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Filing# 143387770 E-Filed 02/07/2022 10:31:00 AM
REHANA HASAN AND BAYZID HASAN,
IN
THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND FOR
Petitioners,
BROWARD COUNTY, FLORIDA
VS.
CASE NO.: CACE-21-007850
UNITED
PROPERTY
&
CASUALTY
INSURANCE COMPANY,
Respondent.
RESPONDENT'S MOTION TO DISMISS AMENDED PETITION
The Respondent, UNITED PROPERTY & CASUALTY INSURANCE COMPANY
("UPC"), by and through its undersigned counsel, files its Motion to Dismiss the Amended
Petition for Improper Declaratory Relief and as grounds states as follows:
1.
The Respondent moves to dismiss the Amended Petition for Improper
Declaratory Relief.
2.
This matter stems from a first party property insurance claim regarding
alleged hurricane damage that purportedly occurred on September 10, 2017 yet was first
reported to UPC on January 20,2020.
3.
Petitioners' Amended Petition seeks Declaratory Relief as to whether UPC
properly denied the insurance claim under the policy and whether UPC must pay
Petitioners attorneys'fees.
4.
At this time, the only discussion is whether UPC breached the contract, a
policy of insurance. UPC maintains that the Amended Petition is improperly seeks
Declaratory Relief that requests this Court make an advisory opinion on the interpretation
of a contract, while disallowing the Defendant the abilityto make a proposal for settlement
as itcould under an appropriate breach of contract count.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/07/2022 10:31:00 AM.****
CACE-21-007850
5.
The "DeclaratoryJudgment Statute" was enacted to provide equitable relief
to insureds or insurers who are trulyin doubt as to their rightsunder an insurance policy.
Just as in Higgens v. State Farm Fire and Cas. Co., 894 So. 2d 5 (Fla.2004), where an
insurer petitionedfor determination as to whether or not itowed a duty to defend under
the policy.The Statute was not intended for the benefit of Petitioners seeking to stop a
Respondent from later filinga proposal for settlement.
6.
The Fourth District Court of Appeal has also held that, unlike the
circumstances arising with third party claims in which the issue of a defense of a suit
against the insured is at stake, a disputed claim as to which the issue is whether the
nature of the accident places the claim within such coverage, there is a basis for the
court's determination that a declaratory judgment would not serve any useful purpose and
might impair the rightsof the parties. Legion Ins. Co. v. Moore, 846 So. 2d 1183,1187
(Fla.4th DCA 2003).
7-
Since Petitioners' Amended Petition asks this Court to advise whether the
UPC breached the contract, any count brought by Petitioners would be more precisely
pled as a standard breach of contract count. However, here, the Petitioners have rejected
this precisionto gain a tactical advantage, namely precluding the filingof a proposal for
settlement. In lightof this apparent gamesmanship, Petitioners' Amended Petition should
be dismissed as an improperly pled Petition for Declaratory Relief.
8.
Further, Petitioners have not alleged sufficient facts to establish the
existence of an actual controversy regarding the construction or the validityof the Policy
and, therefore, has failed to state a cause of action for declaratory relief. Additionally,
Florida's Supreme Court has noted that an action for declaratory relief will not lie where
CACE-21-007850
the contract is clear and unambiguous and presents no need for construction. See Bergh
v. Canadian Universal Ins. Co.,216 So. 2d 436 (F\a.1969); see also John v. Atlantic Nat'I
Ms. Co., 155 So. 2d 886 (Fla.3d DCA 1963). There is no present justiciablecontroversy
that can be resolved through a judicialdeclaration.
9.
Essentially,the Amended Petition seeks Declaratory Relief as to whether
UPC failed to issue proper payment under the policy and whether UPC must pay for
Petitioners' claimed damages. By all accounts, the Amended Petition is seeking damages
and an action for declaratory relief is not the proper vehicle to obtain such damages. See
Legion Insurance Company v. Moore, 846 So.2d 1183 (Fla.4th DCA 2003)
WHEREFORE,
the
Respondent,
UNITED
PROPERTY &
CASUALTY
INSURANCE COMPANY, respectfully requests that this Honorable Court dismiss
Petitioners' Amended Petition for Improper Declaratory Relief and grant any other relief
this Court deems fitand just.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished
via the e-portal to: Vyacheslav Borshchukov, Esq., Vyacheslav Borshchukov, P.A., 514
SE 11th Court, Fort Lauderdale, FL 33316; (Service@VB.Legal) on February 7,2022.
BECK LAW, P.A.
901 Clint Moore Road, Suite C
Boca Raton, FL 33487
Tel:
(561) 990-1647
Fax:
(561) 717-9673
By:
/s/ ASHLEY JOSEPH, ESQ.
Florida Bar No.- 123853
Primary E-Mail:
pleadinqs@beck awpa.com
Secondary E-Mail:
ioseph@beck awpa.com
TertiaryE-Mail:
beck@becklawpa.com
Attorney for Defendant
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Filing# 143387770 E-Filed 02/07/2022 10:31:00 AM REHANA HASAN AND BAYZID HASAN, IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR Petitioners, BROWARD COUNTY, FLORIDA VS. CASE NO.: CACE-21-007850 UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Respondent. RESPONDENT'S MOTION TO DISMISS AMENDED PETITION The Respondent, UNITED PROPERTY & CASUALTY INSURANCE COMPANY ("UPC"), by and through its undersigned counsel, files its Motion to Dismiss the Amended Petition for Improper Declaratory Relief and as grounds states as follows: 1. The Respondent moves to dismiss the Amended Petition for Improper Declaratory Relief. 2. This matter stems from a first party property insurance claim regarding alleged hurricane damage that purportedly occurred on September 10, 2017 yet was first reported to UPC on January 20,2020. 3. Petitioners' Amended Petition seeks Declaratory Relief as to whether UPC properly denied the insurance claim under the policy and whether UPC must pay Petitioners attorneys'fees. 4. At this time, the only discussion is whether UPC breached the contract, a policy of insurance. UPC maintains that the Amended Petition is improperly seeks Declaratory Relief that requests this Court make an advisory opinion on the interpretation of a contract, while disallowing the Defendant the abilityto make a proposal for settlement as itcould under an appropriate breach of contract count. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/07/2022 10:31:00 AM.**** CACE-21-007850 5. The "DeclaratoryJudgment Statute" was enacted to provide equitable relief to insureds or insurers who are trulyin doubt as to their rightsunder an insurance policy. Just as in Higgens v. State Farm Fire and Cas. Co., 894 So. 2d 5 (Fla.2004), where an insurer petitionedfor determination as to whether or not itowed a duty to defend under the policy.The Statute was not intended for the benefit of Petitioners seeking to stop a Respondent from later filinga proposal for settlement. 6. The Fourth District Court of Appeal has also held that, unlike the circumstances arising with third party claims in which the issue of a defense of a suit against the insured is at stake, a disputed claim as to which the issue is whether the nature of the accident places the claim within such coverage, there is a basis for the court's determination that a declaratory judgment would not serve any useful purpose and might impair the rightsof the parties. Legion Ins. Co. v. Moore, 846 So. 2d 1183,1187 (Fla.4th DCA 2003). 7- Since Petitioners' Amended Petition asks this Court to advise whether the UPC breached the contract, any count brought by Petitioners would be more precisely pled as a standard breach of contract count. However, here, the Petitioners have rejected this precisionto gain a tactical advantage, namely precluding the filingof a proposal for settlement. In lightof this apparent gamesmanship, Petitioners' Amended Petition should be dismissed as an improperly pled Petition for Declaratory Relief. 8. Further, Petitioners have not alleged sufficient facts to establish the existence of an actual controversy regarding the construction or the validityof the Policy and, therefore, has failed to state a cause of action for declaratory relief. Additionally, Florida's Supreme Court has noted that an action for declaratory relief will not lie where CACE-21-007850 the contract is clear and unambiguous and presents no need for construction. See Bergh v. Canadian Universal Ins. Co.,216 So. 2d 436 (F\a.1969); see also John v. Atlantic Nat'I Ms. Co., 155 So. 2d 886 (Fla.3d DCA 1963). There is no present justiciablecontroversy that can be resolved through a judicialdeclaration. 9. Essentially,the Amended Petition seeks Declaratory Relief as to whether UPC failed to issue proper payment under the policy and whether UPC must pay for Petitioners' claimed damages. By all accounts, the Amended Petition is seeking damages and an action for declaratory relief is not the proper vehicle to obtain such damages. See Legion Insurance Company v. Moore, 846 So.2d 1183 (Fla.4th DCA 2003) WHEREFORE, the Respondent, UNITED PROPERTY & CASUALTY INSURANCE COMPANY, respectfully requests that this Honorable Court dismiss Petitioners' Amended Petition for Improper Declaratory Relief and grant any other relief this Court deems fitand just. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via the e-portal to: Vyacheslav Borshchukov, Esq., Vyacheslav Borshchukov, P.A., 514 SE 11th Court, Fort Lauderdale, FL 33316; (Service@VB.Legal) on February 7,2022. BECK LAW, P.A. 901 Clint Moore Road, Suite C Boca Raton, FL 33487 Tel: (561) 990-1647 Fax: (561) 717-9673 By: /s/ ASHLEY JOSEPH, ESQ. Florida Bar No.- 123853 Primary E-Mail: pleadinqs@beck awpa.com Secondary E-Mail: ioseph@beck awpa.com TertiaryE-Mail: beck@becklawpa.com Attorney for Defendant