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Filing # 128475492 E-Filed 06/10/2021 10:17:51 AM
In The Circuit Court Of The 17th Judicial Circuit
In And For Broward County, Florida
Peter and Monica Treppeda,
Case No.: CACE-21-007431
Plaintiff(s),
VS.
Universal Property & Casualty Insurance Company,
Defendant.
PLAINTIFF'S REPLY AND MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE
DEFENSES
Plaintiff, Peter and Monica Treppeda , by and through undersigned counsel, pursuant to
Florida Rules of Civil Procedure, hereby files this Reply and Motion to Strike Defendant'sAffirmative
Defenses, and in support thereof, state as follows:
REPLY
1. Pursuant to Rules Fla. R. Civ. P. 1.100(a) and Fla. R. Civ. P. 1.140(a)(1),Plaintiffdeny
each and every allegation not admitted to in Defendant's Answer and Affirmative Defenses, and
demand strict proof thereof.
2. Defendant is estopped from asserting its affirmativedefenses.
3. Defendant has waived its affirmativedefenses.
MOTION TO STRIKE
1. Plaintiff filed the instant action as a result of Defendant's failure to adequately tender
payment to return the subject property to its pre-loss condition and indemnify Plaintifffor duly owed
repairs, pursuant to the agreed upon contract of insurance between the Plaintiff and Defendant.
2. Defendant served the Plaintiffwith its Answer and Affirmative Defenses to Plaintiffs
Complaint.
***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/10/2021 10:17:50 AM.****
3. Pursuant to Florida law, "an affirmative defense is a defense which admits the cause
of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter
negating or limiting liability." St Paul Mercug Ins. Co. v. Coucber, 837 So. 2d 483, 487 (Fla. 5th DCA
2002).
4. "Where there are no facts pled to support general allegations of affirmative defenses,
the defenses are legally insufficient." L,eal v. Deuncbe Bank Nat. Tm.rt Co., 21 So. 3d 907, 909 (Fla. 3d
DCA 2009); Ca* v. Cbeg Cba.re javings and Loan, Inc., 528 So. 2d 136,138 (Fla. 4th DCA 1988) (holding
that "[c]ertainty is required when pleading defenses, and pleading conclusions of law unsupported by
allegations of ultimate fact is legally insufficient' '); joutbem IFa.rte S)/6 LLC. v.
Je>A Tran.B/; Inc., 879
So. 2d 86 (Fla. 4th DCA 2004) (finding that facts in support of affirmativedefenses are required), Bliss
v. Canwona, 418 So. 2d 1017, 1019 (stating that"pleading conclusionsoflaw unsupported by allegations
of ultimate fact is legally insufficient").
5. The Defendant fails to set forth sufficientfactual specificity to support the Affirmative
Defenses asserted.
6. As an alternative, the Defendant provides a simple inclusion of several bare provisions
of the subjectpolicy, with no explanation, application, or factual support thereof.
7. As to each and every Affirmative Defenses, it is legally insufficient,and Defendant has
waived such affirmative defense. As to legal insufficiency, Defendant fails to allege any ultimate fact
which, if proved, would constitute a defense. The defense does not state any facts to establish why
Defendant subinits that the policy provision recited bears any application to the unique facts and
circumstances at issue in the case at bar.
8. Recitation of several hollow contract provisions absent a factual nexus do not form
defenses. Plaintiff are
suing on the same contract which Defendant contends forms the basis for the
various defenses. Defendant cannot 'back-door' a
policy exclusion in the form of a hollow recitation
of contract language as a conclusion without a factual predicate,especially after retaining an engineer
to opine on the cause and origin of the collapse at issue and failing to rely upon the conclusions of
same in rendering a denial of the claim at issue.
9. The Plaintiff cannot prepare a
pleading in response to the Defendant's Answer and
AffirmativeDefenses as
plead.
10. As such, the Defendant'sAffirmativeDefenses should be stricken by this Honorable
Court.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order
granting the instant Motion, striking Defendant'sAffirmativeDefenses, and any further relief that this
Honorable Court deems just and proper.
Respectfully submitted,
PropertyPeople FL, P.A.
Attorngsfor Plaintiff
117 NE 1st Ave, Unit 15-104
Miami, FL 33132
Telephone: 844.776.7364
E-Service:
By: /s/ Daniel M. Ilani
Daniel M. Ilani, Esq.
Florida Bar No. 116189
Email:
Nicole S. Houtnan, Esq.
Florida Bar No. 1013527
Email:
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this June 10, 2021, I electronically filed the foregoing
document with the Florida Courts E-Filing Portal via transmission of Notices of Electronic Filing
generated by Florida Courts E-Filing Portal
/s/ Daniel M. Ilani
Daniel M. Ilani
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Filing # 128475492 E-Filed 06/10/2021 10:17:51 AM In The Circuit Court Of The 17th Judicial Circuit In And For Broward County, Florida Peter and Monica Treppeda, Case No.: CACE-21-007431 Plaintiff(s), VS. Universal Property & Casualty Insurance Company, Defendant. PLAINTIFF'S REPLY AND MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE DEFENSES Plaintiff, Peter and Monica Treppeda , by and through undersigned counsel, pursuant to Florida Rules of Civil Procedure, hereby files this Reply and Motion to Strike Defendant'sAffirmative Defenses, and in support thereof, state as follows: REPLY 1. Pursuant to Rules Fla. R. Civ. P. 1.100(a) and Fla. R. Civ. P. 1.140(a)(1),Plaintiffdeny each and every allegation not admitted to in Defendant's Answer and Affirmative Defenses, and demand strict proof thereof. 2. Defendant is estopped from asserting its affirmativedefenses. 3. Defendant has waived its affirmativedefenses. MOTION TO STRIKE 1. Plaintiff filed the instant action as a result of Defendant's failure to adequately tender payment to return the subject property to its pre-loss condition and indemnify Plaintifffor duly owed repairs, pursuant to the agreed upon contract of insurance between the Plaintiff and Defendant. 2. Defendant served the Plaintiffwith its Answer and Affirmative Defenses to Plaintiffs Complaint. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/10/2021 10:17:50 AM.**** 3. Pursuant to Florida law, "an affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability." St Paul Mercug Ins. Co. v. Coucber, 837 So. 2d 483, 487 (Fla. 5th DCA 2002). 4. "Where there are no facts pled to support general allegations of affirmative defenses, the defenses are legally insufficient." L,eal v. Deuncbe Bank Nat. Tm.rt Co., 21 So. 3d 907, 909 (Fla. 3d DCA 2009); Ca* v. Cbeg Cba.re javings and Loan, Inc., 528 So. 2d 136,138 (Fla. 4th DCA 1988) (holding that "[c]ertainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient' '); joutbem IFa.rte S)/6 LLC. v. Je>A Tran.B/; Inc., 879 So. 2d 86 (Fla. 4th DCA 2004) (finding that facts in support of affirmativedefenses are required), Bliss v. Canwona, 418 So. 2d 1017, 1019 (stating that"pleading conclusionsoflaw unsupported by allegations of ultimate fact is legally insufficient"). 5. The Defendant fails to set forth sufficientfactual specificity to support the Affirmative Defenses asserted. 6. As an alternative, the Defendant provides a simple inclusion of several bare provisions of the subjectpolicy, with no explanation, application, or factual support thereof. 7. As to each and every Affirmative Defenses, it is legally insufficient,and Defendant has waived such affirmative defense. As to legal insufficiency, Defendant fails to allege any ultimate fact which, if proved, would constitute a defense. The defense does not state any facts to establish why Defendant subinits that the policy provision recited bears any application to the unique facts and circumstances at issue in the case at bar. 8. Recitation of several hollow contract provisions absent a factual nexus do not form defenses. Plaintiff are suing on the same contract which Defendant contends forms the basis for the various defenses. Defendant cannot 'back-door' a policy exclusion in the form of a hollow recitation of contract language as a conclusion without a factual predicate,especially after retaining an engineer to opine on the cause and origin of the collapse at issue and failing to rely upon the conclusions of same in rendering a denial of the claim at issue. 9. The Plaintiff cannot prepare a pleading in response to the Defendant's Answer and AffirmativeDefenses as plead. 10. As such, the Defendant'sAffirmativeDefenses should be stricken by this Honorable Court. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order granting the instant Motion, striking Defendant'sAffirmativeDefenses, and any further relief that this Honorable Court deems just and proper. Respectfully submitted, PropertyPeople FL, P.A. Attorngsfor Plaintiff 117 NE 1st Ave, Unit 15-104 Miami, FL 33132 Telephone: 844.776.7364 E-Service: By: /s/ Daniel M. Ilani Daniel M. Ilani, Esq. Florida Bar No. 116189 Email: Nicole S. Houtnan, Esq. Florida Bar No. 1013527 Email: CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this June 10, 2021, I electronically filed the foregoing document with the Florida Courts E-Filing Portal via transmission of Notices of Electronic Filing generated by Florida Courts E-Filing Portal /s/ Daniel M. Ilani Daniel M. Ilani