Preview
Filing # 132601437 E-Filed 08/12/2021 11:24:01 PM
IN THE CIRCUIT COURT OF THE 17,TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO: CACE-21-010726
DANIEL PERAZA and DEBBIE CINTRON,
Plaintiffs,
VS.
UNIVERSALPROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
i
DEFENDANT UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY'S
ANSWER, DEFENSES,AND DEMAND FOR JURY TRIAL
Defendant, Universal Property & Casualty Insurance Company ("Universal"), by and
through the undersigned counsel, hereby files its Answer and Defenses to Plaintiffs' Amended
Complaint and states as follows:
1.
Universal denies the allegations contained within Paragraph 1 and strict proof
thereof is hereby demanded.
2.
Universal is without knowledge and therefore denies the allegations contained
within Paragraph 2 and hereby demands strictproofthereof.
3
With respect to the allegations contained within Paragraph 3, Universal states that
it is a Florida corporation, located in Broward County, Florida, and authorized to issue
homeowners' insurance policies throughout the State of Florida. Universal denies all other
allegations and strict proofthereofis hereby demanded.
4.
With respect to the allegations contained within Paragraph 4, Universal states that
it issued Policy No.
-2076 ("Policy") to Daniel Peraza and Debbie Cintron for the
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/12/2021 11:24:01 PM.****
Daniel Peraza and Debbie Cintron v. UPCIC
Case No.: CACE-21-010726
property located at 14362 NW 24th Ct. Pembroke Pines, FL 33028 ("insured property") for the
one-year policy period of May 4,2020 through May 4, 2021, subject to all terms, conditions,
definitions, limitations, exclusions and endorsements. In addition, Universal states that the Policy
speaks for itself. Universaldenies all other allegations and strictproofthereofis herebydemanded.
5.
With respect to the allegations contained within Paragraph 5, Universal states the
Policy speaks for itself. Universal denies all other allegations and strict proof thereof is hereby
demanded.
6.
With respect to the allegations contained within Paragraph 5, Universal states the
Policy speaks for itself. Universal denies all other allegations and strict proof thereof is hereby
demanded.
7.
Universal denies the allegations contained within Paragraph 7 and strict proof
thereof is hereby demanded.
8
With respect to the allegations contained within Paragraph 8, Universal states that
upon the untimely notification of the alleged damages, Universal assigned claim number FL20-
0160703-P420 to the alleged loss. Universal denies all other allegations and strictproofthereofis
hereby demanded.
9.
Universal denies the allegations contained within Paragraph 9 and strict proof
thereof is hereby demanded.
10.
With respectto the allegations containedwithin Paragraph 10, Universal states the
estimate, Plaintiffs'Exhibit"A", speaks for itself. Universaldenies all other allegations and strict
proofthereofis hereby demanded.
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Daniel Peraza and Debbie Cintron v. UPCIC
Case No.: CACE-21-010726
11.
With respectto the allegations contained withinParagraph 11, Universal states that
venue is proper as the subject property is located within Broward County, Florida. Universal
denies all other allegations and strict proofthereof is hereby demanded.
COUNT I - BREACH OF CONTRACT AGAINST DEFENDANT
12.
Universalre-avers and incorporatesits responsesto Paragraphs 1 through 11 above
as if stated fully herein.
13.
With respectto the allegations containedwithin Paragraph 13, Universal states the
Policy speaks for itself. Universal denies all other allegations and strict proof thereof is hereby
demanded.
14.
Universal denies the allegations contained within Paragraph 14 with specificity.
Specifically,but not limited to, the Plaintiffs failed to promptly report the alleged loss, failed to
comply with Defendant's document request, and failed to protect the property from further
damage. Therefore, the Plaintiffs failed to comply with all conditions precedentunder the subject
policy. Based on the foregoing,the Plaintiffs have failed to comply with the conditions precedent
to filing the subjectlawsuit.
15.
Universal denies the allegations contained within Paragraph 15 and strict proof
thereof is hereby demanded.
16.
Universal denies the allegations contained within Paragraph 16 and strict proof
thereof is hereby demanded.
17.
Universal denies the allegations contained within Paragraph 17 and strict proof
thereof is hereby demanded.
18.
Universal denies the allegations contained within Paragraph 18 and strict proof
thereof is hereby demanded.
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Daniel Peraza and Debbie Cintron v. UPCIC
Case No.: CACE-21-010726
Universal denies any and all other allegations not specificallyaddressed above.
Universal denies any and all relief requested in Plaintiffs' "Wherefore" Clause including any
entitlementto the reliefrequested therein.
DEFENSES
FIRST DEFENSE
Failure to Mitigate
Universal asserts that the alleged damages were caused and worsened by a failure to
mitigate at or after the time of the alleged date of loss. Specifically,Plaintiffs indicate in their
Amended Complaint that the alleged damages occurred on November 8,2020; however, upon
inspection on January 5, 2021, Plaintiffs had not yet contracted for or completed any mitigation
services, such as installation of a roof tarp. Therefore, Plaintiffs are not entitled to recover in this
action accordingly.
SECOND DEFENSE
Excluded Peril - Neglect
Universal asserts that its liability, if any, is only in accordance with the terms, provisions,
conditions, limitations and exclusions of its Policy, including, but not limited to, all applicable
policy limits and policy dates. Universal particularly asserts this defense due to the lack of any
evidence that reasonable means were used to save and preserve the alleged damaged property at
and after the date of alleged loss upon untimely notice claim. Specifically,Plaintiffs indicate in
their Amended Complaintthatthe alleged damages occurredon November 8,2020; however,upon
inspection on January 5, 2021, Plaintiffs had not yet contracted for or completed any mitigation
services, such as installation of a roof tarp. Based on the foregoing, Plaintiffs neglected to use all
reasonable means to save and preserve the subject property. Therefore, the alleged damages
claimed in this suit caused directly or indirectlyby neglect are excluded under the subject Policy.
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Case No.: CACE-21-010726
THIRD DEFENSE
Conditions Precedent: Prompt Notice: Late Reporting and Prejudiceto Defendant
Universal assertsthat the alleged claim is subject to a failure to provide "prompt" notice to
Universal as required under the Policy. Specifically,Plaintiffs untimely reported the alleged loss
to Universal over one (1) month after it allegedly occurred, which was a material breach of the
Policy and resulted in prejudice to Universal, as Universalwas not able to inspect the alleged loss
at the time it allegedly occurred. This delay effectively deprived Universal of a fair opportunity
to fully investigate the alleged loss and subjects Universal to the potential indemnification for
worsened damages and increased repair costs.
FOURTH DEFENSE
Condition Precedent - Provide Requested Documents
Universal asserts that Plaintiffs failed and/or delayed in providing requested documents,
including but not limited to a detailed repair estimate; any and all receipts for repairs completed or
commenced by you relative to the damages you claim arose out of the loss; copies of all receipts,
contracts,estimates, invoices, reports, permitsor materialpurchase receipts for any and all repairs,
remodeling or renovations begun/completedin the last 5 years; a photo of the damaged property
prior to any repairs/EMS; any photos or video taken by insured (or anyone else) at time of loss;
and prior claim informationand proof of repairs. This was a material breach of the policy and
resulted in prejudice to Universal's investigation rights and duties under the Policy, therebybeing
subjected to potential indemnification for worsened damages and increased repair costs. The
alleged claims in this suit are therefore also premature in nature and no relief can be granteduntil
such time as there is compliancewith all conditions and requirementspursuantto the terms ofthe
Policy.
FIFTH DEFENSE
Conditions Precedent - Keep Accurate Record of Repair Expenses
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Universalasserts that Plaintiff failed to keep and/or provide any record ofany ofthe repairs
made and has provided no documentation to support that repairs were completed and/or to
demonstrate the extent of damages to property,which is a condition precedentto recoverpursuant
to the terms of the Policy. This was a material breach of the policy and resulted in prejudice to
Universalsuch that no action can be brought against Universalpursuantto the subjectPolicy terms.
SIXTH DEFENSE
Conditions Precedent - Show the Damaged Property
Universal affirmatively asserts that this lawsuit should be dismissed with prejudice as a
matter of law, due to the Plaintiffs' failure to comply with her post-loss duty to show Universal
the damaged property. Specifically,repairs were performed and the damaged property,including
the awning, was replaced prior to the inspectionthat took place on January 5,2021. As a result of
the Plaintiffs' failure to show the damaged property,Universalwas unable to determine the actual
damages to the Property,the cause ofthe alleged loss, or the actual costs incurred by the Plaintiffs
as the result of this loss.
Universal's investigation was prejudiced by the Plaintiffs' failures
outlined above. Therefore, this lawsuit should be dismissed with prejudice as a matter of law.
SEVENTH DEFENSE
Exclusion - Wear and Tear and Deterioration
Universal asserts that its liability, if any, is only in accordance with the terms, provisions,
conditions, limitations and exclusions of its Policy, including, but not limited to, all applicable
policy limits and policy dates. Universal particularlyasserts this defense due to findings of wear
and tear and deterioration to the roof upon inspection of the alleged damaged property upon the
untimely reported claim.
EIGHTH DEFENSE
Exclusion - Faulty, Inadequateor Defective Workmanship and/Maintenance
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Daniel Peraza and Debbie Cintron v. UPCIC
Case No.: CACE-21-010726
Universal asserts that its liability, if any, is only in accordance with the terms, provisions,
conditions, limitations and exclusions of its Policy, including, but not limited to, all applicable
policy limits and policy dates. Universal particularly assertsthis defense in that its inspection of
the untimely reported claim suggests that the alleged damaged property, such as the roof, has been
subjected to the performance of faulty, inadequateor defectiveworkmanship and/or maintenance
either before and/or after the allegeddate ofloss, such thatthe alleged damages are excluded under
the subject Policy.
NINTH DEFENSE
Absence of Damage and Excessive Damages
Universal asserts that damages are being sought in this action for areas of the insured
property that were not caused by the alleged loss, including but not limited to the roof, entry/foyer,
dining room, familyroom, kitchen, and hallway. As such, there is no coverage for these areas of
the insured property. Further, this action involves claims for damages that includes numerous
repairs that are excessive, inaccurate, unwarranted, upgrades or related to areas of the home that
were not damaged, which is precluded as a matter of law.
TENTH DEFENSE
Damages fell Below Deductible
Universal affirmatively asserts that upon inspection and investigation of the alleged
damages, Universal determined that the repair/replacement cost for ensuing covered damages fell
below the Plaintiffs' $5,742.78 Hurricane Deductible. As such, Plaintiffs are precluded from
recovery.
ELEVENTH DEFENSE
Exclusion - Constant or Repeated Seepage
Universalaffirmatively asserts that its liability,if any, is only in accordance with the terms,
provisions, conditions, limitations and exclusions of its Policy, including, but not limited to, all
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Daniel Peraza and Debbie Cintron v. UPCIC
Case No.: CACE-21-010726
applicablepolicy limits and policy dates. The damages allegedby Plaintiffs are the result ofvisible
constant and repeated seepage that occurred over a period ofweeks, months, or years. Specifically,
Plaintiffs indicate in their Amended Complaint that the alleged damages occurred on November
8,2020; however, upon inspection on January 5, 2021, Plaintiffs had not yet contracted for or
completed any mitigation services, such as installation of a roof tarp, thereby allowing water to
constantly seep and leak into the subject property for over one (1) month. Therefore, any such
damages are excluded under the Policy.
TWELFTH DEFENSE
Perils Insured Against - Direct Physical Loss
Universal asserts that pursuant to the subject Policy, Universal's liability under the Policy
for a covered loss is limited to actual damages. However, Plaintiffs submitted an estimate for
repair or replacement of several areas of the property,including but not limited to the roof, living
room, laundry entry and office, that have not sustained any direct physical loss from the claimed
wind-related storm damage. The Universalpolicy insures against "direct loss . . . only ifthat loss
is a physical loss to property." See Policy, page 14 of 34. The phrase "direct physical loss" has
been defined to mean actual damage. Actual damage is visible physical damage that can be
observed. See Homeowners Choice Property & Casualty v. Maspons, 111 So.3d 1067 (Fla. 3d
DCA 2017) ('"Direct' and 'physical' modify loss and impose the requirement that the damage be
actual."). Specifically,it was found that there was no storm damage in some ofthe areas provided
in Plaintiffs' estimate.
THIRTEENTH DEFENSE
No Coverageby Waiver or Estoppel
Universal asserts that it has not waived any of its defenses nor is it estopped from asserting
any and all defenses as they pertain to coverage, exclusions, or paymentsmade toward the alleged
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Daniel Peraza and Debbie Cintron v. UPCIC
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claims in the Complaint. Under Florida law, coverage cannot be created or extended through
estoppel or waiver. See Doe v. Allstate Ins. Co., 653 So. 2d 371 (Fla. 1995); Crown Life Ins. Co.
v. Mc Bride, 517 So. 2d 660 (Fla. 1987); Gamero v. ForemostIns. Co., 208 So. 3d 1195 (Fla. 3d
DCA 2017). Furthermore, Plaintiffs failed to state a claim for waiver and/or estoppel. To have
waiver, the Plaintiffmust demonstrate that the Universalhad (1) the existence of a right, privilege,
advantage or benefit that can be waived; (2) the actual or constructiveknowledge ofthat right; and
(3) the intention to relinquish that right. See Leonardo v. State Farm Fire & Cas. Co., 675 So. 2d
176, 178 (Fla. 4th DCA 1996).
To have estoppel, there must be (1) a representationas to a material fact that is contradicted
by a later asserted position; (2) reliance on that representation; and (3) a change in position
detrimentalto the party relying on the representationand caused by the representation. See Lloyds
Underwriters at London v. Keystone Equip. Fin. Corp., 25 So. 3d 89,93 (Fla. 4th DCA 2009).
Universal asserts that Plaintiffs failed to establish or plead any ofthe aforementioned elements in
their Complaint, and as such, Universalhas not waived any of its defensesnor is it estopped from
asserting any and all defenses as they pertain to coverage, exclusions or payment of the claim.
FOURTEENTH DEFENSE
Windstorm Exterior Paint or Waterproofing Material
Universal asserts that its liability, if any, is only in accordance with the terms, provisions,
conditions, limitations and exclusions of its Policy, including, but not limited to, all applicable
policy limits, policy dates and applicable Florida Statutes. Specifically,Universal references the
following language contained within the Policy form HO 23 70 05 13 which excludes coverage
for the alleged loss to the extent Universal's inspection of the subject loss suggests potential
windstormto paint or waterproofingmaterial ofthe subject property.
FIFTEENTH DEFENSE
Laches
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Daniel Peraza and Debbie Cintron v. UPCIC
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Universal asserts that the alleged claim is barred, in whole or in part, by the doctrine of
laches to the extent that there was an unreasonable, unjustified and significantamount oftime that
passed without asserting any claim for the alleged damage. This lack of diligencehas prejudiced
Universal's ability to investigate the alleged loss and prejudicially subjects Universalto potential
increased indemnification to Plaintiffs and litigation cost and expenses.
Universal reserves the right to add additional affirmative defenses and avoidances which
may become known as discovery proceeds.
WHEREFORE, Universal Property and Casualty Insurance Company, having answered
the Complaint and demonstrated by virtue of its denials and AffirmativeDefenses that Plaintiffs
are not entitled to relief against Universal, respectfully requests this Court enter a judgment in its
favor and for any other or further relief it may be entitled to under law or that this Court deems
just or equitable.
DEMAND FOR JURY TRIAL
UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY demands a jury
trial of all matters so triable.
[REMAINDER OF PAGE INTENTIONALLYLEFT BLANKI
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Daniel Peraza and Debbie Cintron v. UPCIC
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via
Electronic Service to: Omar Bakos, Esq. and GTS LAW, P.A.
this 12th
day ofAugust, 2021.
Attorneysfor Defendant
Universal Property& Casualty Ins. Co.
PO Box 9388
Fort Lauderdale,FL 33310
Telephone: 954-958-3319
Toll Free: 1-833-658-8594(Judges Only)
Facsimile: 954-958-1262
By-. /sl Lindsay C. Tropnas
Lindsay C. Tropnas, Esq.
Florida Bar No. 1003699
For Service of Court Documents onlv:
Primary:
Secondary:
Tertiary:
11
Preview
Filing # 132601437 E-Filed 08/12/2021 11:24:01 PM IN THE CIRCUIT COURT OF THE 17,TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO: CACE-21-010726 DANIEL PERAZA and DEBBIE CINTRON, Plaintiffs, VS. UNIVERSALPROPERTY & CASUALTY INSURANCE COMPANY, Defendant. i DEFENDANT UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY'S ANSWER, DEFENSES,AND DEMAND FOR JURY TRIAL Defendant, Universal Property & Casualty Insurance Company ("Universal"), by and through the undersigned counsel, hereby files its Answer and Defenses to Plaintiffs' Amended Complaint and states as follows: 1. Universal denies the allegations contained within Paragraph 1 and strict proof thereof is hereby demanded. 2. Universal is without knowledge and therefore denies the allegations contained within Paragraph 2 and hereby demands strictproofthereof. 3 With respect to the allegations contained within Paragraph 3, Universal states that it is a Florida corporation, located in Broward County, Florida, and authorized to issue homeowners' insurance policies throughout the State of Florida. Universal denies all other allegations and strict proofthereofis hereby demanded. 4. With respect to the allegations contained within Paragraph 4, Universal states that it issued Policy No. -2076 ("Policy") to Daniel Peraza and Debbie Cintron for the *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/12/2021 11:24:01 PM.**** Daniel Peraza and Debbie Cintron v. UPCIC Case No.: CACE-21-010726 property located at 14362 NW 24th Ct. Pembroke Pines, FL 33028 ("insured property") for the one-year policy period of May 4,2020 through May 4, 2021, subject to all terms, conditions, definitions, limitations, exclusions and endorsements. In addition, Universal states that the Policy speaks for itself. Universaldenies all other allegations and strictproofthereofis herebydemanded. 5. With respect to the allegations contained within Paragraph 5, Universal states the Policy speaks for itself. Universal denies all other allegations and strict proof thereof is hereby demanded. 6. With respect to the allegations contained within Paragraph 5, Universal states the Policy speaks for itself. Universal denies all other allegations and strict proof thereof is hereby demanded. 7. Universal denies the allegations contained within Paragraph 7 and strict proof thereof is hereby demanded. 8 With respect to the allegations contained within Paragraph 8, Universal states that upon the untimely notification of the alleged damages, Universal assigned claim number FL20- 0160703-P420 to the alleged loss. Universal denies all other allegations and strictproofthereofis hereby demanded. 9. Universal denies the allegations contained within Paragraph 9 and strict proof thereof is hereby demanded. 10. With respectto the allegations containedwithin Paragraph 10, Universal states the estimate, Plaintiffs'Exhibit"A", speaks for itself. Universaldenies all other allegations and strict proofthereofis hereby demanded. 2 Daniel Peraza and Debbie Cintron v. UPCIC Case No.: CACE-21-010726 11. With respectto the allegations contained withinParagraph 11, Universal states that venue is proper as the subject property is located within Broward County, Florida. Universal denies all other allegations and strict proofthereof is hereby demanded. COUNT I - BREACH OF CONTRACT AGAINST DEFENDANT 12. Universalre-avers and incorporatesits responsesto Paragraphs 1 through 11 above as if stated fully herein. 13. With respectto the allegations containedwithin Paragraph 13, Universal states the Policy speaks for itself. Universal denies all other allegations and strict proof thereof is hereby demanded. 14. Universal denies the allegations contained within Paragraph 14 with specificity. Specifically,but not limited to, the Plaintiffs failed to promptly report the alleged loss, failed to comply with Defendant's document request, and failed to protect the property from further damage. Therefore, the Plaintiffs failed to comply with all conditions precedentunder the subject policy. Based on the foregoing,the Plaintiffs have failed to comply with the conditions precedent to filing the subjectlawsuit. 15. Universal denies the allegations contained within Paragraph 15 and strict proof thereof is hereby demanded. 16. Universal denies the allegations contained within Paragraph 16 and strict proof thereof is hereby demanded. 17. Universal denies the allegations contained within Paragraph 17 and strict proof thereof is hereby demanded. 18. Universal denies the allegations contained within Paragraph 18 and strict proof thereof is hereby demanded. 3 Daniel Peraza and Debbie Cintron v. UPCIC Case No.: CACE-21-010726 Universal denies any and all other allegations not specificallyaddressed above. Universal denies any and all relief requested in Plaintiffs' "Wherefore" Clause including any entitlementto the reliefrequested therein. DEFENSES FIRST DEFENSE Failure to Mitigate Universal asserts that the alleged damages were caused and worsened by a failure to mitigate at or after the time of the alleged date of loss. Specifically,Plaintiffs indicate in their Amended Complaint that the alleged damages occurred on November 8,2020; however, upon inspection on January 5, 2021, Plaintiffs had not yet contracted for or completed any mitigation services, such as installation of a roof tarp. Therefore, Plaintiffs are not entitled to recover in this action accordingly. SECOND DEFENSE Excluded Peril - Neglect Universal asserts that its liability, if any, is only in accordance with the terms, provisions, conditions, limitations and exclusions of its Policy, including, but not limited to, all applicable policy limits and policy dates. Universal particularly asserts this defense due to the lack of any evidence that reasonable means were used to save and preserve the alleged damaged property at and after the date of alleged loss upon untimely notice claim. Specifically,Plaintiffs indicate in their Amended Complaintthatthe alleged damages occurredon November 8,2020; however,upon inspection on January 5, 2021, Plaintiffs had not yet contracted for or completed any mitigation services, such as installation of a roof tarp. Based on the foregoing, Plaintiffs neglected to use all reasonable means to save and preserve the subject property. Therefore, the alleged damages claimed in this suit caused directly or indirectlyby neglect are excluded under the subject Policy. 4 Daniel Peraza and Debbie Cintron v. UPCIC Case No.: CACE-21-010726 THIRD DEFENSE Conditions Precedent: Prompt Notice: Late Reporting and Prejudiceto Defendant Universal assertsthat the alleged claim is subject to a failure to provide "prompt" notice to Universal as required under the Policy. Specifically,Plaintiffs untimely reported the alleged loss to Universal over one (1) month after it allegedly occurred, which was a material breach of the Policy and resulted in prejudice to Universal, as Universalwas not able to inspect the alleged loss at the time it allegedly occurred. This delay effectively deprived Universal of a fair opportunity to fully investigate the alleged loss and subjects Universal to the potential indemnification for worsened damages and increased repair costs. FOURTH DEFENSE Condition Precedent - Provide Requested Documents Universal asserts that Plaintiffs failed and/or delayed in providing requested documents, including but not limited to a detailed repair estimate; any and all receipts for repairs completed or commenced by you relative to the damages you claim arose out of the loss; copies of all receipts, contracts,estimates, invoices, reports, permitsor materialpurchase receipts for any and all repairs, remodeling or renovations begun/completedin the last 5 years; a photo of the damaged property prior to any repairs/EMS; any photos or video taken by insured (or anyone else) at time of loss; and prior claim informationand proof of repairs. This was a material breach of the policy and resulted in prejudice to Universal's investigation rights and duties under the Policy, therebybeing subjected to potential indemnification for worsened damages and increased repair costs. The alleged claims in this suit are therefore also premature in nature and no relief can be granteduntil such time as there is compliancewith all conditions and requirementspursuantto the terms ofthe Policy. FIFTH DEFENSE Conditions Precedent - Keep Accurate Record of Repair Expenses 5 Daniel Peraza and Debbie Cintron v. UPCIC Case No.: CACE-21-010726 Universalasserts that Plaintiff failed to keep and/or provide any record ofany ofthe repairs made and has provided no documentation to support that repairs were completed and/or to demonstrate the extent of damages to property,which is a condition precedentto recoverpursuant to the terms of the Policy. This was a material breach of the policy and resulted in prejudice to Universalsuch that no action can be brought against Universalpursuantto the subjectPolicy terms. SIXTH DEFENSE Conditions Precedent - Show the Damaged Property Universal affirmatively asserts that this lawsuit should be dismissed with prejudice as a matter of law, due to the Plaintiffs' failure to comply with her post-loss duty to show Universal the damaged property. Specifically,repairs were performed and the damaged property,including the awning, was replaced prior to the inspectionthat took place on January 5,2021. As a result of the Plaintiffs' failure to show the damaged property,Universalwas unable to determine the actual damages to the Property,the cause ofthe alleged loss, or the actual costs incurred by the Plaintiffs as the result of this loss. Universal's investigation was prejudiced by the Plaintiffs' failures outlined above. Therefore, this lawsuit should be dismissed with prejudice as a matter of law. SEVENTH DEFENSE Exclusion - Wear and Tear and Deterioration Universal asserts that its liability, if any, is only in accordance with the terms, provisions, conditions, limitations and exclusions of its Policy, including, but not limited to, all applicable policy limits and policy dates. Universal particularlyasserts this defense due to findings of wear and tear and deterioration to the roof upon inspection of the alleged damaged property upon the untimely reported claim. EIGHTH DEFENSE Exclusion - Faulty, Inadequateor Defective Workmanship and/Maintenance 6 Daniel Peraza and Debbie Cintron v. UPCIC Case No.: CACE-21-010726 Universal asserts that its liability, if any, is only in accordance with the terms, provisions, conditions, limitations and exclusions of its Policy, including, but not limited to, all applicable policy limits and policy dates. Universal particularly assertsthis defense in that its inspection of the untimely reported claim suggests that the alleged damaged property, such as the roof, has been subjected to the performance of faulty, inadequateor defectiveworkmanship and/or maintenance either before and/or after the allegeddate ofloss, such thatthe alleged damages are excluded under the subject Policy. NINTH DEFENSE Absence of Damage and Excessive Damages Universal asserts that damages are being sought in this action for areas of the insured property that were not caused by the alleged loss, including but not limited to the roof, entry/foyer, dining room, familyroom, kitchen, and hallway. As such, there is no coverage for these areas of the insured property. Further, this action involves claims for damages that includes numerous repairs that are excessive, inaccurate, unwarranted, upgrades or related to areas of the home that were not damaged, which is precluded as a matter of law. TENTH DEFENSE Damages fell Below Deductible Universal affirmatively asserts that upon inspection and investigation of the alleged damages, Universal determined that the repair/replacement cost for ensuing covered damages fell below the Plaintiffs' $5,742.78 Hurricane Deductible. As such, Plaintiffs are precluded from recovery. ELEVENTH DEFENSE Exclusion - Constant or Repeated Seepage Universalaffirmatively asserts that its liability,if any, is only in accordance with the terms, provisions, conditions, limitations and exclusions of its Policy, including, but not limited to, all 7 Daniel Peraza and Debbie Cintron v. UPCIC Case No.: CACE-21-010726 applicablepolicy limits and policy dates. The damages allegedby Plaintiffs are the result ofvisible constant and repeated seepage that occurred over a period ofweeks, months, or years. Specifically, Plaintiffs indicate in their Amended Complaint that the alleged damages occurred on November 8,2020; however, upon inspection on January 5, 2021, Plaintiffs had not yet contracted for or completed any mitigation services, such as installation of a roof tarp, thereby allowing water to constantly seep and leak into the subject property for over one (1) month. Therefore, any such damages are excluded under the Policy. TWELFTH DEFENSE Perils Insured Against - Direct Physical Loss Universal asserts that pursuant to the subject Policy, Universal's liability under the Policy for a covered loss is limited to actual damages. However, Plaintiffs submitted an estimate for repair or replacement of several areas of the property,including but not limited to the roof, living room, laundry entry and office, that have not sustained any direct physical loss from the claimed wind-related storm damage. The Universalpolicy insures against "direct loss . . . only ifthat loss is a physical loss to property." See Policy, page 14 of 34. The phrase "direct physical loss" has been defined to mean actual damage. Actual damage is visible physical damage that can be observed. See Homeowners Choice Property & Casualty v. Maspons, 111 So.3d 1067 (Fla. 3d DCA 2017) ('"Direct' and 'physical' modify loss and impose the requirement that the damage be actual."). Specifically,it was found that there was no storm damage in some ofthe areas provided in Plaintiffs' estimate. THIRTEENTH DEFENSE No Coverageby Waiver or Estoppel Universal asserts that it has not waived any of its defenses nor is it estopped from asserting any and all defenses as they pertain to coverage, exclusions, or paymentsmade toward the alleged 8 Daniel Peraza and Debbie Cintron v. UPCIC Case No.: CACE-21-010726 claims in the Complaint. Under Florida law, coverage cannot be created or extended through estoppel or waiver. See Doe v. Allstate Ins. Co., 653 So. 2d 371 (Fla. 1995); Crown Life Ins. Co. v. Mc Bride, 517 So. 2d 660 (Fla. 1987); Gamero v. ForemostIns. Co., 208 So. 3d 1195 (Fla. 3d DCA 2017). Furthermore, Plaintiffs failed to state a claim for waiver and/or estoppel. To have waiver, the Plaintiffmust demonstrate that the Universalhad (1) the existence of a right, privilege, advantage or benefit that can be waived; (2) the actual or constructiveknowledge ofthat right; and (3) the intention to relinquish that right. See Leonardo v. State Farm Fire & Cas. Co., 675 So. 2d 176, 178 (Fla. 4th DCA 1996). To have estoppel, there must be (1) a representationas to a material fact that is contradicted by a later asserted position; (2) reliance on that representation; and (3) a change in position detrimentalto the party relying on the representationand caused by the representation. See Lloyds Underwriters at London v. Keystone Equip. Fin. Corp., 25 So. 3d 89,93 (Fla. 4th DCA 2009). Universal asserts that Plaintiffs failed to establish or plead any ofthe aforementioned elements in their Complaint, and as such, Universalhas not waived any of its defensesnor is it estopped from asserting any and all defenses as they pertain to coverage, exclusions or payment of the claim. FOURTEENTH DEFENSE Windstorm Exterior Paint or Waterproofing Material Universal asserts that its liability, if any, is only in accordance with the terms, provisions, conditions, limitations and exclusions of its Policy, including, but not limited to, all applicable policy limits, policy dates and applicable Florida Statutes. Specifically,Universal references the following language contained within the Policy form HO 23 70 05 13 which excludes coverage for the alleged loss to the extent Universal's inspection of the subject loss suggests potential windstormto paint or waterproofingmaterial ofthe subject property. FIFTEENTH DEFENSE Laches 9 Daniel Peraza and Debbie Cintron v. UPCIC Case No.: CACE-21-010726 Universal asserts that the alleged claim is barred, in whole or in part, by the doctrine of laches to the extent that there was an unreasonable, unjustified and significantamount oftime that passed without asserting any claim for the alleged damage. This lack of diligencehas prejudiced Universal's ability to investigate the alleged loss and prejudicially subjects Universalto potential increased indemnification to Plaintiffs and litigation cost and expenses. Universal reserves the right to add additional affirmative defenses and avoidances which may become known as discovery proceeds. WHEREFORE, Universal Property and Casualty Insurance Company, having answered the Complaint and demonstrated by virtue of its denials and AffirmativeDefenses that Plaintiffs are not entitled to relief against Universal, respectfully requests this Court enter a judgment in its favor and for any other or further relief it may be entitled to under law or that this Court deems just or equitable. DEMAND FOR JURY TRIAL UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY demands a jury trial of all matters so triable. [REMAINDER OF PAGE INTENTIONALLYLEFT BLANKI 10 Daniel Peraza and Debbie Cintron v. UPCIC Case No.: CACE-21-010726 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via Electronic Service to: Omar Bakos, Esq. and GTS LAW, P.A. this 12th day ofAugust, 2021. Attorneysfor Defendant Universal Property& Casualty Ins. Co. PO Box 9388 Fort Lauderdale,FL 33310 Telephone: 954-958-3319 Toll Free: 1-833-658-8594(Judges Only) Facsimile: 954-958-1262 By-. /sl Lindsay C. Tropnas Lindsay C. Tropnas, Esq. Florida Bar No. 1003699 For Service of Court Documents onlv: Primary: Secondary: Tertiary: 11