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Filing # 78198379 E-Filed 09/20/2018 04:05: 13 PM
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
GENERAL CIVIL DIVISION
KERRI GRACE and CASE NO: 18-005021-CI
SHON GRACE,
Plaintiffs,
V.
TOWER HILL PRHVIE INSURANCE
COMPANY,
Defendant.
/
PLAINTIFFS’ REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES
COME NOW the Plaintiffs, KERRI GRACE and SHON GRACE, by and through the
undersigned counsel, and hereby file this Reply to the Affirmative Defenses of Defendant,
TOWER HILL PRIME INSURANCE COMPANY; and as grounds therefore state as follows:
REPLY AND AVOIDANCE
1. Plaintiffs hereby deny Defendant’s Affirmative Defenses and demand strictproof
thereof. Nevertheless, as avoidance of same, Plaintiffs state as follows:
2. “[T]he requirement of certainty will be insisted upon in the pleading of a defense;
and the certainty required is that the pleader must set forth the facts in such a manner as to
reasonably inform his adversary of What is proposed to be proved in order to provide the latter
with a fair opportunity to meet it and prepare his evidence.” Zito V. Washington Fed. Sav. & Loan
Ass'n of Miami Beach, 318 So. 2d 175, 176 (Fla. 3d DCA 1975); Uvesco Inc. V. Petersen, 295 So.
2d 353, 354 (Fla. 4th DCA 1974) (disallowing affirmative defenses which “were not specifically
pled”). As such, “pleading conclusions of law unsupported by allegations of ultimate fact is legally
insufficient.” Bliss V. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982). Rule 1.140(b), Florida
***ELECTRONICALLY FILED 09/20/2018 04:05:13 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
Rules of Civil Procedure, states in pertinent part that “[t]he grounds on which any of the
enumerated defenses are based and the substantial matters of law intended to be argued M be
stated specifically and with particularity in the responsive pleading . ..Any ground not stated shall
be deemed to be MU” Fla. R. CiV. P. 1.140 (emphasis added).
3. In Florida, it is axiomatic that a party to a contract may waive contractual
obligations by the other party, including that an insurance company may by its conduct waive
Policy defenses and itsright to require compliance with Policy conditions. Castro V. Homeowners
Choice Prop. & Cas. Ins. Co., 2017 WL 3614102, at *2 (Fla. 2d DCA Aug. 23, 2017); Nu-Air
Mfg. Co. V. Frank B. Hall & Co. of New York, 822 F.2d 987, 993 (11th Cir. 1987) (applying
Florida law); Hartford Acc. & Indem. Co. V. Phelps, 294 So. 2d 362 (Fla. lst DCA 1974); Laird
V. Chicago Ins. Co., 227 So. 2d 230 (Fla. 3d 1969); see also, Mutual Ben. Health & Accident Ass'n
V. Bunting, 133 Fla. 646, 183 So. 321 (1938); Indian River State Bank V. Hartford Fire Ins. Co.,
46 Fla. 283, 35 So. 228 (Fla. 1903). Here, Defendant waived its Policy defenses and its right to
require compliance with Policy conditions when Defendant unequivocally denied Plaintiffs’ claim
on July 26, 2017 thereby breaching the
w
Policy.
4. “Where an insurer unconditionally denies liability, it all policy provisions
governing notification of loss, proof of loss [.]” Nu-Air Mfg. Co. V. Frank B. Hall & Co. of New
York, 822 F.2d 987, 993 (11th Cir. 1987) (applying Florida law); Hartford Acc. & Indem. Co. V.
Phelps, 294 So. 2d 362 (Fla. lst DCA 1974); Laird V. Chicago Ins. Co., 227 So. 2d 230 (Fla. 3d
1969); E also, Mutual Ben. Health & Accident Ass'n V. Bunting, 133 Fla. 646, 183 So. 321
(1938); Indian River State Bank V. Hartford Fire Ins. Co., 46 Fla. 283, 35 So. 228 (Fla. 1903).
“[A]s a matter of law, the effect of the thus-found-to-be-improper repudiation of coverage was to
waive any right to insist upon the insureds' necessarily-thus—filtile compliance with the various
conditions to recovery—including notice.” Nu-Air Mfg. Co., 822 F.2d at 993 (citing Wegener V.
DCA
M
International Bankers Insurance Co., 494 So. 2d 259 (Fla. 3d 1986)) (emphasis added). Once
waived, an insurer subsequently require compliance by the insured. American Bankers Ins.
Co. of Fla. V. Terry, 277 So. 2d 563, 564 (Fla. 3d DCA 1973) (stating that “[o]nce the insurer
waives the giving of proof of loss, such waiver is irrevocable”). Here, Defendant waived itsPolicy
defenses and itsright to require compliance with Policy conditions when Defendant unequivocally
denied Plaintiffs’ claim on July 26, 2017 thereby breaching the Policy.
5. Moreover, any evidence or policy exclusions as to causes of loss or requests for
compliance with Policy conditions which are not contained in Defendant’s denial letter dated July
26, 2017 constitute a change in position which are barred and/or estopped by the “Mend the Hold”
doctrine and waiver, and, thus, Defendant must not be allowed to change the grounds of its defense.
Ohio & M.R. Co. V. McCarthv, 96 US. 258 (1887); E also, Salcedo V. Asociacion Cuban, Inc.,
368 So. 2d 1337 (Fla. 3d DCA 1979); Heimer V. Travelers Ins. Co., 400 So. 2d 771 (Fla. 3d DCA
1981); B & G Aventura, LLC V. G-Site Ltd. Partn., 97 So. 3d 308 (Fla. 3d DCA 2012); Yampol
V. Tumberrv Isle S. Condo. Ass'n, Inc., 143 So. 3d 1144 (Fla. 3d DCA 2014). In McCarthy, the
Supreme Court of the United States explained that:
Where a party gives a reason for his conduct and decision touching
anything involved in a controversy, he cannot, after litigation has
begun, change his grounds, and put his conduct upon another and a
different consideration. He is not permitted thus to mend his hold.
He is stopped from doing it by a settled principle of law.
IQ. at 267-268.
6. In order for an insurer to effectuate a post-occurrence forfeiture of insurance
coverage, the insurer has the burden of “pleading and proving” as an as an element of its
affirmative defense that an insured’s material breach of a condition prejudiced the insurer. State
Farm Mut. Auto. Ins. Co. V. Curran, 135 So. 3d 1071, 1073 (Fla. 2014) (holding “that the insurer
as the defensive party pleading an affirmative defense has the burden of pleading and proving
prejudice”). Specifically, “the insurer must show a material failure to cooperate which
substantially prejudiced the insurer.” Allstate Floridian Ins. Co. V. Farmer, 104 So. 3d 1242, 1248
(Fla. 5th DCA 2012) (citing Bankers Ins. Co. V. Macias, 475 So. 2d 1216 (Fla. 1985)). Moreover,
it isaxiomatic that affirmative defenses are waived if not pled. Wolowitz V. Thoroughbred Motors,
Q, 765 So. 2d 920, 923 (Fla. 2d DCA 2000) (holding that affirmative defenses are waived if not
pled). In the present case, Defendant has completely failed to plead any type of prejudice
whatsoever and has even failed to provide any facts that could infer prejudice, particularly Where
Defendant investigated Plaintiffs’ claim and unequivocally denied the claim on July 26, 2017
based on grounds other than Plaintiffs’ compliance with policy conditions.
7. Plaintiffs have n_ot materially breached the conditions under the policy and have in
fact substantially complied with all applicable terms and conditions. Moreover, Defendant was n_ot
prejudiced by any alleged failure of Plaintiffs to comply with conditions under the policy. An
insurer’s ability to investigate the claim sufficiently to permit itto deny the claim on other grounds
effectively rebuts any prejudice. Keenan Hopkins Schmidt V. Continental Cas., 653 F. Supp. 2d
1255, 1262 (MD. Fla. 2009); Hartford Accident & Indem. Co. V. Phelps, 294 So. 2d 362, 365 (Fla.
lst DCA 1974). Here, Defendant unequivocally denied Plaintiffs’ claim on July 26, 2017 after
completing its investigation with Plaintiffs’ cooperation and based the coverage determination on
grounds other than Plaintiffs’ compliance with policy conditions.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
Via Electronic Mail, pursuant Florida Rule of Judicial Administration 2.516(b)(1), through the
Court’s E-Filing Portal System to: Fredric Zinober, Esq., Zinober Diana, P.A. (counsel for
Defendant) at fred@zinoberdiana.com, michelle@zinoberdiana.com, and
iessica@zinoberdiana.com; on this 20th day of September, 2018.
By: /s/Jonathan N. O’Neil
Law Offices of Christopher Palermo, P.A.
Christopher M. Palermo, Esquire
FBN: 104000
Jonathan N. O’Neil, Esquire
FBN: 120498
Meghan DeTemple, Esquire
FBN: 125382
Email: service@p_alermop_a.com
258 Crystal Grove Blvd
Lutz, FL 33548-6460
Phone: (813) 221-5636
Fax: (813) 864-4437
Attorneys for Plaintiffs
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Filing # 78198379 E-Filed 09/20/2018 04:05: 13 PM IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA GENERAL CIVIL DIVISION KERRI GRACE and CASE NO: 18-005021-CI SHON GRACE, Plaintiffs, V. TOWER HILL PRHVIE INSURANCE COMPANY, Defendant. / PLAINTIFFS’ REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES COME NOW the Plaintiffs, KERRI GRACE and SHON GRACE, by and through the undersigned counsel, and hereby file this Reply to the Affirmative Defenses of Defendant, TOWER HILL PRIME INSURANCE COMPANY; and as grounds therefore state as follows: REPLY AND AVOIDANCE 1. Plaintiffs hereby deny Defendant’s Affirmative Defenses and demand strictproof thereof. Nevertheless, as avoidance of same, Plaintiffs state as follows: 2. “[T]he requirement of certainty will be insisted upon in the pleading of a defense; and the certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of What is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence.” Zito V. Washington Fed. Sav. & Loan Ass'n of Miami Beach, 318 So. 2d 175, 176 (Fla. 3d DCA 1975); Uvesco Inc. V. Petersen, 295 So. 2d 353, 354 (Fla. 4th DCA 1974) (disallowing affirmative defenses which “were not specifically pled”). As such, “pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.” Bliss V. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982). Rule 1.140(b), Florida ***ELECTRONICALLY FILED 09/20/2018 04:05:13 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*** Rules of Civil Procedure, states in pertinent part that “[t]he grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued M be stated specifically and with particularity in the responsive pleading . ..Any ground not stated shall be deemed to be MU” Fla. R. CiV. P. 1.140 (emphasis added). 3. In Florida, it is axiomatic that a party to a contract may waive contractual obligations by the other party, including that an insurance company may by its conduct waive Policy defenses and itsright to require compliance with Policy conditions. Castro V. Homeowners Choice Prop. & Cas. Ins. Co., 2017 WL 3614102, at *2 (Fla. 2d DCA Aug. 23, 2017); Nu-Air Mfg. Co. V. Frank B. Hall & Co. of New York, 822 F.2d 987, 993 (11th Cir. 1987) (applying Florida law); Hartford Acc. & Indem. Co. V. Phelps, 294 So. 2d 362 (Fla. lst DCA 1974); Laird V. Chicago Ins. Co., 227 So. 2d 230 (Fla. 3d 1969); see also, Mutual Ben. Health & Accident Ass'n V. Bunting, 133 Fla. 646, 183 So. 321 (1938); Indian River State Bank V. Hartford Fire Ins. Co., 46 Fla. 283, 35 So. 228 (Fla. 1903). Here, Defendant waived its Policy defenses and its right to require compliance with Policy conditions when Defendant unequivocally denied Plaintiffs’ claim on July 26, 2017 thereby breaching the w Policy. 4. “Where an insurer unconditionally denies liability, it all policy provisions governing notification of loss, proof of loss [.]” Nu-Air Mfg. Co. V. Frank B. Hall & Co. of New York, 822 F.2d 987, 993 (11th Cir. 1987) (applying Florida law); Hartford Acc. & Indem. Co. V. Phelps, 294 So. 2d 362 (Fla. lst DCA 1974); Laird V. Chicago Ins. Co., 227 So. 2d 230 (Fla. 3d 1969); E also, Mutual Ben. Health & Accident Ass'n V. Bunting, 133 Fla. 646, 183 So. 321 (1938); Indian River State Bank V. Hartford Fire Ins. Co., 46 Fla. 283, 35 So. 228 (Fla. 1903). “[A]s a matter of law, the effect of the thus-found-to-be-improper repudiation of coverage was to waive any right to insist upon the insureds' necessarily-thus—filtile compliance with the various conditions to recovery—including notice.” Nu-Air Mfg. Co., 822 F.2d at 993 (citing Wegener V. DCA M International Bankers Insurance Co., 494 So. 2d 259 (Fla. 3d 1986)) (emphasis added). Once waived, an insurer subsequently require compliance by the insured. American Bankers Ins. Co. of Fla. V. Terry, 277 So. 2d 563, 564 (Fla. 3d DCA 1973) (stating that “[o]nce the insurer waives the giving of proof of loss, such waiver is irrevocable”). Here, Defendant waived itsPolicy defenses and itsright to require compliance with Policy conditions when Defendant unequivocally denied Plaintiffs’ claim on July 26, 2017 thereby breaching the Policy. 5. Moreover, any evidence or policy exclusions as to causes of loss or requests for compliance with Policy conditions which are not contained in Defendant’s denial letter dated July 26, 2017 constitute a change in position which are barred and/or estopped by the “Mend the Hold” doctrine and waiver, and, thus, Defendant must not be allowed to change the grounds of its defense. Ohio & M.R. Co. V. McCarthv, 96 US. 258 (1887); E also, Salcedo V. Asociacion Cuban, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979); Heimer V. Travelers Ins. Co., 400 So. 2d 771 (Fla. 3d DCA 1981); B & G Aventura, LLC V. G-Site Ltd. Partn., 97 So. 3d 308 (Fla. 3d DCA 2012); Yampol V. Tumberrv Isle S. Condo. Ass'n, Inc., 143 So. 3d 1144 (Fla. 3d DCA 2014). In McCarthy, the Supreme Court of the United States explained that: Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his grounds, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is stopped from doing it by a settled principle of law. IQ. at 267-268. 6. In order for an insurer to effectuate a post-occurrence forfeiture of insurance coverage, the insurer has the burden of “pleading and proving” as an as an element of its affirmative defense that an insured’s material breach of a condition prejudiced the insurer. State Farm Mut. Auto. Ins. Co. V. Curran, 135 So. 3d 1071, 1073 (Fla. 2014) (holding “that the insurer as the defensive party pleading an affirmative defense has the burden of pleading and proving prejudice”). Specifically, “the insurer must show a material failure to cooperate which substantially prejudiced the insurer.” Allstate Floridian Ins. Co. V. Farmer, 104 So. 3d 1242, 1248 (Fla. 5th DCA 2012) (citing Bankers Ins. Co. V. Macias, 475 So. 2d 1216 (Fla. 1985)). Moreover, it isaxiomatic that affirmative defenses are waived if not pled. Wolowitz V. Thoroughbred Motors, Q, 765 So. 2d 920, 923 (Fla. 2d DCA 2000) (holding that affirmative defenses are waived if not pled). In the present case, Defendant has completely failed to plead any type of prejudice whatsoever and has even failed to provide any facts that could infer prejudice, particularly Where Defendant investigated Plaintiffs’ claim and unequivocally denied the claim on July 26, 2017 based on grounds other than Plaintiffs’ compliance with policy conditions. 7. Plaintiffs have n_ot materially breached the conditions under the policy and have in fact substantially complied with all applicable terms and conditions. Moreover, Defendant was n_ot prejudiced by any alleged failure of Plaintiffs to comply with conditions under the policy. An insurer’s ability to investigate the claim sufficiently to permit itto deny the claim on other grounds effectively rebuts any prejudice. Keenan Hopkins Schmidt V. Continental Cas., 653 F. Supp. 2d 1255, 1262 (MD. Fla. 2009); Hartford Accident & Indem. Co. V. Phelps, 294 So. 2d 362, 365 (Fla. lst DCA 1974). Here, Defendant unequivocally denied Plaintiffs’ claim on July 26, 2017 after completing its investigation with Plaintiffs’ cooperation and based the coverage determination on grounds other than Plaintiffs’ compliance with policy conditions. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished Via Electronic Mail, pursuant Florida Rule of Judicial Administration 2.516(b)(1), through the Court’s E-Filing Portal System to: Fredric Zinober, Esq., Zinober Diana, P.A. (counsel for Defendant) at fred@zinoberdiana.com, michelle@zinoberdiana.com, and iessica@zinoberdiana.com; on this 20th day of September, 2018. By: /s/Jonathan N. O’Neil Law Offices of Christopher Palermo, P.A. Christopher M. Palermo, Esquire FBN: 104000 Jonathan N. O’Neil, Esquire FBN: 120498 Meghan DeTemple, Esquire FBN: 125382 Email: service@p_alermop_a.com 258 Crystal Grove Blvd Lutz, FL 33548-6460 Phone: (813) 221-5636 Fax: (813) 864-4437 Attorneys for Plaintiffs