Preview
Filing # 126312505 E-Filed 05/06/2021 02:15:56 PM
21-10668
ACA
IN THE CIRCUIT COURT OF THE 17"
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
JIMMY NOEL, CASE NO. CACE 21-006186 (25)
(Judge Carol-Lisa Phillips)
Plaintiff,
v.
CITIZENS PROPERTY INSURANCE
CORPORATION,
Defendant.
/
DEFENDANT, CITIZENS PROPERTY INSURANCE CORPORATION’S
MOTION TO STRIKE PLAINTIFF’S REPLY TO DEFENDANT’S AFFIRMATIVE
DEFENSES
COMES NOW, the Defendant, Citizens Property Insurance Corporation, by and through
its undersigned counsel, and files this, its Motion to Strike Plaintiff's Reply to Defendant’s
Affirmative Defenses, and as grounds therefore would state as follows:
Ll. The nature of this action is that of a breach of contract action against Citizens for
alleged damage to the property located at 1652 SW 70th Avenue, North Lauderdale, FL 33068-
4356 (the “insured property”) as a result of a plumbing system leak. See copy of Plaintiff's
Amended Complaint on file with the Court.
2. The Defendant filed its Answer and Affirmative Defenses on April 26, 2021 and
Plaintiff filed its Reply to Defendant’s Answer and Affirmative Defenses on April 27, 2021. See
copy of Plaintiff's Reply to Defendant’s Answer and Affirmative Defenses on file with the Court.
3. The Plaintiff seeks to avoid Defendant’s affirmative defenses by stating
Defendant did not comply with Section 627.421(1), Florida Statutes, which provides:
627.421 Delivery of policy. -
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/06/2021 02:15:55 PM.****Jimmy Noel v. Citizens
CASE NO. CACE 21-006186 (25)
(1) Subject to the insurer’s requirement as to payment of premium,
every policy shall be mailed, delivered, or electronically
transmitted to the insured or to the person entitled thereto not later
than 60 days after the effectuation of coverage. Notwithstanding
any other provision of law, an insurer may allow a policyholder of
personal lines insurance to affirmatively elect delivery of the
policy documents, including, but not limited to, policies,
endorsements, notices, or documents, by electronic means in lieu
of delivery by mail. Electronic transmission of a policy for
commercial risks, including, but not limited to, workers’
compensation and employers’ liability, commercial automobile
liability, commercial automobile physical damage, commercial
lines residential property, commercial nonresidential property,
farmowners insurance, and the types of commercial lines risks set
forth in s. 627.062(3)(d), constitutes delivery to the insured or to
the person entitled to delivery, unless the insured or the person
entitled to delivery communicates to the insurer in writing or
electronically that he or she does not agree to delivery by
electronic means. Electronic transmission shall include a notice to
the insured or to the person entitled to delivery of a policy of his or
her right to receive the policy via United States mail rather than via
electronic transmission. A paper copy of the policy shall be
provided to the insured or to the person entitled to delivery at his
or her request.
4. The Plaintiff also asserts that Defendant failed to “mail or deliver a copy of the
subject Policy to Plaintiff prior to the date of loss” which “excused Plaintiff's performance of the
Policy’s post loss requirements of an insured in the event of loss.” See Plaintiff's Reply to
Defendant’s Answer and Affirmative Defenses; see specifically | 22.
5. The Plaintiff has provided no evidence that the Policy was not delivered to the
Plaintiff “or to the person entitled thereto” within 60 days of the effectuation of coverage.
§627.421(1), Fla. Stat. (2019)
6. The Supreme Court of Florida has held that,
“Therefore, where (1) a surplus-lines insurer or its direct surplus-
lines agent delivers copies of an insurance policy to the
representative of the insured, who is acting as an independent
insurance broker in the transaction; (2) the insured disputes that it
received a copy of the policy; and (3) the insured fails to present
any evidence that its independent insurance representative-
broker was actually acting as an agent of the insurer, the insured
2Jimmy Noel v. Citizens
CASE NO. CACE 21-006186 (25)
may not point to section 627.421 as mandating that the insurer
was required to deliver a copy of the policy directly to the
insured. In these types of situations, a surplus-lines insurer or its
direct surplus-lines agent complies with section 627.421's
command to deliver a copy of the policy "to the insured or to the
person entitled thereto," by delivering a copy of the policy to the
insured's undisputed, independent representative-broker.”
Essex Ins. Co. v. Zota, 985 So.2d 1036, 1050 (Fla. 2008) (emphasis
added)
7. However, the Supreme Court of Florida has held decisively that “no language
present in section[] ... 627.421, Florida Statutes (2003), precludes a surplus-lines insurer or its
direct surplus-lines agent from delivering a copy of the coverage documents to the insured's
independent representative-broker instead of directly to the insured.” Essex Ins. Co. v. Zota, 985
So.2d 1036, 1051 (Fla. 2008).
8. The Plaintiff has put forth no evidence that the Policy was not delivered to the
Plaintiffs broker, whose actions are “imputable to the insured.” Jd. at 1046.
9. Therefore, paragraphs 20, 21, 22, 23, and 24 of Plaintiffs reply to Defendant’s
Answer and Affirmative Defenses should be stricken forthwith.
10. Further, the Plaintiff asserted that “each and every affirmative defense is hereby
denied and strict proof thereof is hereby demanded” in Defendant’s Answer and Affirmative
Defenses. See Plaintiff's Reply to Defendant’s Answer and Affirmative Defenses; see specifically
qi.
11. | However, it is well known that “"FRCP 1.100(a) only requires a reply to an
affirmative defense when the opposing party seeks to avoid that defense. The rule specifically
does not require a reply merely to deny the allegations of the defense or to show that the pleader
lacks knowledge of the truth of those allegations.” Moore Meats, Inc. v. Strawn, In & For
Seminole Cty.,313 So.2d 660, 662 (Fla. 1975).
12. Therefore, Plaintiff's Reply should be stricken in its entirety.
3Jimmy Noel v. Citizens
CASE NO. CACE 21-006186 (25)
WHEREFORE, Defendant, Citizens Property Insurance Corporation, request the court
strike Plaintiffs’ Reply to Defendant’s Affirmative Defenses, along with any and all other relief
this Honorable Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been sent by
e-mail on this 6" day of May, 2021, to Kenneth R. Duboff, Esq., Duboff Law Firm, Attorneys
for Plaintiff, courtdocument@dubofflawfirm.com.
BRONSTEIN & CARMONA, P.A.
Attorneys for Defendant
8000 Peters Road, Suite A-200
Fort Lauderdale, FL 33324
(954) 358-0444 — Phone
(954) 358-0445 — Fax
service @bronste irmona.com
By: /s/Ana C. Arenas
Ana C. Arenas
Florida Bar No: 1020219
Preview
Filing # 126312505 E-Filed 05/06/2021 02:15:56 PM 21-10668 ACA IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA JIMMY NOEL, CASE NO. CACE 21-006186 (25) (Judge Carol-Lisa Phillips) Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. / DEFENDANT, CITIZENS PROPERTY INSURANCE CORPORATION’S MOTION TO STRIKE PLAINTIFF’S REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES COMES NOW, the Defendant, Citizens Property Insurance Corporation, by and through its undersigned counsel, and files this, its Motion to Strike Plaintiff's Reply to Defendant’s Affirmative Defenses, and as grounds therefore would state as follows: Ll. The nature of this action is that of a breach of contract action against Citizens for alleged damage to the property located at 1652 SW 70th Avenue, North Lauderdale, FL 33068- 4356 (the “insured property”) as a result of a plumbing system leak. See copy of Plaintiff's Amended Complaint on file with the Court. 2. The Defendant filed its Answer and Affirmative Defenses on April 26, 2021 and Plaintiff filed its Reply to Defendant’s Answer and Affirmative Defenses on April 27, 2021. See copy of Plaintiff's Reply to Defendant’s Answer and Affirmative Defenses on file with the Court. 3. The Plaintiff seeks to avoid Defendant’s affirmative defenses by stating Defendant did not comply with Section 627.421(1), Florida Statutes, which provides: 627.421 Delivery of policy. - *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/06/2021 02:15:55 PM.****Jimmy Noel v. Citizens CASE NO. CACE 21-006186 (25) (1) Subject to the insurer’s requirement as to payment of premium, every policy shall be mailed, delivered, or electronically transmitted to the insured or to the person entitled thereto not later than 60 days after the effectuation of coverage. Notwithstanding any other provision of law, an insurer may allow a policyholder of personal lines insurance to affirmatively elect delivery of the policy documents, including, but not limited to, policies, endorsements, notices, or documents, by electronic means in lieu of delivery by mail. Electronic transmission of a policy for commercial risks, including, but not limited to, workers’ compensation and employers’ liability, commercial automobile liability, commercial automobile physical damage, commercial lines residential property, commercial nonresidential property, farmowners insurance, and the types of commercial lines risks set forth in s. 627.062(3)(d), constitutes delivery to the insured or to the person entitled to delivery, unless the insured or the person entitled to delivery communicates to the insurer in writing or electronically that he or she does not agree to delivery by electronic means. Electronic transmission shall include a notice to the insured or to the person entitled to delivery of a policy of his or her right to receive the policy via United States mail rather than via electronic transmission. A paper copy of the policy shall be provided to the insured or to the person entitled to delivery at his or her request. 4. The Plaintiff also asserts that Defendant failed to “mail or deliver a copy of the subject Policy to Plaintiff prior to the date of loss” which “excused Plaintiff's performance of the Policy’s post loss requirements of an insured in the event of loss.” See Plaintiff's Reply to Defendant’s Answer and Affirmative Defenses; see specifically | 22. 5. The Plaintiff has provided no evidence that the Policy was not delivered to the Plaintiff “or to the person entitled thereto” within 60 days of the effectuation of coverage. §627.421(1), Fla. Stat. (2019) 6. The Supreme Court of Florida has held that, “Therefore, where (1) a surplus-lines insurer or its direct surplus- lines agent delivers copies of an insurance policy to the representative of the insured, who is acting as an independent insurance broker in the transaction; (2) the insured disputes that it received a copy of the policy; and (3) the insured fails to present any evidence that its independent insurance representative- broker was actually acting as an agent of the insurer, the insured 2Jimmy Noel v. Citizens CASE NO. CACE 21-006186 (25) may not point to section 627.421 as mandating that the insurer was required to deliver a copy of the policy directly to the insured. In these types of situations, a surplus-lines insurer or its direct surplus-lines agent complies with section 627.421's command to deliver a copy of the policy "to the insured or to the person entitled thereto," by delivering a copy of the policy to the insured's undisputed, independent representative-broker.” Essex Ins. Co. v. Zota, 985 So.2d 1036, 1050 (Fla. 2008) (emphasis added) 7. However, the Supreme Court of Florida has held decisively that “no language present in section[] ... 627.421, Florida Statutes (2003), precludes a surplus-lines insurer or its direct surplus-lines agent from delivering a copy of the coverage documents to the insured's independent representative-broker instead of directly to the insured.” Essex Ins. Co. v. Zota, 985 So.2d 1036, 1051 (Fla. 2008). 8. The Plaintiff has put forth no evidence that the Policy was not delivered to the Plaintiffs broker, whose actions are “imputable to the insured.” Jd. at 1046. 9. Therefore, paragraphs 20, 21, 22, 23, and 24 of Plaintiffs reply to Defendant’s Answer and Affirmative Defenses should be stricken forthwith. 10. Further, the Plaintiff asserted that “each and every affirmative defense is hereby denied and strict proof thereof is hereby demanded” in Defendant’s Answer and Affirmative Defenses. See Plaintiff's Reply to Defendant’s Answer and Affirmative Defenses; see specifically qi. 11. | However, it is well known that “"FRCP 1.100(a) only requires a reply to an affirmative defense when the opposing party seeks to avoid that defense. The rule specifically does not require a reply merely to deny the allegations of the defense or to show that the pleader lacks knowledge of the truth of those allegations.” Moore Meats, Inc. v. Strawn, In & For Seminole Cty.,313 So.2d 660, 662 (Fla. 1975). 12. Therefore, Plaintiff's Reply should be stricken in its entirety. 3Jimmy Noel v. Citizens CASE NO. CACE 21-006186 (25) WHEREFORE, Defendant, Citizens Property Insurance Corporation, request the court strike Plaintiffs’ Reply to Defendant’s Affirmative Defenses, along with any and all other relief this Honorable Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been sent by e-mail on this 6" day of May, 2021, to Kenneth R. Duboff, Esq., Duboff Law Firm, Attorneys for Plaintiff, courtdocument@dubofflawfirm.com. BRONSTEIN & CARMONA, P.A. Attorneys for Defendant 8000 Peters Road, Suite A-200 Fort Lauderdale, FL 33324 (954) 358-0444 — Phone (954) 358-0445 — Fax service @bronste irmona.com By: /s/Ana C. Arenas Ana C. Arenas Florida Bar No: 1020219