On September 08, 2022 a
Motion-Secondary
was filed
involving a dispute between
Ann Pearson,
Sam Pearson,
and
State Farm Florida Insurance Company,
in the District Court of Duval County.
Preview
Filing # 165277540 E-Filed 01/23/2023 04:47:23 PM
IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT
IN AND FOR DUVAL COUNTY FLORIDA
ANN PEARSON & SAM PEARSON,
Plaintiff,
vs. CASE NO: 16-2022-CA-005378-XXXX-MA
STATE FARM FLORIDA INSURANCE COMPANY,
Defendant.
____________________________________/
REPLY TO AFFIRMATIVE DEFENSES
Plaintiffs deny and avoid every affirmative defense pleaded by Defendant and specifically
state:
1. Defendant’s First Affirmative Defenses fails to set forth an affirmative defense
upon which relief can be granted. Further, Defendant’s conduct discharged Plaintiff of any
obligation to comply with policy further. Verandah Development, LLC v. Gualtieri, 201 So. 3d
654 (Fla. 2d DCA 2016) (citing to Nacoochee Corp. v. Pickett, 948 So. 2d 26, 30 (Fla. 1st DCA
2006)). Additionally, in reply to Defendant’s First Affirmative Defense: (a) Plaintiffs deny
Defendant’s assertion that Insured/Plaintiff did not comply with the duties after loss; (b)
Insured/Plaintiff substantially complied with the duties after loss or, alternatively, Insured/Plaintiff
have a reasonable excuse for any alleged failure to comply with duties after loss; and/or (c)
Defendant was not prejudiced by any alleged failure to comply with duties after loss. Further,
Defendant waived the right to assert this defense. Waiver is the intentional or voluntary
relinquishment of a known right, or conduct which infers the relinquishment of a known right.
The essential elements of waiver are: (1) the existence at the time of the waiver of a right, privilege,
advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right;
and (3) the intention to relinquish the right. Waiver may be express, or implied from conduct or
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 01/24/2023 05:39:06 PM
CASE NO: 16-2022-CA-005378
acts that lead a party to believe a right has been waived. Woodlands Civic Ass’n, Inc. v. David
Darrow D.C., P.A., 765 So. 2d 874 (Fla. 5th DCA 2000) (citing to Taylor v. Kenco Chemical &
Mfg. Corp., 465 So. 2d 581, 587 (Fla. 1st DCA 1985).
2. Defendant’s Second Affirmative Defense fails to set forth an affirmative defense
upon which relief can be granted. Additionally, Defendant’s Second Affirmative Defense did not
include in the subject policy an anti-concurrent cause provision regarding the exclusions pleaded
in this defense. As a direct result of Defendant’s drafting of the policy, if there was a combination
of covered and uncovered causes of damage to the Property, Defendant would still be liable for
the Loss. Hicks v. American Integrity Ins. Co. of Fla., 241 So. 3d 925 (Fla. 5th DCA 2018).
Further, the subject exclusions are ambiguous and must be read in favor of coverage. (Id.). Further,
the subject policy language is ambiguous and must be interpreted in favor of Plaintiff (Id).
3. Defendant’s Third Affirmative Defense fails to set forth an affirmative defense
upon which relief can be granted.
4. Defendant’s Fourth Affirmative Defense fails to set forth an affirmative defense
upon which relief can be granted.
[CERTIFICATE OF SERVICE ON THE FOLLOWING PAGE]
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CASE NO: 16-2022-CA-005378
CERTIFICATE OF SERVICE
I CERTIFY that a copy the foregoing document has been furnished to: Kara K. Cosse at
Kubicki Draper, KD_PROPJAX@kubickidraper.com, by email on January 23, 2023.
Respectfully submitted,
/s/ Julie M. Geary
Julie M. Geary, Esq.
Florida Bar No: 1015299
Weisser Elazar & Kantor, PLLC
Attorneys for Plaintiff
708 E. Colonial Dr., Suite 103
Orlando, FL 32803
T: (407) 698-5620
F : (954) 572-8695
Email: JG@WEKLaw.com
AG@WEKLaw.com
Service@WEKLaw.com
3
Document Filed Date
January 23, 2023
Case Filing Date
September 08, 2022
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Filing # 165277540 E-Filed 01/23/2023 04:47:23 PM IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY FLORIDA ANN PEARSON & SAM PEARSON, Plaintiff, vs. CASE NO: 16-2022-CA-005378-XXXX-MA STATE FARM FLORIDA INSURANCE COMPANY, Defendant. ____________________________________/ REPLY TO AFFIRMATIVE DEFENSES Plaintiffs deny and avoid every affirmative defense pleaded by Defendant and specifically state: 1. Defendant’s First Affirmative Defenses fails to set forth an affirmative defense upon which relief can be granted. Further, Defendant’s conduct discharged Plaintiff of any obligation to comply with policy further. Verandah Development, LLC v. Gualtieri, 201 So. 3d 654 (Fla. 2d DCA 2016) (citing to Nacoochee Corp. v. Pickett, 948 So. 2d 26, 30 (Fla. 1st DCA 2006)). Additionally, in reply to Defendant’s First Affirmative Defense: (a) Plaintiffs deny Defendant’s assertion that Insured/Plaintiff did not comply with the duties after loss; (b) Insured/Plaintiff substantially complied with the duties after loss or, alternatively, Insured/Plaintiff have a reasonable excuse for any alleged failure to comply with duties after loss; and/or (c) Defendant was not prejudiced by any alleged failure to comply with duties after loss. Further, Defendant waived the right to assert this defense. Waiver is the intentional or voluntary relinquishment of a known right, or conduct which infers the relinquishment of a known right. The essential elements of waiver are: (1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right. Waiver may be express, or implied from conduct or ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 01/24/2023 05:39:06 PM CASE NO: 16-2022-CA-005378 acts that lead a party to believe a right has been waived. Woodlands Civic Ass’n, Inc. v. David Darrow D.C., P.A., 765 So. 2d 874 (Fla. 5th DCA 2000) (citing to Taylor v. Kenco Chemical & Mfg. Corp., 465 So. 2d 581, 587 (Fla. 1st DCA 1985). 2. Defendant’s Second Affirmative Defense fails to set forth an affirmative defense upon which relief can be granted. Additionally, Defendant’s Second Affirmative Defense did not include in the subject policy an anti-concurrent cause provision regarding the exclusions pleaded in this defense. As a direct result of Defendant’s drafting of the policy, if there was a combination of covered and uncovered causes of damage to the Property, Defendant would still be liable for the Loss. Hicks v. American Integrity Ins. Co. of Fla., 241 So. 3d 925 (Fla. 5th DCA 2018). Further, the subject exclusions are ambiguous and must be read in favor of coverage. (Id.). Further, the subject policy language is ambiguous and must be interpreted in favor of Plaintiff (Id). 3. Defendant’s Third Affirmative Defense fails to set forth an affirmative defense upon which relief can be granted. 4. Defendant’s Fourth Affirmative Defense fails to set forth an affirmative defense upon which relief can be granted. [CERTIFICATE OF SERVICE ON THE FOLLOWING PAGE] 2 CASE NO: 16-2022-CA-005378 CERTIFICATE OF SERVICE I CERTIFY that a copy the foregoing document has been furnished to: Kara K. Cosse at Kubicki Draper, KD_PROPJAX@kubickidraper.com, by email on January 23, 2023. Respectfully submitted, /s/ Julie M. Geary Julie M. Geary, Esq. Florida Bar No: 1015299 Weisser Elazar & Kantor, PLLC Attorneys for Plaintiff 708 E. Colonial Dr., Suite 103 Orlando, FL 32803 T: (407) 698-5620 F : (954) 572-8695 Email: JG@WEKLaw.com AG@WEKLaw.com Service@WEKLaw.com 3