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Filing # 135573458 E-Filed 09/29/2021 01:47:13 PM
UP-17739
SJC/BAC IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
ALBERTO SERFATY AND
SP FLIA CORP.,
CASE NO.: 2021-013619-CA-01 (13)
Plaintiff,
v.
UNIVERSAL PROPERTY &
CASUALTY INSURANCE COMPANY,
Defendant.
_______________________________/
ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, the Defendant, UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY, by and through undersigned counsel, pursuant to the Florida
Rules of Civil Procedure, and hereby files its Answer to the Plaintiffs’ Amended Complaint
and Affirmative Defenses.
PARTIES, JURISDICTION AND VENUE
1. Denied and strict proof is demanded.
2. Denied and strict proof is demanded.
3. Denied and strict proof is demanded.
4. Admitted.
5. Denied and strict proof is demanded.
6. Denied and strict proof is demanded.
GENERAL ALLEGATIONS
7. Denied and strict proof is demanded.
8. Denied and strict proof is demanded.
CASE NO: 2021-013619-CA-01 (13)
9. Denied and strict proof is demanded.
10. Denied and strict proof is demanded.
11. Denied and strict proof is demanded.
12. Admitted that a claim number was assigned, but denied as to the remainder.
13. Denied and strict proof is demanded.
14. Denied and strict proof is demanded.
15. Denied and strict proof is demanded.
16. Denied and strict proof is demanded.
17. Denied and strict proof is demanded.
COUNT I - BREACH OF CONTRACT
Universal re-states its admissions and denials as fully stated above.
18. Admitted that the policy speaks for itself, but denied as to the remainder and
strict proof is demanded.
19. Denied and strict proof is demanded.
20. Denied and strict proof is demanded.
21. Denied and strict proof is demanded.
22. Denied and strict proof is demanded.
23. Denied and strict proof is demanded.
24. Denied and strict proof is demanded.
25. Denied and strict proof is demanded.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
No Waiver or Estoppel
CASE NO: 2021-013619-CA-01 (13)
26. Defendant asserts that it has not waived nor is it estopped from asserting any
defenses as they pertain to coverage, exclusions, terms, conditions, provisions or
endorsements of the policy.
SECOND AFFIRMATIVE DEFENSE
Terms, Conditions, Limitations, Exclusions, Provisions
27. Defendant asserts that the Plaintiffs’ claim is subject to the terms, conditions,
limitations, exclusions and endorsements of the policy.
THIRD AFFIRMATIVE DEFENSE
Wear, Tear, Deterioration
28. Defendant asserts that the Plaintiffs should be barred from recovery as the
alleged damages were the result of wear, tear, deterioration, which is specifically excluded
under the policy. This position is supported by the field adjuster inspection. The policy
provides:
SECTION I – PERILS INSURED AGAINST
The Perils Insured Against, for Coverage A, are
replaced by the following:
Perils Insured Against
1. We insure against direct physical loss to property
described in Coverage A. However, loss does not
include and we will not pay for any “diminution in
value”.
2. We do not insure, however, for loss:
c. Caused by:
(7) Any of the following:
(a) Wear and tear, marring, deterioration;
(c) Smog, rust “spalling”, decay or other corrosion;
FOURTH AFFIRMATIVE DEFENSE
No Resulting Water Damages
29. Defendant asserts that the Plaintiffs should be barred from recovery as there
were no resulting water damages from the alleged plumbing failure. The policy provides:
SECTION I – PERILS INSURED AGAINST
CASE NO: 2021-013619-CA-01 (13)
The Perils Insured Against, for Coverage A, are
replaced by the following:
Perils Insured Against
1. We insure against direct physical loss to property
described in Coverage A. However, loss does not
include and we will not pay for any “diminution in
value”.
2. We do not insure, however, for loss:
c. Caused by:
(6) Accidental discharge or overflow of water or steam:
(a) That does not result in loss to property covered under Coverage A or B;
FIFTH AFFIRMATIVE DEFENSE
Neglect
30. Defendant asserts that the Plaintiffs should be barred from recovery as the
alleged damages were the result of the Plaintiffs’ neglect, which is specifically excluded
under the policy. The policy provides:
SECTION I – EXCLUSIONS
We do not insure for loss caused directly or indirectly
by any of the following. Such loss is excluded
regardless of any other cause or event contributing
concurrently or in any sequence to the loss. These
exclusions apply whether or not the loss event results
in widespread damage or affects a substantial area.
5. Neglect
Neglect means neglect of an "insured" to use all reasonable means to save and preserve property at and
after the time of a loss.
13. Existing Damage, meaning damages which occurred prior to policy inception regardless of whether
such damages were apparent at the time of the inception of this policy or discovered at a later date.
This exclusion does not apply in the event of a total loss caused by a Peril Insured Against.
SIXTH AFFIRMATIVE DEFENSE
Faulty Maintenance
31. Defendant asserts that the Plaintiffs should be barred from recovery as the
alleged damages were the result of faulty workmanship, construction and maintenance,
which is specifically excluded under the policy. The policy provides:
SECTION I – EXCLUSIONS
The following exclusions are added:
We do not insure for loss to property described in
CASE NO: 2021-013619-CA-01 (13)
Coverage A caused by any of the following.
However, any ensuing loss to property described
in Coverage A not precluded by any other
provision in this Policy is covered.
c. Faulty, inadequate or defective:
(1) Planning, zoning, development,
surveying, siting;
(2) Design, specifications, workmanship,
repair, construction, renovation,
remodeling, grading, compaction;
(3) Materials used in repair, construction,
renovation or remodeling; or
(4) Maintenance;
of part or all of any property whether on or off
the "residence premises".
SEVENTH AFFIRMATIVE DEFENSE
Failure to Provide Prompt Notice/Cooperate
32. Defendant asserts that the Plaintiffs should be barred from recovery as the
Plaintiffs breached the insurance policy by failing to abide by the terms and conditions of
the policy. The Plaintiffs failed to provide prompt notice of an alleged loss. The Plaintiffs
also failed to cooperate with Universal in its investigation and evaluation of the claim,
including but not limited to: providing a recorded statement and requested documents. Said
breach substantially prejudiced Universal in its investigation and evaluation of the claim.
The policy provides:
SECTION I - CONDITIONS
C. Duties After Loss
In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to
comply with the following duties is prejudicial to us. These duties must be performed either by you, an
"insured" seeking coverage, or a representative of either:
1. Give prompt notice to us or our agent;
5. Cooperate with us in the investigation of a claim;
7. As often as we reasonably require:
b. Provide us with records and documents we request and permit us to make copies;
c. Any and all "insureds" must submit to recorded statements when requested by us;
H. Suit Against Us
No action can be brought against us unless there
has been full compliance with all of the terms
under Section I of this policy and the action is
started within 5 years after the date of loss.
CASE NO: 2021-013619-CA-01 (13)
EIGHTH AFFIRMATIVE DEFENSE
Prior Payment/Overlapping Damages/Misrepresentation
33. The Plaintiff submitted a claim for damages to his apartment from an alleged
kitchen leak. Universal assigned claim no.: FL20-0145502 to the claim. In the kitchen
claim, Universal issued payment to replace the laminate flooring throughout the apartment.
The flooring was not replaced and the Plaintiff submitted an estimate for this claim seeking
costs to repair/replace the flooring that Universal already paid to replace. The Policy
provides:
SECTION I – CONDITIONS
S. Concealment Or Fraud
We do not provide coverage to an "insured" who,
whether before or after a loss, has:
1. Intentionally concealed or misrepresented
any material fact or circumstance;
2. Engaged in fraudulent conduct; or
3. Made material false statements;
relating to this insurance.
DEMAND FOR JURY TRIAL
Universal hereby demands a trial by jury of all issues so triable.
[CERTIFICATE OF SERVICE ON FOLLOWING PAGE]
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has
been sent by e-mail on this the 29th day of September, 2021, to: Stephanie P. Williams,
Esq., Attorney for Plaintiff, spw@spwlawfirm.com.
BERNSTEIN, CHACKMAN, LISS
Attorneys for Defendant Universal
4000 Hollywood Blvd., Suite 610 North
Hollywood, FL 33021
(954) 986-9600 - Broward
(305) 940-1900 - Dade
(954) 929-1166 - Fax
By: /s/ Steven J. Chackman
Steven J. Chackman
Florida Bar No.: 376851
Brian A. Chackman
Florida Bar No.: 1022178
schackman@bernstein-chackman.com
bchackman@bernstein-chackman.com
mmaldonado@bernstein-chackman.com
G:\WP\UP-17739\ans aff def.wpd
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Filing # 135573458 E-Filed 09/29/2021 01:47:13 PM UP-17739 SJC/BAC IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA ALBERTO SERFATY AND SP FLIA CORP., CASE NO.: 2021-013619-CA-01 (13) Plaintiff, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. _______________________________/ ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, the Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, by and through undersigned counsel, pursuant to the Florida Rules of Civil Procedure, and hereby files its Answer to the Plaintiffs’ Amended Complaint and Affirmative Defenses. PARTIES, JURISDICTION AND VENUE 1. Denied and strict proof is demanded. 2. Denied and strict proof is demanded. 3. Denied and strict proof is demanded. 4. Admitted. 5. Denied and strict proof is demanded. 6. Denied and strict proof is demanded. GENERAL ALLEGATIONS 7. Denied and strict proof is demanded. 8. Denied and strict proof is demanded. CASE NO: 2021-013619-CA-01 (13) 9. Denied and strict proof is demanded. 10. Denied and strict proof is demanded. 11. Denied and strict proof is demanded. 12. Admitted that a claim number was assigned, but denied as to the remainder. 13. Denied and strict proof is demanded. 14. Denied and strict proof is demanded. 15. Denied and strict proof is demanded. 16. Denied and strict proof is demanded. 17. Denied and strict proof is demanded. COUNT I - BREACH OF CONTRACT Universal re-states its admissions and denials as fully stated above. 18. Admitted that the policy speaks for itself, but denied as to the remainder and strict proof is demanded. 19. Denied and strict proof is demanded. 20. Denied and strict proof is demanded. 21. Denied and strict proof is demanded. 22. Denied and strict proof is demanded. 23. Denied and strict proof is demanded. 24. Denied and strict proof is demanded. 25. Denied and strict proof is demanded. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE No Waiver or Estoppel CASE NO: 2021-013619-CA-01 (13) 26. Defendant asserts that it has not waived nor is it estopped from asserting any defenses as they pertain to coverage, exclusions, terms, conditions, provisions or endorsements of the policy. SECOND AFFIRMATIVE DEFENSE Terms, Conditions, Limitations, Exclusions, Provisions 27. Defendant asserts that the Plaintiffs’ claim is subject to the terms, conditions, limitations, exclusions and endorsements of the policy. THIRD AFFIRMATIVE DEFENSE Wear, Tear, Deterioration 28. Defendant asserts that the Plaintiffs should be barred from recovery as the alleged damages were the result of wear, tear, deterioration, which is specifically excluded under the policy. This position is supported by the field adjuster inspection. The policy provides: SECTION I – PERILS INSURED AGAINST The Perils Insured Against, for Coverage A, are replaced by the following: Perils Insured Against 1. We insure against direct physical loss to property described in Coverage A. However, loss does not include and we will not pay for any “diminution in value”. 2. We do not insure, however, for loss: c. Caused by: (7) Any of the following: (a) Wear and tear, marring, deterioration; (c) Smog, rust “spalling”, decay or other corrosion; FOURTH AFFIRMATIVE DEFENSE No Resulting Water Damages 29. Defendant asserts that the Plaintiffs should be barred from recovery as there were no resulting water damages from the alleged plumbing failure. The policy provides: SECTION I – PERILS INSURED AGAINST CASE NO: 2021-013619-CA-01 (13) The Perils Insured Against, for Coverage A, are replaced by the following: Perils Insured Against 1. We insure against direct physical loss to property described in Coverage A. However, loss does not include and we will not pay for any “diminution in value”. 2. We do not insure, however, for loss: c. Caused by: (6) Accidental discharge or overflow of water or steam: (a) That does not result in loss to property covered under Coverage A or B; FIFTH AFFIRMATIVE DEFENSE Neglect 30. Defendant asserts that the Plaintiffs should be barred from recovery as the alleged damages were the result of the Plaintiffs’ neglect, which is specifically excluded under the policy. The policy provides: SECTION I – EXCLUSIONS We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area. 5. Neglect Neglect means neglect of an "insured" to use all reasonable means to save and preserve property at and after the time of a loss. 13. Existing Damage, meaning damages which occurred prior to policy inception regardless of whether such damages were apparent at the time of the inception of this policy or discovered at a later date. This exclusion does not apply in the event of a total loss caused by a Peril Insured Against. SIXTH AFFIRMATIVE DEFENSE Faulty Maintenance 31. Defendant asserts that the Plaintiffs should be barred from recovery as the alleged damages were the result of faulty workmanship, construction and maintenance, which is specifically excluded under the policy. The policy provides: SECTION I – EXCLUSIONS The following exclusions are added: We do not insure for loss to property described in CASE NO: 2021-013619-CA-01 (13) Coverage A caused by any of the following. However, any ensuing loss to property described in Coverage A not precluded by any other provision in this Policy is covered. c. Faulty, inadequate or defective: (1) Planning, zoning, development, surveying, siting; (2) Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; (3) Materials used in repair, construction, renovation or remodeling; or (4) Maintenance; of part or all of any property whether on or off the "residence premises". SEVENTH AFFIRMATIVE DEFENSE Failure to Provide Prompt Notice/Cooperate 32. Defendant asserts that the Plaintiffs should be barred from recovery as the Plaintiffs breached the insurance policy by failing to abide by the terms and conditions of the policy. The Plaintiffs failed to provide prompt notice of an alleged loss. The Plaintiffs also failed to cooperate with Universal in its investigation and evaluation of the claim, including but not limited to: providing a recorded statement and requested documents. Said breach substantially prejudiced Universal in its investigation and evaluation of the claim. The policy provides: SECTION I - CONDITIONS C. Duties After Loss In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an "insured" seeking coverage, or a representative of either: 1. Give prompt notice to us or our agent; 5. Cooperate with us in the investigation of a claim; 7. As often as we reasonably require: b. Provide us with records and documents we request and permit us to make copies; c. Any and all "insureds" must submit to recorded statements when requested by us; H. Suit Against Us No action can be brought against us unless there has been full compliance with all of the terms under Section I of this policy and the action is started within 5 years after the date of loss. CASE NO: 2021-013619-CA-01 (13) EIGHTH AFFIRMATIVE DEFENSE Prior Payment/Overlapping Damages/Misrepresentation 33. The Plaintiff submitted a claim for damages to his apartment from an alleged kitchen leak. Universal assigned claim no.: FL20-0145502 to the claim. In the kitchen claim, Universal issued payment to replace the laminate flooring throughout the apartment. The flooring was not replaced and the Plaintiff submitted an estimate for this claim seeking costs to repair/replace the flooring that Universal already paid to replace. The Policy provides: SECTION I – CONDITIONS S. Concealment Or Fraud We do not provide coverage to an "insured" who, whether before or after a loss, has: 1. Intentionally concealed or misrepresented any material fact or circumstance; 2. Engaged in fraudulent conduct; or 3. Made material false statements; relating to this insurance. DEMAND FOR JURY TRIAL Universal hereby demands a trial by jury of all issues so triable. [CERTIFICATE OF SERVICE ON FOLLOWING PAGE] I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been sent by e-mail on this the 29th day of September, 2021, to: Stephanie P. Williams, Esq., Attorney for Plaintiff, spw@spwlawfirm.com. BERNSTEIN, CHACKMAN, LISS Attorneys for Defendant Universal 4000 Hollywood Blvd., Suite 610 North Hollywood, FL 33021 (954) 986-9600 - Broward (305) 940-1900 - Dade (954) 929-1166 - Fax By: /s/ Steven J. Chackman Steven J. Chackman Florida Bar No.: 376851 Brian A. Chackman Florida Bar No.: 1022178 schackman@bernstein-chackman.com bchackman@bernstein-chackman.com mmaldonado@bernstein-chackman.com G:\WP\UP-17739\ans aff def.wpd