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Filing# 148251354 E-Filed 04/22/2022 05:50:53 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE-20-017305
ROGENIA HANDSPIKE,
Plaintiffs,
V
HERITAGE PROPERTY AND CASUALTY
INSURANCE COMPANY,
Defendant.
PLAINTIFFS' MOTION FOR RELIEF FROM
ADMISSIONS
COMES NOW, Plaintiff,ROGENIA HANDSPIKE, (the"Insured")Pursuant to
Florida
Rule of Civil Procedure 1.370(b),by and through undersignedcounsel, and file this Motion
for Relief from Admissions, statingin support thereof:
ith
1.
On August 4?1,2021, Defendant, HERITAGE PROPERTY AND CASUALTY
INSURANCE COMPANY, served the Insured with its First Requests for
Admissions by Electronic Mail.
2.
Since the Insured failed to timelyreplyto Defendant's Request for Admissions,
the Court deemed admitted the responses to the Request pursuant to Fla. R. Civ.
P. 1.370(a).
3.
The Insured's Reply to Defendant's First Request for Admissions is attached to
this Motion as Exhibit "A
4. Florida Rule of Civil Procedure 1.370(b)states that:
"the
court may permit withdrawal or amendment when the
presentationof the merits of the action will be subserved by it and
the party who obtained the admission fails to satisfythe court that
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/22/2022 05:50:53 PM.****
withdrawal or amendment will prejudicethat party in maintaining
.,
an action or defense on the merits".
5.
Defendant will not be prejudiced should this Court allow the
withdrawal of each Insured's Admissions since the record contains an abundance of
evidence contradicting
the admissions.
6.
Should the Court allow withdrawal of the automatic Admissions and
accept each of the Insured's Replies to Defendant's Request for Admissions, the
instant case will be litigated
on its existingevidence in a much more efficient and
proper manner, hence facilitating
how the case is presented.See Melody Tours, Inc. V.
Granville MarketLetter, Inc.,413 So. 2d 450,451 (Fla.5thDCA 1982)(wherethe court
withdrew appellant'stechnical Admissions even though they were late in replying
because allowing the withdrawal facilitated presentingthe case on its evidentiary
merits);Sher v. Liberty Mutual Insurance Co., 557 So. ld 638,639 (Fla.3rdDCA
1990)(where the court reversed summary judgment for the Defendant even though
Plaintiffhad not filed timelyresponses to Defendant's Request for Admissions because
pleadingsand affidavits filed by Plaintiff contradicted the technical Admissions); Love
th
v. Allis-Chalmers Corp.,362 So. 2d 1037 (Fla.471 DCA 1978);Department ofRevenue
v. Aravz, 678 So. 2d 464,465 (Fla.3rd DCA 1996)(dismissalof the action reversed
where the affidavits and pleadingswere in conflict with the technical Admissions).
7.
Granting summary judgment or dismissal based solelyon a party's
failure to timely respond to a Request for Admissions is disfavored by the Courts. See
Sher, 557 So. 2d at 639 (where the only support for summary judgment was Plaintiff's
failure to timely respond to a Request for Admissions summary judgment was
reversed);
Ruiz v. De Farona, 785 So. 2d 508,509 (Fla.3rdDCA 2000)(dismissalbased
exclusivelyon a party'sfailure to timely replyto Admissions is "inappropriate");
Habib
ith
v. Maison Du Fin Francais, Inc.,528 So. 2d 553 (Fla.4? ?DCA 1988)(summary
judgment reversed as the trial court "abused its discretion" in granting
summary judgment on the basis of Appellant'sfailure to replyto Admissions).
8
Pursuant to Fla. R. Civ. Pro. 1.370(b),the Courts favor using a liberal
standard when decidingwhether to withdraw or amend technical Admissions since the
standard allows for a legitimateclaim to be properly adjudicatedon its merits. The
Insured in the instant case would be allowed to defend their positionmuch more
efficiently
and fairlyif theyrelyon their extensive evidence which proves the contrary
of what the technical Admissions state. See Ramos v. Growing Together,671 So. 2d
103, 104 (Fla.4?hDCA 1996)(theCourt states "the liberal standard [from Fla. R. Civ.
Pro. 1.370(b)]favors amendment in most cases in order to allow disposition
on the
merits");Melody Tours, Inc. V. Granville Market Letter, Inc.,413 So. ld 450,451
th
(Fla.5? DCA 1982); Love v. Allis-Charmers, 362 So. 2d 1037, (Fla.48 DCA
1978)(stated,"[Fla. R. Civ. Pro. 1.370(b)]has been liberalized... to allow the
rectification of an improper response to a Request for Admissions by allowing
withdrawals or amendment" by satisfyingthe liberal standards set forth in the Rule).
9-
In the instant case, Defendant is on notice of the Insured's positionand
their disputedfacts since the commencement ofthis action. The record contains a vast
amount of evidence which directlycontradicts with the technical Admissions.
Defendant will suffer no prejudiceshould the Court grant this Motion and allow the
Insured to file their Response to Defendant's Request for Admissions.
WHEREFORE, Plaintiff,ROGENIA HANDSPIKE, move this Court for an
Order grantingtheir Motion for Relief from Admissions and enter an Order allowing
the Insured to file the attached Response to Defendant's First Request for Admissions.
(CERTIFICATE OF SERVICE FOLLOWS ON THE NEXT PAGE)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
was served via Florida E-Portal and E-Mail to all partieson this 22rnd dayor
April,2022.
Your Insurance Attorney, PLLC.
Counsel for the Insured
2601 South Bayshore Drive 18th Floor
Coconut Grove, FL 33133
Phone No.: 1-888-570-5677
Fax: 1-888-745-5677
Email: YIA5@Yourinsuranceattorney.com
Secondary Email: Eservice@Yourinsuranceattorney.com
By: /s/ David Garcia
David Garcia, Esq.
Florida Bar No. 87055
Idelys Martinez, Esq.
Florida Bar No. 1011047
EXIIIBIT "A99
IN THE CIRCUIT COURT FOR THE
11TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: CACE-20-017305
ROGENIA HANDSPIKE,
Plaintiffs,
V
HERITAGE PROPERTY AND
CASUALTY INSURANCE
COMPANY,
Defendant.
PLAINTIFFS' NOTICE OF FILING RESPONSES TO DEFENDANT'S
REOUEST FOR ADMISSIONS
COMES NOW, Plaintiffs,ROGENIA HANDSPIKE, (the"Insured"),hereby give notice of the
service
of their responses to the Defendant, HERITAGE PROPERTY AND CASUALTY
INSURANCE COMPANY, Request for Admissions and states as follows:
1.
Admitted.
2.
Admitted.
3.
Admitted.
4.
Objection, this request seeks the legalimpressions and conclusions of my attorney. However,
notwithstanding aid objection, Plaintiff is without sufficient knowledge to admit or deny,
therefore, denied.
5.
Objection, this request seeks the legal impressions and conclusions of my attorney. However,
notwithstanding aid objection,Plaintiff is without sufficient knowledge to admit or deny,
therefore, denied.
6.
Denied.
7.
Admitted.
8.
Denied.
9.
Denied.
10. Admitted.
11. Denied.
12. Denied as phrased.
13. Denied.
14. Denied as phrased.
15. Denied as phrased.
16. Objection. This request seeks an expert conclusion. Notwithstanding said objection,Plaintiff
is without sufficient knowledge to admit or deny, therefore, denied.
17. Admitted.
18. Admitted.
19. Denied.
20. Denied.
21. Denied.
22. Denied.
23. Denied.
24. Denied.
25. Objection,this request seeks the legal impressions, legal conclusions, and policy interpretation of our
attorney. Notwithstanding said objection,Plaintiff is without sufficient knowledge to admit or deny,
therefore, denied.
26. Objection. This request seeks an expert conclusion. Notwithstanding said objection,Plaintiff is
without sufficient knowledge to admit or deny, therefore, denied.
CCERTIFICATE DFSERVICEFDLLDWSDN THENEXTPAGE)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy ofthe foregoingwas served via Florida E-Portal
and E-Mail to all partieson this 221Ind day of April,2022.
Your Insurance Attorney, PLLC.
Counsel for the Insured
2601 South Bayshore Drive 18th Floor
Coconut Grove, FL 33133
Phone No.: 1-888-570-5677
Fax: 1-888-745-5677
Email: YIA5@Yourinsuranceattorney.com
Secondary Email: Eservice@Yourinsuranceattorney.com
By: /s/ David Garcia
David Garcia, Esq.
Florida Bar No. 87055
Idelys Martinez, Esq.
Florida Bar No. 1011047
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Filing# 148251354 E-Filed 04/22/2022 05:50:53 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-20-017305 ROGENIA HANDSPIKE, Plaintiffs, V HERITAGE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. PLAINTIFFS' MOTION FOR RELIEF FROM ADMISSIONS COMES NOW, Plaintiff,ROGENIA HANDSPIKE, (the"Insured")Pursuant to Florida Rule of Civil Procedure 1.370(b),by and through undersignedcounsel, and file this Motion for Relief from Admissions, statingin support thereof: ith 1. On August 4?1,2021, Defendant, HERITAGE PROPERTY AND CASUALTY INSURANCE COMPANY, served the Insured with its First Requests for Admissions by Electronic Mail. 2. Since the Insured failed to timelyreplyto Defendant's Request for Admissions, the Court deemed admitted the responses to the Request pursuant to Fla. R. Civ. P. 1.370(a). 3. The Insured's Reply to Defendant's First Request for Admissions is attached to this Motion as Exhibit "A 4. Florida Rule of Civil Procedure 1.370(b)states that: "the court may permit withdrawal or amendment when the presentationof the merits of the action will be subserved by it and the party who obtained the admission fails to satisfythe court that *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/22/2022 05:50:53 PM.**** withdrawal or amendment will prejudicethat party in maintaining ., an action or defense on the merits". 5. Defendant will not be prejudiced should this Court allow the withdrawal of each Insured's Admissions since the record contains an abundance of evidence contradicting the admissions. 6. Should the Court allow withdrawal of the automatic Admissions and accept each of the Insured's Replies to Defendant's Request for Admissions, the instant case will be litigated on its existingevidence in a much more efficient and proper manner, hence facilitating how the case is presented.See Melody Tours, Inc. V. Granville MarketLetter, Inc.,413 So. 2d 450,451 (Fla.5thDCA 1982)(wherethe court withdrew appellant'stechnical Admissions even though they were late in replying because allowing the withdrawal facilitated presentingthe case on its evidentiary merits);Sher v. Liberty Mutual Insurance Co., 557 So. ld 638,639 (Fla.3rdDCA 1990)(where the court reversed summary judgment for the Defendant even though Plaintiffhad not filed timelyresponses to Defendant's Request for Admissions because pleadingsand affidavits filed by Plaintiff contradicted the technical Admissions); Love th v. Allis-Chalmers Corp.,362 So. 2d 1037 (Fla.471 DCA 1978);Department ofRevenue v. Aravz, 678 So. 2d 464,465 (Fla.3rd DCA 1996)(dismissalof the action reversed where the affidavits and pleadingswere in conflict with the technical Admissions). 7. Granting summary judgment or dismissal based solelyon a party's failure to timely respond to a Request for Admissions is disfavored by the Courts. See Sher, 557 So. 2d at 639 (where the only support for summary judgment was Plaintiff's failure to timely respond to a Request for Admissions summary judgment was reversed); Ruiz v. De Farona, 785 So. 2d 508,509 (Fla.3rdDCA 2000)(dismissalbased exclusivelyon a party'sfailure to timely replyto Admissions is "inappropriate"); Habib ith v. Maison Du Fin Francais, Inc.,528 So. 2d 553 (Fla.4? ?DCA 1988)(summary judgment reversed as the trial court "abused its discretion" in granting summary judgment on the basis of Appellant'sfailure to replyto Admissions). 8 Pursuant to Fla. R. Civ. Pro. 1.370(b),the Courts favor using a liberal standard when decidingwhether to withdraw or amend technical Admissions since the standard allows for a legitimateclaim to be properly adjudicatedon its merits. The Insured in the instant case would be allowed to defend their positionmuch more efficiently and fairlyif theyrelyon their extensive evidence which proves the contrary of what the technical Admissions state. See Ramos v. Growing Together,671 So. 2d 103, 104 (Fla.4?hDCA 1996)(theCourt states "the liberal standard [from Fla. R. Civ. Pro. 1.370(b)]favors amendment in most cases in order to allow disposition on the merits");Melody Tours, Inc. V. Granville Market Letter, Inc.,413 So. ld 450,451 th (Fla.5? DCA 1982); Love v. Allis-Charmers, 362 So. 2d 1037, (Fla.48 DCA 1978)(stated,"[Fla. R. Civ. Pro. 1.370(b)]has been liberalized... to allow the rectification of an improper response to a Request for Admissions by allowing withdrawals or amendment" by satisfyingthe liberal standards set forth in the Rule). 9- In the instant case, Defendant is on notice of the Insured's positionand their disputedfacts since the commencement ofthis action. The record contains a vast amount of evidence which directlycontradicts with the technical Admissions. Defendant will suffer no prejudiceshould the Court grant this Motion and allow the Insured to file their Response to Defendant's Request for Admissions. WHEREFORE, Plaintiff,ROGENIA HANDSPIKE, move this Court for an Order grantingtheir Motion for Relief from Admissions and enter an Order allowing the Insured to file the attached Response to Defendant's First Request for Admissions. (CERTIFICATE OF SERVICE FOLLOWS ON THE NEXT PAGE) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via Florida E-Portal and E-Mail to all partieson this 22rnd dayor April,2022. Your Insurance Attorney, PLLC. Counsel for the Insured 2601 South Bayshore Drive 18th Floor Coconut Grove, FL 33133 Phone No.: 1-888-570-5677 Fax: 1-888-745-5677 Email: YIA5@Yourinsuranceattorney.com Secondary Email: Eservice@Yourinsuranceattorney.com By: /s/ David Garcia David Garcia, Esq. Florida Bar No. 87055 Idelys Martinez, Esq. Florida Bar No. 1011047 EXIIIBIT "A99 IN THE CIRCUIT COURT FOR THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION CASE NO.: CACE-20-017305 ROGENIA HANDSPIKE, Plaintiffs, V HERITAGE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. PLAINTIFFS' NOTICE OF FILING RESPONSES TO DEFENDANT'S REOUEST FOR ADMISSIONS COMES NOW, Plaintiffs,ROGENIA HANDSPIKE, (the"Insured"),hereby give notice of the service of their responses to the Defendant, HERITAGE PROPERTY AND CASUALTY INSURANCE COMPANY, Request for Admissions and states as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Objection, this request seeks the legalimpressions and conclusions of my attorney. However, notwithstanding aid objection, Plaintiff is without sufficient knowledge to admit or deny, therefore, denied. 5. Objection, this request seeks the legal impressions and conclusions of my attorney. However, notwithstanding aid objection,Plaintiff is without sufficient knowledge to admit or deny, therefore, denied. 6. Denied. 7. Admitted. 8. Denied. 9. Denied. 10. Admitted. 11. Denied. 12. Denied as phrased. 13. Denied. 14. Denied as phrased. 15. Denied as phrased. 16. Objection. This request seeks an expert conclusion. Notwithstanding said objection,Plaintiff is without sufficient knowledge to admit or deny, therefore, denied. 17. Admitted. 18. Admitted. 19. Denied. 20. Denied. 21. Denied. 22. Denied. 23. Denied. 24. Denied. 25. Objection,this request seeks the legal impressions, legal conclusions, and policy interpretation of our attorney. Notwithstanding said objection,Plaintiff is without sufficient knowledge to admit or deny, therefore, denied. 26. Objection. This request seeks an expert conclusion. Notwithstanding said objection,Plaintiff is without sufficient knowledge to admit or deny, therefore, denied. CCERTIFICATE DFSERVICEFDLLDWSDN THENEXTPAGE) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy ofthe foregoingwas served via Florida E-Portal and E-Mail to all partieson this 221Ind day of April,2022. Your Insurance Attorney, PLLC. Counsel for the Insured 2601 South Bayshore Drive 18th Floor Coconut Grove, FL 33133 Phone No.: 1-888-570-5677 Fax: 1-888-745-5677 Email: YIA5@Yourinsuranceattorney.com Secondary Email: Eservice@Yourinsuranceattorney.com By: /s/ David Garcia David Garcia, Esq. Florida Bar No. 87055 Idelys Martinez, Esq. Florida Bar No. 1011047