florida Bar No.: 1024747 0546.0746-00/22845851 Page 14 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 - 600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX