Preview
Filing # 103679428 E-Filed 02/21/2020 09:50:45 AM
IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT IN AND FOR COLLIER
COUNTY, FLORIDA
CASE NO.: 2019-ca-4995
TIMOTHY GORMAN AND.
CATHERINE GORMAN,
Plaintiffs,
v.
TOWER HILL PRIME INSURANCE COMPANY,
Defendant(s).
DEFENDANT'S AMENDED AFFIRMATIVE DEFENSES
TO PLAINTIFF'S COMPLAINT
Defendant, TOWER HILL PRIME INSURANCE COMPANY (“Tower Hill”), files its
amended affirmative defenses to plaintiff's complaint.
AMENDED AFFIRMATIVE DEFENSES
1. Tower Hill asserts that damages resulting from wear and tear, marring, deterioration,
settling, shrinking, bulging or expansion are excluded, per the following or similar
provision in the Policy:
“Coverage A — Dwelling and Coverage B — Other Structures
We insure against risk of direct loss to property described in Coverages A and B only
if that loss is a physical loss to property. We do not insure, however, for loss:
2. Caused by:
e. Any of the following:
(1) Wear and tear, marring, deterioration;
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 02/21/2020 03:08:50 PMCase No.: «CAPTIONS _CASENOCAPT»
Page 2
(6) Settling, shrinking, bulging or expansion, including resultant cracking
of payments, patios, foundations, walls, floors, roofs or ceilings;"
The Plaintiff's roofing system was inspected by Rimkus Consulting Group, Inc. on
October 24, 2019 and a storm damage assessment of the Insured’s claimed property
damages was completed. The roofing system was not found to display evidence of wind
related or impact related damage resulting from Hurricane Irma. The roofing tiles
displayed corner cracks attributable primarily to footfall, age related deterioration and
thermal expansion, and as the policy language above indicates, no coverage is afforded
under the Policy for wear and tear and deterioration. (See Policy HO 00 03 04 91 — Section
| Perils Insured Against).
Although the roofing system may require some repair, the damages are not the
result of Hurricane Irma.
2. Tower Hill asserts that the perils insured against does not include loss to the interior
of a building or the property contained in a building caused by rain, snow, sleet,
sand or dust unless the direct force of wind or hail first damages the building
causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters
through this opening. The inspection of the Property by Rimkus Consulting Group,
Inc. found that the reported interior leaks were attributable to underlayment
deficiencies, thus the reported moisture intrusion was not caused by a storm-
created opening. (See Policy HO 00 03 04 91 — Section | Perils Insured Against).Case No.: «CAPTIONS _CASENOCAPT»
Page 3
3. Tower Hill asserts that pre-existing damages are excluded per the following
endorsement or similar in the policy:
“It is understood and agreed that this policy is not intended to and does not
provide coverage for any damages which occurred prior to policy inception
regardless of whether such damages were apparent at the time of the inception
of this policy.
It is also understood and agreed that this policy is not intended to and does not
provide coverage for any claims or damages arising out of workmanship, repairs
and/or lack of repairs arising from damage which occurred prior to policy
inception.
This endorsement applies to all coverages under this policy."
(See Policy RU213HO US 11 04 - Existing Damage Exclusion Endorsement)
4. Tower Hill is entitled to set off from any judgment and/or amounts (which the
Defendant expressly denies and disputes) based on the applicable deductible under
the Policy. (See Policy HO 00 03 04 91, Section | - Conditions).
5. The Plaintiff's claims are bared in whole and/or in part, to the extent that the
damages claimed (which the Defendant expressly denies and disputes) are the result
of and/or were exacerbated by the Plaintiff failure to mitigate and/or protect and/or
make proper repairs to the subject property, which caused prejudice to the
Defendant.
6. Tower Hill asserts that it does not insure for loss caused directly or indirectly by
faulty, inadequate or defective design, specifications, workmanship, repair, or
construction pursuant to the terms and conditions of the insurance policy. (See
Policy HO 00 03 04 91, Section | - Exclusions). The inspection of the Property byCase No.: «CAPTIONS _CASENOCAPT»
Page 4
Rimkus Consulting Group, Inc. found that loose cap tiles were caused by inadequate
application of the mortar.
7. The Plaintiffs’ failure to comply with policy conditions precludes recovery under the
policy. Specifically, the Plaintiffs failed to provide prompt notice of the loss by not
reporting the loss until October 10, 2019. (See Policy HO 00 03 04 91, Section | -
Conditions).
RESERVATION OF RIGHTS
TOWER HILL reserves its right to amend its affirmative defenses and to assert additional
affirmative defenses as warranted by the discovery of additional information or to the extent
otherwise necessary in accordance with the applicable rules of civil procedure.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via Electronic Mail, to all counsel of record on the attached Service List, this 21°" day of February,
2020.
LUKS, SANTANIELLO, PETRILLO & COHEN
Attorneys for Defendant
}422 HENDRY STREET
HIRD FLOOR
FORT MYERS, FL 33901
elephone: (239) 561-2828
Facsimile: (239) 561-2841
By: ‘s/ David G. Jones, Esq.Case No.: «CAPTIONS _CASENOCAPT»
Page 5
Howard W. Holden
Florida Bar No.: 814067
David G. Jones
Florida Bar No.: 1010525
LUKSFTM-Pleadings@Is-law.com
DJones@insurancedefense.net
CStrub@insurancedefense.net
SERVICE LIST
GEYER FUXA TYLER
Jeremy F. Tyler, Esq.
490 Sawgrass Corporate Parkway, Ste. 110
Sunrise, FL 33325
pleadings@gftlawfirm.com
jeremy.tyler@aftlawfirm.com
Preview
Filing # 103679428 E-Filed 02/21/2020 09:50:45 AM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CASE NO.: 2019-ca-4995 TIMOTHY GORMAN AND. CATHERINE GORMAN, Plaintiffs, v. TOWER HILL PRIME INSURANCE COMPANY, Defendant(s). DEFENDANT'S AMENDED AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT Defendant, TOWER HILL PRIME INSURANCE COMPANY (“Tower Hill”), files its amended affirmative defenses to plaintiff's complaint. AMENDED AFFIRMATIVE DEFENSES 1. Tower Hill asserts that damages resulting from wear and tear, marring, deterioration, settling, shrinking, bulging or expansion are excluded, per the following or similar provision in the Policy: “Coverage A — Dwelling and Coverage B — Other Structures We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. We do not insure, however, for loss: 2. Caused by: e. Any of the following: (1) Wear and tear, marring, deterioration; FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 02/21/2020 03:08:50 PMCase No.: «CAPTIONS _CASENOCAPT» Page 2 (6) Settling, shrinking, bulging or expansion, including resultant cracking of payments, patios, foundations, walls, floors, roofs or ceilings;" The Plaintiff's roofing system was inspected by Rimkus Consulting Group, Inc. on October 24, 2019 and a storm damage assessment of the Insured’s claimed property damages was completed. The roofing system was not found to display evidence of wind related or impact related damage resulting from Hurricane Irma. The roofing tiles displayed corner cracks attributable primarily to footfall, age related deterioration and thermal expansion, and as the policy language above indicates, no coverage is afforded under the Policy for wear and tear and deterioration. (See Policy HO 00 03 04 91 — Section | Perils Insured Against). Although the roofing system may require some repair, the damages are not the result of Hurricane Irma. 2. Tower Hill asserts that the perils insured against does not include loss to the interior of a building or the property contained in a building caused by rain, snow, sleet, sand or dust unless the direct force of wind or hail first damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening. The inspection of the Property by Rimkus Consulting Group, Inc. found that the reported interior leaks were attributable to underlayment deficiencies, thus the reported moisture intrusion was not caused by a storm- created opening. (See Policy HO 00 03 04 91 — Section | Perils Insured Against).Case No.: «CAPTIONS _CASENOCAPT» Page 3 3. Tower Hill asserts that pre-existing damages are excluded per the following endorsement or similar in the policy: “It is understood and agreed that this policy is not intended to and does not provide coverage for any damages which occurred prior to policy inception regardless of whether such damages were apparent at the time of the inception of this policy. It is also understood and agreed that this policy is not intended to and does not provide coverage for any claims or damages arising out of workmanship, repairs and/or lack of repairs arising from damage which occurred prior to policy inception. This endorsement applies to all coverages under this policy." (See Policy RU213HO US 11 04 - Existing Damage Exclusion Endorsement) 4. Tower Hill is entitled to set off from any judgment and/or amounts (which the Defendant expressly denies and disputes) based on the applicable deductible under the Policy. (See Policy HO 00 03 04 91, Section | - Conditions). 5. The Plaintiff's claims are bared in whole and/or in part, to the extent that the damages claimed (which the Defendant expressly denies and disputes) are the result of and/or were exacerbated by the Plaintiff failure to mitigate and/or protect and/or make proper repairs to the subject property, which caused prejudice to the Defendant. 6. Tower Hill asserts that it does not insure for loss caused directly or indirectly by faulty, inadequate or defective design, specifications, workmanship, repair, or construction pursuant to the terms and conditions of the insurance policy. (See Policy HO 00 03 04 91, Section | - Exclusions). The inspection of the Property byCase No.: «CAPTIONS _CASENOCAPT» Page 4 Rimkus Consulting Group, Inc. found that loose cap tiles were caused by inadequate application of the mortar. 7. The Plaintiffs’ failure to comply with policy conditions precludes recovery under the policy. Specifically, the Plaintiffs failed to provide prompt notice of the loss by not reporting the loss until October 10, 2019. (See Policy HO 00 03 04 91, Section | - Conditions). RESERVATION OF RIGHTS TOWER HILL reserves its right to amend its affirmative defenses and to assert additional affirmative defenses as warranted by the discovery of additional information or to the extent otherwise necessary in accordance with the applicable rules of civil procedure. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic Mail, to all counsel of record on the attached Service List, this 21°" day of February, 2020. LUKS, SANTANIELLO, PETRILLO & COHEN Attorneys for Defendant }422 HENDRY STREET HIRD FLOOR FORT MYERS, FL 33901 elephone: (239) 561-2828 Facsimile: (239) 561-2841 By: ‘s/ David G. Jones, Esq.Case No.: «CAPTIONS _CASENOCAPT» Page 5 Howard W. Holden Florida Bar No.: 814067 David G. Jones Florida Bar No.: 1010525 LUKSFTM-Pleadings@Is-law.com DJones@insurancedefense.net CStrub@insurancedefense.net SERVICE LIST GEYER FUXA TYLER Jeremy F. Tyler, Esq. 490 Sawgrass Corporate Parkway, Ste. 110 Sunrise, FL 33325 pleadings@gftlawfirm.com jeremy.tyler@aftlawfirm.com