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Filing # 93703887 E-Filed 08/06/2019 09:39:47 AM
IN THE CIRCUIT COURT OF THE
20TH JUDICIAL CIRCUIT IN AND
FOR COLLIER COUNTY, FLORIDA
CASE NO.: 19-CA-1995
ISLAND ROOFING AND RESTORATION,
LLC (A/A/O SALVATORE PIRANIO),
Plaintiff(s),
v.
UNITED PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant(s).
UNITED PROPERTY & CASULATY INSURANCE COMPANY’S ANSWER
AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT
Defendant, United Property & Casualty Insurance Company, (hereinafter “Defendant” or
“UPC”), by and through undersigned counsel, hereby files its Answer and Affirmative Defenses
to Plaintiffs’ Complaint, and in support states as follows:
1. Defendant admits the allegations in paragraph | of Plaintiffs’ Complaint only for
the purpose of establishing jurisdiction; Defendant denies any remaining allegations and demands
strict proof thereof.
2. Defendant is without knowledge as to the allegations in paragraph 2 of Plaintiffs’
Complaint, and therefore, denies same and demands strict proof thereof.
3. Admit.
4. Defendant admits the allegations in paragraph 4 of Plaintiffs’ Complaint only to the
extent that it issued Policy No. UHV32303860301 for property located at 8482 Deimille Court,
Naples, Florida 34114, which is limited by its terms, conditions, exclusions, exceptions,
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 08/06/2019 09:39:47 AM.CASE NO.: 19-CA-1995
Page 2
limitations, and endorsements. Defendant denies any remaining allegations and demands strict
proof thereof.
5. Defendant is without knowledge as to the allegations in paragraph 5 of Plaintiffs’
Complaint, and therefore, denies same and demands strict proof thereof.
6. Defendant is without knowledge as to the allegations in paragraph 6 of Plaintiffs’
Complaint, and therefore, denies same and demands strict proof thereof.
7. Defendant admits the allegations in paragraph 7 of Plaintiffs’ Complaint only to the
extent that it issued Policy No. UHV32303860301 with effective dates of October 21, 2016 to
October 21, 2017 for property located at 8482 Deimille Court, Naples, Florida 34114; Defendant
denies any remaining allegations, and demands strict proof thereof.
8. Defendant is without knowledge as to the allegations in paragraph 8 of Plaintiffs’
Complaint, and therefore denies same and demands strict proof thereof.
9. The Defendant admits the allegations in paragraph 8 of Plaintiffs’ Complaint only
to the extent that Exhibit A to Plaintiff's Complaint speaks for itself; Defendant denies any
remaining allegations and demands strict proof thereof.
10. Defendant denies the allegations in paragraph 10 of Plaintiffs’ Complaint, and
demands strict proof thereof.
ll. Admit.
12. Defendant is without knowledge as to the allegations in paragraph 12 of Plaintiffs’
Complaint, and therefore, denies same and demands strict proof thereof.
13. Defendant denies the allegations in paragraph 13 of Plaintiffs’ Complaint, and
demands strict proof thereof.CASE NO.: 19-CA-1995
Page 3
14. Defendant is without knowledge as to the allegations in paragraph 14 of Plaintiffs’
Complaint, and therefore, denies same and demands strict proof thereof.
15. As to the allegations in paragraph 15 of Plaintiff's Complaint, Defendant states that
Florida Statute §627.428 speaks for itself.
AFFIRMATIVE DEFENSES
UPC pleads limited affirmative defenses to the Petition. Under Florida law, a defendant is
entitled to defend its case in two ways: (1) by challenging a petitioner’s ability to prove the
essential elements of his or her claims, and (2) by asserting affirmative defenses that seek to justify
allegedly improper conduct, rather than to disprove it. In State v. Cohen, 568 So. 2d 49 (Fla. 1990),
the Florida Supreme Court explained the difference between affirmative defenses and defenses to
liability as follows:
An “affirmative defense” is any defense that assumes the complaint
or charges to be correct but raises other facts that, if true, would
establish a valid excuse or justification or a right to engage in the
conduct in question. An affirmative defense does not concern itself
with elements of the offense at all; it concedes them.
Id. at 51-52. The Court explained that defenses that argue “Yes, I did it, but I had a good
reason” are affirmative defenses, while those that simply argue “I did not do it” are not affirmative
defenses. Id. See also Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992) (explaining that,
under Florida law, “a ‘defense’ is any allegation raised by the defendant that, if true, would defeat
or avoid the Plaintiffs’ cause of action”). That said, Citizens pleads the following affirmative
defenses:
1 Affirmative Defense
Pursuant to its investigation of the claim, Citizens asserts it properly extended coverageCASE NO.: 19-CA-1995
Page 4
and issued payment via a credit against the Plaintiffs applicable hurricane deductible, thereby fully
indemnifying Plaintiffs for all covered damages sustained as a result of the subject loss in
accordance with the Policy’s terms, conditions, exclusions, and endorsements.
2" Affirmative Defense
Defendant asserts that pursuant to its investigation of the claim, it is unable to provide
coverage for loss caused by wear and tear or deterioration. The roof of the insured property was in
a deteriorated condition as the result of wear and tear. Further, it is Plaintiff's burden of proving
that the purported loss is not the product of mere wear and tear and deterioration. See, Homeowners
Choice Prop. Cas. V. Maspons, 211 So. 3d 1067 (Fla. 3d DCA 2017) (“[iJn Florida, the insured
has the burden of proving facts that bring its claim within an insurance policy’s affirmative grant
of coverage.”).
3" Affirmative Defense
Defendant asserts that pursuant to the terms of the policy, mediation is a condition
precedent to filing suit on the subject policy. The parties have not mediated prior to the initiation
of the lawsuit and therefore, Plaintiff has failed to meet a policy condition precedent to filing suit.
4 Affirmative Defense
Defendant asserts that Plaintiff fails to state a cause of action as Exhibit A to Plaintiffs
Complaint is incomplete, and therefore, the Complaint fails to comply with the requirements of
Florida Rule of Civil Procedure 1.130. Specifically, the document which is attached as Exhibit A
clearly shows in Article 7 that there is an addendum to the document, however, Plaintiff failed to
attach the addendum.
5" Affirmative Defense
Defendant asserts that in accordance with the terms of the Policy, UPC has no duty toCASE NO.: 19-CA-1995
Page 5
provide coverage under the Policy if the Insured fails to comply with listed duties, and that failure
to comply is prejudicial to UPC. Among the duties is the obligation to give prompt notice to
Citizens or the Insured’s Insurance Agent, and the obligation to keep an accurate record of repair
expenses. See Hope v. Citizens Property Ins. Corp., 114 So. 3d 457 (Fla. 3d DCA 2013. Here,
Defendant is prejudiced by Plaintiff's failure to give prompt notice of the loss.
6" Affirmative Defense
Defendant asserts it is only liable for the reasonable costs incurred by Plaintiff's assignor
for necessary measures taken solely to protect against further damage and to restore the damaged
property to its pre-loss condition. Here, the estimate submitted by Plaintiff contains unnecessary
and excessive charges. Accordingly, the charges are unreasonable or unnecessary to restore the
property to its pre-loss condition. Moreover, the rights as assignee are no greater than the rights of
the Insureds.
7 Affirmative Defense
Defendant asserts that its investigation of the claim showed no wind related damage to the
roof. The broken or cracked tiles on the roof of the subject property are less than one percent of
the roof area and therefore the 25 percent rule is not applicable.
Reservation of Defenses
Defendant expressly reserves the right to amend and/or add additional defenses and
affirmative defenses as discovery and investigation is ongoing.CASE NO.: 19-CA-1995
Page 6
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via the Florida e-Portal Electronic Notification System, and/or electronic mail, to all counsel of
record on the attached Service List, this 6" day of August, 2019.
LUKS, SANTANIELLO,
PETRILLO & JONES
Attorneys for Defendant
110S. E. 6th Street - 20th Floor
Fort Lauderdale, FL 33301
Telephone: (954) 761-9900
Facsimile: (954) 761-9940
By:/s/ Matthew G. Krause
MATTHEW G. KRAUSE
Florida Bar No.: 844225
LUKSFLL-Pleadings@LS-Law.com
SERVICE LIST
Attorneys for Plaintiff
Paris R. Webb, Esq.
ARNESEN WEBB, P.A.
197 S. Federal Highway, Suite 300
Boca Raton, Florida 33432
paris@insurancelawyers.com
eservice@insurancelawyers.com
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Filing # 93703887 E-Filed 08/06/2019 09:39:47 AM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CASE NO.: 19-CA-1995 ISLAND ROOFING AND RESTORATION, LLC (A/A/O SALVATORE PIRANIO), Plaintiff(s), v. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Defendant(s). UNITED PROPERTY & CASULATY INSURANCE COMPANY’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT Defendant, United Property & Casualty Insurance Company, (hereinafter “Defendant” or “UPC”), by and through undersigned counsel, hereby files its Answer and Affirmative Defenses to Plaintiffs’ Complaint, and in support states as follows: 1. Defendant admits the allegations in paragraph | of Plaintiffs’ Complaint only for the purpose of establishing jurisdiction; Defendant denies any remaining allegations and demands strict proof thereof. 2. Defendant is without knowledge as to the allegations in paragraph 2 of Plaintiffs’ Complaint, and therefore, denies same and demands strict proof thereof. 3. Admit. 4. Defendant admits the allegations in paragraph 4 of Plaintiffs’ Complaint only to the extent that it issued Policy No. UHV32303860301 for property located at 8482 Deimille Court, Naples, Florida 34114, which is limited by its terms, conditions, exclusions, exceptions, FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 08/06/2019 09:39:47 AM.CASE NO.: 19-CA-1995 Page 2 limitations, and endorsements. Defendant denies any remaining allegations and demands strict proof thereof. 5. Defendant is without knowledge as to the allegations in paragraph 5 of Plaintiffs’ Complaint, and therefore, denies same and demands strict proof thereof. 6. Defendant is without knowledge as to the allegations in paragraph 6 of Plaintiffs’ Complaint, and therefore, denies same and demands strict proof thereof. 7. Defendant admits the allegations in paragraph 7 of Plaintiffs’ Complaint only to the extent that it issued Policy No. UHV32303860301 with effective dates of October 21, 2016 to October 21, 2017 for property located at 8482 Deimille Court, Naples, Florida 34114; Defendant denies any remaining allegations, and demands strict proof thereof. 8. Defendant is without knowledge as to the allegations in paragraph 8 of Plaintiffs’ Complaint, and therefore denies same and demands strict proof thereof. 9. The Defendant admits the allegations in paragraph 8 of Plaintiffs’ Complaint only to the extent that Exhibit A to Plaintiff's Complaint speaks for itself; Defendant denies any remaining allegations and demands strict proof thereof. 10. Defendant denies the allegations in paragraph 10 of Plaintiffs’ Complaint, and demands strict proof thereof. ll. Admit. 12. Defendant is without knowledge as to the allegations in paragraph 12 of Plaintiffs’ Complaint, and therefore, denies same and demands strict proof thereof. 13. Defendant denies the allegations in paragraph 13 of Plaintiffs’ Complaint, and demands strict proof thereof.CASE NO.: 19-CA-1995 Page 3 14. Defendant is without knowledge as to the allegations in paragraph 14 of Plaintiffs’ Complaint, and therefore, denies same and demands strict proof thereof. 15. As to the allegations in paragraph 15 of Plaintiff's Complaint, Defendant states that Florida Statute §627.428 speaks for itself. AFFIRMATIVE DEFENSES UPC pleads limited affirmative defenses to the Petition. Under Florida law, a defendant is entitled to defend its case in two ways: (1) by challenging a petitioner’s ability to prove the essential elements of his or her claims, and (2) by asserting affirmative defenses that seek to justify allegedly improper conduct, rather than to disprove it. In State v. Cohen, 568 So. 2d 49 (Fla. 1990), the Florida Supreme Court explained the difference between affirmative defenses and defenses to liability as follows: An “affirmative defense” is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question. An affirmative defense does not concern itself with elements of the offense at all; it concedes them. Id. at 51-52. The Court explained that defenses that argue “Yes, I did it, but I had a good reason” are affirmative defenses, while those that simply argue “I did not do it” are not affirmative defenses. Id. See also Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992) (explaining that, under Florida law, “a ‘defense’ is any allegation raised by the defendant that, if true, would defeat or avoid the Plaintiffs’ cause of action”). That said, Citizens pleads the following affirmative defenses: 1 Affirmative Defense Pursuant to its investigation of the claim, Citizens asserts it properly extended coverageCASE NO.: 19-CA-1995 Page 4 and issued payment via a credit against the Plaintiffs applicable hurricane deductible, thereby fully indemnifying Plaintiffs for all covered damages sustained as a result of the subject loss in accordance with the Policy’s terms, conditions, exclusions, and endorsements. 2" Affirmative Defense Defendant asserts that pursuant to its investigation of the claim, it is unable to provide coverage for loss caused by wear and tear or deterioration. The roof of the insured property was in a deteriorated condition as the result of wear and tear. Further, it is Plaintiff's burden of proving that the purported loss is not the product of mere wear and tear and deterioration. See, Homeowners Choice Prop. Cas. V. Maspons, 211 So. 3d 1067 (Fla. 3d DCA 2017) (“[iJn Florida, the insured has the burden of proving facts that bring its claim within an insurance policy’s affirmative grant of coverage.”). 3" Affirmative Defense Defendant asserts that pursuant to the terms of the policy, mediation is a condition precedent to filing suit on the subject policy. The parties have not mediated prior to the initiation of the lawsuit and therefore, Plaintiff has failed to meet a policy condition precedent to filing suit. 4 Affirmative Defense Defendant asserts that Plaintiff fails to state a cause of action as Exhibit A to Plaintiffs Complaint is incomplete, and therefore, the Complaint fails to comply with the requirements of Florida Rule of Civil Procedure 1.130. Specifically, the document which is attached as Exhibit A clearly shows in Article 7 that there is an addendum to the document, however, Plaintiff failed to attach the addendum. 5" Affirmative Defense Defendant asserts that in accordance with the terms of the Policy, UPC has no duty toCASE NO.: 19-CA-1995 Page 5 provide coverage under the Policy if the Insured fails to comply with listed duties, and that failure to comply is prejudicial to UPC. Among the duties is the obligation to give prompt notice to Citizens or the Insured’s Insurance Agent, and the obligation to keep an accurate record of repair expenses. See Hope v. Citizens Property Ins. Corp., 114 So. 3d 457 (Fla. 3d DCA 2013. Here, Defendant is prejudiced by Plaintiff's failure to give prompt notice of the loss. 6" Affirmative Defense Defendant asserts it is only liable for the reasonable costs incurred by Plaintiff's assignor for necessary measures taken solely to protect against further damage and to restore the damaged property to its pre-loss condition. Here, the estimate submitted by Plaintiff contains unnecessary and excessive charges. Accordingly, the charges are unreasonable or unnecessary to restore the property to its pre-loss condition. Moreover, the rights as assignee are no greater than the rights of the Insureds. 7 Affirmative Defense Defendant asserts that its investigation of the claim showed no wind related damage to the roof. The broken or cracked tiles on the roof of the subject property are less than one percent of the roof area and therefore the 25 percent rule is not applicable. Reservation of Defenses Defendant expressly reserves the right to amend and/or add additional defenses and affirmative defenses as discovery and investigation is ongoing.CASE NO.: 19-CA-1995 Page 6 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via the Florida e-Portal Electronic Notification System, and/or electronic mail, to all counsel of record on the attached Service List, this 6" day of August, 2019. LUKS, SANTANIELLO, PETRILLO & JONES Attorneys for Defendant 110S. E. 6th Street - 20th Floor Fort Lauderdale, FL 33301 Telephone: (954) 761-9900 Facsimile: (954) 761-9940 By:/s/ Matthew G. Krause MATTHEW G. KRAUSE Florida Bar No.: 844225 LUKSFLL-Pleadings@LS-Law.com SERVICE LIST Attorneys for Plaintiff Paris R. Webb, Esq. ARNESEN WEBB, P.A. 197 S. Federal Highway, Suite 300 Boca Raton, Florida 33432 paris@insurancelawyers.com eservice@insurancelawyers.com