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Filing # 147463218 E-Filed 04/11/2022 03:55:23 PM
IN THE C OUNTY C OURT F OR THE NINTH JUD IC IA L C IRC UIT
IN A ND F OR OSC E OLA C OUNTY,F LORID A
Mold and Mitigation Professional Services,LLC a/a/o Aura Grullon,
Plaintiffs,
vs. CASE NO.: 2022 SC 000177 SP
State Farm Florida Insurance Company,
Defendant.
________________________________________/
PLA INTIF F S’ NOTICE OF FILING AUTHORITY ON DEFENDANT’S MOTION TO
D ISMISS C OUNT II OF PLA INTIF F S’ C OMPLA INT
Plaintiffs,Mold and Mitigation Professional Services,LLC a/a/o Aura Grullon ,by and
through the undersigned counsel,hereby file the following attached statutory authority,case law,
and orders regarding the upcoming hearing on Defendant’s Motion to Dismiss:
I. Statutory A uthority
- Florida Statute §86.011
- Florida Statute §86.021
- Florida Statute §86.101
- Florida Statute §86.111
II. C ase Law
- Certain Interested Underwriters At Lloyd’s London v. Pitu, Inc.,95 So.3d 290 (Fla.3d
DCA 2012)
- Lutz v. Protective Life Ins. Co.,951 So.2d 884 (Fla.4th DCA 2007)
- Higgins v. State Farm Fire & Cas. Co.,894 So.2d 5 (Fla.2004)
- Jossfolk v. United Property & Cas. Ins. Co.,110 So.3d 110 (Fla.4th DCA 2013)
- May v. Holley,59 So.2d 636 (Fla.1952)
- Sec. First Ins. Co. v. Phillips, 5D19-2839, 2020 WL 3115493, (Fla.5th DCA June 12,
2020)
- Transportation Cas. Ins. Co. v. Soil Tech distributors, Inc.,966 So.2d 8,9 (Fla.4th
DCA 2007)
III. Orders
- Pejman Arbabi v. Universal Property and Cas. Ins. Co.,Circuit Court,17th Judicial
Circuit-Broward County,Case No.: CACE- 18-015608- 12,October 17,2018
- Anglaleath Rincon v. Tower Hill Signature Ins. Co., Circuit Court, 17th Judicial
Circuit-Broward County,Case No.: CACE- 18-004084,June 11,2018
- Edgardo & Miriam Vega v. Universal Property & Casualty Ins. Co.,Circuit Court,
11th Judicial Circuit-Miami-
Dade County,Case No.:2018-
025260- CA- 01,November
29,2018
- Edgardo & Miriam Vega v. Universal Property & Casualty Ins. Co.,Circuit Court,
11th Judicial Circuit-Miami-
Dade County,Case No.:2018-
025259- CA-01,December
6,2018
- Blue Star Restoration, Inc., a/a/o Ruth Torres v. Castle Key Indemnity Company,
County Court,9th Judicial Circuit-Orange County,Case No.: 2018- CC- 002463-
O,
December 30,2018
- Complete Restoration of Central Florida, Inc., a/a/o Mardi A. Foote v. Foremost Prop.
And Cas. Ins. Co.,County Court,9th Judicial Circuit-Osceola County,Case No.:2018-
CC-3505- CL,February 11,2019
- Muriel Charon v. Prepared Insurance Co.,Circuit Court,15th Judicial Circuit-Palm
Beach County,Case No.: 50- 2018-CA- 012461,March 11,2019
- A And A Restoration Services, LLC a/a/o Mary De Leon v. First Liberty. Ins. Corp.,
County Court,9th Judicial Circuit-Osceola County,Case No.: 2018- CC- 011777- O,
June 20,2019
- MKL Enterprises, LLC d/b/a Drimaxx a/a/o David Gozzo v. United Property &
Casualty Ins. Co.,County Court,18th Judicial Circuit-Brevard County,Case No.:
2019-CA- 016923,July 24,2019
- Leszczymski v. American Insurance Company of Florida,Circuit Court,9th Judicial
Circuit-Orange County,Case No.: 2019-003549- O,January 21,2020
- The Restoration Team, Inc., a/a/o Osniel Perez v. Heritage Property & Casualty
Insurance Company,County Court,13th Judicial Circuit-Hillsborough County,Case
No.: 2019-CC- 007513,February 10,2020
- Wright v. American Security Insurance Company,Circuit Court,17th Judicial Circuit-
Broward County,Case No.: CACE19042640,April 7,2020
- Soboleski v. Security First Insurance Company,Circuit Court,13th Judicial Circuit-
Hillsborough County,Case No.: 19- CA-011638,May 18,2020
- Mauvais v. American Integrity Company of Florida,County Court,9th Judicial Circuit-
Orange County,Case No.: 2020- CC-000762- O,June 19,2020
- Restoration Team Inc. v. Citizens Property Ins Corp, County Court, 11th Judicial
Circuit,Miami-Dade County,Case No.: 2019- 001608- CC-23,June 30,2020
- Kealohapauole, et. al., v. Universal Property and Casualty Insurance Company,
Circuit Court,17th Judicial Circuit-Broward County,Case No.: CACE20003224,
August 13,2020
- Van Camp v. Citizens Property Insurance Corporation,Circuit Court,15th Judicial
Circuit-Palm Beach County,Case No.: 2020-CA- 10908,November 30,2020
- Sanchez v. Security First Insurance Company dba Security First Florida,Circuit Court,
9th Judicial Circuit-Orange County,Case No.: 2019- CA- 9104- 0,December 21,2020
- Lizhat United, Inc and Nodari Safsnov v. American Integrity Insurance Company of
Florida, County Court, 7th Judicial Circuit-Flagler County, Case No.: 2020- CC-
000396,March 20,2021
[C ertificate of Service on following page]
C E RTIF IC A TION OF SE RVIC E
I DO HEREBY CERTIFY that on April 11,2022,a true and correct copy of this document
was filed with the Clerk of Court using the Florida e-
portal which will send notice of electronic
filing and a copy of this document to all counsel of record.
Submitted by:
/s/Laura Topalli
LA URA TOPA LLI,E SQ.
Florida Bar No.: 105610
KUHN RA SLA VIC H,P. A.
2110 West Platt Street
Tampa,Florida 33606
Telephone: (813) 422 -7782
Facsimile: (813) 422 -7783
Laura@theKRfirm.com
Counsel for Plaintiffs
86.011. Jurisdiction of trial court, FL ST § 86.011
West's Florida Statutes Annotated
Title VI. Civil Practice and Procedure (Chapters 45-89) (Refs & Annos)
Chapter 86. Declaratory Judgments (Refs & Annos)
West's F.S.A. § 86.011
86.011. Jurisdiction of trial court
Currentness
The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other
equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection
on the ground that a declaratory judgment is demanded. The court's declaration may be either affirmative or negative in form
and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on
the existence, or nonexistence:
(1) Of any immunity, power, privilege, or right; or
(2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend,
whether such immunity, power, privilege, or right now exists or will arise in the future. Any person seeking a declaratory
judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.
Credits
Laws 1943, c. 21820, § 1; Laws 1955, c. 29737, § 2; Fla.St.1965, § 87.01; Laws 1967, c. 67-254, § 38. Amended by Laws
1990, c. 90-269, § 3, eff. Oct. 1, 1990.
West's F. S. A. § 86.011, FL ST § 86.011
Current with chapters from the 2020 Second Regular Session of the 26th Legislature in effect through April 08, 2020
End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
2 0WL31 W5 4 9 ©T h4 o 4 m shT n©Reu t r . 2 0WL31
West's Florida Statutes Annotated
Title VI. Civil Practice and Procedure (Chapters 45-89) (Refs & Annos)
Chapter 86. Declaratory Judgments (Refs & Annos)
West's F.S.A. § 86.021
86.021. Power to construe
Currentness
Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article,
memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute,
or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article,
memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute,
regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any
part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.
Credits
Laws 1943, c. 21820, § 2; Fla.St.1965, § 87.02; Laws 1967, c. 67-254, § 38. Amended by Laws 1995, c. 95-147, § 458, eff.
July 10, 1995.
West's F. S. A. § 86.021, FL ST § 86.021
Current with chapters from the 2020 Second Regular Session of the 26th Legislature in effect through April 08, 2020
End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
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This chapter is declared to be substantive and remedial. Its purpose is to settle and to afford relief from insecurity and uncertainty
with respect to rights, status, and other equitable or legal relations and is to be liberally administered and construed.
Credits
Laws 1943, c. 21820, § 11; Fla.St.1965, § 87.11; Laws 1967, c. 67-254, § 38.
West's F. S. A. § 86.101, FL ST § 86.101
Current with chapters from the 2020 Second Regular Session of the 26th Legislature in effect through April 08, 2020
End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
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37 Fla. L. Weekly D1534
[2] Insurance
95 So.3d 290 Plain, ordinary or popular sense of
District Court of Appeal of Florida, language
Third District.
Insurance contracts are interpreted according
CERTAIN INTERESTED UNDERWRITERS to the plain language of the policy except
AT LLOYD'S LONDON Subscribing when a genuine inconsistency, uncertainty, or
ambiguity in meaning remains after resort to
to Policy No. 328–2037, Appellant,
the ordinary rules of construction.
v.
PITU, INC., a foreign corporation, Appellee. 2 Cases that cite this headnote
No. 3D11–2233.
| [3] Insurance
June 27, 2012. Construction as a whole
| Insurance
Rehearing Denied Aug. 3, 2012. Applications
Insurance
Synopsis
Margins or Backs of Policies;
Background: Homeowner that suffered water pipe rupture
Endorsements
brought action against insurer for breach of contract and
declaratory judgment with respect to claim for benefits A single insurance policy provision should
under “all risk” homeowner's insurance policy. The not be read in isolation and out of context,
Circuit Court, Miami–Dade County, Ronald C. Dresnick, for the contract is to be construed according
J., entered judgment awarding homeowner $1,240,199.67, to its entire terms, as set forth in the policy
plus interest. Insurer appealed. and amplified by the policy application,
endorsements, or riders.
Cases that cite this headnote
[Holding:] The District Court of Appeal, Wells, C.J., held
that policy expressly limited recovery for water damage to
[4] Insurance
$25,000.
Amount of Insurance
Endorsement in “all risk” homeowner's
Reversed and remanded. insurance policy, providing that “loss(es)
paid arising out of, or caused by, water
damage shall be subject to a maximum
amount of $25,000 during the policy term,”
West Headnotes (5)
unambiguously limited coverage for water
damage losses covered by the policy to
[1] Insurance $25,000, and did not instead extend an
Reasonableness additional $25,000 in coverage for water
damage otherwise excluded by the policy.
Insurance
Construction to be fair 1 Cases that cite this headnote
Insurance contracts, like other contracts,
should receive a construction that is
[5] Insurance
reasonable, practical, sensible, and just.
Particular words or terms
1 Cases that cite this headnote Insurance
Risks Covered and Exclusions
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1
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37 Fla. L. Weekly D1534
The term “arising out of” in insurance policy is “provided coverage for water damage that would 20W be
broader in meaning than the term “caused by” covered under the insurance policy.” 1 More specifically,
and means originating from, having its origin Pitu alleged that, “for an additional premium,” the
in, growing out of, flowing from, incident to, endorsement provided $25,000 in coverage for water
or having a connection with. damage otherwise expressly excluded from coverage
under the policy.
Cases that cite this headnote
Following a hearing on the parties' cross motions for
summary judgment, at which the court below stated
“I don't think that limitation [endorsement] applies to
Attorneys and Law Firms the water damage that's complained of here,” judgment
was entered in Pitu's favor. Because the policy and
*291 Phelps Dunbar, Bridget Remington, Vincent P.
endorsement unambiguously limit coverage for the
Beilman, Kimberly G. Jones and John Mullen, Tampa, for
damage sustained to $25,000, we reverse.
appellant.
Arnold R. Ginsberg, for appellee. [1] [2] [3] Our standard of review is de novo. L33
LW1 W3 5 1 49 © T Wh o T W0h m2sh n 0h Rh © 3232e3ut 24 So.3d
Before WELLS, C.J., and FERNANDEZ, J., and 809, 810 (Fla. 3d DCA 2010) (“Because the interpretation
SCHWARTZ, Senior Judge. of an insurance contract presents a question of law,
this Court's standard of review is de novo.”), 43Rre 02
Opinion
0W.34 N40T 2est 70 So.3d 566 (Fla.2011); LW1 W3 5 1 49 © T Wh
WELLS, Chief Judge. o T W0h m2sh n 0h Rh c 3lst 926 So.2d 415, 416 (Fla. 1st
DCA 2006) (confirming de novo standard of review for
Certain Interested Underwriters at Lloyd's London construing an insurance contract). “Insurance contracts,
Subscribing to Policy No. 328–2037 (“Lloyd's”) appeals like other contracts, ‘should receive a construction that
from a declaratory judgment awarding homeowner Pitu, is reasonable, practical, sensible, and just.’ ” LW1 W3 5 1 49
Inc., $1,240,199.67, plus interest for water damage © T Wh o T W0h m2sh n 0h Rh 5 lsa .34t 16 So.3d 1028, 1031
sustained following a water pipe rupture. Because the (Fla. 2d DCA 2009) (quoting i 32h LW1 4h m2e39 h n 0h Rh
insurance policy at issue expressly limits recovery for such g h 5 U1 h S lUUh m22t m2a ht 874 So.2d 26, 29 (Fla. 2d DCA
damage to $25,000, we reverse. 2004)). To this end, “insurance contracts are interpreted
according to the plain language of the policy except
On May 29, 2009, Lloyd's issued an “all risk” ‘when a genuine inconsistency, uncertainty, or ambiguity
homeowner's insurance policy to Pitu for a dwelling in meaning remains after resort to the ordinary rules of
located in Miami–Dade County. While the policy was in construction.’ ” G1 T 4T s v 0Uel2Nstm2a h Rh k hLh 5 leh U i T 1 4h
effect, a water pipe located in one of the upper stories of n 0ht 913 So.2d 528, 532 (Fla.2005) (quoting LW1 W3 5 1 49
the home burst, resulting in extensive water damage to © T Wh o T W0h m2sh n 0h Rh S4leN32t 498 So.2d 1245, 1248
both the premises and personal property located therein. (Fla.1986)). Moreover, “a single policy provision should
Pitu estimated the damage sustained to the dwelling at not be read in isolation and out of context, for the contract
$907,325.65 and to its personal property at $40,236.00. is to be construed according to its entire terms, as set
forth in the policy and amplified by the policy application,
Lloyd's acknowledged that the claimed water damage was endorsements, or riders.” LW1 W35 1 49 © T Wh o T W0h m2sh n 0h
a covered loss under the policy and estimated that loss to Rh © 1 s.GT 42t15 So.3d 701, 704 (Fla. 1st DCA 2009).
be $673,378.28. However, relying on a policy endorsement
limiting coverage for water damage to $25,000, Lloyd's The policy at issue here is an all risk policy which covers
agreed to pay only that amount for the loss sustained. both the dwelling (Coverage A) and the personal property
in it (Coverage C). Coverages A and C do not insure for
Pitu sued Lloyd's for breach of contract and for a loss “[c]aused by,” among other things, wear and tear,
declaratory judgment claiming *292 that, rather than deterioration, latent defect, mechanical breakdown, rust
limiting coverage provided by the policy, the endorsement
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 2
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37 Fla. L. Weekly D1534
and corrosion, unless those causes result in not otherwise
excluded water damage from a plumbing system: There is coverage for breakage of the property by or
resulting from:
We insure against risk of direct loss to property
described in Coverages A ... and C, only if that loss is a ....
physical loss to property.
(6) Water not otherwise excluded....
We do not insure, however, for loss:
[4] Because none of the policy's exclusions apply to
1. Under Coverages A ... and C: the water damage at issue here, the parties conceded
below that the complained of water damage was a
a. Excluded under SECTION I—EXCLUSIONS
covered loss under these policy provisions. 2 The parties
b. Caused by: instead disputed application of a policy endorsement
limiting recovery for water damage loss, with Lloyd's
.... claiming the endorsement limits Lloyd's liability for
covered water losses to $25,000 and Pitu arguing—and the
4. Any of the following: court apparently agreeing—that the endorsement extends
an additional $25,000 in coverage for water damage
(a) Wear and tear, marring, deterioration;
otherwise excluded by the policy. Nothing in the policy
(b) Inherent vice, latent defect, mechanical supports the latter proposition. To the contrary, the
breakdown; endorsement at issue is clear and unambiguous in its
limitation of coverage for those losses covered by the
(c) Smog, rust or other corrosion, mold, wet or dry policy to $25,000:
rot;
.... ENDORSEMENT
If any of these cause water damage not otherwise THIS ENDORSEMENT CHANGES THE
excluded, from a plumbing ... system ..., we cover POLICY. PLEASE READ IT CAREFULLY.
*293 loss caused by the water including the cost
of tearing out and replacing any part of a building WATER DAMAGE
necessary to repair the system.... AGGREGATE LIMITATION
READ CAREFULLY
Further, as to Coverage C, while there is no coverage for
breakage of certain personal property, there is coverage In consideration of the premium charged, it is hereby
for breakage that results from water not otherwise understood and agreed that for such insurance as
excluded by the policy: is afforded by this policy, loss(es) paid arising out
of, or caused by, water damage shall be subject to a
We do not insure, however, for loss: maximum amount of $25,000 during the policy term.
.... ALL OTHER TERMS AND CONDITIONS
OF THE POLICY REMAIN UNCHANGED.
3. Under Coverage C caused by:
[5] Recovery for the losses claimed by Pitu should,
(a) Breakage of: therefore, have been limited to $25,000. 3
(1) Eyeglasses, glassware, statuary, marble;
*294 The judgment on appeal is therefore reversed with
(2) Bric-a-brac, porcelains and similar articles this matter remanded for entry of judgment in Lloyd's
other than jewelry, watches, bronzes, cameras and favor.
photographic lenses.
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 3
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37 Fla. L. Weekly D1534
All Citations
95 So.3d 290, 37 Fla. L. Weekly D1534
Footnotes
1 Pitu has also sued the insurance agency and the agent that sold it the subject policy; these claims remain pending below
and are not subject to this appeal.
2 Coverages A and C exclude coverage, among other things, for (1) discharge, leakage, or overflow from “[f]reezing of a
plumbing ... system ... while the dwelling is vacant” unless reasonable care has been taken to heat the building or shut
off the water supply; and (2) freezing, thawing, pressure or weight of water or ice to fences, pavement, patios/swimming
pools, foundations, retaining walls, bulkheads, piers, wharfs or docks. The policy itself expressly excludes coverage for
the following types of water damage: (1) flood, surface water, waves, tidal water, overflow of a body of water, or spray from
any of these; (2) water which backs up through sewers or drains or which overflows from a sump; and (3) water below
the surface of the ground which exerts pressure or seeps or leaks through a building, sidewalk, driveway, foundation,
swimming pool or other structure. By virtue of a separate policy endorsement not at issue here, the second of these water
damage exclusions was deleted and, for an addition premium, Pitu received up to $5,000 in coverage for loss caused
by water back up and sump overflow.
3 We also reject the argument made for the first time on appeal that the primary focus of this matter should be on the
broken pipe rather than the water which came from it which, according to Pitu, proximately caused the entire loss making
the endorsement inapplicable. The endorsement expressly applies to “loss(es) ... arising out of, or caused by, water
damage.” (Emphasis added). “The term ‘arising out of’ is broader in meaning than the term ‘caused by’ and means
‘originating from,’ ‘having its origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to’ or ‘having a connection with’....” Hagen
v. Aetna Cas. & Sur. Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996); see also Nat'l Indem. Co. v. Corbo, 248 So.2d 238, 240
(Fla. 3d DCA 1971) (recognizing that “arising out of” means “causally connected with, not proximately caused by”); Taurus
Holdings, Inc., 913 So.2d at 533 (confirming “the proposition that ‘arising out of’ does not equate to proximate cause—at
least in coverage provisions”). Thus, regardless of whether the broken pipe was the proximate cause of the loss, there
is no dispute, and indeed Pitu did not dispute, that this loss was incident to or connected with the water flowing from it.
End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 4
Lutz v. Protective Life Ins. Co., 951 So.2d 884 (2007)
2 0 WL
31 5 1 4 99©L
T h o ms
30XVI Review
30XVI(D) Scope and Extent of Review
2 0W L315 4 99©
30XVI(D)4 Pleading
T ho mshnm R3esm 3ut rr.Nc3ul c3sh4 Na 30k3289 Judgment on the pleadings
l 3esmi T ho mshnm1 (Formerly 30k893(1))
An appellate court considers a trial court's
g NsU S Gvka t rr.ccNUma
granting of a judgment on the pleadings by a
S1
de novo standard of review.
Gv PvYRv&M Y S &l Y &4 LGv t 4 RY
RPg Gt 4 2 a t rr.cc..1 2 Cases that cite this headnote
4 31 ©T –0|W©–01
[2] Pleading
|
Well pleaded facts, admission of
JNU1 3a 5 ––71
302 Pleading
Synopsis 302XVI Motions
Background: Insured brought class action against out-of- 302k342 Judgment on Pleadings
state group health insurer to obtain declaratory judgment 302k350 Application and Proceedings Thereon
and recover for breach of contract by raising premiums 302k350(3) Hearing, Determination, and Relief
based on individual health status/claims-related factors. 302k350(5) Well pleaded facts, admission of
The Fifteenth Judicial Circuit Court, Palm Beach County, In the consideration of a motion for judgment
Jonathan D. Gerber, J., 2005 WL 604495,granted insurer's on the pleadings, a court must take as true all
motion for judgment on pleadings. Insured appealed. well-pleaded material allegations of the non-
moving party.
2 Cases that cite this headnote
Holdings: The District Court of Appeal, Stevenson, C.J.,
held that:
[3] Action
Statutory rights of action
[1] statutory requirements for group insurance policies can
Insurance
be incorporated into an insurance contract and form the
As part of policies
basis of a properly-pled breach of contract action, even
though the statutory scheme does not appear to support a Insurance
private right of action; Grounds of action
13 Action
[2] insured's complaint failed to state claim for breach of 13I Grounds and Conditions Precedent
contract; and 13k3 Statutory rights of action
217 Insurance
[3] the complaint adequately alleged claim for declaratory 217XIII Contracts and Policies
217XIII(G) Rules of Construction
judgment.
217k1849 Existing Law
217k1851 As part of policies
Affirmed in part, reversed in part, and remanded. 217 Insurance
217XXXI Civil Practice and Procedure
217k3543 Grounds of action
The statutory requirements for group health
West Headnotes (12) policies can be incorporated into an insurance
contract and form the basis of a properly-pled
breach of contract action, even though the
[1] Appeal and Error
statutory scheme does not appear to support
Judgment on the pleadings
a private right of action merely to enforce
30 Appeal and Error
n 0so R eutr .tN c 9l a9i.1 g t UL
3Sr at tiSGSN3Lv 1k1 U tS9iNr 9Na 4 ti©.1 o
Lutz v. Protective Life Ins. Co., 951 So.2d 884 (2007)
2 0 WL
31 5 1 4 99©L
T h o ms
compliance with some or all of them. West's it charged based on health status factors,
F.S.A. §§ 627.6515, 627.6571, 627.6675. it never sufficiently tied these alleged
contractual breaches to any specific statutory
3 Cases that cite this headnote language or requirements, but alleged failure
to comply with requirements on conversion
[4] Insurance policies and other provisions in Insurance
Grounds of action Code. West's F.S.A. §§ 627.6515(2), 627.6571,
217 Insurance
627.6675.
217XXXI Civil Practice and Procedure
4 Cases that cite this headnote
217k3543 Grounds of action
A breach of contract claim based on the
insurer's failure to comply with incorporated [7] Pleading
provisions of the Insurance Code must be Judgment on Pleadings
supported by allegations showing actual and 302 Pleading
direct damages to the insured, not merely 302XVI Motions
hypothetical, speculative, or potential ones. 302k342 Judgment on Pleadings
302k343 In general
2 Cases that cite this headnote Judgment on the pleadings may be granted
when the moving party is clearly entitled to a
[5] Insurance judgment, as a matter of law, based solely on
Nature and form of remedy the content of the pleadings.
217 Insurance 1 Cases that cite this headnote
217XXXI Civil Practice and Procedure
217k3541 Nature and form of remedy
Statute which authorizes any person to bring [8] Appeal and Error
a damages action against an insurer for Amendments and supplemental pleadings
certain enumerated statutory provisions does 30 Appeal and Error
not foreclose a properly-pled common law 30V Presentation and Reservation in Lower
breach of contract action based on statutory Court of Grounds of Review
provisions other than those named in the 30V(B) Objections and Motions, and Rulings
statute; it specifically states that its remedy Thereon
does not preempt any other remedy or cause 30k191 Pleading
30k195 Amendments and supplemental
of action. West's F.S.A. § 624.155(8).
pleadings
2 Cases that cite this headnote District Court of Appeal was unable
to consider merits of insured's argument
presented for first time on appeal that trial
[6] Insurance
court should have allowed him to amend
Pleading
complaint on breach of contract claim.
217 Insurance
217XXXI Civil Practice and Procedure 1 Cases that cite this headnote
217k3571 Pleading
Insured's complaint against group health
[9] Declaratory Judgment
insurer failed to state claim for breach of
Complaint, Petition or Bill
contract by violating incorporated statutory
provisions against raising premiums based 118A Declaratory Judgment
118AIII Proceedings
on individual health status or claims-related
118AIII(D) Pleading
factors; although the complaint alleged that
118Ak312 Complaint, Petition or Bill
insurer unilaterally and irregularly drastically
118Ak312.1 In general
increased the approximate monthly premiums
n 0so R eutr .tN c 9l a9i.1 g t UL
3Sr at tiSGSN3Lv 1k1 U tS9iNr 9Na 4 ti©.1 0
Lutz v. Protective Life Ins. Co., 951 So.2d 884 (2007)
2 0 WL
31 5 1 4 99©L
T h o ms
The test of sufficiency of a complaint in Insured's allegations that out-of-state group
a declaratory judgment proceeding is not health insurance policy was subject to
whether the complaint shows that the plaintiff Insurance Code since insurer failed to comply
will succeed in getting a declaration of rights with statutory requirements for exemption
in accordance with his theory and contention, stated claim for declaratory judgment; the
but whether he is entitled to a declaration of insured set forth an uncertainty as to the
rights at all. West's F.S.A. § 86.011 et seq. existence of some rights under the insurance
contract and an actual dispute with the insurer
1 Cases that cite this headnote concerning those rights and obligations, and
he did not need to set forth his potential
[10] Declaratory Judgment breach of contract claim in this count with
Nature and elements in general the same degree of specificity required to state
a claim for breach of statutes incorporated
Declaratory Judgment
into policy. West's F.S.A. §§ 86.011, 86.101,
Statement of controversy
627.6515(2).
118A Declaratory Judgment
118AI Nature and Grounds in General 4 Cases that cite this headnote
118AI(D) Actual or Justiciable Controversy
118Ak62 Nature and elements in general
118A Declaratory Judgment [12] Pleading
118AIII Proceedings Complaint, declaration, petition or
118AIII(D) Pleading statement of claim
118Ak312 Complaint, Petition or Bill 302 Pleading
118Ak313 Statement of controversy 302XVI Motions
The test for whether a complaint will give 302k342 Judgment on Pleadings
rise to a proceeding under the Declaratory 302k345 Insufficient Cause of Action or
Judgment Act inquires whether or not the Defense
party seeking a declaration shows that he is 302k345(1.4) Complaint, declaration, petition
in doubt or is uncertain as to existence or or statement of claim
non-existence of some right, status, immunity, A motion for judgment on the pleadings is
power, or privilege and has an actual, governed by the same legal test as a motion to
practical, and present need for a declaration; dismiss for failure to state a cause of action.
there must be a bona fide controversy,
justiciable in the sense that it flows out of 1 Cases that cite this headnote
some definite and concrete assertion of right,
and there should be involved the legal or
equitable relations of parties having adverse
interests with respect to which the declaration Attorneys and Law Firms
is sought. West's F.S.A. § 86.011 et seq.
*886 Philip M. Burlington of Burlington & Rockenbach,
3 Cases that cite this headnote P.A., and Jeffrey M. Liggio and Richard M. Benrubi of
Liggio, Benrubi & Williams, P.A., West Palm Beach, for
appellant.
[11] Declaratory Judgment
Insurance Irma Reboso Solares of Jorden Burt LLP, Miami, Phillip
118A Declaratory Judgment E. Stano of Jorden Burt LLP, Washington, D.C., and
118AIII Proceedings W. Michael Atchison, Anthony C. Harlow and Alfred H.
118AIII(D) Pleading Perkins, Jr., of Starnes & Atchison LLP, Birmingham,
118Ak312 Complaint, Petition or Bill AL, for appellee.
118Ak317 Insurance
n 0so R eutr .tN c 9l a9i.1 g t UL
3Sr at tiSGSN3Lv 1k1 U tS9iNr 9Na 4 ti©.1 2
Lutz v. Protective Life Ins. Co., 951 So.2d 884 (2007)
2 0 WL
31 5 1 4 99©L
T h o ms
true all of the material allegations in Lutz's complaint and
Evan M. Tager of Mayer, Brown, Rowe & Maw LLP, disregard all of the denials in Protective Life's answer.
Washington, D.C., Brian P. Trauman of Mayer, Brown,
Rowe & Maw LLP, New York, New York, Carl B. [3] While we agree with the trial court that nothing in
Wilkerson and Lisa Tate, Washington, D.C., for Amicus the relevant statutes indicates that the legislature intended
Curiae American Council of Life Insurers. to create a private right of action for an insured to
enforce compliance with an insurer's violation of sections
Opinion
627.6515, 627.6571 or 627.6675, we believe these statutory
STEVENSON, C.J. provisions could form the basis for a breach of contract
action by an insured if properly pled and supported by the
Mark Lutz appeals a judgment on the pleadings entered in evidence. As the court pointed out in Foundation Health v.
favor of Protective Life Insurance Company (“Protective Westside EKG Associates, 944 So.2d 188, 195 (Fla.2006):
Life”) on his class action suit for breach of contract and
declaratory judgment. We affirm the judgment on the Florida courts have long recognized that the statutory
pleadings with respect to th
Preview
Filing # 147463218 E-Filed 04/11/2022 03:55:23 PM IN THE C OUNTY C OURT F OR THE NINTH JUD IC IA L C IRC UIT IN A ND F OR OSC E OLA C OUNTY,F LORID A Mold and Mitigation Professional Services,LLC a/a/o Aura Grullon, Plaintiffs, vs. CASE NO.: 2022 SC 000177 SP State Farm Florida Insurance Company, Defendant. ________________________________________/ PLA INTIF F S’ NOTICE OF FILING AUTHORITY ON DEFENDANT’S MOTION TO D ISMISS C OUNT II OF PLA INTIF F S’ C OMPLA INT Plaintiffs,Mold and Mitigation Professional Services,LLC a/a/o Aura Grullon ,by and through the undersigned counsel,hereby file the following attached statutory authority,case law, and orders regarding the upcoming hearing on Defendant’s Motion to Dismiss: I. Statutory A uthority - Florida Statute §86.011 - Florida Statute §86.021 - Florida Statute §86.101 - Florida Statute §86.111 II. C ase Law - Certain Interested Underwriters At Lloyd’s London v. Pitu, Inc.,95 So.3d 290 (Fla.3d DCA 2012) - Lutz v. Protective Life Ins. Co.,951 So.2d 884 (Fla.4th DCA 2007) - Higgins v. State Farm Fire & Cas. Co.,894 So.2d 5 (Fla.2004) - Jossfolk v. United Property & Cas. Ins. Co.,110 So.3d 110 (Fla.4th DCA 2013) - May v. Holley,59 So.2d 636 (Fla.1952) - Sec. First Ins. Co. v. Phillips, 5D19-2839, 2020 WL 3115493, (Fla.5th DCA June 12, 2020) - Transportation Cas. Ins. Co. v. Soil Tech distributors, Inc.,966 So.2d 8,9 (Fla.4th DCA 2007) III. Orders - Pejman Arbabi v. Universal Property and Cas. Ins. Co.,Circuit Court,17th Judicial Circuit-Broward County,Case No.: CACE- 18-015608- 12,October 17,2018 - Anglaleath Rincon v. Tower Hill Signature Ins. Co., Circuit Court, 17th Judicial Circuit-Broward County,Case No.: CACE- 18-004084,June 11,2018 - Edgardo & Miriam Vega v. Universal Property & Casualty Ins. Co.,Circuit Court, 11th Judicial Circuit-Miami- Dade County,Case No.:2018- 025260- CA- 01,November 29,2018 - Edgardo & Miriam Vega v. Universal Property & Casualty Ins. Co.,Circuit Court, 11th Judicial Circuit-Miami- Dade County,Case No.:2018- 025259- CA-01,December 6,2018 - Blue Star Restoration, Inc., a/a/o Ruth Torres v. Castle Key Indemnity Company, County Court,9th Judicial Circuit-Orange County,Case No.: 2018- CC- 002463- O, December 30,2018 - Complete Restoration of Central Florida, Inc., a/a/o Mardi A. Foote v. Foremost Prop. And Cas. Ins. Co.,County Court,9th Judicial Circuit-Osceola County,Case No.:2018- CC-3505- CL,February 11,2019 - Muriel Charon v. Prepared Insurance Co.,Circuit Court,15th Judicial Circuit-Palm Beach County,Case No.: 50- 2018-CA- 012461,March 11,2019 - A And A Restoration Services, LLC a/a/o Mary De Leon v. First Liberty. Ins. Corp., County Court,9th Judicial Circuit-Osceola County,Case No.: 2018- CC- 011777- O, June 20,2019 - MKL Enterprises, LLC d/b/a Drimaxx a/a/o David Gozzo v. United Property & Casualty Ins. Co.,County Court,18th Judicial Circuit-Brevard County,Case No.: 2019-CA- 016923,July 24,2019 - Leszczymski v. American Insurance Company of Florida,Circuit Court,9th Judicial Circuit-Orange County,Case No.: 2019-003549- O,January 21,2020 - The Restoration Team, Inc., a/a/o Osniel Perez v. Heritage Property & Casualty Insurance Company,County Court,13th Judicial Circuit-Hillsborough County,Case No.: 2019-CC- 007513,February 10,2020 - Wright v. American Security Insurance Company,Circuit Court,17th Judicial Circuit- Broward County,Case No.: CACE19042640,April 7,2020 - Soboleski v. Security First Insurance Company,Circuit Court,13th Judicial Circuit- Hillsborough County,Case No.: 19- CA-011638,May 18,2020 - Mauvais v. American Integrity Company of Florida,County Court,9th Judicial Circuit- Orange County,Case No.: 2020- CC-000762- O,June 19,2020 - Restoration Team Inc. v. Citizens Property Ins Corp, County Court, 11th Judicial Circuit,Miami-Dade County,Case No.: 2019- 001608- CC-23,June 30,2020 - Kealohapauole, et. al., v. Universal Property and Casualty Insurance Company, Circuit Court,17th Judicial Circuit-Broward County,Case No.: CACE20003224, August 13,2020 - Van Camp v. Citizens Property Insurance Corporation,Circuit Court,15th Judicial Circuit-Palm Beach County,Case No.: 2020-CA- 10908,November 30,2020 - Sanchez v. Security First Insurance Company dba Security First Florida,Circuit Court, 9th Judicial Circuit-Orange County,Case No.: 2019- CA- 9104- 0,December 21,2020 - Lizhat United, Inc and Nodari Safsnov v. American Integrity Insurance Company of Florida, County Court, 7th Judicial Circuit-Flagler County, Case No.: 2020- CC- 000396,March 20,2021 [C ertificate of Service on following page] C E RTIF IC A TION OF SE RVIC E I DO HEREBY CERTIFY that on April 11,2022,a true and correct copy of this document was filed with the Clerk of Court using the Florida e- portal which will send notice of electronic filing and a copy of this document to all counsel of record. Submitted by: /s/Laura Topalli LA URA TOPA LLI,E SQ. Florida Bar No.: 105610 KUHN RA SLA VIC H,P. A. 2110 West Platt Street Tampa,Florida 33606 Telephone: (813) 422 -7782 Facsimile: (813) 422 -7783 Laura@theKRfirm.com Counsel for Plaintiffs 86.011. Jurisdiction of trial court, FL ST § 86.011 West's Florida Statutes Annotated Title VI. Civil Practice and Procedure (Chapters 45-89) (Refs & Annos) Chapter 86. Declaratory Judgments (Refs & Annos) West's F.S.A. § 86.011 86.011. Jurisdiction of trial court Currentness The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court's declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence: (1) Of any immunity, power, privilege, or right; or (2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action. Credits Laws 1943, c. 21820, § 1; Laws 1955, c. 29737, § 2; Fla.St.1965, § 87.01; Laws 1967, c. 67-254, § 38. Amended by Laws 1990, c. 90-269, § 3, eff. Oct. 1, 1990. West's F. S. A. § 86.011, FL ST § 86.011 Current with chapters from the 2020 Second Regular Session of the 26th Legislature in effect through April 08, 2020 End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 2 0WL31 W5 4 9 ©T h4 o 4 m shT n©Reu t r . 2 0WL31 West's Florida Statutes Annotated Title VI. Civil Practice and Procedure (Chapters 45-89) (Refs & Annos) Chapter 86. Declaratory Judgments (Refs & Annos) West's F.S.A. § 86.021 86.021. Power to construe Currentness Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder. Credits Laws 1943, c. 21820, § 2; Fla.St.1965, § 87.02; Laws 1967, c. 67-254, § 38. Amended by Laws 1995, c. 95-147, § 458, eff. July 10, 1995. West's F. S. A. § 86.021, FL ST § 86.021 Current with chapters from the 2020 Second Regular Session of the 26th Legislature in effect through April 08, 2020 End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 2 0WL3LW1 5 4 9©T h o ©m5 4 5 s nRe utr . N c 2 0WL3L 2 0WL3W 1 54 9©T h o LhLm L0W s nn4 LhL0T R©L50 e utr©.©5 N9h cL©c0 h nT N94 c0T m 90 l ra h iL09W gU- S Gvl k0UW S s nn4 Wv ra h iL09 S Gtv 0c5h 9h L4 9P Ym T & M 0nLW l k0UW S s nn4 Wv 2 0WL3W 1 to ts t4 S Gt2–2 S Gt2–2tr4 nWL9m cL©4 n 4 U5h | rm 990nLn0WW This chapter is declared to be substantive and remedial. Its purpose is to settle and to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations and is to be liberally administered and construed. Credits Laws 1943, c. 21820, § 11; Fla.St.1965, § 87.11; Laws 1967, c. 67-254, § 38. West's F. S. A. § 86.101, FL ST § 86.101 Current with chapters from the 2020 Second Regular Session of the 26th Legislature in effect through April 08, 2020 End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 ! !"#$ %&' $ "() *+,- %&' $ ."(/// "(///01 & 2 -*3&& 2 0W WL315W4 9W ©T h 4 ©50Wo h m Wsnh 5W o WR Wm e m ©W1 4 ©5 uo W9tnm W h rnm .R W4 5 T©o m W9th o h 5©o e o Wt3WTN2 0W 9©no 5 R h e ©o m Wo h 1 uWWm e 0Wh o 34 . ©T h 4 h 953©4 T©o h m W9th o h 5©o e rnm .R W4 5 h 4 m R h e h m ch 4 9W 35 ©4 50W 9h tW4 m h o N2 0W 9©no 5 0h 1 u©l Wo 5© .3cW h 1 Tntth 4 m 9©R utW5W Wsn35h a tW o Wt3WT h 1 35 l ©ntm 0h cW 0h m 3T 1 n90 uo ©9WWm 34 . 0h m a WW4 34 1 535n5Wm h 1 h 4 h 953©4 34 90h 4 9Wo eN i h l 1 gUSGv9NkgUkSvG gkvi h l 1 gUPPv9NkUYGYvG kv& th NM 5NgU4PvG UYNgkvi h l 1 gU4Yv9N4Y-kPSvG GUN 2 W1 5–1 & NM N|NG U4Ngggv& i M 2 G U4Nggg |no o W4 5 50o ©n.0 50W kSgU M W9©4 m J W.nth o M W1 1 3©4 ©T 50W kP50 i W.31th 5no WN 3 kSgU 2 0©R 1 ©4 J Wn5Wo 1 N7 © 9th 3R 5© ©o 3.34 h t NM N ©cWo 4 R W4 5 2 ©o 1 N 2 0WL3 1 5 4 9 ©4 T h o m so n©Re 4 utr.9 s4 4 n.N.T rtc Rl R a 4 io nT 9 o T sg 4 nU©R L 2 0WL315 45 L0W09L0© T 5 ©0Wh W1L0W9 3Lo msn©R9 o s5 ©s5 eut 1Lr.45 Nu.cl a sui© gcU SgUGgv 37 Fla. L. Weekly D1534 [2] Insurance 95 So.3d 290 Plain, ordinary or popular sense of District Court of Appeal of Florida, language Third District. Insurance contracts are interpreted according CERTAIN INTERESTED UNDERWRITERS to the plain language of the policy except AT LLOYD'S LONDON Subscribing when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to to Policy No. 328–2037, Appellant, the ordinary rules of construction. v. PITU, INC., a foreign corporation, Appellee. 2 Cases that cite this headnote No. 3D11–2233. | [3] Insurance June 27, 2012. Construction as a whole | Insurance Rehearing Denied Aug. 3, 2012. Applications Insurance Synopsis Margins or Backs of Policies; Background: Homeowner that suffered water pipe rupture Endorsements brought action against insurer for breach of contract and declaratory judgment with respect to claim for benefits A single insurance policy provision should under “all risk” homeowner's insurance policy. The not be read in isolation and out of context, Circuit Court, Miami–Dade County, Ronald C. Dresnick, for the contract is to be construed according J., entered judgment awarding homeowner $1,240,199.67, to its entire terms, as set forth in the policy plus interest. Insurer appealed. and amplified by the policy application, endorsements, or riders. Cases that cite this headnote [Holding:] The District Court of Appeal, Wells, C.J., held that policy expressly limited recovery for water damage to [4] Insurance $25,000. Amount of Insurance Endorsement in “all risk” homeowner's Reversed and remanded. insurance policy, providing that “loss(es) paid arising out of, or caused by, water damage shall be subject to a maximum amount of $25,000 during the policy term,” West Headnotes (5) unambiguously limited coverage for water damage losses covered by the policy to [1] Insurance $25,000, and did not instead extend an Reasonableness additional $25,000 in coverage for water damage otherwise excluded by the policy. Insurance Construction to be fair 1 Cases that cite this headnote Insurance contracts, like other contracts, should receive a construction that is [5] Insurance reasonable, practical, sensible, and just. Particular words or terms 1 Cases that cite this headnote Insurance Risks Covered and Exclusions © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 2 0WL315 45 L0W09L0© T 5 ©0Wh W1L0W9 3Lo msn©R9 o s5 ©s5 eut 1Lr.45 Nu.cl a sui© gcU SgUGgv 37 Fla. L. Weekly D1534 The term “arising out of” in insurance policy is “provided coverage for water damage that would 20W be broader in meaning than the term “caused by” covered under the insurance policy.” 1 More specifically, and means originating from, having its origin Pitu alleged that, “for an additional premium,” the in, growing out of, flowing from, incident to, endorsement provided $25,000 in coverage for water or having a connection with. damage otherwise expressly excluded from coverage under the policy. Cases that cite this headnote Following a hearing on the parties' cross motions for summary judgment, at which the court below stated “I don't think that limitation [endorsement] applies to Attorneys and Law Firms the water damage that's complained of here,” judgment was entered in Pitu's favor. Because the policy and *291 Phelps Dunbar, Bridget Remington, Vincent P. endorsement unambiguously limit coverage for the Beilman, Kimberly G. Jones and John Mullen, Tampa, for damage sustained to $25,000, we reverse. appellant. Arnold R. Ginsberg, for appellee. [1] [2] [3] Our standard of review is de novo. L33 LW1 W3 5 1 49 © T Wh o T W0h m2sh n 0h Rh © 3232e3ut 24 So.3d Before WELLS, C.J., and FERNANDEZ, J., and 809, 810 (Fla. 3d DCA 2010) (“Because the interpretation SCHWARTZ, Senior Judge. of an insurance contract presents a question of law, this Court's standard of review is de novo.”), 43Rre 02 Opinion 0W.34 N40T 2est 70 So.3d 566 (Fla.2011); LW1 W3 5 1 49 © T Wh WELLS, Chief Judge. o T W0h m2sh n 0h Rh c 3lst 926 So.2d 415, 416 (Fla. 1st DCA 2006) (confirming de novo standard of review for Certain Interested Underwriters at Lloyd's London construing an insurance contract). “Insurance contracts, Subscribing to Policy No. 328–2037 (“Lloyd's”) appeals like other contracts, ‘should receive a construction that from a declaratory judgment awarding homeowner Pitu, is reasonable, practical, sensible, and just.’ ” LW1 W3 5 1 49 Inc., $1,240,199.67, plus interest for water damage © T Wh o T W0h m2sh n 0h Rh 5 lsa .34t 16 So.3d 1028, 1031 sustained following a water pipe rupture. Because the (Fla. 2d DCA 2009) (quoting i 32h LW1 4h m2e39 h n 0h Rh insurance policy at issue expressly limits recovery for such g h 5 U1 h S lUUh m22t m2a ht 874 So.2d 26, 29 (Fla. 2d DCA damage to $25,000, we reverse. 2004)). To this end, “insurance contracts are interpreted according to the plain language of the policy except On May 29, 2009, Lloyd's issued an “all risk” ‘when a genuine inconsistency, uncertainty, or ambiguity homeowner's insurance policy to Pitu for a dwelling in meaning remains after resort to the ordinary rules of located in Miami–Dade County. While the policy was in construction.’ ” G1 T 4T s v 0Uel2Nstm2a h Rh k hLh 5 leh U i T 1 4h effect, a water pipe located in one of the upper stories of n 0ht 913 So.2d 528, 532 (Fla.2005) (quoting LW1 W3 5 1 49 the home burst, resulting in extensive water damage to © T Wh o T W0h m2sh n 0h Rh S4leN32t 498 So.2d 1245, 1248 both the premises and personal property located therein. (Fla.1986)). Moreover, “a single policy provision should Pitu estimated the damage sustained to the dwelling at not be read in isolation and out of context, for the contract $907,325.65 and to its personal property at $40,236.00. is to be construed according to its entire terms, as set forth in the policy and amplified by the policy application, Lloyd's acknowledged that the claimed water damage was endorsements, or riders.” LW1 W35 1 49 © T Wh o T W0h m2sh n 0h a covered loss under the policy and estimated that loss to Rh © 1 s.GT 42t15 So.3d 701, 704 (Fla. 1st DCA 2009). be $673,378.28. However, relying on a policy endorsement limiting coverage for water damage to $25,000, Lloyd's The policy at issue here is an all risk policy which covers agreed to pay only that amount for the loss sustained. both the dwelling (Coverage A) and the personal property in it (Coverage C). Coverages A and C do not insure for Pitu sued Lloyd's for breach of contract and for a loss “[c]aused by,” among other things, wear and tear, declaratory judgment claiming *292 that, rather than deterioration, latent defect, mechanical breakdown, rust limiting coverage provided by the policy, the endorsement © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 2 0WL315 45 L0W09L0© T 5 ©0Wh W1L0W9 3Lo msn©R9 o s5 ©s5 eut 1Lr.45 Nu.cl a sui© gcU SgUGgv 37 Fla. L. Weekly D1534 and corrosion, unless those causes result in not otherwise excluded water damage from a plumbing system: There is coverage for breakage of the property by or resulting from: We insure against risk of direct loss to property described in Coverages A ... and C, only if that loss is a .... physical loss to property. (6) Water not otherwise excluded.... We do not insure, however, for loss: [4] Because none of the policy's exclusions apply to 1. Under Coverages A ... and C: the water damage at issue here, the parties conceded below that the complained of water damage was a a. Excluded under SECTION I—EXCLUSIONS covered loss under these policy provisions. 2 The parties b. Caused by: instead disputed application of a policy endorsement limiting recovery for water damage loss, with Lloyd's .... claiming the endorsement limits Lloyd's liability for covered water losses to $25,000 and Pitu arguing—and the 4. Any of the following: court apparently agreeing—that the endorsement extends an additional $25,000 in coverage for water damage (a) Wear and tear, marring, deterioration; otherwise excluded by the policy. Nothing in the policy (b) Inherent vice, latent defect, mechanical supports the latter proposition. To the contrary, the breakdown; endorsement at issue is clear and unambiguous in its limitation of coverage for those losses covered by the (c) Smog, rust or other corrosion, mold, wet or dry policy to $25,000: rot; .... ENDORSEMENT If any of these cause water damage not otherwise THIS ENDORSEMENT CHANGES THE excluded, from a plumbing ... system ..., we cover POLICY. PLEASE READ IT CAREFULLY. *293 loss caused by the water including the cost of tearing out and replacing any part of a building WATER DAMAGE necessary to repair the system.... AGGREGATE LIMITATION READ CAREFULLY Further, as to Coverage C, while there is no coverage for breakage of certain personal property, there is coverage In consideration of the premium charged, it is hereby for breakage that results from water not otherwise understood and agreed that for such insurance as excluded by the policy: is afforded by this policy, loss(es) paid arising out of, or caused by, water damage shall be subject to a We do not insure, however, for loss: maximum amount of $25,000 during the policy term. .... ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED. 3. Under Coverage C caused by: [5] Recovery for the losses claimed by Pitu should, (a) Breakage of: therefore, have been limited to $25,000. 3 (1) Eyeglasses, glassware, statuary, marble; *294 The judgment on appeal is therefore reversed with (2) Bric-a-brac, porcelains and similar articles this matter remanded for entry of judgment in Lloyd's other than jewelry, watches, bronzes, cameras and favor. photographic lenses. © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 2 0WL315 45 L0W09L0© T 5 ©0Wh W1L0W9 3Lo msn©R9 o s5 ©s5 eut 1Lr.45 Nu.cl a sui© gcU SgUGgv 37 Fla. L. Weekly D1534 All Citations 95 So.3d 290, 37 Fla. L. Weekly D1534 Footnotes 1 Pitu has also sued the insurance agency and the agent that sold it the subject policy; these claims remain pending below and are not subject to this appeal. 2 Coverages A and C exclude coverage, among other things, for (1) discharge, leakage, or overflow from “[f]reezing of a plumbing ... system ... while the dwelling is vacant” unless reasonable care has been taken to heat the building or shut off the water supply; and (2) freezing, thawing, pressure or weight of water or ice to fences, pavement, patios/swimming pools, foundations, retaining walls, bulkheads, piers, wharfs or docks. The policy itself expressly excludes coverage for the following types of water damage: (1) flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these; (2) water which backs up through sewers or drains or which overflows from a sump; and (3) water below the surface of the ground which exerts pressure or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure. By virtue of a separate policy endorsement not at issue here, the second of these water damage exclusions was deleted and, for an addition premium, Pitu received up to $5,000 in coverage for loss caused by water back up and sump overflow. 3 We also reject the argument made for the first time on appeal that the primary focus of this matter should be on the broken pipe rather than the water which came from it which, according to Pitu, proximately caused the entire loss making the endorsement inapplicable. The endorsement expressly applies to “loss(es) ... arising out of, or caused by, water damage.” (Emphasis added). “The term ‘arising out of’ is broader in meaning than the term ‘caused by’ and means ‘originating from,’ ‘having its origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to’ or ‘having a connection with’....” Hagen v. Aetna Cas. & Sur. Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996); see also Nat'l Indem. Co. v. Corbo, 248 So.2d 238, 240 (Fla. 3d DCA 1971) (recognizing that “arising out of” means “causally connected with, not proximately caused by”); Taurus Holdings, Inc., 913 So.2d at 533 (confirming “the proposition that ‘arising out of’ does not equate to proximate cause—at least in coverage provisions”). Thus, regardless of whether the broken pipe was the proximate cause of the loss, there is no dispute, and indeed Pitu did not dispute, that this loss was incident to or connected with the water flowing from it. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. © 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 Lutz v. Protective Life Ins. Co., 951 So.2d 884 (2007) 2 0 WL 31 5 1 4 99©L T h o ms 30XVI Review 30XVI(D) Scope and Extent of Review 2 0W L315 4 99© 30XVI(D)4 Pleading T ho mshnm R3esm 3ut rr.Nc3ul c3sh4 Na 30k3289 Judgment on the pleadings l 3esmi T ho mshnm1 (Formerly 30k893(1)) An appellate court considers a trial court's g NsU S Gvka t rr.ccNUma granting of a judgment on the pleadings by a S1 de novo standard of review. Gv PvYRv&M Y S &l Y &4 LGv t 4 RY RPg Gt 4 2 a t rr.cc..1 2 Cases that cite this headnote 4 31 ©T –0|W©–01 [2] Pleading | Well pleaded facts, admission of JNU1 3a 5 ––71 302 Pleading Synopsis 302XVI Motions Background: Insured brought class action against out-of- 302k342 Judgment on Pleadings state group health insurer to obtain declaratory judgment 302k350 Application and Proceedings Thereon and recover for breach of contract by raising premiums 302k350(3) Hearing, Determination, and Relief based on individual health status/claims-related factors. 302k350(5) Well pleaded facts, admission of The Fifteenth Judicial Circuit Court, Palm Beach County, In the consideration of a motion for judgment Jonathan D. Gerber, J., 2005 WL 604495,granted insurer's on the pleadings, a court must take as true all motion for judgment on pleadings. Insured appealed. well-pleaded material allegations of the non- moving party. 2 Cases that cite this headnote Holdings: The District Court of Appeal, Stevenson, C.J., held that: [3] Action Statutory rights of action [1] statutory requirements for group insurance policies can Insurance be incorporated into an insurance contract and form the As part of policies basis of a properly-pled breach of contract action, even though the statutory scheme does not appear to support a Insurance private right of action; Grounds of action 13 Action [2] insured's complaint failed to state claim for breach of 13I Grounds and Conditions Precedent contract; and 13k3 Statutory rights of action 217 Insurance [3] the complaint adequately alleged claim for declaratory 217XIII Contracts and Policies 217XIII(G) Rules of Construction judgment. 217k1849 Existing Law 217k1851 As part of policies Affirmed in part, reversed in part, and remanded. 217 Insurance 217XXXI Civil Practice and Procedure 217k3543 Grounds of action The statutory requirements for group health West Headnotes (12) policies can be incorporated into an insurance contract and form the basis of a properly-pled breach of contract action, even though the [1] Appeal and Error statutory scheme does not appear to support Judgment on the pleadings a private right of action merely to enforce 30 Appeal and Error n 0so R eutr .tN c 9l a9i.1 g t UL 3Sr at tiSGSN3Lv 1k1 U tS9iNr 9Na 4 ti©.1 o Lutz v. Protective Life Ins. Co., 951 So.2d 884 (2007) 2 0 WL 31 5 1 4 99©L T h o ms compliance with some or all of them. West's it charged based on health status factors, F.S.A. §§ 627.6515, 627.6571, 627.6675. it never sufficiently tied these alleged contractual breaches to any specific statutory 3 Cases that cite this headnote language or requirements, but alleged failure to comply with requirements on conversion [4] Insurance policies and other provisions in Insurance Grounds of action Code. West's F.S.A. §§ 627.6515(2), 627.6571, 217 Insurance 627.6675. 217XXXI Civil Practice and Procedure 4 Cases that cite this headnote 217k3543 Grounds of action A breach of contract claim based on the insurer's failure to comply with incorporated [7] Pleading provisions of the Insurance Code must be Judgment on Pleadings supported by allegations showing actual and 302 Pleading direct damages to the insured, not merely 302XVI Motions hypothetical, speculative, or potential ones. 302k342 Judgment on Pleadings 302k343 In general 2 Cases that cite this headnote Judgment on the pleadings may be granted when the moving party is clearly entitled to a [5] Insurance judgment, as a matter of law, based solely on Nature and form of remedy the content of the pleadings. 217 Insurance 1 Cases that cite this headnote 217XXXI Civil Practice and Procedure 217k3541 Nature and form of remedy Statute which authorizes any person to bring [8] Appeal and Error a damages action against an insurer for Amendments and supplemental pleadings certain enumerated statutory provisions does 30 Appeal and Error not foreclose a properly-pled common law 30V Presentation and Reservation in Lower breach of contract action based on statutory Court of Grounds of Review provisions other than those named in the 30V(B) Objections and Motions, and Rulings statute; it specifically states that its remedy Thereon does not preempt any other remedy or cause 30k191 Pleading 30k195 Amendments and supplemental of action. West's F.S.A. § 624.155(8). pleadings 2 Cases that cite this headnote District Court of Appeal was unable to consider merits of insured's argument presented for first time on appeal that trial [6] Insurance court should have allowed him to amend Pleading complaint on breach of contract claim. 217 Insurance 217XXXI Civil Practice and Procedure 1 Cases that cite this headnote 217k3571 Pleading Insured's complaint against group health [9] Declaratory Judgment insurer failed to state claim for breach of Complaint, Petition or Bill contract by violating incorporated statutory provisions against raising premiums based 118A Declaratory Judgment 118AIII Proceedings on individual health status or claims-related 118AIII(D) Pleading factors; although the complaint alleged that 118Ak312 Complaint, Petition or Bill insurer unilaterally and irregularly drastically 118Ak312.1 In general increased the approximate monthly premiums n 0so R eutr .tN c 9l a9i.1 g t UL 3Sr at tiSGSN3Lv 1k1 U tS9iNr 9Na 4 ti©.1 0 Lutz v. Protective Life Ins. Co., 951 So.2d 884 (2007) 2 0 WL 31 5 1 4 99©L T h o ms The test of sufficiency of a complaint in Insured's allegations that out-of-state group a declaratory judgment proceeding is not health insurance policy was subject to whether the complaint shows that the plaintiff Insurance Code since insurer failed to comply will succeed in getting a declaration of rights with statutory requirements for exemption in accordance with his theory and contention, stated claim for declaratory judgment; the but whether he is entitled to a declaration of insured set forth an uncertainty as to the rights at all. West's F.S.A. § 86.011 et seq. existence of some rights under the insurance contract and an actual dispute with the insurer 1 Cases that cite this headnote concerning those rights and obligations, and he did not need to set forth his potential [10] Declaratory Judgment breach of contract claim in this count with Nature and elements in general the same degree of specificity required to state a claim for breach of statutes incorporated Declaratory Judgment into policy. West's F.S.A. §§ 86.011, 86.101, Statement of controversy 627.6515(2). 118A Declaratory Judgment 118AI Nature and Grounds in General 4 Cases that cite this headnote 118AI(D) Actual or Justiciable Controversy 118Ak62 Nature and elements in general 118A Declaratory Judgment [12] Pleading 118AIII Proceedings Complaint, declaration, petition or 118AIII(D) Pleading statement of claim 118Ak312 Complaint, Petition or Bill 302 Pleading 118Ak313 Statement of controversy 302XVI Motions The test for whether a complaint will give 302k342 Judgment on Pleadings rise to a proceeding under the Declaratory 302k345 Insufficient Cause of Action or Judgment Act inquires whether or not the Defense party seeking a declaration shows that he is 302k345(1.4) Complaint, declaration, petition in doubt or is uncertain as to existence or or statement of claim non-existence of some right, status, immunity, A motion for judgment on the pleadings is power, or privilege and has an actual, governed by the same legal test as a motion to practical, and present need for a declaration; dismiss for failure to state a cause of action. there must be a bona fide controversy, justiciable in the sense that it flows out of 1 Cases that cite this headnote some definite and concrete assertion of right, and there should be involved the legal or equitable relations of parties having adverse interests with respect to which the declaration Attorneys and Law Firms is sought. West's F.S.A. § 86.011 et seq. *886 Philip M. Burlington of Burlington & Rockenbach, 3 Cases that cite this headnote P.A., and Jeffrey M. Liggio and Richard M. Benrubi of Liggio, Benrubi & Williams, P.A., West Palm Beach, for appellant. [11] Declaratory Judgment Insurance Irma Reboso Solares of Jorden Burt LLP, Miami, Phillip 118A Declaratory Judgment E. Stano of Jorden Burt LLP, Washington, D.C., and 118AIII Proceedings W. Michael Atchison, Anthony C. Harlow and Alfred H. 118AIII(D) Pleading Perkins, Jr., of Starnes & Atchison LLP, Birmingham, 118Ak312 Complaint, Petition or Bill AL, for appellee. 118Ak317 Insurance n 0so R eutr .tN c 9l a9i.1 g t UL 3Sr at tiSGSN3Lv 1k1 U tS9iNr 9Na 4 ti©.1 2 Lutz v. Protective Life Ins. Co., 951 So.2d 884 (2007) 2 0 WL 31 5 1 4 99©L T h o ms true all of the material allegations in Lutz's complaint and Evan M. Tager of Mayer, Brown, Rowe & Maw LLP, disregard all of the denials in Protective Life's answer. Washington, D.C., Brian P. Trauman of Mayer, Brown, Rowe & Maw LLP, New York, New York, Carl B. [3] While we agree with the trial court that nothing in Wilkerson and Lisa Tate, Washington, D.C., for Amicus the relevant statutes indicates that the legislature intended Curiae American Council of Life Insurers. to create a private right of action for an insured to enforce compliance with an insurer's violation of sections Opinion 627.6515, 627.6571 or 627.6675, we believe these statutory STEVENSON, C.J. provisions could form the basis for a breach of contract action by an insured if properly pled and supported by the Mark Lutz appeals a judgment on the pleadings entered in evidence. As the court pointed out in Foundation Health v. favor of Protective Life Insurance Company (“Protective Westside EKG Associates, 944 So.2d 188, 195 (Fla.2006): Life”) on his class action suit for breach of contract and declaratory judgment. We affirm the judgment on the Florida courts have long recognized that the statutory pleadings with respect to th