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Filing # 125712282 E-Filed 04/27/2021 04:45:01 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA.
CASE NO. CACE 21-003829 (08)
WAYNE HENRY,
Plaintiff,
v.
AMERICAN SECURITY INSURANCE COMPANY,
Defendant.
/
DEFENDANT, AMERICAN SECURITY INSURANCE COMPANY’S
ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT
Defendant, American Security Insurance Company (“ASIC”), by and through its
undersigned counsel, files its Answer and Affirmative Defenses to Plaintiff's Complaint, and states
as follows:
ANSWER
1. ASIC is without knowledge of the allegations in paragraph 1, and therefore denies
the allegations in paragraph 1.
2. ASIC admits that at all material times it was a corporation authorized to do business
in Broward County, Florida. ASIC denies the remaining allegations in paragraph 2.
3. ASIC denies the allegations in paragraph 3.
4. ASIC admits that a claim for damages to property located at 10231 NW 24" St.,
Sunrise, Florida 33322, was reported with a date of loss of April 15, 2020. ASIC denies the
remaining allegations in paragraph 4 and denies that Plaintiff is entitled to any relief in this action.
5. ASIC admits only that Plaintiff sought Policy benefits for the reported claim for the
property located at 10231 NW 24" St., Sunrise, Florida 33322 (the “Property”), for Policy number
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/27/2021 04:45:01 PM.****CASE NO. CACE 21-003829 (08)
MIP-RCH-02114-00/ MLR973768500 (“Policy”) that was issued to PHH Mortgage Services
(“Lender”) as the Named Insured, and Wayne Henry as Borrower, with effective dates of May 1,
2019 through May 1, 2020, pursuant to Certificate Number MLR21149737685 (“Certificate”),
providing certain coverages to the Property subject to its terms, limitations, exclusions and
conditions therein. ASIC further states that the Policy speaks for itself. ASIC denies that Plaintiff
is entitled to any relief in this action and denies the remaining allegations in paragraph 5.
6. ASIC denies the allegations in paragraph 6.
7. ASIC admits only that Plaintiff filed the instant action. ASIC states that the Policy
speaks for itself. ASIC denies the remaining allegations in paragraph 7 and denies that Plaintiff is
entitled to any relief in this action.
8. ASIC denies the allegations in paragraph 8. Plaintiff failed to comply with
numerous conditions precedent to this action, including but not limited to the failure to comply
with post-loss duties before filing the instant action, including but not limited to: (1) promptly
report the loss, (2) protect the Property from further damage, (3) make reasonable and necessary
repairs required to protect the Property, and (4) keep an accurate record of expenditures, which
prejudice ASIC.
COUNT I-BREACH OF CONTRACT AGAINST
DEFENDANT INSURER, AMERICAN SECURITY INSURANCE COMPANY
9. ASIC incorporates its responses to paragraphs 1 through 8 as though fully stated
herein, and further states as follows:
10. ASIC admits that Plaintiff purports to allege a cause of action for damages in excess
of thirty thousand dollars, but denies that Plaintiff is entitled to any relief and denies the remainder
of the allegations in paragraph 10.CASE NO. CACE 21-003829 (08)
11. ASIC admits that (a) Plaintiff hired Rogatinsky & Matthews, P.A., and (b) that
Plaintiff obtained counsel to represent him in the instant action. ASIC denies the remaining
allegations in paragraph 11 and denies that Plaintiff is entitled to any relief in this action.
12. ASIC admits only that Plaintiff sought Policy benefits for the reported claim for the
property located at 10231 NW 24" St., Sunrise, Florida 33322 (the “Property”), for Policy number
MIP-RCH-02114-00 / MLR973768500 (“Policy”) that was issued to PHH Mortgage Services
(“Lender”) as the Named Insured, and Wayne Henry as Borrower, with effective dates of May 1,
2019 through May 1, 2020, pursuant to Certificate Number MLR21149737685 (“Certificate”),
providing certain coverages to the Property subject to its terms, limitations, exclusions and
conditions therein. ASIC further states that the Policy speaks for itself. ASIC further states that it
assigned claim number 00102932417to Plaintiff's reported loss. ASIC denies that Plaintiff is
entitled to any relief in this action and denies the remaining allegations in paragraph 12.
13. ASIC states that the Policy and Florida law speak for themselves. ASIC denies the
remaining allegations in paragraph 13 and denies that Plaintiff is entitled to any relief in this action.
14. ASIC admits that jurisdiction and venue are proper in this Court.
15. ASIC denies the allegations in paragraph 15.
16. ASIC denies the allegations in paragraph 16.
17. ASIC admits that (a) Plaintiff hired Rogatinsky & Matthews, P.A., and (b) that
Plaintiff obtained counsel to represent him in the instant action. ASIC denies the remaining
allegations in paragraph 17 and denies that Plaintiff is entitled to any relief in this action.
18. ASIC denies the allegations in paragraph 18. ASIC further states that Section
627.428, Florida Statutes, speaks for itself and denies that Plaintiff is entitled to any relief pursuant
to the Statute or in this action.CASE NO. CACE 21-003829 (08)
GENERAL DENIAL
ASIC denies all allegations and inferences in Plaintiff's Complaint not specifically
admitted, including allegations and inferences in Plaintiff's WHEREFORE clauses and DEMAND
FOR JURY TRIAL. ASIC further states that sections 627.428, 57.041 and 92.231, Florida
Statutes, speak for themselves and denies that Plaintiff is entitled to any relief in this action.
AFFIRMATIVE DEFENSES
In further response to Plaintiff's Complaint, ASIC asserts the following affirmative
defenses currently known to ASIC:
FIRST AFFIRMATIVE DEFENSE
Appraisal)
1. The Policy provides that if the parties disagree on the amount of loss, either may
request an appraisal of the loss in writing. Since it appears that the parties disagree on the amount
of losses, ASIC reserves its rights to invoke the Policy’s appraisal clause at such time when
Plaintiff presents his purported value of the losses.
SECOND AFFIRMATIVE DEFENSE
(Failure to perform post-loss duties)
2. Plaintiff breached the Policy by failing to perform required duties after the losses
including the duties to (1) protect the Property from further damage, (2) make reasonable and
necessary repairs required to protect the Property, and (3) keep an accurate record of expenditures.
Plaintiff's breach of the Policy prejudiced ASIC’s claim investigation and precludes further
recovery under the Policy as a matter of law.
THIRD AFFIRMATIVE DEFENSE
(Recovery limited by policy)
3. Plaintiff's recovery, if any, is subject to the terms, limitations, conditions,
exclusions, endorsements, and the monetary limits set forth in the Policy.CASE NO. CACE 21-003829 (08)
FOURTH AFFIRMATIVE DEFENSE
(Overstated damages)
4. Plaintiff overstated his damages, included duplicate damages, non-covered
damages and/or damages unrelated to the reported losses. Accordingly, any recovery should be
limited.
FIFTH AFFIRMATIVE DEFENSE
(Existing damage)
5. Plaintiff’s claims are barred, in whole or in part, because the reported damage pre-
existed the reported loss dates.
SIXTH AFFIRMATIVE DEFENSE
(Failure to provide prompt notice)
6. Plaintiff’s claims are barred, in whole or in part, due to the failure to provide prompt
notice of the Claim to ASIC. Plaintiff's breach of the Policy prejudiced ASIC’s claim investigation
and precludes further recovery under the Policy as a matter of law.
SEVENTH AFFIRMATIVE DEFENSE
(Neglect)
7. Plaintiff's claims are barred, in whole or in part, because the reported damage to
the Property was caused by neglect, which is excluded by the Policy.
EIGHTH AFFIRMATIVE DEFENSE
(Faulty maintenance)
8. Plaintiff's claims are barred, in whole or in part, because the reported damage to
the Property was caused by faulty maintenance, which is excluded by the Policy.
NINTH AFFIRMATIVE DEFENSE
(Wear and tear and deterioration)
9. Plaintiff's claims are barred, in whole or in part, because the reported damage to
the Property were caused by wear and tear and/or deterioration, which is excluded by the Policy.CASE NO. CACE 21-003829 (08)
TENTH AFFIRMATIVE DEFENSE
(Constant or repeated seepage or leakage of water)
10. _ Plaintiff’s claims are barred, in whole or in part, because the reported damage to
the Property were caused by constant or repeated seepage or leakage of water, which is excluded
by the Policy.
ELEVENTH AFFIRMATIVE DEFENSE
(Rot)
11. Plaintiffs’ claims are barred, in whole or in part, because the reported damage to
the Property was caused by rot, which is excluded by the Policy.
TWELFTH AFFIRMATIVE DEFENSE
(Not entitled to recoverable depreciation)
12. Plaintiff is not entitled to recoverable depreciation as a matter of law because
Plaintiff failed to submit supplemental claims for recoverable depreciation.
THIRTEENTH AFFIRMATIVE DEFENSE
(Not a homeowner’s policy and matching is inapplicable)
13. Plaintiff’s claims are barred, in whole or in part, because the Certificate/Policy is
not a homeowner’s policy, and, therefore, ASIC is not required to pay to match the undamaged
property with the property that is being replaced and/or repaired under the subject
Certificate/Policy.
FOURTEENTH AFFIRMATIVE DEFENSE
(Actual Cash Value)
14. __ Plaintiff’s claims for damages are limited to the actual cash value of the loss arising
from direct physical damage.CASE NO. CACE 21-003829 (08)
FIFTEENTH AFFIRMATIVE DEFENSE
(Excluded water damage)
15. Plaintiff’s claims are barred, in whole or in part, because the Policy excludes water
damage which is water or water-borne material which backs up through sewers or drains or which
overflows from a sump, sump pump or related equipment.
RESERVATION OF RIGHT TO AMEND
ASIC reserves the right to amend these defenses as there may be additional defenses that
cannot be articulated at this time because of the lack of certain information and/or documents
bearing on Plaintiff's claims, and thereby all rights are fully reserved to assert additional defenses
upon further investigation and discovery.
WHEREFORE, Defendant, AMERICAN SECURITY INSURANCE COMPANY,
respectfully requests entry of judgment and costs its favor.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was filed and served
via the E-Filing Portal, this 27" day of April, 2021, to the addressee(s) set forth on the attached
Service List.
MCDOWELL HETHERINGTON LLP
Attorneys for Defendant
2385 NW Executive Center Drive, Suite 400
Boca Raton, FL 33431
Telephone: (561) 994-4311
Facsimile: (561) 982-8985
By: /s/ Miriam J. Rosenblatt
BRADLEY J. AIKEN
Fla. Bar No. 1000319
MIRIAM J. ROSENBLATT
Fla. Bar No. 111736
Brad.aiken@mhllp.com
Miriam.rosenblatt@mhllp.com
Kathryn.craven@mhllp.comSERVICE LIST
Samuel Rogatinsky, Esq.
FBN: 021490
E. Terrell Matthews, Esq.
FBN: 089564
Rogatinsky & Matthews, P.A.
Attorneys for Plaintiff
3113 Stirling Road, Suite 103
Fort Lauderdale, FL 33312
Telephone: (954) 404-6140
Facsimile: (954) 925-1640
E-Service: _ rogatinskyfirm@gmail.com
CASE NO. CACE 21-003829 (08)
Preview
Filing # 125712282 E-Filed 04/27/2021 04:45:01 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA. CASE NO. CACE 21-003829 (08) WAYNE HENRY, Plaintiff, v. AMERICAN SECURITY INSURANCE COMPANY, Defendant. / DEFENDANT, AMERICAN SECURITY INSURANCE COMPANY’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT Defendant, American Security Insurance Company (“ASIC”), by and through its undersigned counsel, files its Answer and Affirmative Defenses to Plaintiff's Complaint, and states as follows: ANSWER 1. ASIC is without knowledge of the allegations in paragraph 1, and therefore denies the allegations in paragraph 1. 2. ASIC admits that at all material times it was a corporation authorized to do business in Broward County, Florida. ASIC denies the remaining allegations in paragraph 2. 3. ASIC denies the allegations in paragraph 3. 4. ASIC admits that a claim for damages to property located at 10231 NW 24" St., Sunrise, Florida 33322, was reported with a date of loss of April 15, 2020. ASIC denies the remaining allegations in paragraph 4 and denies that Plaintiff is entitled to any relief in this action. 5. ASIC admits only that Plaintiff sought Policy benefits for the reported claim for the property located at 10231 NW 24" St., Sunrise, Florida 33322 (the “Property”), for Policy number *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/27/2021 04:45:01 PM.****CASE NO. CACE 21-003829 (08) MIP-RCH-02114-00/ MLR973768500 (“Policy”) that was issued to PHH Mortgage Services (“Lender”) as the Named Insured, and Wayne Henry as Borrower, with effective dates of May 1, 2019 through May 1, 2020, pursuant to Certificate Number MLR21149737685 (“Certificate”), providing certain coverages to the Property subject to its terms, limitations, exclusions and conditions therein. ASIC further states that the Policy speaks for itself. ASIC denies that Plaintiff is entitled to any relief in this action and denies the remaining allegations in paragraph 5. 6. ASIC denies the allegations in paragraph 6. 7. ASIC admits only that Plaintiff filed the instant action. ASIC states that the Policy speaks for itself. ASIC denies the remaining allegations in paragraph 7 and denies that Plaintiff is entitled to any relief in this action. 8. ASIC denies the allegations in paragraph 8. Plaintiff failed to comply with numerous conditions precedent to this action, including but not limited to the failure to comply with post-loss duties before filing the instant action, including but not limited to: (1) promptly report the loss, (2) protect the Property from further damage, (3) make reasonable and necessary repairs required to protect the Property, and (4) keep an accurate record of expenditures, which prejudice ASIC. COUNT I-BREACH OF CONTRACT AGAINST DEFENDANT INSURER, AMERICAN SECURITY INSURANCE COMPANY 9. ASIC incorporates its responses to paragraphs 1 through 8 as though fully stated herein, and further states as follows: 10. ASIC admits that Plaintiff purports to allege a cause of action for damages in excess of thirty thousand dollars, but denies that Plaintiff is entitled to any relief and denies the remainder of the allegations in paragraph 10.CASE NO. CACE 21-003829 (08) 11. ASIC admits that (a) Plaintiff hired Rogatinsky & Matthews, P.A., and (b) that Plaintiff obtained counsel to represent him in the instant action. ASIC denies the remaining allegations in paragraph 11 and denies that Plaintiff is entitled to any relief in this action. 12. ASIC admits only that Plaintiff sought Policy benefits for the reported claim for the property located at 10231 NW 24" St., Sunrise, Florida 33322 (the “Property”), for Policy number MIP-RCH-02114-00 / MLR973768500 (“Policy”) that was issued to PHH Mortgage Services (“Lender”) as the Named Insured, and Wayne Henry as Borrower, with effective dates of May 1, 2019 through May 1, 2020, pursuant to Certificate Number MLR21149737685 (“Certificate”), providing certain coverages to the Property subject to its terms, limitations, exclusions and conditions therein. ASIC further states that the Policy speaks for itself. ASIC further states that it assigned claim number 00102932417to Plaintiff's reported loss. ASIC denies that Plaintiff is entitled to any relief in this action and denies the remaining allegations in paragraph 12. 13. ASIC states that the Policy and Florida law speak for themselves. ASIC denies the remaining allegations in paragraph 13 and denies that Plaintiff is entitled to any relief in this action. 14. ASIC admits that jurisdiction and venue are proper in this Court. 15. ASIC denies the allegations in paragraph 15. 16. ASIC denies the allegations in paragraph 16. 17. ASIC admits that (a) Plaintiff hired Rogatinsky & Matthews, P.A., and (b) that Plaintiff obtained counsel to represent him in the instant action. ASIC denies the remaining allegations in paragraph 17 and denies that Plaintiff is entitled to any relief in this action. 18. ASIC denies the allegations in paragraph 18. ASIC further states that Section 627.428, Florida Statutes, speaks for itself and denies that Plaintiff is entitled to any relief pursuant to the Statute or in this action.CASE NO. CACE 21-003829 (08) GENERAL DENIAL ASIC denies all allegations and inferences in Plaintiff's Complaint not specifically admitted, including allegations and inferences in Plaintiff's WHEREFORE clauses and DEMAND FOR JURY TRIAL. ASIC further states that sections 627.428, 57.041 and 92.231, Florida Statutes, speak for themselves and denies that Plaintiff is entitled to any relief in this action. AFFIRMATIVE DEFENSES In further response to Plaintiff's Complaint, ASIC asserts the following affirmative defenses currently known to ASIC: FIRST AFFIRMATIVE DEFENSE Appraisal) 1. The Policy provides that if the parties disagree on the amount of loss, either may request an appraisal of the loss in writing. Since it appears that the parties disagree on the amount of losses, ASIC reserves its rights to invoke the Policy’s appraisal clause at such time when Plaintiff presents his purported value of the losses. SECOND AFFIRMATIVE DEFENSE (Failure to perform post-loss duties) 2. Plaintiff breached the Policy by failing to perform required duties after the losses including the duties to (1) protect the Property from further damage, (2) make reasonable and necessary repairs required to protect the Property, and (3) keep an accurate record of expenditures. Plaintiff's breach of the Policy prejudiced ASIC’s claim investigation and precludes further recovery under the Policy as a matter of law. THIRD AFFIRMATIVE DEFENSE (Recovery limited by policy) 3. Plaintiff's recovery, if any, is subject to the terms, limitations, conditions, exclusions, endorsements, and the monetary limits set forth in the Policy.CASE NO. CACE 21-003829 (08) FOURTH AFFIRMATIVE DEFENSE (Overstated damages) 4. Plaintiff overstated his damages, included duplicate damages, non-covered damages and/or damages unrelated to the reported losses. Accordingly, any recovery should be limited. FIFTH AFFIRMATIVE DEFENSE (Existing damage) 5. Plaintiff’s claims are barred, in whole or in part, because the reported damage pre- existed the reported loss dates. SIXTH AFFIRMATIVE DEFENSE (Failure to provide prompt notice) 6. Plaintiff’s claims are barred, in whole or in part, due to the failure to provide prompt notice of the Claim to ASIC. Plaintiff's breach of the Policy prejudiced ASIC’s claim investigation and precludes further recovery under the Policy as a matter of law. SEVENTH AFFIRMATIVE DEFENSE (Neglect) 7. Plaintiff's claims are barred, in whole or in part, because the reported damage to the Property was caused by neglect, which is excluded by the Policy. EIGHTH AFFIRMATIVE DEFENSE (Faulty maintenance) 8. Plaintiff's claims are barred, in whole or in part, because the reported damage to the Property was caused by faulty maintenance, which is excluded by the Policy. NINTH AFFIRMATIVE DEFENSE (Wear and tear and deterioration) 9. Plaintiff's claims are barred, in whole or in part, because the reported damage to the Property were caused by wear and tear and/or deterioration, which is excluded by the Policy.CASE NO. CACE 21-003829 (08) TENTH AFFIRMATIVE DEFENSE (Constant or repeated seepage or leakage of water) 10. _ Plaintiff’s claims are barred, in whole or in part, because the reported damage to the Property were caused by constant or repeated seepage or leakage of water, which is excluded by the Policy. ELEVENTH AFFIRMATIVE DEFENSE (Rot) 11. Plaintiffs’ claims are barred, in whole or in part, because the reported damage to the Property was caused by rot, which is excluded by the Policy. TWELFTH AFFIRMATIVE DEFENSE (Not entitled to recoverable depreciation) 12. Plaintiff is not entitled to recoverable depreciation as a matter of law because Plaintiff failed to submit supplemental claims for recoverable depreciation. THIRTEENTH AFFIRMATIVE DEFENSE (Not a homeowner’s policy and matching is inapplicable) 13. Plaintiff’s claims are barred, in whole or in part, because the Certificate/Policy is not a homeowner’s policy, and, therefore, ASIC is not required to pay to match the undamaged property with the property that is being replaced and/or repaired under the subject Certificate/Policy. FOURTEENTH AFFIRMATIVE DEFENSE (Actual Cash Value) 14. __ Plaintiff’s claims for damages are limited to the actual cash value of the loss arising from direct physical damage.CASE NO. CACE 21-003829 (08) FIFTEENTH AFFIRMATIVE DEFENSE (Excluded water damage) 15. Plaintiff’s claims are barred, in whole or in part, because the Policy excludes water damage which is water or water-borne material which backs up through sewers or drains or which overflows from a sump, sump pump or related equipment. RESERVATION OF RIGHT TO AMEND ASIC reserves the right to amend these defenses as there may be additional defenses that cannot be articulated at this time because of the lack of certain information and/or documents bearing on Plaintiff's claims, and thereby all rights are fully reserved to assert additional defenses upon further investigation and discovery. WHEREFORE, Defendant, AMERICAN SECURITY INSURANCE COMPANY, respectfully requests entry of judgment and costs its favor. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was filed and served via the E-Filing Portal, this 27" day of April, 2021, to the addressee(s) set forth on the attached Service List. MCDOWELL HETHERINGTON LLP Attorneys for Defendant 2385 NW Executive Center Drive, Suite 400 Boca Raton, FL 33431 Telephone: (561) 994-4311 Facsimile: (561) 982-8985 By: /s/ Miriam J. Rosenblatt BRADLEY J. AIKEN Fla. Bar No. 1000319 MIRIAM J. ROSENBLATT Fla. Bar No. 111736 Brad.aiken@mhllp.com Miriam.rosenblatt@mhllp.com Kathryn.craven@mhllp.comSERVICE LIST Samuel Rogatinsky, Esq. FBN: 021490 E. Terrell Matthews, Esq. FBN: 089564 Rogatinsky & Matthews, P.A. Attorneys for Plaintiff 3113 Stirling Road, Suite 103 Fort Lauderdale, FL 33312 Telephone: (954) 404-6140 Facsimile: (954) 925-1640 E-Service: _ rogatinskyfirm@gmail.com CASE NO. CACE 21-003829 (08)