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Filing # 130722195 E-Filed 07/15/2021 12:45:34 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 502021CA007553XXXXMB (AG)
EMELI MARTINE,
Plaintiff,
v.
AMERICAN SECURITY INSURANCE COMPANY,
Defendant.
/
DEPENDANT AMPDIOCAN CECTIDITV INCTID ANCE COMPDANWC
WAU hy AUR UR UR CU
ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT
Defendant, American Security Insurance Company (“ASIC”), files its Answer and
Affirmative Defenses to Plaintiff's Complaint, and states as follows:
PARTIES, JURISDICTION & VENUE
1. ASIC admits only 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 in this action and
denies the remaining allegations in paragraph 1.
2. ASIC is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 2 and therefore, denies the allegations.
3. ASIC admits that at all material times it was an insurer authorized to do business in
Palm Beach County, Florida. ASIC denies the remaining allegations in paragraph 3.
4. ASIC admits that venue is proper in this Court and denies the remaining allegations
in paragraph 4.
5. ASIC denies the allegations in paragraph 5. Plaintiff failed to comply with
mmanane aanditinns neanadant ta thin antian Inaluding Let nat Heitad ta tha fnilues ta anmaly
HUMICIOUS CONUINOMS preccucihn tO Wiis GCUON, MICLUGing Cul NOL Lined LO ule rauure Ww Comply
CHEN. DAIAARCACUAAIINTY Cl INCEDU ARDIIV7ZN FLED ATM EINNN 49.45-24 DNA
PILL. PAL DLA VUUINE TT, FL, JUOL IE mDNUeeY, ULLIAN, Uliuieue! 1e.tu.ot FiveCASE NO. 502021CA007553XXXXMB (AG)
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.
GENERAL ALLEGATIONS
ASIC reincorporates and realleges the allegations in paragraphs | through 5 above as if
fully stated herein, and further states as follows:
6. ASIC admits only that it issued a forced-placed/lender-placed policy, Master Policy
No. MIP-RCH-00729-00 / Policy No. MLR948741301 (“Policy”) to Nationstar Mortgage LLC as
the Named Insured, listing Martine Emile as Borrower, providing certain coverages to the property
located at 10781 Santa Laguna Dr., Boca Raton, Florida 33428 (“Property”), pursuant to
Certificate Number MLR072994874 13 (“Certificate”) with effective dates of December 20, 2019
through December 20, 2020, subject to its terms, limitations, exclusions and conditions therein;
ASIC is without knowledge or information sufficient to form a belief as to the truth of the
remaining allegations in paragraph 6 and therefore, denies the allegations and denies that Plaintiff
1s entitied to any relief in this action.
7. ASIC admits only that it issued a forced-placed/lender-placed policy, Master Policy
No. MIP-RCH-00729-00 / Policy No. MLR948741301 (“Policy”) to Nationstar Mortgage LLC as
the Named Insured, listing Martine Emile as Borrower, providing certain coverages to the property
located at 10781 Santa Laguna Dr., Boca Raton, Florida 33428 (“Property”), pursuant to
Certificate Number MLR072994874 13 (“Certificate”) with effective dates of December 20, 2019
through December 20, 2020, subject to its terms, limitations, exclusions and conditions therein;CASE NO. 502021CA007553XXXXMB (AG)
ASIC states that the Policy speaks for itself. ASIC denies the remaining allegations in paragraph
7 and denies the Plaintiff is entitled to any relief in this action.
8. ASIC admits only that a claim was reported with a reported date of loss of
November 8, 2020; ASIC states that the Policy speaks for itself. ASIC denies the remaining
allegations in paragraph 8 and denies that Plaintiff is entitled to any relief in this action.
9. ASIC denies the allegations in paragraph 9. 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.
10. ASIC admits that it assigned an adjuster, assigned claim number 00201298270 to
Plaintiff's reported loss, and acknowledged receipt of the Claim. ASIC denies the remaining
allegations in paragraph 10 and denies that Plaintiff is entitled to any relief in this action.
11. ASIC denies the allegations in paragraph 11.
iZ. ASIC states that the Policy speaks for itself; ASIC denies the remaining allegations
in paragraph 12 and denies that Plaintiff is entitled to any relief in this action.
13. ASIC admits that (a) Plaintiff hired Roger A. Alvarez, P.A. and (b) that Plaintiff
obtained counsel to represent him in the instant action. ASIC further states that section 627.428
Florida Statutes, speaks for itself but denies that Plaintiff is entitled to any relief pursuant to the
statute or in this action and denies the remaining allegations in paragraph 13.CASE NO. 502021CA007553XXXXMB (AG)
GENERAL DENIAL
ASIC denies all allegations and inferences in Plaintiff's Complaint not specifically
admitted. 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.
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 the parties disagree on the amount of loss, ASIC
reserves its rights to invoke the Policy’s appraisal clause.
SECOND AFFIRMATIVE DEFENSE
(Failure to perform post-loss duties)
2. Plaintiff breached the Policy by failing to perform required duties after the loss
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.
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. 502021CA007553XXXXMB (AG)
FOURTH AFFIRMATIVE DEFENSE
(Overstated damages)
4. Plaintiff overstated his damages, including duplicate damages, non-covered
damages and/or damages unrelated to the reported loss. Accordingly, any recovery should be
limited.
FIFTH AFFIRMATIVE DEFENSE
(Failure to provide prompt notice)
5. 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.
SIXTH AFFIRMATIVE DEFENSE
(Not entitled to recoverable depreciation)
6. Plaintiff has not satisfied the certificate requirements to claim recoverable
depreciation, including providing proof that Plaintiff has repaired or replaced the damaged
property.
SEVENTH AFFIRMATIVE DEFENSE
(Wear and tear and deterioration)
7. Plaintiff's claims are barred, in whole or in part, because the reported damage to
the Property was caused by wear and tear and/or deterioration, which is excluded by the Policy.
EIGHTH AFFIRMATIVE DEFENSE
(Neglect)
° Mrisaem 1 a ed A oe nn Ln a tt
oO. rial § Cialis are Darreu, In Whole OF IM part, DeCduse ie Teporied Gamage to
the Property was caused by neglect, which is excluded by the Policy.CASE NO. 502021CA007553XXXXMB (AG)
NINTH AFFIRMATIVE DEFENSE
(Rot)
9. Plaintiff's 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.
TENTH AFFIRMATIVE DEFENSE
(Existing damage)
10. Plaintiffs claims are barred, in whole or in part, because the reported damage pre-
existed the reported loss date.
ELEVENTH AFFIRMATIVE DEFENSE
(Faulty maintenance)
11. 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.
TWELFTH AFFIRMATIVE DEFENSE
(Constant or repeated seepage or leakage of water)
12. Plaintiff’s claims are barred, in whole or in part, because the reported damage to
the Property was caused by constant or repeated seepage or leakage of water, which is excluded
by the Policy.
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
cee ka
property with ule property lat Is Dellyg replaceu anwor repaired unuer WIE SUDJECL
Certificate/Policy.CASE NO. 502021CA007553XXXXMB (AG)
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.
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 Plaintiffs claim, 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 in its favor.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was tiled and served
via the E-Filing Portal, this 15" day of July, 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
Bradley.aiken@mhllp.com
Miriam.rosenblatt@mhllp.com
Kat .craven@mhilp.comCASE NO. 502021CA007553XXXXMB (AG)
SERVICE LIST.
Roger A. Alvarez, Esq.
FBN: 53968
Roger A. Alvarez, P.A.
Attorneys for Plaintiff
2207 NW 23™ Avenue
Miami, FL 33142
Telephone: (305) 638-1188
Facsimile: (305) 847-2777
E-Service: roger@raalvarezlaw.com
Preview
Filing # 130722195 E-Filed 07/15/2021 12:45:34 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502021CA007553XXXXMB (AG) EMELI MARTINE, Plaintiff, v. AMERICAN SECURITY INSURANCE COMPANY, Defendant. / DEPENDANT AMPDIOCAN CECTIDITV INCTID ANCE COMPDANWC WAU hy AUR UR UR CU ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT Defendant, American Security Insurance Company (“ASIC”), files its Answer and Affirmative Defenses to Plaintiff's Complaint, and states as follows: PARTIES, JURISDICTION & VENUE 1. ASIC admits only 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 in this action and denies the remaining allegations in paragraph 1. 2. ASIC is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 2 and therefore, denies the allegations. 3. ASIC admits that at all material times it was an insurer authorized to do business in Palm Beach County, Florida. ASIC denies the remaining allegations in paragraph 3. 4. ASIC admits that venue is proper in this Court and denies the remaining allegations in paragraph 4. 5. ASIC denies the allegations in paragraph 5. Plaintiff failed to comply with mmanane aanditinns neanadant ta thin antian Inaluding Let nat Heitad ta tha fnilues ta anmaly HUMICIOUS CONUINOMS preccucihn tO Wiis GCUON, MICLUGing Cul NOL Lined LO ule rauure Ww Comply CHEN. DAIAARCACUAAIINTY Cl INCEDU ARDIIV7ZN FLED ATM EINNN 49.45-24 DNA PILL. PAL DLA VUUINE TT, FL, JUOL IE mDNUeeY, ULLIAN, Uliuieue! 1e.tu.ot FiveCASE NO. 502021CA007553XXXXMB (AG) 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. GENERAL ALLEGATIONS ASIC reincorporates and realleges the allegations in paragraphs | through 5 above as if fully stated herein, and further states as follows: 6. ASIC admits only that it issued a forced-placed/lender-placed policy, Master Policy No. MIP-RCH-00729-00 / Policy No. MLR948741301 (“Policy”) to Nationstar Mortgage LLC as the Named Insured, listing Martine Emile as Borrower, providing certain coverages to the property located at 10781 Santa Laguna Dr., Boca Raton, Florida 33428 (“Property”), pursuant to Certificate Number MLR072994874 13 (“Certificate”) with effective dates of December 20, 2019 through December 20, 2020, subject to its terms, limitations, exclusions and conditions therein; ASIC is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 6 and therefore, denies the allegations and denies that Plaintiff 1s entitied to any relief in this action. 7. ASIC admits only that it issued a forced-placed/lender-placed policy, Master Policy No. MIP-RCH-00729-00 / Policy No. MLR948741301 (“Policy”) to Nationstar Mortgage LLC as the Named Insured, listing Martine Emile as Borrower, providing certain coverages to the property located at 10781 Santa Laguna Dr., Boca Raton, Florida 33428 (“Property”), pursuant to Certificate Number MLR072994874 13 (“Certificate”) with effective dates of December 20, 2019 through December 20, 2020, subject to its terms, limitations, exclusions and conditions therein;CASE NO. 502021CA007553XXXXMB (AG) ASIC states that the Policy speaks for itself. ASIC denies the remaining allegations in paragraph 7 and denies the Plaintiff is entitled to any relief in this action. 8. ASIC admits only that a claim was reported with a reported date of loss of November 8, 2020; ASIC states that the Policy speaks for itself. ASIC denies the remaining allegations in paragraph 8 and denies that Plaintiff is entitled to any relief in this action. 9. ASIC denies the allegations in paragraph 9. 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. 10. ASIC admits that it assigned an adjuster, assigned claim number 00201298270 to Plaintiff's reported loss, and acknowledged receipt of the Claim. ASIC denies the remaining allegations in paragraph 10 and denies that Plaintiff is entitled to any relief in this action. 11. ASIC denies the allegations in paragraph 11. iZ. ASIC states that the Policy speaks for itself; ASIC denies the remaining allegations in paragraph 12 and denies that Plaintiff is entitled to any relief in this action. 13. ASIC admits that (a) Plaintiff hired Roger A. Alvarez, P.A. and (b) that Plaintiff obtained counsel to represent him in the instant action. ASIC further states that section 627.428 Florida Statutes, speaks for itself but denies that Plaintiff is entitled to any relief pursuant to the statute or in this action and denies the remaining allegations in paragraph 13.CASE NO. 502021CA007553XXXXMB (AG) GENERAL DENIAL ASIC denies all allegations and inferences in Plaintiff's Complaint not specifically admitted. 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. 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 the parties disagree on the amount of loss, ASIC reserves its rights to invoke the Policy’s appraisal clause. SECOND AFFIRMATIVE DEFENSE (Failure to perform post-loss duties) 2. Plaintiff breached the Policy by failing to perform required duties after the loss 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. 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. 502021CA007553XXXXMB (AG) FOURTH AFFIRMATIVE DEFENSE (Overstated damages) 4. Plaintiff overstated his damages, including duplicate damages, non-covered damages and/or damages unrelated to the reported loss. Accordingly, any recovery should be limited. FIFTH AFFIRMATIVE DEFENSE (Failure to provide prompt notice) 5. 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. SIXTH AFFIRMATIVE DEFENSE (Not entitled to recoverable depreciation) 6. Plaintiff has not satisfied the certificate requirements to claim recoverable depreciation, including providing proof that Plaintiff has repaired or replaced the damaged property. SEVENTH AFFIRMATIVE DEFENSE (Wear and tear and deterioration) 7. Plaintiff's claims are barred, in whole or in part, because the reported damage to the Property was caused by wear and tear and/or deterioration, which is excluded by the Policy. EIGHTH AFFIRMATIVE DEFENSE (Neglect) ° Mrisaem 1 a ed A oe nn Ln a tt oO. rial § Cialis are Darreu, In Whole OF IM part, DeCduse ie Teporied Gamage to the Property was caused by neglect, which is excluded by the Policy.CASE NO. 502021CA007553XXXXMB (AG) NINTH AFFIRMATIVE DEFENSE (Rot) 9. Plaintiff's 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. TENTH AFFIRMATIVE DEFENSE (Existing damage) 10. Plaintiffs claims are barred, in whole or in part, because the reported damage pre- existed the reported loss date. ELEVENTH AFFIRMATIVE DEFENSE (Faulty maintenance) 11. 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. TWELFTH AFFIRMATIVE DEFENSE (Constant or repeated seepage or leakage of water) 12. Plaintiff’s claims are barred, in whole or in part, because the reported damage to the Property was caused by constant or repeated seepage or leakage of water, which is excluded by the Policy. 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 cee ka property with ule property lat Is Dellyg replaceu anwor repaired unuer WIE SUDJECL Certificate/Policy.CASE NO. 502021CA007553XXXXMB (AG) 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. 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 Plaintiffs claim, 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 in its favor. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was tiled and served via the E-Filing Portal, this 15" day of July, 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 Bradley.aiken@mhllp.com Miriam.rosenblatt@mhllp.com Kat .craven@mhilp.comCASE NO. 502021CA007553XXXXMB (AG) SERVICE LIST. Roger A. Alvarez, Esq. FBN: 53968 Roger A. Alvarez, P.A. Attorneys for Plaintiff 2207 NW 23™ Avenue Miami, FL 33142 Telephone: (305) 638-1188 Facsimile: (305) 847-2777 E-Service: roger@raalvarezlaw.com