Preview
Filing # 130110667 E-Filed 07/06/2021 03:05:05 PM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
HARDY Q. ZHANG CASE NO.: CACE-21-010701 (08)
AND JANET L. ZHANG,
Plaintiffs,
VS.
EDISON INSURANCE COMPANY,
Defendant.
i
DEFENDANT'S MOTION TO DISMISS COUNT II OF PLAINTIFFS' PETITION FOR
DECLARATORY RELIEF
The Defendant, EDISON INSURANCECOMPANY, through the undersigned attorneys and
pursuant to Florida Rules Civil Procedure, files its Motion to Dismiss Plaintiffs' Petition for
Declaratoryrelief and in support thereof, states as follows:
MOTION TO DISMISS COUNT I
PETITION FOR DECLARATORY RELIEF
I. MEMORANDUM OF LAW
a. Brief Statement of the Case
Edison Insurance Company issued a homeowner's policy ofinsurance to Plaintiffslocated at
.th
3530 NW 89' Way, Hollywood, Florida 33024. The grant ofcoverage under said policy is subject to
its terms, conditions, limitation, exclusions and applicable forms, endorsements and deductibles.
Plaintiffs allege that the Property sustained a covered loss due to Hurricane Irma. After a thorough
investigation of the claim, Edison Insurance Company determined that the loss was not covered
under the policy and advised the Plaintiffs regarding the prejudice suffered by the Defendant.
***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/06/2021 03:05:05 PM.****
DEFENDANT, EDISON INSURANCECOMPANY'S ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFFS' PETITION FOR DECLARATORY RELIEF
CASE NO.: 21-010701 (08)
II. STANDARD OF LAW FOR A MOTION TO DISMISS
As noted in Poulos v. Fordenneier, 327 So. 2d 245, 246 (Fla. 4th DCA 1976):
The function of a motion to dismissthe complaint is to raise a question of law as to
the sufficiency of the facts
alleged to state a cause of action. The motion admits as
true all well pled facts as well as all reasonableinferences arising from those facts.
The allegations must be construed in the light most favorable to Plaintiffandthe trial
court must not speculate what the true acts may be or what will be provided
ultimately in trial of the cause. Further, the trial court's gaze is limited to the four
corners of the complaint. Finally, the motion must be decided on questions of law,
and matters not shown on the face of the complaint cannot be properly raised on a
motion to dismiss.
Citing 25 Fla.Jur., Pleadings § 127; See also Hitt v. N Broward Hosp. Dist., 387 So. 2d 482, 483
(Fla. 4th DCA 1980). However, unlike other actions, a Motion to Dismiss a Count for declaratory
relief does not go to the merits, but goes only to the question ofwhether the Plaintiffisentitled to a
declaration ofrights. See Gov 'tEmployees Ins. Co. v. Anta, 379 So. 2d 1038, 1039-40 (Fla. 3dDCA
1980).
III. PLAINTIFFS' REOUEST FORDECLARATORYRELIEF FAILS TOSTATE
A VALID CAUSE OF ACTION UPON WHICH RELIEF MAY BE GRANTED
AS PLAINTIFFS HAVE NOT IDENTIFIED ANY AMBIGUITY IN THE
POLICY WHICH REQUIRES THE COURTS INTERPRETATION
Plaintiffs filed a one-Count Complaint for declaratory relief against Edison Insurance
Company wherein they allege doubt as to their rights to coverage under the insurance policy. (See
Petition for DeclaratoryRelief, Count I). However, Plaintiffs failed to identify any specificright or
obligation which is ambiguous under the policy of insurance that would necessitate this Court's
2
SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD .1776 EASTSUNRISEBLVD .FORT LAUDERDALE,FL 33304
TELEPHONE (954) 765-1001 FACSIMILE (954) 765-1005
DEFENDANT, EDISON INSURANCECOMPANY'S ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFFS' PETITION FOR DECLARATORY RELIEF
CASE NO.: 21-010701 (08)
interpretation, as required under the Florida Statutes, to plead a valid cause of action for declaratory
relief.
In Florida, the right to a declaratoryjudgment for a party in doubt of its contractual rights
was statutorily created by Fla. Sta. § 86.021 (2011), which states, in pertinent part
Any person claiming to be interested or who may be in doubt about his or her rights
under a deed, will, contract, or other article, memorandum, or instrumentin writing
or whose rights, status, or other equitable or legal relations are affected by a statute,
or any regulation made under statutory authority, or by municipal ordinance,
contract, deed, will, franchise, or other article, memorandum, or instrument in
writing may have determined any question of construction or validity arising under
such statute, regulation,municipal ordinance, contract, deed, will, franchise,or other
article, memorandum, or instrument in writing, or any part thereof, and obtain a
declaration of rights, status, or other equitable or legal relations thereunder.
Fla. Stat. § 86.021 (emphasis added).
See Martinez, v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991); see also Johnson v. Alt. Nat'l. Ins.
Co., 155 So. 2d 886 (Fla. 3d DCA 1963) (an action for declaratory relief will not lie where the
insurance contact is clear and unambiguous and presents no need for construction; a question
must be raised either of construction of the insurance policy or the validity of the policy).
Purportedly, Plaintiffs are asking the Court to enter a declaratoryjudgment to clear up their
uncertaintyas to their rights under the subject Policy. Plaintiffs base this doubt on their"belief' that
the property suffered damage (for which they were not indemnified)due to a covered cause of loss.
However, the purpose of an action for declaratoryreliefon an insurance contract is for interpretation
o f an ambiguity in a policy; in other words, a question o f construction or validity or a contract. See
Martinez, 582 So. 2d at 1170 and Johnson, 155 So. 2d at 886, supra.
Here, the Plaintiffs fail to set forth any question of construction or validityarising under the
3
SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD .1776 EASTSUNRISEBLVD .FORT LAUDERDALE,FL 33304
TELEPHONE (954) 765-1001 FACSIMILE (954) 765-1005
DEFENDANT, EDISON INSURANCECOMPANY'S ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFFS' PETITION FOR DECLARATORY RELIEF
CASE NO.: 21-010701 (08)
contract. Further, the Complaint fails to cite any allegedlyambiguouspolicyprovision(s) that would
necessitatejudicialinterpretation. As such, Plaintiffs failed to state a cause ofactionfor declaratory
relief.
Essentially, the Plaintiffs are asking the Court to issue an advisory opinion to clear up their
alleged doubt as to the existence of coverage under the Policy and to determine ifthey are entitled to
additional sums ofmoney (and thus, compel Family Security Insurance Company to participate in
negotiatingthe claim). However, it is well settled that mere doubt, due to disputed questions of fact
(in contrast with a contractual ambiguity), is not sufficient to make declaratoryjudgmentavailable to
litigants. Barrett v. Pickard 85 So. 2d 630,631 (Fla. 1956) (stating that doubt, because ofdisputed
questions of fact alone, is not sufficient to make available to litigants the provisions of the
DeclaratoryJudgments Act); Perez v. State Automobile Ins. Ass'n, 170 So. ld 377,37% (Fla. 3d
DCA 1972) (purely factual disputes are not the proper subject of an action for
Burns v. Hartford Accident & Indemnity Co., 157 So. 2d 84, 86 (Fla. 3d DCA 1963) (declaratory
judgment statute is not available to settle factual issues bearing on liability, under a contract which is
clear and unambiguous and which presents no need for its construction).
Moreover, declaratoryjudgment is not to be used as a tool to advise attorneys as to the proper
path to pursue. See Kelner v. Woody, 399 So. 2d 35, 38 (Fla. 3d DCA 1981); May v. Holley, 59 So.
2d 636 (Fla. 1952); and Deen v. Weaver, 41 So. 2d 539 (Fla. 1950).
In the instant case, Plaintiffs' allegations seeking to obtain declaratoryrelief from the Court
are rootedin their"beliefs" rather than an ambiguouspolicyprovision, as required underFlorida law
to state a cause of action. In fact, the request for declaratoryreliefin Count I is simply a cumulative
4
SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD .1776 EASTSUNRISEBLVD .FORT LAUDERDALE,FL 33304
TELEPHONE (954) 765-1001 FACSIMILE (954) 765-1005
DEFENDANT, EDISON INSURANCECOMPANY'S ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFFS' PETITION FOR DECLARATORY RELIEF
CASE NO.: 21-010701 (08)
Count as it is nothing more than a breach of contract action in disguise, alleging that Edison
Insurance Company has failed to pay monies owed to Plaintiffs under the Policy. Whether Edison
breached the insurance contract by its alleged failure to pay amounts expected by the Plaintiffs is a
question for a trier of fact to determine.
Plaintiffs failed to state a cause of action for declaratory relief. Therefore, Count I of the
Complaint should be dismissed as a matter of law.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a correct copy hereofhas been furnishedto: HLLAW GROUP,
P.A., NELSON A. PEREZ, ESQ., 2601 East OaklandPark Boulevard, Suite 503, Fort Lauderdale,
Florida 33306;
th
by e-portal on this 6U day of July, 2021.
SEGAL MCCAMBRIDGE
SINGER & MAHONEY, LTD.
1776 EAST SUNRISE BLVD.
FORT LAUDERDALE, FL 33304
TELEPHONE: (954) 765-1001
FACSIMILE (954) 765-1005
BY-. /s/ Christopher C. Home
Michael F. Barzyk Esq.
FLORIDA BAR NO: 0232040
mbarzyk@ssmsm.com
Christopher C. Home, Esq.
FLORIDA BARNO: 115981
chorne@smsm.com
mil)pleadings@ssmsm.com
(for emailservice only)
5
SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD .1776 EASTSUNRISEBLVD .FORT LAUDERDALE,FL 33304
TELEPHONE (954) 765-1001 FACSIMILE (954) 765-1005
Preview
Filing # 130110667 E-Filed 07/06/2021 03:05:05 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA HARDY Q. ZHANG CASE NO.: CACE-21-010701 (08) AND JANET L. ZHANG, Plaintiffs, VS. EDISON INSURANCE COMPANY, Defendant. i DEFENDANT'S MOTION TO DISMISS COUNT II OF PLAINTIFFS' PETITION FOR DECLARATORY RELIEF The Defendant, EDISON INSURANCECOMPANY, through the undersigned attorneys and pursuant to Florida Rules Civil Procedure, files its Motion to Dismiss Plaintiffs' Petition for Declaratoryrelief and in support thereof, states as follows: MOTION TO DISMISS COUNT I PETITION FOR DECLARATORY RELIEF I. MEMORANDUM OF LAW a. Brief Statement of the Case Edison Insurance Company issued a homeowner's policy ofinsurance to Plaintiffslocated at .th 3530 NW 89' Way, Hollywood, Florida 33024. The grant ofcoverage under said policy is subject to its terms, conditions, limitation, exclusions and applicable forms, endorsements and deductibles. Plaintiffs allege that the Property sustained a covered loss due to Hurricane Irma. After a thorough investigation of the claim, Edison Insurance Company determined that the loss was not covered under the policy and advised the Plaintiffs regarding the prejudice suffered by the Defendant. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/06/2021 03:05:05 PM.**** DEFENDANT, EDISON INSURANCECOMPANY'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS' PETITION FOR DECLARATORY RELIEF CASE NO.: 21-010701 (08) II. STANDARD OF LAW FOR A MOTION TO DISMISS As noted in Poulos v. Fordenneier, 327 So. 2d 245, 246 (Fla. 4th DCA 1976): The function of a motion to dismissthe complaint is to raise a question of law as to the sufficiency of the facts alleged to state a cause of action. The motion admits as true all well pled facts as well as all reasonableinferences arising from those facts. The allegations must be construed in the light most favorable to Plaintiffandthe trial court must not speculate what the true acts may be or what will be provided ultimately in trial of the cause. Further, the trial court's gaze is limited to the four corners of the complaint. Finally, the motion must be decided on questions of law, and matters not shown on the face of the complaint cannot be properly raised on a motion to dismiss. Citing 25 Fla.Jur., Pleadings § 127; See also Hitt v. N Broward Hosp. Dist., 387 So. 2d 482, 483 (Fla. 4th DCA 1980). However, unlike other actions, a Motion to Dismiss a Count for declaratory relief does not go to the merits, but goes only to the question ofwhether the Plaintiffisentitled to a declaration ofrights. See Gov 'tEmployees Ins. Co. v. Anta, 379 So. 2d 1038, 1039-40 (Fla. 3dDCA 1980). III. PLAINTIFFS' REOUEST FORDECLARATORYRELIEF FAILS TOSTATE A VALID CAUSE OF ACTION UPON WHICH RELIEF MAY BE GRANTED AS PLAINTIFFS HAVE NOT IDENTIFIED ANY AMBIGUITY IN THE POLICY WHICH REQUIRES THE COURTS INTERPRETATION Plaintiffs filed a one-Count Complaint for declaratory relief against Edison Insurance Company wherein they allege doubt as to their rights to coverage under the insurance policy. (See Petition for DeclaratoryRelief, Count I). However, Plaintiffs failed to identify any specificright or obligation which is ambiguous under the policy of insurance that would necessitate this Court's 2 SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD .1776 EASTSUNRISEBLVD .FORT LAUDERDALE,FL 33304 TELEPHONE (954) 765-1001 FACSIMILE (954) 765-1005 DEFENDANT, EDISON INSURANCECOMPANY'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS' PETITION FOR DECLARATORY RELIEF CASE NO.: 21-010701 (08) interpretation, as required under the Florida Statutes, to plead a valid cause of action for declaratory relief. In Florida, the right to a declaratoryjudgment for a party in doubt of its contractual rights was statutorily created by Fla. Sta. § 86.021 (2011), which states, in pertinent part Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrumentin writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation,municipal ordinance, contract, deed, will, franchise,or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder. Fla. Stat. § 86.021 (emphasis added). See Martinez, v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991); see also Johnson v. Alt. Nat'l. Ins. Co., 155 So. 2d 886 (Fla. 3d DCA 1963) (an action for declaratory relief will not lie where the insurance contact is clear and unambiguous and presents no need for construction; a question must be raised either of construction of the insurance policy or the validity of the policy). Purportedly, Plaintiffs are asking the Court to enter a declaratoryjudgment to clear up their uncertaintyas to their rights under the subject Policy. Plaintiffs base this doubt on their"belief' that the property suffered damage (for which they were not indemnified)due to a covered cause of loss. However, the purpose of an action for declaratoryreliefon an insurance contract is for interpretation o f an ambiguity in a policy; in other words, a question o f construction or validity or a contract. See Martinez, 582 So. 2d at 1170 and Johnson, 155 So. 2d at 886, supra. Here, the Plaintiffs fail to set forth any question of construction or validityarising under the 3 SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD .1776 EASTSUNRISEBLVD .FORT LAUDERDALE,FL 33304 TELEPHONE (954) 765-1001 FACSIMILE (954) 765-1005 DEFENDANT, EDISON INSURANCECOMPANY'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS' PETITION FOR DECLARATORY RELIEF CASE NO.: 21-010701 (08) contract. Further, the Complaint fails to cite any allegedlyambiguouspolicyprovision(s) that would necessitatejudicialinterpretation. As such, Plaintiffs failed to state a cause ofactionfor declaratory relief. Essentially, the Plaintiffs are asking the Court to issue an advisory opinion to clear up their alleged doubt as to the existence of coverage under the Policy and to determine ifthey are entitled to additional sums ofmoney (and thus, compel Family Security Insurance Company to participate in negotiatingthe claim). However, it is well settled that mere doubt, due to disputed questions of fact (in contrast with a contractual ambiguity), is not sufficient to make declaratoryjudgmentavailable to litigants. Barrett v. Pickard 85 So. 2d 630,631 (Fla. 1956) (stating that doubt, because ofdisputed questions of fact alone, is not sufficient to make available to litigants the provisions of the DeclaratoryJudgments Act); Perez v. State Automobile Ins. Ass'n, 170 So. ld 377,37% (Fla. 3d DCA 1972) (purely factual disputes are not the proper subject of an action for Burns v. Hartford Accident & Indemnity Co., 157 So. 2d 84, 86 (Fla. 3d DCA 1963) (declaratory judgment statute is not available to settle factual issues bearing on liability, under a contract which is clear and unambiguous and which presents no need for its construction). Moreover, declaratoryjudgment is not to be used as a tool to advise attorneys as to the proper path to pursue. See Kelner v. Woody, 399 So. 2d 35, 38 (Fla. 3d DCA 1981); May v. Holley, 59 So. 2d 636 (Fla. 1952); and Deen v. Weaver, 41 So. 2d 539 (Fla. 1950). In the instant case, Plaintiffs' allegations seeking to obtain declaratoryrelief from the Court are rootedin their"beliefs" rather than an ambiguouspolicyprovision, as required underFlorida law to state a cause of action. In fact, the request for declaratoryreliefin Count I is simply a cumulative 4 SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD .1776 EASTSUNRISEBLVD .FORT LAUDERDALE,FL 33304 TELEPHONE (954) 765-1001 FACSIMILE (954) 765-1005 DEFENDANT, EDISON INSURANCECOMPANY'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS' PETITION FOR DECLARATORY RELIEF CASE NO.: 21-010701 (08) Count as it is nothing more than a breach of contract action in disguise, alleging that Edison Insurance Company has failed to pay monies owed to Plaintiffs under the Policy. Whether Edison breached the insurance contract by its alleged failure to pay amounts expected by the Plaintiffs is a question for a trier of fact to determine. Plaintiffs failed to state a cause of action for declaratory relief. Therefore, Count I of the Complaint should be dismissed as a matter of law. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a correct copy hereofhas been furnishedto: HLLAW GROUP, P.A., NELSON A. PEREZ, ESQ., 2601 East OaklandPark Boulevard, Suite 503, Fort Lauderdale, Florida 33306; th by e-portal on this 6U day of July, 2021. SEGAL MCCAMBRIDGE SINGER & MAHONEY, LTD. 1776 EAST SUNRISE BLVD. FORT LAUDERDALE, FL 33304 TELEPHONE: (954) 765-1001 FACSIMILE (954) 765-1005 BY-. /s/ Christopher C. Home Michael F. Barzyk Esq. FLORIDA BAR NO: 0232040 mbarzyk@ssmsm.com Christopher C. Home, Esq. FLORIDA BARNO: 115981 chorne@smsm.com mil)pleadings@ssmsm.com (for emailservice only) 5 SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD .1776 EASTSUNRISEBLVD .FORT LAUDERDALE,FL 33304 TELEPHONE (954) 765-1001 FACSIMILE (954) 765-1005