Answer: Ludie Covelli Plaintiff vs. Homeowners Choice Property & Casualty Insurance Company, Inc. Defendant

On May 12, 2021 a Answer was filed involving a dispute between Covelli, Ludie, and Homeowners Choice Property & Casualty Insurance Company, Inc., for 3 in the District Court of Broward County.

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Filing # 129071206 E-Filed 06/18/2021 04:01:52 PM

IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA

CASE NO.: CACE-21-009633

LUDIE COVELLI,

Plaintiff,

HOMEOWNERS CHOICE PROPERTY &
CASUALTY INSURANCE COMPANY, INC,

Defendant.

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

COMES NOW Defendant, HOMEOWNERS CHOICE PROPERTY & CASUALTY

INSURANCE COMPANY, INC, by and through its undersigned counsel, files its Answer

and Affirmative Defenses to 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 as phrased.

GENERAL ALLEGATIONS

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FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/18/2021 04:01:52 PM.****
CASE NO.: CACE-21-009633

6. Admitted only that Defendant issued Policy No.: HCPC-HO3-346855-9 to the

insured, Ludie Covelli, for the policy period from May 30,2020, through May 30,

2021, and which remains subject to the terms, limitations, exclusions, and

conditions listed therein, and which provided certain coverages to the property

located at 8640 Windsor Drive, Miramar, Florida 33025; otherwise, denied.

7. Admitted only that Defendant issued Policy No.: HCPC-HO3-346855-9 to the

insured, Ludie Covelli, for the policy period from May 30,2020, through May 30,

2021, and which remains subject to the terms, limitations, exclusions, and

conditions listed therein, and which provided certain coverages to the property

located at 8640 Windsor Drive, Miramar, Florida 33025; otherwise, denied.

8. Denied.

9. Admitted only that Defendant received a claim and assigned claim number 904379

to the alleged loss; otherwise, denied.

10. Denied as phrased.

11.Denied.

12. Denied.

COUNT I -

BREACH OF CONTRACT

13. Defendant realleges paragraphs 1 through 12 as if fully set forth herein.

14.Admitted only that Defendant issued Policy No.: HCPC-HO3-346855-9 to the

insured, Ludie Covelli, for the policy period from May 30,2020, through May 30,

2021, and which remains subject to the terms, limitations, exclusions, and

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conditions listed therein, and which provided certain coverages to the property

located at 8640 Windsor Drive, Miramar, Florida 33025; otherwise, denied.

15.Admitted only that Defendant issued Policy No.: HCPC-HO3-346855-9 to the

insured, Ludie Covelli, for the policy period from May 30,2020, through May 30,

2021, and which remains subject to the terms, limitations, exclusions, and

conditions listed therein, and which provided certain coverages to the property

located at 8640 Windsor Drive, Miramar, Florida 33025; otherwise, denied.

16. Denied.

17. Denied as phrased.

18. Denied.

19. 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 Il -
PETITION FOR DECLARATORY RELIEF
MOTION TO DISMISS COUNT Il

Defendant realleges paragraphs 1 through 12 as if fully set forth herein.

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 Il of their Complaint.

3. However, the Plaintifffails to delineate ally policy provisions that are necessary for

this Court's interpretation.

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4. 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.

5. In third party actions, declaratory actions afford an important remedy.

6. 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).

7. The instant case differs from Higgins, as this is a first party insurance claim.

8. 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

nsurance coverage).

9. \n 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 Plaintiffs

breach of contract claim, the claim for declaratory relief must be dismissed.

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10. 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

Plaintiffs 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).

11. On its face, the Petition is simply a claim for breach of contract and nothing more.

12. In Legion, the Fourth District upheld the dismissal of a declaratory judgment action

regarding first party insurance coverage.

13. 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,

"Declaratory judgment actions afford an important
a.

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. . . ."

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
. . .

ton short, there is a logical basis for the court's

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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."

14. 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.

15. 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.

16. Last, in order to state a proper cause of action for declaratory relief, the Plaintiff

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 present, ascertained
a

or ascertainable state of facts or present controversy as to a
state of facts;
c. That immunity, power, privilege or right to the
some

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;
e. That the antagonistic and adverse interests are all

before the Court by property process or class representation;
and
f. That the relief is not
merely giving of legal
sought
advice by the Court or the answer to
questions propounded
from curiosity. Coa/. for Adequacy & Fairness in Sch. Funding,
inc. v. Ch#es, 680 So. 2d 400,404 (Fla. 1996).

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17.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. Ke/ner v. Woody, 399 So. 2d 35,37 (Fla. 3d DCA 1981 ).

18. In this case, the Plaintiffs Petition is devoid of any true ambiguities which are

necessary for the court to interpret the subject policy.

19. Indeed, the Plaintiff fails to cite any policy provisions that are in need of this Court's

interpretation. Rather, the Plaintiff simply states Defendant has failed to provide complete

coverage for the physical damages that occurred during the contract period. Therefore,

Plaintiff does not set forth any ambiguity in the terms of the insurance contract in doubt

or in need of construction.

20.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 Plaintiffs allegations.

21. Accordingly, the Plaintiff has failed to state of cause of action for declaratory relief.

22. 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

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.

23.Therefore, the Plaintiffs Petition for Declaratory Relief must be dismissed.

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WHEREFORE, Defendant requests that this Court dismiss Count Il of Plaintiffs

Complaint and grant such further relief as it deems just.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

Plaintiffs 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
-

COVERAGE A DWELLING and COVERAGE B
- -

OTHER
STRUCTURES
We insureagainst risk of direct loss to property described in
Coverages A and B only if that loss is a physical loss to
property.
We do not insure, however for Ioss:

2. Caused by:

f.Any of the following:
(1) Wear and tear, marring, deterioration;
(2) Inherent vice, Iatent defect or mechanical breakdown;

(6) Settling, shrinking, bulging or expansion, including
resultant cracking, of pavements, patios, foundations, walls,
floors, roofs or ceilings;

SECOND AFFIRMATIVE DEFENSE

Plaintiffs claim is barred and/or limited to the extent that the alleged loss and/or

damage was the result of faulty, inadequate or defective materials, construction, or

maintenance, which are excluded under the subject policy. In support, Defendant refers

to the policy, which states:

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SECTION I -

EXCLUSIONS

2. 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 otherwise excluded or excepted in
this policy is covered.

c. Faulty, inadequate or defective:

(2) Design, specifications, workmanship, repair, construction,
renovation, remodeling, grading, compaction;
(3) Materials used in repair, construction, renovation or
remodeling; or
(4) Maintenance;
Of part or all of any property whether on or off the "residence
premises".

THIRD AFFIRMATIVE DEFENSE

Plaintiffs claim is barred and/or limited to the extent that the alleged loss and/or

damage was the result of neglect, which is excluded under the subject policy. In support,

Defendant refers to the policy, which states:

SECTION I -

EXCLUSIONS
1. We do not insure for loss caused directly or indirectly by
any of the following. Such loss is excluded regardless of any
other cause or event contributing concurrently or in any
sequence to the loss.

e.Neglect, meaning neglect of the "insured" to use all
reasonable means to save and protect property at and after
the time of a loss.

FOURTH 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 Ieakage of water, which is

excluded under the subject policy. In support, Defendant refers to the policy, which states:

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SECTION I -

I. Constant repeated seepage or Ieakage of water or
or

steam, or the presence of condensation of humidity,
moisture or vapor; which occurs over a period of 14 or more
days, whether hidden or not, and results in damage such as
wet or dry rot, "fungi", deterioration, rust, decay or other
corrosion.

FIFTH AFFIRMATIVE DEFENSE

Plaintiffs claim is barred and/or limited to the extent that the alleged loss and/or

damage was the result of discharge or overflow of water from within a plumbing system,

which is not covered under the subject policy. In support, Defendant refers to the policy,

which states:

SECTION I PERILS INSURED AGAINST
-

COVERAGE A DWELLING and COVERAGE B
- -

OTHER
STRUCTURES
We insure against risk of direct loss to property described in
Coverages A and B only if that loss is a physical loss to
property.
We do not insure, however for Ioss:

2. Caused by:

e. Accidental discharge or overflow of water or steam...
The cost that we will pay for the tear out and repair of the
part or portion of the building or other structure covered
under Coverage A or B as specified above is limited to only
that part portion
or of the covered
building or other structure
which is necessary to provide access to the part or portion of
the system or appliance that caused the covered loss,
whether the system or appliance, or any part or portion of
the system or appliance, is repairable or not.
In no event will we pay for the repair or the replacement of
the system or appliance that caused the covered loss.

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We do not cover Ioss:
(1) To the system or appliance from which this water or

steam escaped;
(2) On the "residence premises" caused by accidental
discharge or overflow which occurs off the "residence
premises";
(3) Caused by repeated seepage or Ieakage of
constant or

water or steam or the presence or condensation of humidity,
moisture or vapor, over a period of weeks, months or years,
unless such seepage or Ieakage of water or the presence or
condensation of humidity, moisture or vapor and 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;
(4) To a plumbing system, whether above or below the
ground, caused by:
(a) Age, collapse, obsolescence, wear, tear;
(b) Fading, oxidization, weathering;
(c) Deterioration, decay, marring, delamination, crumbling,
settling, cracking;
(d) Shifting, bulging, racking, sagging, bowing, bending,
Ieaning;
(e) Shrinkage, expansion, contraction, bellying, corrosion;
(f) The unavailabilityor discontinuation of a part or
component of the system; or
(g) Any other age or maintenance related issue;
(5) To a plumbing system, whether above or below the
ground, caused by the impairment, state or condition of the
system, which prohibits repair or replacement including
access, necessary to connect the adjoining parts of
appliances, pipes or system;

SIXTH AFFIRMATIVE DEFENSE

Plaintiffs claim is limited to the extent of coverage provided under the terms of the

subject policy.

GENERAL DENIAL

All allegations not specifically admitted herein, including the un-enumerated

"WHEREFORE" clause, are denied and Defendant demands strict proof thereof.

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RESERVATION OF RIGHTS

Defendant reserves the right to amend and/or assert additional defenses upon

further particularizationof Plaintiffs claims and/or further discovery concerning the nature

of Plaintiffs claims.

rCERTIFICATE OF SERVICE ON FOLLOWING PAGE1

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 18th day of June, 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,

2601 South Bayshore Drive, 18th Floor, Coconut

Grove, FL 33133, (888) 570-5677/(888) 745-5677 (F), Attorney for Plaintiff, Ludie Covelli.

COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant HOMEOWNERS
CHOICE PROPERTY & CASUALTY
INSURANCE COMPANY, INC
Lakeside Office Center, Suite 500
600 North Pine Island Road
Plantation, Florida 33324

Telephone (954) 703-3706
Facsimile (954) 474-7979
Primary e-mail:
Secondary e-mail:

Alternate e-mail:

By: s/ Ryan Weissmark
JOSE F. CAMPOS
Florida Bar No.- 110733
RYAN WEISSMARK
Florida Bar No.: 1024747
0365.1524-00

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Case Info

Judge

Olefson, Shari Africk Track Judge’s New Case

Case No.

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Document Filed Date

June 18, 2021

Case Filing Date

May 12, 2021

County

Parties

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