Preview
Filing # 109822151 E-Filed 07/06/2020 03:02:11 PM
IN THE CIRCUIT COURT FOR THE
20TH JUDICIAL CIRCUIT IN
AND FOR COLLIER COUNTY,
FLORIDA
CASE NO.: 11-2019-CA-005029-0001-
XX
Lewis Smith and Suzanne Smith,
Plaintiffs,
v.
Ark Royal Insurance Company,
Defendant.
/
MOTION TO STRIKE DEFENDANT’S ANSWER TO
PARAGRAPH 5 OF PLAINTIFFS’ COMPLAINT
Plaintiffs, Lewis Smith and Suzanne Smith, move this Court to strike Paragraph 5
of Defendant’s Answer and as grounds therefore states as follows:
1. This is an action for damages as a result of damage to a property insured by Ark
Royal Insurance Company.
2. Defendant has generally denied the allegations of Paragraph 5 of Plaintiffs’
Complaint.
3. Plaintiffs’ Complaint states as follows:
5. All conditions precedent to the filing of this lawsuit have occurred,
have been waived or have been performed.
See Exhibit A, Amended Complaint.
4. Defendant’s Answer states as follows:
5. Denied as phrased.
See Exhibit B, Answer and Affirmative Defenses.
5. Florida Rule of Civil Procedure 1.120(c) permits the plaintiff to plead performance
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 07/06/2020 03:02:11 PMof conditions precedent in general terms. If a defendant wishes to deny such performance,
the denial must be alleged “specifically and with particularity.” Cooke v. Ins. Co. of N.
Am., 652 So. 2d 1154, 1156 (Fla. 2d DCA 1995).
6. Defendant denies Plaintiffs’ allegation that all conditions precedent to the filing of
the lawsuit have been complied with or otherwise waived. See Exhibit A, P.2 75. Fla. R.
Civ. Pro. 1.120(c) requires that a denial of occurrence or performance of a condition
precedent shall be made with particularity. Since Defendant fails to allege the denial of
the condition precedent with particularity, the denial should be stricken.
7. Furthermore, conditions precedent are those conditions that occur before the risk
has attached and the insurance contract has become effective. See State Farm Mut. Auto.
Ins. Co. v. Curran, 135 So. 3d 1071, 1078 (Fla. 2014) (stating that [a] condition precedent
is one that is to be performed before the contract becomes effective. Conditions subsequent
are those that pertain not to the attachment of the risk and the inception of the policy but to
the contract of insurance after the risk has attached and during the existence thereof.)
8. Defendant cannot deny that the conditions precedent have been complied with
because Defendant admits that the insurance contract was in effect, see § 6, Exhibit B, and
Defendant has also admitted that Plaintiffs and Defendant entered into a contract, see ¥ 14,
Exhibit B. Conditions precedent, as stated in Curran, are those that necessarily occur before
the contract becomes effective.
WHEREFORE, Plaintiffs move this Honorable Court to strike Paragraph 5 of the Answer
and for all other relief as this Court deems just and proper.CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was served by
email on July 6, 2020, to Melanie Parfait, Esquire, melanie.parfait@csklegal.com, and we
electronically filed the foregoing with the Clerk of Miami-Dade County by using the
Florida Courts eFiling Portal.
Alvarez Law Group
Counsel for the Insured(s)
7750 SW 117th Ave., Suite 206
Miami, FL 33183
Tel.: 786-620-2820
/s/ Daniel A. Alvarez
Daniel A. Alvarez, Esq.
Florida Bar No. 58842
dalvarez@alvarez.legalFiling # 108295404 E-Filed 06/02/2020 11:14:46 PM
IN THE CIRCUIT COURT FOR THE
20TH JUDICIAL CIRCUIT IN AND
FOR COLLIER COUNTY, FLORIDA
CASE NO.: 11-2019-CA-005029-0001-XX
Lewis Smith and Suzanne Smith,
Plaintiffs,
v.
Ark Royal Insurance Company,
Defendant.
AMENDED COMPLAINT FOR BREACH OF CONTRACT
(Amending Defendant Name)
Plaintiffs, Lewis Smith and Suzanne Smith (the "Insureds"), hereby sue Defendant, Ark Royal
Insurance Company (the "Insurance Company"), and allege as follows:
PARTIES, JURISDICTION AND VENUE
1. This is an action for damages that is more than $15,000.00 exclusive of interest, costs and
attorney's fees.
2. The Insureds are individuals who at all times material hereto have resided in Collier County,
Florida.
3. The Insurance Company is qualified to do business in Florida and has, at all times material
hereto, been conducting business in Collier County, Florida.
4. Venue is proper in Collier County, Florida because the contract, which forms the subject
matter of this lawsuit, was executed in Collier County, Florida.
Exhibit A5. All conditions precedent to the filing of this lawsuit have occurred, have been
waived or have been performed.
GENERAL ALLEGATIONS
6. Atall times material hereto, in consideration of a premium paid by the Insureds, there was in
full force and effect a certain homeowners insurance policy issued by the Insurance Company
with a policy number of ARK176179 (the "Policy"). The policy is incorporated into the Complaint.
The Insured is not in possession of a complete copy of the insurance policy. The Insured reserves
the right to file a complete copy of the policy once secured through discovery.
7. Accordingly, under the terms of the Policy, the Insurance Company agreed to provide
insurance coverage to the Insureds’ property pursuant to the terms of the policy. The damaged
property is located at 8723 Gleneagle Way Naples, Fl 34120 (the "Property").
8. On or about 09/10/2017, while the Policy was in full force and effect, the Property sustained
a covered loss as a result of Hurricane Irma (the "Loss").
9. The Insurance Company assigned claim number 552930-18101 to the Loss.
10. Subsequently, the Insurance Company informed the Insureds that coverage did not exist. After
diligent inspection of the Loss, it was obvious that the Property sustained damage which the
Insurance Company agreed to provide coverage for under the terms of the Policy but which the
Insurance Company failed to indemnify for.
11. As a result of the foregoing, the Insurance Company has breached the Policy.
Exhibit A12. The Insureds have suffered and continue to suffer damages resulting from Insurance
Company's breach of the Policy.
13. The Insureds have been obligated to retain the undersigned attorneys for the prosecution
of this action and are entitled to a reasonable attorney's fee pursuant to Florida Statute Section
627.428.
COUNTI
BREACH OF CONTRACT
The Insureds reincorporate paragraphs 1 through 13 as if fully set forth herein.
14. It is undisputed that the Insureds and the Insurance Company entered into a written
contract, the Policy, wherein the Insureds agreed to pay a premium and the Insurance Company
agreed to insure the Insureds’ Property.
15. The Insureds have paid all premiums due and owing as contemplated by the Policy; thus,
fully performing their obligations under the Policy.
16. The Insureds’ Property sustained damage which the Insurance Company agreed to provide
coverage for under the terms of the Policy.
17. Furthermore, at all times material hereto, the Insureds have satisfied all post-loss obligations
to the best of their ability in accordance with the Policy.
18. In contrast, the Insurance Company has failed to: (i) acknowledge coverage for a portion of
the Loss; and/or (ii) pay Insureds a sufficient amount for the loss. As a result of the foregoing, the
Insurance Company has breached the Policy.
Exhibit A19. As a direct and proximate result of the Insurance Company’s breach of the policy, the
Insureds have sustained damages.
WHEREFORE, the Insureds respectfully request that this Court, enter judgment against the
Insurance Company for damages, plus pre-judgment interest, court costs and reasonable attorney's
fees pursuant to Section 627.428, Florida Statutes.
JURY TRIAL DEMAND
The Insureds hereby demand a trial by jury on all issues so triable.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was served via electronic
mail on June 3, 2020, to Jose F Campos, Esquire, jose.campos@csklegal.com, and we electronically
filed the foregoing with the Clerk of Courts by using the Florida Courts eFiling Portal.
Alvarez Law Group
Counsel for the Insured
7750 SW 117th Ave., Suite 206
Miami, FL 33183
Tel.: 786-620-2820
/s/ Daniel A. Alvarez
Daniel A. Alvarez, Esq.
Florida Bar No. 58842
dalvarez@alvarez.legal
Exhibit AFiling # 108856917 E-Filed 06/15/2020 12:42:55 PM
IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA
CASE NO.: 19-CA-005029
LEWIS SMITH AND SUZANNE SMITH,
Plaintiffs,
v.
ARK ROYAL INSURANCE COMPANY,
Defendant.
/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED
COMPLAINT FOR BREACH OF CONTRACT
COMES NOW Defendant, ARK ROYAL INSURANCE COMPANY, by and through
its undersigned counsel, files its Answer and Affirmative Defenses to the Amended
Complaint. For purposes of this Answer, all allegations not specifically admitted are
deemed denied.
PARTIES, JURISDICTION, AND VENUE
1. Admitted for jurisdictional purposes only; otherwise denied.
2. Without knowledge; therefore denied.
Admitted.
Admitted for venue purposes only; otherwise denied.
a & &
Denied as phrased.
GENERAL ALLEGATIONS
6. Admitted that Defendant issued policy with policy number ARK176179, to the
insureds, subject to the terms, conditions, limitations and exclusions contained
Page 1
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX
Exhibit BCASE NO.: 19-CA-005029
Defendant's Answer & Affirmative Defenses to
Plaintiffs Amended Complaint
therein, for the property located at 8723 GLENEAGLE WAY, NAPLES, FL
34120-1676, with effective dates of 12/21/2016 to 12/21/2017; otherwise,
denied.
7. Admitted that Defendant issued policy with policy number ARK176179, to the
insureds, subject to the terms, conditions, limitations and exclusions contained
therein, for the property located at 8723 GLENEAGLE WAY, NAPLES, FL
34120-1676, with effective dates of 12/21/2016 to 12/21/2017; otherwise,
denied.
8. Admitted that Defendant issued policy with policy number ARK176179, to the
insureds, subject to the terms, conditions, limitations and exclusions contained
therein, for the property located at 8723 GLENEAGLE WAY, NAPLES, FL
34120-1676, with effective dates of 12/21/2016 to 12/21/2017; otherwise,
denied.
9. Admitted.
10. Denied.
11.Denied.
12. Denied.
13. Denied.
COUNT 1
BREACH OF CONTRACT
The Defendant reincorporates paragraphs 1 through 13 as if fully set forth herein.
14. Admitted that Defendant issued policy with policy number ARK176179, to the
insureds, subject to the terms, conditions, limitations and exclusions contained
Page 2
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX
Exhibit BCASE NO.: 19-CA-005029
Defendant's Answer & Affirmative Defenses to
Plaintiffs Amended Complaint
therein, for the property located at 8723 GLENEAGLE WAY, NAPLES, FL
34120-1676, with effective dates of 12/21/2016 to 12/21/2017; otherwise,
denied.
15. Denied as phrased.
16. Denied as phrased.
17.Denied as phrased.
18. Denied.
19. Denied.
Defendant denies every allegation contained in Plaintiffs WHEREFORE clause
AFFIRMATIVE DEFENSES
. Defendant is entitled to set off any and all funds paid and also pursuant to the
Hurricane Deductible as provided by the policy of insurance.
. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss
and/or damage was caused by wear, tear, and deterioration, which are excluded
under the subject policy. In support, Defendant refers to the policy, which states:
PERILS INSURED AGAINST
COVERAGE A — DWELLING and
COVERAGE B —- OTHER STRUCTURES
We insure for sudden and accidental direct loss to property
described in Coverages A and B only if that loss is a physical
loss to covered property. We do not insure, however, for
loss:
2. Caused by:
Page 3
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX
Exhibit BCASE NO.: 19-CA-005029
Defendant's Answer & Affirmative Defenses to
Plaintiffs Amended Complaint
e. Any of the following:
(1) Wear and tear, marring, deterioration;
3. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss
and/or damage was caused by inherent vice, latent defect, mechanical
breakdown, which are excluded under the subject policy. In support, Defendant
refers to the policy, which states:
PERILS INSURED AGAINST
COVERAGE A — DWELLING and
COVERAGE B - OTHER STRUCTURES
We insure for sudden and accidental direct loss to property
described in Coverages A and B only if that loss is a physical
loss to covered property. We do not insure, however, for
loss:
2. Caused by:
e. Any of the following:
(2) Inherent vice, latent defect, mechanical breakdown;
3. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss
and/or damage was caused by Smog, rust or other corrosion, “fungi”, mold, wet or
dry rot, which are excluded under the subject policy. In support, Defendant refers
to the policy, which states:
PERILS INSURED AGAINST
COVERAGE A — DWELLING and
COVERAGE B - OTHER STRUCTURES
We insure for sudden and accidental direct loss to property
described in Coverages A and B only if that loss is a physical
Page 4
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX
Exhibit BCASE NO.: 19-CA-005029
Defendant's Answer & Affirmative Defenses to
Plaintiffs Amended Complaint
loss to covered property. We do not insure, however, for
loss:
2. Caused by:
e. Any of the following:
(3) Smog, rust or other corrosion, “fungi”, mold, wet or dry
rot,
4. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss
and/or damage was caused by Settling, shrinking, bulging or expansion, including
resultant cracking, of pavements, patios, foundations, walls, floors, roofs or
ceilings, which are excluded under the subject policy. In support, Defendant refers
to the policy, which states:
SECTION I —- PERILS INSURED AGAINST
COVERAGE A — DWELLING and
COVERAGE B - OTHER STRUCTURES
We insure for sudden and accidental direct loss to property
described in Coverages A and B only if that loss is a physical
loss to covered property. We do not insure, however, for
loss:
2. Caused by:
e. Any of the following:
(6) Settling, shrinking, bulging or expansion,
including resultant cracking, of pavements,
Page 5
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX
Exhibit BCASE NO.: 19-CA-005029
Defendant's Answer & Affirmative Defenses to
Plaintiffs Amended Complaint
patios, foundations, walls, floors, roofs or
ceilings;
5. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss
and/or damage was caused by Birds, vermin, rodents, or insects, which are
excluded under the subject policy. In support, Defendant refers to the policy, which
states:
SECTION I —- PERILS INSURED AGAINST
COVERAGE A — DWELLING and
COVERAGE B - OTHER STRUCTURES
We insure for sudden and accidental direct loss to property
described in Coverages A and B only if that loss is a physical
loss to covered property. We do not insure, however, for
loss:
2. Caused by:
e. Any of the following:
(7) Birds, vermin, rodents, or insects; or
6. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss
and/or damage is excluded under General Exclusions under the subject policy. In
support, Defendant refers to the policy, which states:
PERILS INSURED AGAINST
COVERAGE A — DWELLING and
COVERAGE B - OTHER STRUCTURES
We insure for sudden and accidental direct loss to property
described in Coverages A and B only if that loss is a physical
Page 6
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX
Exhibit BCASE NO.: 19-CA-005029
Defendant's Answer & Affirmative Defenses to
Plaintiffs Amended Complaint
loss to covered property. We do not insure, however, for
loss:
3. Excluded under Section I- Exclusions.
Under items 1. And 2., any ensuing loss to
property described in Coverages A and B not
Excluded or expected in this policy is covered.
7. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss
and/or damage was caused by faulty, inadequate or defective (1) Planning, zoning,
development, surveying, (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”. In support, Defendant
refers to the policy provision, which states:
SECTION I- EXCLUSIONS
2. We do not insure for loss to property described in Coverage A
and B caused by any of the following. However, any ensuing loss to
property described in Coverage A and B not excluded or excepted
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.”
DEMAND FOR TRIAL BY JURY
The Defendant demands a trial by jury of all issues so triable.
Page 7
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX
Exhibit BCASE NO.: 19-CA-005029
Defendant's Answer & Affirmative Defenses to
Plaintiffs Amended Complaint
RESERVATION OF RIGHT TO AMEND
Defendant hereby reserves the right to amend and supplement its Answer to
Plaintiffs’ Complaint with additional defenses pending the outcome of discovery, if any, in
this matter.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 15th day of June, 2020, a true and correct copy
of the foregoing was filed with the Clerk of Collier County by using the Florida Courts e-
Filing Portal, which will send an automatic e-mail message to the following parties
registered with the e-Filing Portal system: Daniel A. Alvarez; Alvarez Law Group; 7750
SW 117 Avenue, Suite 206; Miami, FL 33183; 786-620-2820; DAlvarez@alvarez.legal
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant ARK ROYAL INSURANCE
COMPANY
Lakeside Office Center, Suite 500
600 North Pine Island Road
Plantation, Florida 33324
Telephone (954) 225-8146
Facsimile (954) 474-7979
Primary e-mail: jose.campos@csklegal.com
raimundo.ytulvide@csklegal.com
By: s/ Raimundo-A. Ytulvide
JOSE F. CAMPOS
Florida Bar No.: 110733
RAIMUNDO A. YTULVIDE
Florida Bar No.: 1014987
0675.0311-00/17584722
Page 8
COLE, SCOTT & KISSANE, P.A.
LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX
Exhibit B
Preview
Filing # 109822151 E-Filed 07/06/2020 03:02:11 PM IN THE CIRCUIT COURT FOR THE 20TH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CASE NO.: 11-2019-CA-005029-0001- XX Lewis Smith and Suzanne Smith, Plaintiffs, v. Ark Royal Insurance Company, Defendant. / MOTION TO STRIKE DEFENDANT’S ANSWER TO PARAGRAPH 5 OF PLAINTIFFS’ COMPLAINT Plaintiffs, Lewis Smith and Suzanne Smith, move this Court to strike Paragraph 5 of Defendant’s Answer and as grounds therefore states as follows: 1. This is an action for damages as a result of damage to a property insured by Ark Royal Insurance Company. 2. Defendant has generally denied the allegations of Paragraph 5 of Plaintiffs’ Complaint. 3. Plaintiffs’ Complaint states as follows: 5. All conditions precedent to the filing of this lawsuit have occurred, have been waived or have been performed. See Exhibit A, Amended Complaint. 4. Defendant’s Answer states as follows: 5. Denied as phrased. See Exhibit B, Answer and Affirmative Defenses. 5. Florida Rule of Civil Procedure 1.120(c) permits the plaintiff to plead performance FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 07/06/2020 03:02:11 PMof conditions precedent in general terms. If a defendant wishes to deny such performance, the denial must be alleged “specifically and with particularity.” Cooke v. Ins. Co. of N. Am., 652 So. 2d 1154, 1156 (Fla. 2d DCA 1995). 6. Defendant denies Plaintiffs’ allegation that all conditions precedent to the filing of the lawsuit have been complied with or otherwise waived. See Exhibit A, P.2 75. Fla. R. Civ. Pro. 1.120(c) requires that a denial of occurrence or performance of a condition precedent shall be made with particularity. Since Defendant fails to allege the denial of the condition precedent with particularity, the denial should be stricken. 7. Furthermore, conditions precedent are those conditions that occur before the risk has attached and the insurance contract has become effective. See State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071, 1078 (Fla. 2014) (stating that [a] condition precedent is one that is to be performed before the contract becomes effective. Conditions subsequent are those that pertain not to the attachment of the risk and the inception of the policy but to the contract of insurance after the risk has attached and during the existence thereof.) 8. Defendant cannot deny that the conditions precedent have been complied with because Defendant admits that the insurance contract was in effect, see § 6, Exhibit B, and Defendant has also admitted that Plaintiffs and Defendant entered into a contract, see ¥ 14, Exhibit B. Conditions precedent, as stated in Curran, are those that necessarily occur before the contract becomes effective. WHEREFORE, Plaintiffs move this Honorable Court to strike Paragraph 5 of the Answer and for all other relief as this Court deems just and proper.CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was served by email on July 6, 2020, to Melanie Parfait, Esquire, melanie.parfait@csklegal.com, and we electronically filed the foregoing with the Clerk of Miami-Dade County by using the Florida Courts eFiling Portal. Alvarez Law Group Counsel for the Insured(s) 7750 SW 117th Ave., Suite 206 Miami, FL 33183 Tel.: 786-620-2820 /s/ Daniel A. Alvarez Daniel A. Alvarez, Esq. Florida Bar No. 58842 dalvarez@alvarez.legalFiling # 108295404 E-Filed 06/02/2020 11:14:46 PM IN THE CIRCUIT COURT FOR THE 20TH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CASE NO.: 11-2019-CA-005029-0001-XX Lewis Smith and Suzanne Smith, Plaintiffs, v. Ark Royal Insurance Company, Defendant. AMENDED COMPLAINT FOR BREACH OF CONTRACT (Amending Defendant Name) Plaintiffs, Lewis Smith and Suzanne Smith (the "Insureds"), hereby sue Defendant, Ark Royal Insurance Company (the "Insurance Company"), and allege as follows: PARTIES, JURISDICTION AND VENUE 1. This is an action for damages that is more than $15,000.00 exclusive of interest, costs and attorney's fees. 2. The Insureds are individuals who at all times material hereto have resided in Collier County, Florida. 3. The Insurance Company is qualified to do business in Florida and has, at all times material hereto, been conducting business in Collier County, Florida. 4. Venue is proper in Collier County, Florida because the contract, which forms the subject matter of this lawsuit, was executed in Collier County, Florida. Exhibit A5. All conditions precedent to the filing of this lawsuit have occurred, have been waived or have been performed. GENERAL ALLEGATIONS 6. Atall times material hereto, in consideration of a premium paid by the Insureds, there was in full force and effect a certain homeowners insurance policy issued by the Insurance Company with a policy number of ARK176179 (the "Policy"). The policy is incorporated into the Complaint. The Insured is not in possession of a complete copy of the insurance policy. The Insured reserves the right to file a complete copy of the policy once secured through discovery. 7. Accordingly, under the terms of the Policy, the Insurance Company agreed to provide insurance coverage to the Insureds’ property pursuant to the terms of the policy. The damaged property is located at 8723 Gleneagle Way Naples, Fl 34120 (the "Property"). 8. On or about 09/10/2017, while the Policy was in full force and effect, the Property sustained a covered loss as a result of Hurricane Irma (the "Loss"). 9. The Insurance Company assigned claim number 552930-18101 to the Loss. 10. Subsequently, the Insurance Company informed the Insureds that coverage did not exist. After diligent inspection of the Loss, it was obvious that the Property sustained damage which the Insurance Company agreed to provide coverage for under the terms of the Policy but which the Insurance Company failed to indemnify for. 11. As a result of the foregoing, the Insurance Company has breached the Policy. Exhibit A12. The Insureds have suffered and continue to suffer damages resulting from Insurance Company's breach of the Policy. 13. The Insureds have been obligated to retain the undersigned attorneys for the prosecution of this action and are entitled to a reasonable attorney's fee pursuant to Florida Statute Section 627.428. COUNTI BREACH OF CONTRACT The Insureds reincorporate paragraphs 1 through 13 as if fully set forth herein. 14. It is undisputed that the Insureds and the Insurance Company entered into a written contract, the Policy, wherein the Insureds agreed to pay a premium and the Insurance Company agreed to insure the Insureds’ Property. 15. The Insureds have paid all premiums due and owing as contemplated by the Policy; thus, fully performing their obligations under the Policy. 16. The Insureds’ Property sustained damage which the Insurance Company agreed to provide coverage for under the terms of the Policy. 17. Furthermore, at all times material hereto, the Insureds have satisfied all post-loss obligations to the best of their ability in accordance with the Policy. 18. In contrast, the Insurance Company has failed to: (i) acknowledge coverage for a portion of the Loss; and/or (ii) pay Insureds a sufficient amount for the loss. As a result of the foregoing, the Insurance Company has breached the Policy. Exhibit A19. As a direct and proximate result of the Insurance Company’s breach of the policy, the Insureds have sustained damages. WHEREFORE, the Insureds respectfully request that this Court, enter judgment against the Insurance Company for damages, plus pre-judgment interest, court costs and reasonable attorney's fees pursuant to Section 627.428, Florida Statutes. JURY TRIAL DEMAND The Insureds hereby demand a trial by jury on all issues so triable. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was served via electronic mail on June 3, 2020, to Jose F Campos, Esquire, jose.campos@csklegal.com, and we electronically filed the foregoing with the Clerk of Courts by using the Florida Courts eFiling Portal. Alvarez Law Group Counsel for the Insured 7750 SW 117th Ave., Suite 206 Miami, FL 33183 Tel.: 786-620-2820 /s/ Daniel A. Alvarez Daniel A. Alvarez, Esq. Florida Bar No. 58842 dalvarez@alvarez.legal Exhibit AFiling # 108856917 E-Filed 06/15/2020 12:42:55 PM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CASE NO.: 19-CA-005029 LEWIS SMITH AND SUZANNE SMITH, Plaintiffs, v. ARK ROYAL INSURANCE COMPANY, Defendant. / DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT FOR BREACH OF CONTRACT COMES NOW Defendant, ARK ROYAL INSURANCE COMPANY, by and through its undersigned counsel, files its Answer and Affirmative Defenses to the Amended Complaint. For purposes of this Answer, all allegations not specifically admitted are deemed denied. PARTIES, JURISDICTION, AND VENUE 1. Admitted for jurisdictional purposes only; otherwise denied. 2. Without knowledge; therefore denied. Admitted. Admitted for venue purposes only; otherwise denied. a & & Denied as phrased. GENERAL ALLEGATIONS 6. Admitted that Defendant issued policy with policy number ARK176179, to the insureds, subject to the terms, conditions, limitations and exclusions contained Page 1 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX Exhibit BCASE NO.: 19-CA-005029 Defendant's Answer & Affirmative Defenses to Plaintiffs Amended Complaint therein, for the property located at 8723 GLENEAGLE WAY, NAPLES, FL 34120-1676, with effective dates of 12/21/2016 to 12/21/2017; otherwise, denied. 7. Admitted that Defendant issued policy with policy number ARK176179, to the insureds, subject to the terms, conditions, limitations and exclusions contained therein, for the property located at 8723 GLENEAGLE WAY, NAPLES, FL 34120-1676, with effective dates of 12/21/2016 to 12/21/2017; otherwise, denied. 8. Admitted that Defendant issued policy with policy number ARK176179, to the insureds, subject to the terms, conditions, limitations and exclusions contained therein, for the property located at 8723 GLENEAGLE WAY, NAPLES, FL 34120-1676, with effective dates of 12/21/2016 to 12/21/2017; otherwise, denied. 9. Admitted. 10. Denied. 11.Denied. 12. Denied. 13. Denied. COUNT 1 BREACH OF CONTRACT The Defendant reincorporates paragraphs 1 through 13 as if fully set forth herein. 14. Admitted that Defendant issued policy with policy number ARK176179, to the insureds, subject to the terms, conditions, limitations and exclusions contained Page 2 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX Exhibit BCASE NO.: 19-CA-005029 Defendant's Answer & Affirmative Defenses to Plaintiffs Amended Complaint therein, for the property located at 8723 GLENEAGLE WAY, NAPLES, FL 34120-1676, with effective dates of 12/21/2016 to 12/21/2017; otherwise, denied. 15. Denied as phrased. 16. Denied as phrased. 17.Denied as phrased. 18. Denied. 19. Denied. Defendant denies every allegation contained in Plaintiffs WHEREFORE clause AFFIRMATIVE DEFENSES . Defendant is entitled to set off any and all funds paid and also pursuant to the Hurricane Deductible as provided by the policy of insurance. . The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss and/or damage was caused by wear, tear, and deterioration, which are excluded under the subject policy. In support, Defendant refers to the policy, which states: PERILS INSURED AGAINST COVERAGE A — DWELLING and COVERAGE B —- OTHER STRUCTURES We insure for sudden and accidental direct loss to property described in Coverages A and B only if that loss is a physical loss to covered property. We do not insure, however, for loss: 2. Caused by: Page 3 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX Exhibit BCASE NO.: 19-CA-005029 Defendant's Answer & Affirmative Defenses to Plaintiffs Amended Complaint e. Any of the following: (1) Wear and tear, marring, deterioration; 3. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss and/or damage was caused by inherent vice, latent defect, mechanical breakdown, which are excluded under the subject policy. In support, Defendant refers to the policy, which states: PERILS INSURED AGAINST COVERAGE A — DWELLING and COVERAGE B - OTHER STRUCTURES We insure for sudden and accidental direct loss to property described in Coverages A and B only if that loss is a physical loss to covered property. We do not insure, however, for loss: 2. Caused by: e. Any of the following: (2) Inherent vice, latent defect, mechanical breakdown; 3. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss and/or damage was caused by Smog, rust or other corrosion, “fungi”, mold, wet or dry rot, which are excluded under the subject policy. In support, Defendant refers to the policy, which states: PERILS INSURED AGAINST COVERAGE A — DWELLING and COVERAGE B - OTHER STRUCTURES We insure for sudden and accidental direct loss to property described in Coverages A and B only if that loss is a physical Page 4 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX Exhibit BCASE NO.: 19-CA-005029 Defendant's Answer & Affirmative Defenses to Plaintiffs Amended Complaint loss to covered property. We do not insure, however, for loss: 2. Caused by: e. Any of the following: (3) Smog, rust or other corrosion, “fungi”, mold, wet or dry rot, 4. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss and/or damage was caused by Settling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings, which are excluded under the subject policy. In support, Defendant refers to the policy, which states: SECTION I —- PERILS INSURED AGAINST COVERAGE A — DWELLING and COVERAGE B - OTHER STRUCTURES We insure for sudden and accidental direct loss to property described in Coverages A and B only if that loss is a physical loss to covered property. We do not insure, however, for loss: 2. Caused by: e. Any of the following: (6) Settling, shrinking, bulging or expansion, including resultant cracking, of pavements, Page 5 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX Exhibit BCASE NO.: 19-CA-005029 Defendant's Answer & Affirmative Defenses to Plaintiffs Amended Complaint patios, foundations, walls, floors, roofs or ceilings; 5. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss and/or damage was caused by Birds, vermin, rodents, or insects, which are excluded under the subject policy. In support, Defendant refers to the policy, which states: SECTION I —- PERILS INSURED AGAINST COVERAGE A — DWELLING and COVERAGE B - OTHER STRUCTURES We insure for sudden and accidental direct loss to property described in Coverages A and B only if that loss is a physical loss to covered property. We do not insure, however, for loss: 2. Caused by: e. Any of the following: (7) Birds, vermin, rodents, or insects; or 6. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss and/or damage is excluded under General Exclusions under the subject policy. In support, Defendant refers to the policy, which states: PERILS INSURED AGAINST COVERAGE A — DWELLING and COVERAGE B - OTHER STRUCTURES We insure for sudden and accidental direct loss to property described in Coverages A and B only if that loss is a physical Page 6 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX Exhibit BCASE NO.: 19-CA-005029 Defendant's Answer & Affirmative Defenses to Plaintiffs Amended Complaint loss to covered property. We do not insure, however, for loss: 3. Excluded under Section I- Exclusions. Under items 1. And 2., any ensuing loss to property described in Coverages A and B not Excluded or expected in this policy is covered. 7. The Plaintiffs’ claim is barred and/or limited to the extent that the alleged loss and/or damage was caused by faulty, inadequate or defective (1) Planning, zoning, development, surveying, (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”. In support, Defendant refers to the policy provision, which states: SECTION I- EXCLUSIONS 2. We do not insure for loss to property described in Coverage A and B caused by any of the following. However, any ensuing loss to property described in Coverage A and B not excluded or excepted 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.” DEMAND FOR TRIAL BY JURY The Defendant demands a trial by jury of all issues so triable. Page 7 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX Exhibit BCASE NO.: 19-CA-005029 Defendant's Answer & Affirmative Defenses to Plaintiffs Amended Complaint RESERVATION OF RIGHT TO AMEND Defendant hereby reserves the right to amend and supplement its Answer to Plaintiffs’ Complaint with additional defenses pending the outcome of discovery, if any, in this matter. CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 15th day of June, 2020, a true and correct copy of the foregoing was filed with the Clerk of Collier County by using the Florida Courts e- Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Daniel A. Alvarez; Alvarez Law Group; 7750 SW 117 Avenue, Suite 206; Miami, FL 33183; 786-620-2820; DAlvarez@alvarez.legal COLE, SCOTT & KISSANE, P.A. Counsel for Defendant ARK ROYAL INSURANCE COMPANY Lakeside Office Center, Suite 500 600 North Pine Island Road Plantation, Florida 33324 Telephone (954) 225-8146 Facsimile (954) 474-7979 Primary e-mail: jose.campos@csklegal.com raimundo.ytulvide@csklegal.com By: s/ Raimundo-A. Ytulvide JOSE F. CAMPOS Florida Bar No.: 110733 RAIMUNDO A. YTULVIDE Florida Bar No.: 1014987 0675.0311-00/17584722 Page 8 COLE, SCOTT & KISSANE, P.A. LAKESIDE OFFICE CENTER, SUITE 500 -600 NORTH PINE ISLAND ROAD - PLANTATION, FLORIDA 33324 (954) 473-1112 (954) 474-7979 FAX Exhibit B