Preview
Filing # 135310862 E-Filed 09/25/2021 10:21:55 PM
,TH
IN THE CIRCUIT COURT OF THE 17
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
NEIL ESPENDEZ, CASE NO: CACE-21-011840
Plaintiff.
VS.
UNIVERSALPROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
i
DEFENDANT'S MOTION TO DISMISS COUNT II OF PLAINTIFF'S COMPLAINT
Defendant, UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY
("Universal"), by and through its undersigned counsel and pursuant to Rule 1.140. Florida Rules
of Civil Procedure, hereby moves this Court to dismiss Count II of Plaintiff's Complaint and, in
support thereof, states as follows:
INTRODUCTION
1. Universal issued a property insurance policy to Neil Espendez ("Plaintiff'),
identified by policy number -4928 ("Policy"), for the real property located at 2034
NW 183rd Terrace Pembroke Pines, FL 33029 ("Property"), with effective dates from June 29,
2020 through June 29, 2021, subject to its terms, exclusions, limitations, and conditions as well as
Florida Statutes.
2. Plaintiff filed a two (2) count action against Universal for an
alleged breach of
contract (Count I) and declaratoryrelief (Count II), and as it relates to an alleged loss on November
08,2020.
***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/25/2021 10:21:54 PM.****
Neil Espendez v. UPCIC
Case No.: CACE-21-011840
Page 2 of 7
3. Accordingly, pursuant to Florida law, Count II of Plaintiff's Complaint should be
dismissed on the grounds that there is no present justiciable controversy that can be resolved
through a judicial declaration.
4. Furthermore, Count II of Plaintiff's Complaint is similarly subject to dismissal
because the relief sought therein would be addressed more fully and efficiently in a cause of action
for breach of contract.
MEMORANDUM OF LAW
I. STANDARD FOR A MOTION TO DISMISS
It is well-settled in Florida that "[iln ruling on a motion to dismiss, courts are limited to the
four corners ofthe complaint, must accept the allegations as true, and may not speculate as to what
ith
facts may ultimately be proven at trial." Parker v. Parker, 916 So.2d 926,928 (Fla. 4 DCA 2005)
(citations omitted); see also Poulson v. Vordermeier, 317 So. 2d 245, 246 (Fla. 4th DCA 1976)
(citing 25 Fla. Jur., Pleadings § 127) ("[T]he function of a motion to dismiss a 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-pleaded facts as well as all reasonableinferences arising from those facts.
The allegations must be construed in the light most favorable to Plaintiffand the trial court must
not speculate what the true facts may be or what will be proved ultimately in trial of the cause.
Finally, the motion must be decided on questions of law, only, and matters not shown on the face
of the complaint cannot properly be raised on a motion to dismiss."). Moreover, in ruling on a
motion to dismiss a count for declaratory relief, the Court is not to look to the merits but 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. 3d DCA 1980).
Neil Espendez v. UPCIC
Case No.: CACE-21-011840
Page 3 of 7
II. LAW AND ARGUMENT
A. Count II Does Not State Causes of Actions For Declaratory Relief
Count II of Plaintiff's Complaint alleges no bona fide, actual, present practical need for
declaratory relief in this matter. Count II of Plaintiff's Complaint simply seeks coverage for
alleged damages allegedly occurring on November 8,2020. By all accounts, Count II is seeking
damages and an action for declaratoryrelief is not the proper vehicle to obtain such damages. See
Legion Insurance Company v. Moore, 846 So.2d 1183 (Fla. 4h DCA 2003) (A declaratory action
serves no useful purpose when the moving party can establish a prima facie cause of action for
coverage).
Aside from a declaratory action being improper in a first party action, the relief to which
Plaintiff claims to be entitled in Count II are nothing more than claims that Defendant breached
the contract of insurance and Plaintiff is, therefore, entitled to damages. Such claims for
declaratoryrelief are improper.
Florida's DeclaratoryJudgment Act allows a court to render declaratoryjudgments on the
existence, or nonexistence, of any immunity, power, privilege, or right. F. S. § 86.011, Fla. Stat.
§ 86.201, Fla. Stat. states, in pertinent part:
Any person claiming to be interested or who may 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 munic*al
ordinance, contract, deed, will, franchise, or other article,
memorandum in writing, may have determined any question of
construction or validity arising under such statute, regulation, or
instrumentin writing, or any part thereof, and obtain a declaration
or rights, status, or other equitable or legal relationsthereunder.
See Martines v. Scanlan, 582 So.2d 1167, 1170 (Fla. 1991); see also Johnson v. Alt. Nat7
Inc. So., 155 So.2d 886 (Fla. 3rd DCA 1963) (an action for declaratoryreliefwill not lie where the
Neil Espendez v. UPCIC
Case No.: CACE-21-011840
Page 4 of 7
insurance contract 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). Tobon v.
American Sec. Ins. Co. 2007 WL 1796250, at *2 (S.D. Fla. June 20, 2007) (finding that a mere
conclusory allegation that the plaintiff is "in doubt" as to some unidentified term of a contract is
insufficient to state a claim for declaratory relief). "[A]lthough the existence of other remedies
does not preclude declaratoryjudgment, section 86.111, Florida Statutes (1979), it does bear on
the proper exercise of the court's discretion in granting such relief, and the court may decline to
grant a declaratory decree where more appropriate redress is available. Kelner v. Woody, 399 So.
2d 35, 38 (Fla. 3d DCA 1981); lciting Stark v. Marshall, 61 So.2d 235 (Fla. 1953)). Declaratory
Relief is not available "to settle factual issues upon which coverage questions turn under an
insurance contract which is clear and unambiguous." Travelers Ins. Co. v.
Emery, 579 So. 2d 798,
st Ist
801 (Fla. 1 DCA 1991); Medical Center Health Plan v. Brick, 572 So. 2d 548, 551 (Fla. 1 DCA
1990).
In Macintosh v. Harbour Club Fillas Condo. Ass'n., 468 So.2d 1075 (Fla. 3d DCA 1985)
(J. Nesbitt, Specially Concurring), it was held that the availability of another adequate remedy
bears on the discretion a court has to grant declaratoryrelief and that the court may decline to grant
a declaratory decree where more appropriate redress is available. Macintosh, 468 So. 2d at 1080
(affirming the trial court's denial of request for declaratory relief and citing Kelner, 399 So. 2d at
38). Moreover, in Eisenberg MD. v. Standard Insurance Co., 2009 WL 1809994, Order and
Opinion on Motion to Dismiss (S.D. Fla. June 25,2009), that Court held:
The Declaratory Judgment Act pennits actual controversies to be settled
before they ripen into violations of law or a breach of contractual duty.
A petition seeking declaratory judgment that alleges breach of duties and
obligations underthe terms of a contract and asks the court to declare those
terms beached is nothing more than a petition claiming breach of
Neil Espendez v. UPCIC
Case No.: CACE-21-011840
Page 5 of 7
contract. It thus provides an adequate remedy at law, and a decision on the
merits of the breach of contract claim would render the defendant's request
for declaratory judgment moot or redundant. (Citations Omitted).
Additionally, declaratory relief is not available "where the object of the action is to try
disputed questions of fact as the determinative issue, rather than to seek a construction of definite
stated rights, status, or other relations." X Corp. v. Y Person, 622 So. 2d 1098 (Fla. 2d DCA 1993).
A court must dismiss a claim for declaratoryjudgment if it is duplicative (i.e. subsumed within) a
claim for breach of contract, and, in effect, seeks adjudication on the merits of the breach of
contract claim. See Taylor v. Cooper, 60 So2d 534, 535-36 (Fla. 1952); see also Mcintosh v.
Harbour Club Fillas, 468 So2d 1075, 1080-81 (Fla. 3 d DCA 1985) (Nesbitt,specially concurring);
Burns v. liartford Accident Indemnity Co., 157 So.2d 84 (Fla. 3d DCA 1963); Ginsberg v.
Scottsdale Ins. Co., 2010 WL 2510662 (S.D. Fla. 2010) (citing Taylor v. Cooper and Mcintosh v.
Harbour Club Villasj
The facts in Scottsdale, supra, are similar to those in the instant case. In Scottsdale, Count
I ofthe Complaint alleged breach of contract for damages related to water damage from a plumbing
failure. Count II sought a declaration of rights to determine whether the loss is covered by the
insurance policy. U. The court, citing Florida law, held that the determination of the breach of
contract claim involves the same factual dispute as the declaratoryjudgment claim, to wit, to what
extent the damage from the plumbing failure is covered by the insurance policy. U. The Plaintiffs
could thus be able to secure full, adequate and complete relief from the breach of contract claim.
M Since the Plaintiffs' claim for declaratoryjudgment is thus subsumed within the claim for
breach o f contract, the declaratory action was dismissed. Id.
Neil Espendez v. UPCIC
Case No.: CACE-21-011840
Page 6 of 7
Furthermore, declaratory actions such as Plaintiff's waste judicial time because,
"Regardless o f what the Court rules, it will not end the judicial labor in the case. The Declaratory
Reliefwill not end the judicial labor because the issue of damages will still need to be determined."
DPI of Plantation,Inc. v. State Farm Mutual Auto. Ins. Co., COCE-16-014650,Honorable Robert
W. Lee, Oct. 10,2016. As Plaintiffseeksdamages within its duplicative breach of contract count,
it is understood that this truly is a claim for damages, not one in which Plaintiffseeksinterpretation
of its rights.
Here, Plaintiff claims, essentially, that their services are covered under the Plaintiff's
Policy, which would entitle it to payment from Universal.
Therefore, in the interest ofjudicial economy and efficiency, and to prevent unnecessary,
protracted and potentially redundant or duplicative litigation, this Court should dismiss Count II
Plaintiff' s Complaint.
WHEREFORE, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE
COMPANY, respectfully requests that this Honorable Court enter an order dismissing Count II of
Plaintiff's Complaint and granting such other and further relief as this Honorable Court deems just
and proper.
[Certificateof service on the followinjz pajzel
Neil Espendez v. UPCIC
Case No.: CACE-21-011840
Page 7 of 7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via
EService to: Peter Mineo, Jr., Esq., The Mineo Salcedo Law Firm, P.A.
Counsel for Plaintiff, on the 25th day of September, 2021.
Attorney for Defendant
Universal Property & Casualty Ins. Co.
P.O. Box 9388
Fort Lauderdale, Florida 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:
Preview
Filing # 135310862 E-Filed 09/25/2021 10:21:55 PM ,TH IN THE CIRCUIT COURT OF THE 17 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA NEIL ESPENDEZ, CASE NO: CACE-21-011840 Plaintiff. VS. UNIVERSALPROPERTY & CASUALTY INSURANCE COMPANY, Defendant. i DEFENDANT'S MOTION TO DISMISS COUNT II OF PLAINTIFF'S COMPLAINT Defendant, UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY ("Universal"), by and through its undersigned counsel and pursuant to Rule 1.140. Florida Rules of Civil Procedure, hereby moves this Court to dismiss Count II of Plaintiff's Complaint and, in support thereof, states as follows: INTRODUCTION 1. Universal issued a property insurance policy to Neil Espendez ("Plaintiff'), identified by policy number -4928 ("Policy"), for the real property located at 2034 NW 183rd Terrace Pembroke Pines, FL 33029 ("Property"), with effective dates from June 29, 2020 through June 29, 2021, subject to its terms, exclusions, limitations, and conditions as well as Florida Statutes. 2. Plaintiff filed a two (2) count action against Universal for an alleged breach of contract (Count I) and declaratoryrelief (Count II), and as it relates to an alleged loss on November 08,2020. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/25/2021 10:21:54 PM.**** Neil Espendez v. UPCIC Case No.: CACE-21-011840 Page 2 of 7 3. Accordingly, pursuant to Florida law, Count II of Plaintiff's Complaint should be dismissed on the grounds that there is no present justiciable controversy that can be resolved through a judicial declaration. 4. Furthermore, Count II of Plaintiff's Complaint is similarly subject to dismissal because the relief sought therein would be addressed more fully and efficiently in a cause of action for breach of contract. MEMORANDUM OF LAW I. STANDARD FOR A MOTION TO DISMISS It is well-settled in Florida that "[iln ruling on a motion to dismiss, courts are limited to the four corners ofthe complaint, must accept the allegations as true, and may not speculate as to what ith facts may ultimately be proven at trial." Parker v. Parker, 916 So.2d 926,928 (Fla. 4 DCA 2005) (citations omitted); see also Poulson v. Vordermeier, 317 So. 2d 245, 246 (Fla. 4th DCA 1976) (citing 25 Fla. Jur., Pleadings § 127) ("[T]he function of a motion to dismiss a 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-pleaded facts as well as all reasonableinferences arising from those facts. The allegations must be construed in the light most favorable to Plaintiffand the trial court must not speculate what the true facts may be or what will be proved ultimately in trial of the cause. Finally, the motion must be decided on questions of law, only, and matters not shown on the face of the complaint cannot properly be raised on a motion to dismiss."). Moreover, in ruling on a motion to dismiss a count for declaratory relief, the Court is not to look to the merits but 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. 3d DCA 1980). Neil Espendez v. UPCIC Case No.: CACE-21-011840 Page 3 of 7 II. LAW AND ARGUMENT A. Count II Does Not State Causes of Actions For Declaratory Relief Count II of Plaintiff's Complaint alleges no bona fide, actual, present practical need for declaratory relief in this matter. Count II of Plaintiff's Complaint simply seeks coverage for alleged damages allegedly occurring on November 8,2020. By all accounts, Count II is seeking damages and an action for declaratoryrelief is not the proper vehicle to obtain such damages. See Legion Insurance Company v. Moore, 846 So.2d 1183 (Fla. 4h DCA 2003) (A declaratory action serves no useful purpose when the moving party can establish a prima facie cause of action for coverage). Aside from a declaratory action being improper in a first party action, the relief to which Plaintiff claims to be entitled in Count II are nothing more than claims that Defendant breached the contract of insurance and Plaintiff is, therefore, entitled to damages. Such claims for declaratoryrelief are improper. Florida's DeclaratoryJudgment Act allows a court to render declaratoryjudgments on the existence, or nonexistence, of any immunity, power, privilege, or right. F. S. § 86.011, Fla. Stat. § 86.201, Fla. Stat. states, in pertinent part: Any person claiming to be interested or who may 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 munic*al ordinance, contract, deed, will, franchise, or other article, memorandum in writing, may have determined any question of construction or validity arising under such statute, regulation, or instrumentin writing, or any part thereof, and obtain a declaration or rights, status, or other equitable or legal relationsthereunder. See Martines v. Scanlan, 582 So.2d 1167, 1170 (Fla. 1991); see also Johnson v. Alt. Nat7 Inc. So., 155 So.2d 886 (Fla. 3rd DCA 1963) (an action for declaratoryreliefwill not lie where the Neil Espendez v. UPCIC Case No.: CACE-21-011840 Page 4 of 7 insurance contract 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). Tobon v. American Sec. Ins. Co. 2007 WL 1796250, at *2 (S.D. Fla. June 20, 2007) (finding that a mere conclusory allegation that the plaintiff is "in doubt" as to some unidentified term of a contract is insufficient to state a claim for declaratory relief). "[A]lthough the existence of other remedies does not preclude declaratoryjudgment, section 86.111, Florida Statutes (1979), it does bear on the proper exercise of the court's discretion in granting such relief, and the court may decline to grant a declaratory decree where more appropriate redress is available. Kelner v. Woody, 399 So. 2d 35, 38 (Fla. 3d DCA 1981); lciting Stark v. Marshall, 61 So.2d 235 (Fla. 1953)). Declaratory Relief is not available "to settle factual issues upon which coverage questions turn under an insurance contract which is clear and unambiguous." Travelers Ins. Co. v. Emery, 579 So. 2d 798, st Ist 801 (Fla. 1 DCA 1991); Medical Center Health Plan v. Brick, 572 So. 2d 548, 551 (Fla. 1 DCA 1990). In Macintosh v. Harbour Club Fillas Condo. Ass'n., 468 So.2d 1075 (Fla. 3d DCA 1985) (J. Nesbitt, Specially Concurring), it was held that the availability of another adequate remedy bears on the discretion a court has to grant declaratoryrelief and that the court may decline to grant a declaratory decree where more appropriate redress is available. Macintosh, 468 So. 2d at 1080 (affirming the trial court's denial of request for declaratory relief and citing Kelner, 399 So. 2d at 38). Moreover, in Eisenberg MD. v. Standard Insurance Co., 2009 WL 1809994, Order and Opinion on Motion to Dismiss (S.D. Fla. June 25,2009), that Court held: The Declaratory Judgment Act pennits actual controversies to be settled before they ripen into violations of law or a breach of contractual duty. A petition seeking declaratory judgment that alleges breach of duties and obligations underthe terms of a contract and asks the court to declare those terms beached is nothing more than a petition claiming breach of Neil Espendez v. UPCIC Case No.: CACE-21-011840 Page 5 of 7 contract. It thus provides an adequate remedy at law, and a decision on the merits of the breach of contract claim would render the defendant's request for declaratory judgment moot or redundant. (Citations Omitted). Additionally, declaratory relief is not available "where the object of the action is to try disputed questions of fact as the determinative issue, rather than to seek a construction of definite stated rights, status, or other relations." X Corp. v. Y Person, 622 So. 2d 1098 (Fla. 2d DCA 1993). A court must dismiss a claim for declaratoryjudgment if it is duplicative (i.e. subsumed within) a claim for breach of contract, and, in effect, seeks adjudication on the merits of the breach of contract claim. See Taylor v. Cooper, 60 So2d 534, 535-36 (Fla. 1952); see also Mcintosh v. Harbour Club Fillas, 468 So2d 1075, 1080-81 (Fla. 3 d DCA 1985) (Nesbitt,specially concurring); Burns v. liartford Accident Indemnity Co., 157 So.2d 84 (Fla. 3d DCA 1963); Ginsberg v. Scottsdale Ins. Co., 2010 WL 2510662 (S.D. Fla. 2010) (citing Taylor v. Cooper and Mcintosh v. Harbour Club Villasj The facts in Scottsdale, supra, are similar to those in the instant case. In Scottsdale, Count I ofthe Complaint alleged breach of contract for damages related to water damage from a plumbing failure. Count II sought a declaration of rights to determine whether the loss is covered by the insurance policy. U. The court, citing Florida law, held that the determination of the breach of contract claim involves the same factual dispute as the declaratoryjudgment claim, to wit, to what extent the damage from the plumbing failure is covered by the insurance policy. U. The Plaintiffs could thus be able to secure full, adequate and complete relief from the breach of contract claim. M Since the Plaintiffs' claim for declaratoryjudgment is thus subsumed within the claim for breach o f contract, the declaratory action was dismissed. Id. Neil Espendez v. UPCIC Case No.: CACE-21-011840 Page 6 of 7 Furthermore, declaratory actions such as Plaintiff's waste judicial time because, "Regardless o f what the Court rules, it will not end the judicial labor in the case. The Declaratory Reliefwill not end the judicial labor because the issue of damages will still need to be determined." DPI of Plantation,Inc. v. State Farm Mutual Auto. Ins. Co., COCE-16-014650,Honorable Robert W. Lee, Oct. 10,2016. As Plaintiffseeksdamages within its duplicative breach of contract count, it is understood that this truly is a claim for damages, not one in which Plaintiffseeksinterpretation of its rights. Here, Plaintiff claims, essentially, that their services are covered under the Plaintiff's Policy, which would entitle it to payment from Universal. Therefore, in the interest ofjudicial economy and efficiency, and to prevent unnecessary, protracted and potentially redundant or duplicative litigation, this Court should dismiss Count II Plaintiff' s Complaint. WHEREFORE, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, respectfully requests that this Honorable Court enter an order dismissing Count II of Plaintiff's Complaint and granting such other and further relief as this Honorable Court deems just and proper. [Certificateof service on the followinjz pajzel Neil Espendez v. UPCIC Case No.: CACE-21-011840 Page 7 of 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via EService to: Peter Mineo, Jr., Esq., The Mineo Salcedo Law Firm, P.A. Counsel for Plaintiff, on the 25th day of September, 2021. Attorney for Defendant Universal Property & Casualty Ins. Co. P.O. Box 9388 Fort Lauderdale, Florida 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: