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Filing # 159356280 E-Filed 10/17/2022 11:42:02 AM
IN THE COUNTY COURT IN AND FOR GADSDEN COUNTY, FLORIDA
CHARLES PRESIDENT, CASE NO. 21000001CCA
Petitioner,
Vv.
FOREMOST INSURANCE COMPANY
GRAND RAPIDS, MICHIGAN,
Respondent.
PETITIONER'S REPLY
COMES NOW Petitioner, by and through the undersigned attorneys, and hereby files this
Reply to the affirmative defenses alleged by Respondent, and would state:
1 That each and every affirmative defense is hereby denied and strict proof thereof is
hereby demanded
2 Petitioner demands strict proof regarding Defendant's denial of any of the factual
allegations of the complaint.
3 That, for each affirmative defense that alleges the loss was caused by one or more
excluded causes of loss, Petitioner replies that the loss was not caused by the alleged excluded cause
or causes of loss and that Defendant has the burden to prove otherwise.
4 That, each affirmative defense that alleges the loss was caused by one or more
excluded causes of loss, Petitioner replies that the alleged excluded cause or causes of loss acted
oncurrently with the covered event alleged to produce the covered loss and that Defendant has the
burden to prove otherwise
5 That, for each affirmative defense that alleges the loss was caused by one or more
excluded causes of loss, Petitioner replies there was an ensuing loss for which the policy affords
coverage Petitioner is seeking.
6 That, for each affirmative defense that alleges the loss was caused by one or more
excluded causes of loss, Petitioner replies there is an exception to the exclusion which the policy
affords the coverage Petitioner is seeking.
7 That, for each affirmative defense that alleges Petitioner’s failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that each and every condition precedent
was met and that it is Defendant’s burden to prove otherwise.
8 That, for each affirmative defense that alleges the Insured’s failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that the affirmative defense in legally
insufficient in its lack of specificity as required by the rules of pleading and should therefore be
stricken.
9 That, for each affirmative defense that alleges the Insured’s failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that Petitioner complied with the
alleged condition precedent.
10. That, for each affirmative defense that alleges Petitioner's failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that Petitioner substantially complied
with the alleged condition(s) precedent and such compliance was reasonably sufficient.
11. That, for each affirmative defense that alleges the Petitioner’s failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that the alleged condition(s)
precedent were of such nature that any failure to comply was not a material breach of Petitioner's
obligations.
12. That, for each affirmative defense that alleges Petitioner’s failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that Defendant expressly waived the
alleged condition(s) precedent.
13 That, for each affirmative defense that alleges Petitioner’s failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that Defendant impliedly waived the
alleged condition(s) precedent.
14 That, for each affirmative defense that alleges Petitioner’s failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that the alleged condition(s)
precedent was not reasonably requested under the facts and circumstances involved in this claim
precedent.
15 That, for each affirmative defense that alleges Petitioner’s failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that the alleged condition(s)
precedent was not mandatory under the terms of the policy.
16. That, for each affirmative defense that alleges Petitioner’s failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that the alleged conditions are
actually conditions subsequent, and Defendant has the burden of proving prejudice for any non-
compliance, and/or precedent.
17. That, for each affirmative defense that alleges Petitioner’s failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that Defendant was not substantially
prejudiced in its investigation of the claim by any non- compliance with the alleged condition(s)
precedent.
18 That, for each affirmative defense that alleges Petitioner’s failure to satisfy any
contractual or legal conditions precedent, Petitioner replies that the Defendant was not prejudiced
in its investigation of the claim by any non- compliance with any and all of the insurer’s request.
19. Petitioner was released of all further obligations under the policy by reason, and
as of the date, of Defendant's breach of the insurance contract.
20 That, for each affirmative defense that alleges an insured's wrongdoing (including,
but not limited to fraud and/or misrepresentation), Petitioner replies that the affirmative defense
is legally insufficient in its lack of specificity as required by the rules of pleadings, and should be
stricken.
21 That, for each affirmative defense that alleges an insured's wrongdoing
(including, but not limited to fraud and/or misrepresentation), Petitioner replies that the
wrongdoing was not knowing or intentional
22. That, for each affirmative defense that alleges an insured’s wrongdoing
(including, but not limited to fraud and/or misrepresentation), Petitioner replies that the
wrongdoing was not material
23. That, for each affirmative defense that alleges an insured’s wrongdoing
(including, but not limited to fraud and/or misrepresentation), Petitioner replies that Defendant
did not rely on the wrongdoing.
24. That, for each affirmative defense that alleges an insured’s wrongdoing
(including, but not limited to fraud and/or misrepresentation), all other “insureds” as identified in
or otherwise defined by the policy are considered “innocent insureds” and entitled to recovery
under the policy notwithstanding such wrongdoing.
25. That, for each affirmative defense that alleges an insured’s wrongdoing
(including, but not limited to fraud and/or misrepresentation), Petitioner replies that the
wrongdoing was not related to this insurance.
26. That, for each affirmative defense that alleges an insured’s wrongdoing
(including, but not limited to fraud and/or misrepresentation), Petitioner replies that the
wrongdoing was not material to the acceptance of the risk or to the hazard assumed by
Defendant
27, That, for each affirmative defense that alleges an insured’s wrongdoing
(including, but not limited to fraud and/or misrepresentation), Petitioner replies that had the true
facts been known, Defendant would have still issued the policy at the same premium rate, in the
same amount and/or for the same hazard.
28 That any alleged misrepresentation or false statements allegedly made by an
insured was and are immaterial and not of such importance to void coverage.
29. Defendant’s failure to comply with Section 627.421 (1), Florida Statutes excused
Petitioner's performance of the policy’s post loss requirements of an insured in the event of loss.
30. Defendant’s failure to comply with Section 627.421 (1), Florida Statutes
constituted a waiver and/or discharge of Petitioner's obligation to comply with the policy’s post
loss requirements of an insured in the event of loss.
31. Defendant’s failure to mail or deliver a copy of the subject policy to Petitioner
prior to the date of loss excused Petitioner's performance of the policy’s post loss requirements of
an insured in the event of loss.
32. Defendant’s failure to mail or deliver a copy of the subject policy to Petitioner
prior to the date of loss constituted a waiver and/or discharge of Petitioner's obligation to comply
with the policy’s post loss requirements of an insured in the event of loss.
33 Defendant's failure to comply with Petitioner's request for Defendant to mail or
deliver a copy of the subject policy to Petitioner subsequent to the date of loss, constituted a
waiver and/or discharge of Petitioner's obligation to comply with the policy’s post loss
requirements of an insured in the event of loss.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this 17th day of October, 2022, a true and correct copy of
the foregoing was emailed electronically filed and served through the Florida Court’ s E-Filing Portal
to: Timothy R. Engelbrecht, Esq. and Gregory J. Terrone, Esq., of BUTLER WEIHMULLER KATZ
CRAIG LLP, 400 North Ashley Drive, Suite 2300, Tampa, Florida, 33602, at
tengelbrecht@butler.legal; gterrone@butler.legal; mvelez@butler.legal; trichard@butler.legal.
DUBOFF LAW FIRM
ATTORNEYS FOR PETITIONER
680 NE 127 STREET
NORTH MIAMI, FLORIDA 33161
TELEPHONE (305) 899-0085
FAX NO. (305) 899-0091
COURTDOCUMENT@DUBOFFLAWFIRM.COM
By:_/S/ KENNETH R, DUBOFF
KENNETH R. DUBOFF, Esq.
Fla. Bar #218261
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Filing # 159356280 E-Filed 10/17/2022 11:42:02 AM IN THE COUNTY COURT IN AND FOR GADSDEN COUNTY, FLORIDA CHARLES PRESIDENT, CASE NO. 21000001CCA Petitioner, Vv. FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN, Respondent. PETITIONER'S REPLY COMES NOW Petitioner, by and through the undersigned attorneys, and hereby files this Reply to the affirmative defenses alleged by Respondent, and would state: 1 That each and every affirmative defense is hereby denied and strict proof thereof is hereby demanded 2 Petitioner demands strict proof regarding Defendant's denial of any of the factual allegations of the complaint. 3 That, for each affirmative defense that alleges the loss was caused by one or more excluded causes of loss, Petitioner replies that the loss was not caused by the alleged excluded cause or causes of loss and that Defendant has the burden to prove otherwise. 4 That, each affirmative defense that alleges the loss was caused by one or more excluded causes of loss, Petitioner replies that the alleged excluded cause or causes of loss acted oncurrently with the covered event alleged to produce the covered loss and that Defendant has the burden to prove otherwise 5 That, for each affirmative defense that alleges the loss was caused by one or more excluded causes of loss, Petitioner replies there was an ensuing loss for which the policy affords coverage Petitioner is seeking. 6 That, for each affirmative defense that alleges the loss was caused by one or more excluded causes of loss, Petitioner replies there is an exception to the exclusion which the policy affords the coverage Petitioner is seeking. 7 That, for each affirmative defense that alleges Petitioner’s failure to satisfy any contractual or legal conditions precedent, Petitioner replies that each and every condition precedent was met and that it is Defendant’s burden to prove otherwise. 8 That, for each affirmative defense that alleges the Insured’s failure to satisfy any contractual or legal conditions precedent, Petitioner replies that the affirmative defense in legally insufficient in its lack of specificity as required by the rules of pleading and should therefore be stricken. 9 That, for each affirmative defense that alleges the Insured’s failure to satisfy any contractual or legal conditions precedent, Petitioner replies that Petitioner complied with the alleged condition precedent. 10. That, for each affirmative defense that alleges Petitioner's failure to satisfy any contractual or legal conditions precedent, Petitioner replies that Petitioner substantially complied with the alleged condition(s) precedent and such compliance was reasonably sufficient. 11. That, for each affirmative defense that alleges the Petitioner’s failure to satisfy any contractual or legal conditions precedent, Petitioner replies that the alleged condition(s) precedent were of such nature that any failure to comply was not a material breach of Petitioner's obligations. 12. That, for each affirmative defense that alleges Petitioner’s failure to satisfy any contractual or legal conditions precedent, Petitioner replies that Defendant expressly waived the alleged condition(s) precedent. 13 That, for each affirmative defense that alleges Petitioner’s failure to satisfy any contractual or legal conditions precedent, Petitioner replies that Defendant impliedly waived the alleged condition(s) precedent. 14 That, for each affirmative defense that alleges Petitioner’s failure to satisfy any contractual or legal conditions precedent, Petitioner replies that the alleged condition(s) precedent was not reasonably requested under the facts and circumstances involved in this claim precedent. 15 That, for each affirmative defense that alleges Petitioner’s failure to satisfy any contractual or legal conditions precedent, Petitioner replies that the alleged condition(s) precedent was not mandatory under the terms of the policy. 16. That, for each affirmative defense that alleges Petitioner’s failure to satisfy any contractual or legal conditions precedent, Petitioner replies that the alleged conditions are actually conditions subsequent, and Defendant has the burden of proving prejudice for any non- compliance, and/or precedent. 17. That, for each affirmative defense that alleges Petitioner’s failure to satisfy any contractual or legal conditions precedent, Petitioner replies that Defendant was not substantially prejudiced in its investigation of the claim by any non- compliance with the alleged condition(s) precedent. 18 That, for each affirmative defense that alleges Petitioner’s failure to satisfy any contractual or legal conditions precedent, Petitioner replies that the Defendant was not prejudiced in its investigation of the claim by any non- compliance with any and all of the insurer’s request. 19. Petitioner was released of all further obligations under the policy by reason, and as of the date, of Defendant's breach of the insurance contract. 20 That, for each affirmative defense that alleges an insured's wrongdoing (including, but not limited to fraud and/or misrepresentation), Petitioner replies that the affirmative defense is legally insufficient in its lack of specificity as required by the rules of pleadings, and should be stricken. 21 That, for each affirmative defense that alleges an insured's wrongdoing (including, but not limited to fraud and/or misrepresentation), Petitioner replies that the wrongdoing was not knowing or intentional 22. That, for each affirmative defense that alleges an insured’s wrongdoing (including, but not limited to fraud and/or misrepresentation), Petitioner replies that the wrongdoing was not material 23. That, for each affirmative defense that alleges an insured’s wrongdoing (including, but not limited to fraud and/or misrepresentation), Petitioner replies that Defendant did not rely on the wrongdoing. 24. That, for each affirmative defense that alleges an insured’s wrongdoing (including, but not limited to fraud and/or misrepresentation), all other “insureds” as identified in or otherwise defined by the policy are considered “innocent insureds” and entitled to recovery under the policy notwithstanding such wrongdoing. 25. That, for each affirmative defense that alleges an insured’s wrongdoing (including, but not limited to fraud and/or misrepresentation), Petitioner replies that the wrongdoing was not related to this insurance. 26. That, for each affirmative defense that alleges an insured’s wrongdoing (including, but not limited to fraud and/or misrepresentation), Petitioner replies that the wrongdoing was not material to the acceptance of the risk or to the hazard assumed by Defendant 27, That, for each affirmative defense that alleges an insured’s wrongdoing (including, but not limited to fraud and/or misrepresentation), Petitioner replies that had the true facts been known, Defendant would have still issued the policy at the same premium rate, in the same amount and/or for the same hazard. 28 That any alleged misrepresentation or false statements allegedly made by an insured was and are immaterial and not of such importance to void coverage. 29. Defendant’s failure to comply with Section 627.421 (1), Florida Statutes excused Petitioner's performance of the policy’s post loss requirements of an insured in the event of loss. 30. Defendant’s failure to comply with Section 627.421 (1), Florida Statutes constituted a waiver and/or discharge of Petitioner's obligation to comply with the policy’s post loss requirements of an insured in the event of loss. 31. Defendant’s failure to mail or deliver a copy of the subject policy to Petitioner prior to the date of loss excused Petitioner's performance of the policy’s post loss requirements of an insured in the event of loss. 32. Defendant’s failure to mail or deliver a copy of the subject policy to Petitioner prior to the date of loss constituted a waiver and/or discharge of Petitioner's obligation to comply with the policy’s post loss requirements of an insured in the event of loss. 33 Defendant's failure to comply with Petitioner's request for Defendant to mail or deliver a copy of the subject policy to Petitioner subsequent to the date of loss, constituted a waiver and/or discharge of Petitioner's obligation to comply with the policy’s post loss requirements of an insured in the event of loss. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this 17th day of October, 2022, a true and correct copy of the foregoing was emailed electronically filed and served through the Florida Court’ s E-Filing Portal to: Timothy R. Engelbrecht, Esq. and Gregory J. Terrone, Esq., of BUTLER WEIHMULLER KATZ CRAIG LLP, 400 North Ashley Drive, Suite 2300, Tampa, Florida, 33602, at tengelbrecht@butler.legal; gterrone@butler.legal; mvelez@butler.legal; trichard@butler.legal. DUBOFF LAW FIRM ATTORNEYS FOR PETITIONER 680 NE 127 STREET NORTH MIAMI, FLORIDA 33161 TELEPHONE (305) 899-0085 FAX NO. (305) 899-0091 COURTDOCUMENT@DUBOFFLAWFIRM.COM By:_/S/ KENNETH R, DUBOFF KENNETH R. DUBOFF, Esq. Fla. Bar #218261