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Filing # 163636048 E-Filed 12/23/2022 09:35:22 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
DEBORAH ASCENZI,
BETHANY ASCENZI,
Plaintiffs,
Vv. CASE NO.: 22000269CA
NATIONAL SPECIALTY INSURANCE
COMPANY,
Defendant.
/
DEFENDANT'S MOTION TO SET ASIDE CLERK'S DEFAULT AND
INCORPORATED MEMORANDUM OF LAW
Defendant National Specialty Insurance Company (“NSIC”), by and through its
undersigned counsel and, pursuant to Fla. R. Civ. P. 1.540, hereby file its Motion to Set Aside
Clerk's Default and in support thereof state as follows:
1 This case arises out of a breach of contract action related to an insurance claim filed
by Plaintiffs. See Plaintiffs’ Complaint.
2 NSIC was allegedly served with a Summons and Copy of the Complaint on March
3, 2022. See Plaintiffs’ Motion for Clerk’s Default.
3 On December 21, 2022, NSIC issued a coverage letter related to Plaintiffs’
insurance claim and closed its file. See Exhibit A, { 6.
4 After the coverage letter was sent, NSIC and its agents were under the belief that
the insurance claim was resolved. Id. at 7.
5 On December 13, 2022, Plaintiffs’ counsel Stephen Wilson sent correspondence to
NSIC’s agent related to the entry of a Clerk’s Default in this case. Jd. at § 8.
6. At the time it received the correspondence from Plaintiffs’ counsel, NSIC was not
aware that Plaintiffs had filed a Complaint against NSIC, and that a Motion for Default had been
filed. Jd. at § 9.
7
Upon notice of Plaintiffs’ Complaint and the entry of a Clerk’s Default, NSIC
reviewed its claim documents and records. /d. at § 10.
8 A review of its claim documents and records, revealed that it has no record of any
statutorily required Property Insurance Intent to Initiate Litigation Notice, Civil Remedy Notice of
Insurer Violations, or Complaints filed by Plaintiffs. /d. at § 11.
9 After completing its review of the records, NSIC immediately retained counsel, and
filed an Answer to Plaintiffs’ Complaint. /d. at § 12, also see Exhibit B.
10. On the same day NSIC filed its Answer, the undersigned was contacted by
Plaintiffs’ counsel. The undersigned informed Plaintiffs’ counsel that NSIC did not have any
record of Plaintiffs’ Complaint and requested that the Default be withdrawn. However, the
undersigned received no response. See Exhibit C.
11. Thus, this Motion to Set Aside the Clerk's Default is being filed with the Court
eight (8) business days after NSIC learned of the existence of Plaintiffs’ Complaint and the entry
of a clerk’s default.
12. As set forth more fully, infra, because there is excusable neglect for NSIC failure
to timely respond to Plaintiffs’ Complaint, a meritorious defense applicable to Plaintiffs’ claims,
and a clear demonstration of due diligence by the undersigned upon learning of the default, the
Court should enter an Order setting aside the Clerk's Default.
MEMORANDUM OF LAW
A. The Standard for Setting Aside a Default Judgment.
The Clerk’s Default entered in this action in favor of Plaintiffs and against Defendant
amounts to a finding that Defendant cannot defend itself as to the liability and damage issues
presented in this case. The instant Motion is filed pursuant to Fla. R. Civ. P. 1.540, which
provides, inter alia:
On motion and upon such terms as are just, the court may relieve a
party or a party's legal representative from a final judgment, decree,
order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in
time to move for a new trial or rehearing; (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party; (4) that the judgment or decree
is void; or (5) that the judgment or decree has been satisfied,
released, or discharged, or a prior judgment or decree upon which it
is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment or decree should have prospective
application. The motion shall be filed within a reasonable time, and
for reasons (1), (2), and (3) not more than 1 year after the judgment,
decree, order, or proceeding was entered or taken. A motion under
this subdivision does not affect the finality of a judgment or decree
or suspend its operation. This rule does not limit the power ofa court
to entertain an independent action to relieve a party from a
judgment, decree, order, or proceeding or to set aside a judgment or
decree for fraud upon the court.
Fla. R. Civ. P. 1.540(b).
A default will be set aside upon establishing that: (1) excusable neglect led to the default;
(2) a meritorious defense exists for the cause; and (3) due diligence was used to set aside the
default. Latin Am. Prop & Cas. Inc. Co. v. Presher, 596 So. 2d 1174, 1175 (Fla. 4th DCA 1992);
Decubells v. Richotte. 730 So. 2d 723, 727 (Fla. Sth DCA 1999). Florida courts favor setting aside
defaults to allow resolution on the merits. Shaker Lakes Apartment Co. v. Dolinger, 714 So.2d
1040 (Fla. lst DCA 1998). Therefore, any reasonable doubt regarding the vacation of a default
should be resolved in favor of trial on the merits. Applying the three-prong test to the facts of this
case, it is clear that the Court should set aside the Clerk's Default entered in this case and allow
NSIC to defend the substantive liability and damages issues presented.
B. Excusable Neglect.
Excusable neglect is established because the failure to file a responsive pleading in a timely
manner, in this case, was the direct result of a reasonable and credible explanation. Somero v. Gen.
Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985) (explaining "where inaction results from
clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the
foibles to which human nature is heir, then upon timely application accompanied by a reasonable
and credible explanation the matter should be permitted to be heard on the merits.").
As provided in NSIC’s Answer, Affirmative Defenses, and Request for Jury Trial dated
December 22, 2022. See Exhibit B. Plaintiffs were required to file a statutorily required Property
Insurance Intent to Initiate Litigation Notice. This would have provided NSIC with Notice of a
pending lawsuit and to be on Notice of any potential litigation in this Court’s jurisdiction.
However, that Notice was not filed by Plaintiffs.
NSIC has no record of any Complaint being served as it relates to this matter. See Exhibit
A. It has reviewed its records, and there are no records of a Complaint filed by Plaintiffs. Jd.
NSIC’s untimely response to Plaintiffs’ Complaint is clearly the result of a clerical error or system
gone awry on behalf
of NSIC or the Chief Financial Officer of the state of Florida’s Office. Under
similar circumstances or more egregious situations, Florida courts have repeatedly found that this
type of situation is sufficient to establish excusable neglect on the part of NSIC, warranting an
order setting aside a clerk’s Default or Final Default Judgment.
In Atlantic Asphalt & Equip. Co., Inc. v. Mairena, 578 So. 2d 292 (Fla. 3d DCA 1991), the
Third District Court of Appeal reversed a trial court's refusal to vacate a default where the
defendant established that the Summons and Complaint were inadvertently misfiled and misplaced
due to an error in office communication. Finding that the trial court abused its discretion by
refusing to set aside the default, the appellate court emphasized,"[a] defendant's neglect in
responding to a Complaint is excusable when the inadvertence was due to the mishandling or
misfiling of suit papers." Mairena, 578 So. 2d at 293. Other appellate court decisions recognize
that misplacement, mistake, and mishandling of suit papers is sufficient to establish excusable
neglect. See, e.g., In re Estate of Cummins, 979 So. 2d 984 (Fla. 3d DCA 2008) (concluding that
excusable neglect should have been found where legal assistant unsuccessfully attempted to
procure a hearing date, then told counsel she would follow up on scheduling the hearing but
subsequently stopped reporting for work, resulting in a failure to timely file notice of objections
to discharge petition in probate case); GMAC v. Thornberry, 629 So. 2d 292, 293 (Fla. 3d DCA
1993) (recognizing that "under established precedent, a misrouting of suit papers under
circumstances like these [where the papers were mistakenly routed to the wrong office] has been
held to constitute excusable neglect."); Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So. 2d
83, 84 (Fla. 3d DCA 1987) (finding excusable where "the complaint, which had been transmitted
from Florida to the corporate secretary at the company's national headquarters in Los Angeles,
became 'lost' in a pile of unrelated documents on the desk of the general counsel, who was
responsible for retaining a local attorney to file an appropriate response.").
The Florida Supreme Court has established a policy of providing relief from defaults and
allowing trials on the merits. North Shore Hosp., Inc. v. Barber, 143 So. 2d 849, 853 (Fla. 1962).
If there is any reasonable doubt in the matter of vacating a default, it should be resolved in favor
of granting the application and allowing the trial upon the merits. /d. Policy considerations and the
fair administration of justice favor adjudication on the merits. As the Florida Supreme Court so
aptly explained:
The true purpose of an entry of a default is to speed the cause thereby
preventing a dilatory or procrastinating defendant from impeding
the plaintiff in the establishment of his claim. It is not a procedure
intended to furnish an advantage to the plaintiff so that a defense
may be defeated, or a judgment reached without the difficulty that
arises from a contest by the defendant. Jd.
In the instant case, NSIC does not have any records of a Complaint being filed by Plaintiffs.
See Exhibit A. As such, the fact that NSIC does not have any records clearly indicates that this
was the result of improper routing and mishandling on the behalf of NSIC or the Chief Financial
Officer of the state of Florida.
Thus, because NSIC can establish that the failure to timely file a responsive pleading was
the result of improper routing and mishandling, excusable neglect exists in this case. Under these
circumstances, excusable neglect exists, and the Clerk's Default entered in this case on November
3, 2022, should be set aside. See Mairena, 578 So. 2d at 293.
C. Meritorious defense.
NSIC's meritorious defenses to the allegations of Plaintiffs’ Complaint are stated in the
Answer and Affirmative Defenses filed and served in this case on December 22, 2022. See Exhibit
A. A party may show meritorious defenses in this regard either by an unverified pleading, proposed
answer, or affidavit. Merrill Lynch Mortg. Capital, Inc. v. Hallmark Indus., Inc., 627 So. 2d 12
(Fla. 2d DCA 1993); see also Gibson Trust, Inc. v. Office of Attorney Gen., 833 So. 2d 379, 383
83 (Fla. 4th DCA 2004). NSIC submits that the Answer speaks for itself as it sets forth several
meritorious defenses applicable to the disputed issue of liability in this case.
D. Due diligence
The final element NSIC must demonstrate to have the default set aside is that NSIC,
through undersigned counsel, exercised due diligence in seeking to set aside the Clerk's Default in
question upon learning of its existence. The facts and circumstances in this case, fully outlined in
the factual section of this motion, clearly demonstrate that NSIC exercised due diligence in its
efforts to set aside the Clerk's Default.
NSIC first learned of the lawsuit from an electronic message sent by Plaintiffs’ counsel on
December 13, 2022, to NSIC’s agent. See Exhibit A. As discussed above, prior to the
correspondence sent by Plaintiffs’ counsel, NSIC had no records of any lawsuits, any statutorily
required Property Insurance Intent to Initiate Litigation Notice, Civil Remedy Notice of Insurer
Violations, or Lawsuits filed by Plaintiffs. Jd. Upon receiving notice NSIC investigated the matter
and retained counsel. Jd.
The undersigned was retained in connection with this matter on December 19, 2022. The
undersigned filed an Answer, Affirmative Defenses and Request for Jury Trial on December 22,
2022. See Exhibit B. After filing the Answer, the undersigned was contact by Plaintiffs’ counsel,
and in response, the undersigned requested that Plaintiffs’ counsel agree to withdraw the Default.
See Exhibit C. The undersigned did not get a response to the request to withdraw and filed this
Motion the following day. Therefore, NSIC has established all three elements necessary to warrant
an order setting aside the Clerk's Default of November 3, 2022.
CONCLUSION
For the reasons set forth, supra. NSIC respectfully requests that this Court set aside the
Clerk's Default of November 3, 2022, and award such other relief as may be appropriate.
Date: December 23, 2022 Respectfully submitted,
By. /s/ Isaiah Floyd
Isaiah K. Floyd, Esq. (Fla. Bar No. 117717)
Brian P. Henry, Esq. (Fla. Bar No. 89069)
ROLFES HENRY CO., LPA
5577 Broadcast Court
Sarasota, Florida 34240
. (941) 684-0100
(941) 684-0109
ifloyd@rolfeshenry.com
bberrio@rolfeshenry.com
bhenry@rolfeshenry.com
kdeglman@rolfeshenry.com
Attorneys for Defendant
National Specialty Insurance Company
CERTIFICATE OF SERVICE
ICERTIFY that a true and accurate copy of the foregoing has been electronically filed with
the Clerk of the Courts by using the ECF system, which will send a notice of electronic filing to
all parties of record, this December 23, 2022. I further certify that upon notification from the Clerk
of the Court, a copy of the foregoing will be forwarded via U.S. Mail if a party is a non-ECF
participant:
John Bernstein, Esq.
Bernstein Polsky
95 S. Federal Hwy #200
Boca Raton, FL 33432
T: 954.997.9947
E: service@bpinjury.com
Attorney for Plaintiffs
/s/ Isaiah Floyd
Isaiah K. Floyd, Esq. (Fla. Bar No. 117717)
EXHIBIT A TO
DEFENDANT’S MOTION TO SET ASIDE
CLERK’S DEFAUT AND INCORPORATED
MEMORANDUM OF LAW
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
DEBORAH ASCENZI,
BETHANY ASCENZI
Plaintiffs,
Vv. CASE NO.: 22000269CA
NATIONAL SPECIALTY INSURANCE
COMPANY,
Defendant.
/
DEFENDANT’S CORPORATE REPRESENTATIVE’S IN SUPPORT OF
DEFENDANT’S MOTION TO SET ASIDE DEFAULT
Comes now the affiant, David Patrick, being first duly cautioned and sworn, and hereby
states the following to be true and accurate to the best of his personal knowledge and belief:
1 My name is David Patrick, I am over the age of 21, believe in the obligations of my
oath, and have personal knowledge of the facts herein.
2 I serve as the Corporate Representative for Defendant National Specialty Insurance
Company, as administered by Velocity Risk Underwriters, LLC, in litigated matters.
3 I am duly authorized to execute this Affidavit on behalf of National Specialty
Insurance Company.
4 I have personal knowledge of National Specialty Insurance Company’s regular
business practices and the documents kept during the investigation of insureds/plaintiffs Deborah
Ascenzi’s and Bethany Ascenzi’s insurance claim.
5 I have personally reviewed the claim documents and litigation documents
pertaining to Plaintiffs’ insurance claim.
6. On December 21, 2022, National Specialty Insurance Company issued a coverage
letter related to Plaintiffs’ insurance claim and closed its file. See Exhibit 1.
7 After the coverage letter was sent, National Specialty Insurance Company and its
agents were under the belief that the insurance claim was resolved.
8 On December 13, 2022, Plaintiffs’ counsel Stephen Wilson sent correspondence to
National Specialty Insurance Company’s agent related to the entry of a Clerk’s Default. See
Exhibit 2.
9 At the time it received the correspondence from Plaintiffs’ counsel, National
Specialty Insurance Company was not aware that Plaintiffs had filed a Complaint against National
Specialty Insurance Company, and that a Motion for Default had been filed.
10. Upon notice of Plaintiffs’ Complaint and the entry of a Clerk’s Default had been
granted, National Specialty Insurance Company reviewed its claim documents and records.
11. A review of its claim documents and records revealed that it has no record of any
statutorily required Property Insurance Intent to Initiate Litigation Notice, Civil Remedy Notice of
Insurer Violations, or Complaints filed by Plaintiffs.
12. After completing its review of the records, National Specialty Insurance Company
immediately retained counsel, and filed an Answer to Plaintiffs’ Complaint. See Exhibit 3.
FURTHER AFFIANT SAYETH NAUGHT.
David Patrick
Corporate Representative of National Specialty
Insurance Company
STATE OF FLORIDA. )
)
COUNTY OF ORANGE )
Sworn to before me and signed in my presence this ~ day of December 2022.
}
tiny, Arielle M. Pineda
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Comm.:HH 285822 NOTARY PU BLIC
Expires: July 10, 2026 My Commission Expires:
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EXHIBIT 1 TO
DEFENDANT’S CORPORATE
REPRESENTATIVE’S AFFIDAVIT TO SET
ASIDE CLERK’S DEFAULT
LEADINGEDGE
CLAIMS SERVICE
December 15, 2021
DEBORAH ASCENZI
26223 BARCELOS CT
PUNTA GORDA, FL 33983-5326
Re Policy #: VUW-HO-635074
Named Insured: Deborah Ascenzi
Date of Loss: 09/20/2020
Claim #: VEL21003260
Location: 26223 Barcelos Ct., Punta Gorda, FL 33983
Dear Deborah Ascenzi:
Leading Edge Claims Service is the Third-Party Claims Administrator for Velocity Claims, LLC, acting on
behalf of National Specialty Insurance Company (“National Specialty”), administered by Velocity Risk
Underwriters, LLC. We have been asked to complete an investigation of the reported loss for the insured
property location above.
We have reached the below coverage determination in this claim. The wind damage included in the estimate is
covered by your insurance policy.
Dwelling
(Coverage A)
Gross Claim Amount $2,327.25
Depreciation $771.64
Less Prior Payments $0.00
Deductible $2,500.00
INET PAYMENT $0.00
Enclosed is documentation which supports the basis for no payment being made at this time because the cost
of the repairs falls below the applicable deductible.
Your claim is now being closed. However, if you wish to make a Supplemental Claim or a Reopened Claim
based on additional information which you believe would establish additional damages covered under the
policy, please provide notice in accordance with the terms of the policy and send us any additional
information you wish for us and National Specialty to consider.
If you wish to make a Supplemental Claim or Reopened Claim because you believe that we have erred in
assessing the loss or have omitted any portion of your claimed loss, please contact your assigned Account
Manager as soon as possible.
Please understand nothing contained in this letter, or in any prior or subsequent communication on behalf of
National Specialty, voids, waives, or modifies any provision set forth in the Homeowners Policy issued to
you, and all policy provisions are hereby expressly reserved, as well as all provisions of applicable law
without exception or waiver.
Regardless of applicable coverage, the policy requires that the insured protect the property and mitigate any
damage. Please refer to “Duties” section in the Conditions portion of your policy to see the specific language
on mitigation.
If you have any questions or other information you would like us to consider, please contact your Account
Manager shown below. Thank you.
Respectfully,
Fifa
Ramona Garcia,
Account Manager
817-767-2108, Ext 8404
arcia leadingedgeclaims.com
Enclosure: Estimate
CC: Whitco Insurance Agency LLC
reports@whitcoinsurance.com
Pursuant to F.S. 817.234: “Any person who knowingly and with intent to injure, defraud, or deceive any insurer files a
statement of claim or an application containing any false, incomplete, or misleading information is guilty of a felony of
the third degree.”
EXHIBIT 2 TO
DEFENDANT’S CORPORATE
REPRESENTATIVE’S AFFIDAVIT TO SET
ASIDE CLERK’S DEFAULT
Sent: Tuesday, December 13, 2022 4:37 PM
To: Stephen Wilson
Subject: RE: Ascenzi Claim No. VEL21003260
Hello Stephen,
| do not have any documentation in the claim file regarding notification of intent.
If you forward that to me, | will forward it to the appropriate adjuster for handling.
Thank you,
Ramona Garcia | Account Manager
FL License E142978
LEADINGEDGE
CLAIMS SERVICE
Offlce 817-767-2108 or 866-659-4525, Ext. 8621 | Fax 800-752-3124
‘amona.garcia@leadingedgeclaims.com | www.leadingedgeclaims.com
This e-mail and its attachments are intended only for the use of the addressee(s) and may contain privileged, conCHential or proprietary information. If you are not the
intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notiCkd that any dissemination,
distribution, displaying, copying, or use of this information is strictly prohibited. If you have received this communication in error, please inform the sender immediately
and delete and destroy any record of this message. Thank you.
From: Stephen Wilson
jury.com:
un
Sent: Tuesday, December 13, 2022 3:32 PM
To: Ramona Garcia
Subject: Ascenzi Claim No. VEL21003260
Hi Ramona,
I’m counsel for the Ascenzi’s. I’m trying to reach someone at National Specialty Ins. Co. regarding this claim.
They never responded to the lawsuit my office filed.
Would you be able to give a contact name and number?
Regards,
isuy
BERNSTE
THE taw oF FL CES
STEPHEN C. WILSON, ESQ.
95 South Federal Highway, Suite 200
Boca Raton, Florida 33432
Office: 954.997.9947 | Cell: 305.962.2658 Fax: 954.301.2387
stephen@bpinjury.com | www.bpinjury.com
The information in this e-mail, and any attachment therein, is conential and for use by the addressee only. Any use, disclosure, reproduction,
modiCbation or distribution of the contents of this e-mail, or any part thereof, other than by the intended recipient, is strictly prohibited. If you are not
the intended recipient, please return the e-mail to the sender and delete it from your computer. Although Velocity Risk Underwriters, LLC attempts to
Page 5 of 6
EXHIBIT 3 TO
DEFENDANT’S CORPORATE
REPRESENTATIVE’S AFFIDAVIT TO SET
ASIDE CLERK’S DEFAULT
Filing # 163545962 E-Filed 12/22/2022 10:59:11 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
DEBORAH ASCENZI,
BETHANY ASCENZI
Plaintiffs,
Vv. CASE NO.: 22000269CA
NATIONAL SPECIALTY INSURANCE
COMPANY,
Defendant.
/
DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND JURY TRIAL
Defendant National Specialty Insurance Company, by and through its undersigned
counsel submits its Answer, Affirmative Defenses, and Demand for Jury Trial in response to the
Plaintiffs’ Complaint dated March 1, 2022, and states as follows:
1 Defendant denies the allegations contained in Paragraph 1 of Plaintiffs’
Complaint.
2. Defendant has insufficient knowledge as to the truth or falsity of the allegations
contained in Paragraph 2 of Plaintiffs’ Complaint and, therefore, said allegations are deemed
denied.
3 With respect to paragraph 3 of Plaintiffs’ Complaint Defendant is a foreign for-
profit company with its principal place of business in Texas and is authorized to insure properties
located in the State of Florida. As to all the remaining allegations contained in Paragraph 3 of
Plaintiffs’ Complaint, Defendant denies.
4 Defendant has insufficient knowledge as to the truth or falsity of the allegations
contained in Paragraph 4 of Plaintiffs’ Complaint and, therefore, said allegations are deemed
denied.
5 Defendant denies the allegations contained in Paragraph 5 of Plaintiffs’
Complaint.
6. Defendant admits to the allegations contained in Paragraph 6 of Plaintiffs’
Complaint.
7 Defendant denies the allegations contained in Paragraph 7 of Plaintiffs’
Complaint.
8 Defendant denies the allegations contained in Paragraph 8 of Plaintiffs’
Complaint.
9. Defendant denies the allegations contained in Paragraph 9 of Plaintiffs’
Complaint.
10. Defendant denies the allegations contained in Paragraph 10 of Plaintiffs’
Complaint.
11. Defendant denies the allegations contained in Paragraph 11 of Plaintiffs’
Complaint.
12. Defendant denies the allegations contained in Paragraph 12 of Plaintiffs’
Complaint.
13. Defendant denies the allegations contained in Paragraph 13 of Plaintiffs’
Complaint.
14. Defendant denies the allegations contained in Paragraph 14 of Plaintiffs’
Complaint.
15. Defendant denies the allegations contained in Paragraph 1S of Plaintiffs’
Complaint.
16. Defendant denies the allegations contained in Paragraph 16 of Plaintiffs’
Complaint.
17. Defendant denies the allegations contained in Paragraph 17 of Plaintiffs’
Complaint.
18. Defendant denies the allegations contained in Paragraph 18 of Plaintiffs’
Complaint.
19. With respect to Paragraph 19 of Plaintiffs’ Complaint, the paragraph contains no
allegations of fact, and therefore, no response is required. If a response is required Defendant
denies the allegation.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Defendant hereby incorporates the facts alleged by Plaintiffs in the Complaint to the
extent not denied, and Defendant affirmatively states it is entitled to a set-off of any recovery
against it to the extent that the value of all sums, benefits, and/or settlements paid or payable to
or on behalf of Plaintiff or from any collateral sources pursuant to Florida law.
SECOND AFFIRMATIVE DEFENSE
Defendant hereby incorporates the facts alleged by Plaintiffs in the Complaint, to the
extent not denied, and further asserts if it is entitled to a set-off of any recovery against up to the
amount of applicable deductible and limits under the subject policy.
THIRD AFFIRMATIVE DEFENSE
Defendant has complied with the Loss Settlement provision in the subject insurance
policy; therefore, it has not breached the contract.
FOURTH AFFIRMATIVE DEFENSE
The allegations in the Complaint fail to state a cause of action for the relief requested.
Plaintiffs have failed to strictly adhere to the requirements of assignees under Florida Statute §
627.70152 and as a result have failed to comply with all statutory conditions precedent to bring
this suit before this Court. See ExhibitA attached hereto. Florida Statute § 627.70152(3) states as
follows:
(3) NOTICE.—
(a) As a condition precedent to filing a suit under a property insurance
policy, a claimant must provide the department with written notice of
intent to initiate litigation on a form provided by the department. Such
notice must be given at least 10 business days before filing suit under
the policy, but may not be given before the insurer has made a
determination of coverage under s. 627.70131. Notice to the insurer
must be provided by the department to the e-mail address designated
by the insurer under s. 624.422. The notice must state with specificity
all of the following information:
1 That the notice is provided pursuant to this section.
2 The alleged acts or omissions of the insurer giving rise to the
suit, which may include a denial of coverage.
3 If provided by an attorney or other representative, that a copy
of the notice was provided to the claimant.
If the notice is provided following a denial of coverage, an
estimate of damages, if known.
If the notice is provided following acts or omissions by the
insurer other than denial of coverage, both of the following:
a. The presuit settlement demand, which must itemize the
damages, attorney fees, and costs.
b. The disputed amount.
Documentation to support the information provided in this paragraph may
be provided along with the notice to the insurer.
(b) A claimant must serve a notice of intent to initiate litigation within the
time limits provided in s. 95.11. However, the notice is not required if
the suit is a counterclaim. Service of a notice tolls the time limits
provided in s. 95.11 for 10 business days if such time limits will expire
before the end of the 10-day notice period.
The statute mandates that Plaintiffs must provide a notice of intent to initiate litigation
with the Florida Department of Financial Services. A search of the Property Insurance Intent to
Initiate Litigation database, reveals that to the date of this filing, no notice has been provided on
behalf of either Plaintiff. Further, Defendant has never received any notice of intent to initiate
litigation filed or provided by Plaintiffs. Defendant is currently seeking an affidavit from its
records custodian to certify that Defendant is not in receipt of any notice to intent litigation.
Upon receipt Defendant will file with the Court as supplemental authority upon receipt. It is
plainly clear that Plaintiffs failed to comply with the strict requirements of Florida Statute §
627.70152(3), and as a result have failed to comply with the statutory conditions precedent to
bring this suit.
Florida Statute § 627.70152(5), further mandates:
(5) DISMISSAL OF SUIT.—A court must dismiss without prejudice any
claimant’s suit relating to a claim for which a notice of intent to initiate
litigation was not given as required by this section or if such suit is
commenced before the expiration of any time period provided under
subsection (4), as applicable.
As has been established through record evidence, Plaintiffs have failed to comply with
the conditions precedent to bringing suit as defined under Florida Statute § 627.70152(3). As a
result, Plaintiffs have not complied with all conditions precedent to bring this suit against
Defendant in this matter and the complaint should be dismissed.
REQUEST FOR TRIAL BY JURY
Defendant hereby requests a trial by jury on all issues so triable of right by jury.
Date: December 22, 2022 Respectfully submitted,
By: /s/ Isaiah K. Floyd
Isaiah K. Floyd, Esq. (117717)
Brian P. Henry, Esq. (0089069)
ROLFES HENRY CO., LPA
5577 Broadcast Court
Sarasota, FL 34240
T. > (941) 684-0100
E ifloyd@rolfeshenry.com
E : bberrio@rolfeshenry.com
E : bhenry@rolfeshenry.com
E : kmcclintock@rolfeshenry.com
Attorney for Defendant
National Specialty Insurance Company
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the foregoing has been
electronically filed with the Clerk of the Courts by using the ECF system, which will send a
notice of electronic filing to all parties of record, this 22"4 day of December 2022. I further
certify that upon notification from the Clerk of the Court, a copy of the foregoing will be
forwarded via U.S. Mail if a party is a non-ECF participant:
John Bernstein, Esq.
Bernstein Polsky
95 S. Federal Hwy #200
Boca Raton, FL 33432
T: 954.997.9947
E: service@bpinjury.com
Attorney for Plaintiffs
/s/ Isaiah K. Floyd
Isaiah K. Floyd, Esq.
EXHIBIT B TO
DEFENDANT’S MOTION TO SET ASIDE
CLERK’S DEFAUT AND INCORPORATED
MEMORANDUM OF LAW
Filing # 163545962 E-Filed 12/22/2022 10:59:11 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
DEBORAH ASCENZI,
BETHANY ASCENZI
Plaintiffs,
Vv. CASE NO.: 22000269CA
NATIONAL SPECIALTY INSURANCE
COMPANY,
Defendant.
/
DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND JURY TRIAL
Defendant National Specialty Insurance Company, by and through its undersigned
counsel submits its Answer, Affirmative Defenses, and Demand for Jury Trial in response to the
Plaintiffs’ Complaint dated March 1, 2022, and states as follows:
1 Defendant denies the allegations contained in Paragraph 1 of Plaintiffs’
Complaint.
2. Defendant has insufficient knowledge as to the truth or falsity of the allegations
contained in Paragraph 2 of Plaintiffs’ Complaint and, therefore, said allegations are deemed
denied.
3 With respect to paragraph 3 of Plaintiffs’ Complaint Defendant is a foreign for-
profit company with its principal place of business in Texas and is authorized to insure properties
located in the State of Florida. As to all the remaining allegations contained in Paragraph 3 of
Plaintiffs’ Complaint, Defendant denies.
4 Defendant has insufficient knowledge as to the truth or falsity of the allegations
contained in Paragraph 4 of Plaintiffs’ Complaint and, therefore, said allegations are deemed
denied.
5 Defendant denies the allegations contained in Paragraph 5 of Plaintiffs’
Complaint.
6. Defendant admits to the allegations contained in Paragraph 6 of Plaintiffs’
Complaint.
7 Defendant denies the allegations contained in Paragraph 7 of Plaintiffs’
Complaint.
8 Defendant denies the allegations contained in Paragraph 8 of Plaintiffs’
Complaint.
9. Defendant denies the allegations contained in Paragraph 9 of Plaintiffs’
Complaint.
10. Defendant denies the allegations contained in Paragraph 10 of Plaintiffs’
Complaint.
11. Defendant denies the allegations contained in Paragraph 11 of Plaintiffs’
Complaint.
12. Defendant denies the allegations contained in Paragraph 12 of Plaintiffs’
Complaint.
13. Defendant denies the allegations contained in Paragraph 13 of Plaintiffs’
Complaint.
14. Defendant denies the allegations contained in Paragraph 14 of Plaintiffs’
Complaint.
15. Defendant denies the allegations contained in Paragraph 1S of Plaintiffs’
Complaint.
16. Defendant denies the allegations contained in Paragraph 16 of Plaintiffs’
Complaint.
17. Defendant denies the allegations contained in Paragraph 17 of Plaintiffs’
Complaint.
18. Defendant denies the allegations contained in Paragraph 18 of Plaintiffs’
Complaint.
19. With respect to Paragraph 19 of Plaintiffs’ Complaint, the paragraph contains no
allegations of fact, and therefore, no response is required. If a response is required Defendant
denies the allegation.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Defendant hereby incorporates the facts alleged by Plaintiffs in the Complaint to the
extent not denied, and Defendant affirmatively states it is entitled to a set-off of any recovery
against it to the extent that the value of all sums, benefits, and/or settlements paid or payable to
or on behalf of Plaintiff or from any collateral sources pursuant to Florida law.
SECOND AFFIRMATIVE DEFENSE
Defendant hereby incorporates the facts alleged by Plaintiffs in the Complaint, to the
extent not denied, and further asserts if it is entitled to a set-off of any recovery against up to the
amount of applicable deductible and limits under the subject policy.
THIRD AFFIRMATIVE DEFENSE
Defendant has complied with the Loss Settlement provision in the subject insurance
policy; therefore, it has not breached the contract.
FOURTH AFFIRMATIVE DEFENSE
The allegations in the Complaint fail to state a cause of action for the relief requested.
Plaintiffs have failed to strictly adhere to the requirements of assignees under Florida Statute §
627.70152 and as a result have failed to comply with all statutory conditions precedent to bring
this suit before this Court. See ExhibitA attached hereto. Florida Statute § 627.70152(3) states as
follows:
(3) NOTICE.—
(a) As a condition precedent to filing a suit under a property insurance
policy, a claimant must provide the department with written notice of
intent to initiate litigation on a form provided by the department. Such
notice must be given at least 10 business days before filing suit under
the policy, but may not be given before the insurer has made a
determination of coverage under s. 627.70131. Notice to the insurer
must be provided by the department to the e-mail address designated
by the insurer under s. 624.422. The notice must state with specificity
all of the following information:
1 That the notice is provided pursuant to this section.
2 The alleged acts or omissions of the insurer giving rise to the
suit, which may include a denial of coverage.
3 If provided by an attorney or other representative, that a copy
of the notice was provided to the claimant.
If the notice is provided following a denial of coverage, an
estimate of damages, if known.
If the notice is provided following acts or omissions by the
insurer other than denial of coverage, both of the following:
a. The presuit settlement demand, which must itemize the
damages, attorney fees, and costs.
b. The disputed amount.
Documentation to support the information provided in this paragraph may
be provided along with the notice to the insurer.
(b) A claimant must serve a notice of intent to initiate litigation within the
time limits provided in s. 95.11. However, the notice is not required if
the suit is a counterclaim. Service of a notice tolls the time limits
provided in s. 95.11 for 10 business days if such time limits will expire
before the end of the 10-day notice period.
The statute mandates that Plaintiffs must provide a notice of intent to initiate litigation
with the Florida Department of Financial Services. A search of the Property Insurance Intent to
Initiate Litigation database, reveals that to the date of this filing, no notice has been provided on
behalf of either Plaintiff. Further, Defendant has never received any notice of intent to initiate
litigation filed or provided by Plaintiffs. Defendant is currently seeking an affidavit from its
records custodian to certify that Defendant is not in receipt of any notice to intent litigation.
Upon receipt Defendant will file with the Court as supplemental authority upon receipt. It is
plainly clear that Plaintiffs failed to comply with the strict requirements of Florida Statute §
627.70152(3), and as a result have failed to comply with the statutory conditions precedent to
bring this suit.
Florida Statute § 627.70152(5), further mandates:
(5) DISMISSAL OF SUIT.—A court must dismiss without prejudice any
claimant’s suit relating to a claim for which a notice of intent to initiate
litigation was not given as required by this section or if such suit is
commenced before the expiration of any time period provided under
subsection (4), as applicable.
As has been established through record evidence, Plaintiffs have failed to comply with
the conditions precedent to bringing suit as defined under Florida Statute § 627.70152(3). As a
result, Plaintiffs have not complied with all conditions precedent to bring this suit against
Defendant in this matter and the complaint should be dismissed.
REQUEST FOR TRIAL BY JURY
Defendant hereby requests a trial by jury on all issues so triable of right by jury.
Date: December 22, 2022 Respectfully submitted,
By: /s/ Isaiah K. Floyd
Isaiah K. Floyd, Esq. (117717)
Brian P. Henry, Esq. (0089069)
ROLFES HENRY CO., LPA
5577 Broadcast Court
Sarasota, FL 34240
T. > (941) 684-0100
E ifloyd@rolfeshenry.com
E : bberrio@rolfeshenry.com
E : bhenry@rolfeshenry.com
E : kmcclintock@rolfeshenry.com
Attorney for Defendant
National Specialty Insurance Company
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the foregoing has been
electronically filed with the Clerk of the Courts by using the ECF system, which will send a
notice of electronic filing to all parties of record, this 22"4 day of December 2022. I further
certify that upon notification from the Clerk of the Court, a copy of the foregoing will be
forwarded via U.S. Mail if a party is a non-ECF participant:
John Bernstein, Esq.
Bernstein Polsky
95 S. Federal Hwy #200
Boca Raton, FL 33432
T: 954.997.9947
E: service@bpinjury.com
Attorney for Plaintiffs
/s/ Isaiah K. Floyd
Isaiah K. Floyd, Esq.
EXHIBIT C TO
DEFENDANT’S MOTION TO SET ASIDE
CLERK’S DEFAUT AND INCORPORATED
MEMORANDUM OF LAW
Fri
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Filing # 163636048 E-Filed 12/23/2022 09:35:22 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA DEBORAH ASCENZI, BETHANY ASCENZI, Plaintiffs, Vv. CASE NO.: 22000269CA NATIONAL SPECIALTY INSURANCE COMPANY, Defendant. / DEFENDANT'S MOTION TO SET ASIDE CLERK'S DEFAULT AND INCORPORATED MEMORANDUM OF LAW Defendant National Specialty Insurance Company (“NSIC”), by and through its undersigned counsel and, pursuant to Fla. R. Civ. P. 1.540, hereby file its Motion to Set Aside Clerk's Default and in support thereof state as follows: 1 This case arises out of a breach of contract action related to an insurance claim filed by Plaintiffs. See Plaintiffs’ Complaint. 2 NSIC was allegedly served with a Summons and Copy of the Complaint on March 3, 2022. See Plaintiffs’ Motion for Clerk’s Default. 3 On December 21, 2022, NSIC issued a coverage letter related to Plaintiffs’ insurance claim and closed its file. See Exhibit A, { 6. 4 After the coverage letter was sent, NSIC and its agents were under the belief that the insurance claim was resolved. Id. at 7. 5 On December 13, 2022, Plaintiffs’ counsel Stephen Wilson sent correspondence to NSIC’s agent related to the entry of a Clerk’s Default in this case. Jd. at § 8. 6. At the time it received the correspondence from Plaintiffs’ counsel, NSIC was not aware that Plaintiffs had filed a Complaint against NSIC, and that a Motion for Default had been filed. Jd. at § 9. 7 Upon notice of Plaintiffs’ Complaint and the entry of a Clerk’s Default, NSIC reviewed its claim documents and records. /d. at § 10. 8 A review of its claim documents and records, revealed that it has no record of any statutorily required Property Insurance Intent to Initiate Litigation Notice, Civil Remedy Notice of Insurer Violations, or Complaints filed by Plaintiffs. /d. at § 11. 9 After completing its review of the records, NSIC immediately retained counsel, and filed an Answer to Plaintiffs’ Complaint. /d. at § 12, also see Exhibit B. 10. On the same day NSIC filed its Answer, the undersigned was contacted by Plaintiffs’ counsel. The undersigned informed Plaintiffs’ counsel that NSIC did not have any record of Plaintiffs’ Complaint and requested that the Default be withdrawn. However, the undersigned received no response. See Exhibit C. 11. Thus, this Motion to Set Aside the Clerk's Default is being filed with the Court eight (8) business days after NSIC learned of the existence of Plaintiffs’ Complaint and the entry of a clerk’s default. 12. As set forth more fully, infra, because there is excusable neglect for NSIC failure to timely respond to Plaintiffs’ Complaint, a meritorious defense applicable to Plaintiffs’ claims, and a clear demonstration of due diligence by the undersigned upon learning of the default, the Court should enter an Order setting aside the Clerk's Default. MEMORANDUM OF LAW A. The Standard for Setting Aside a Default Judgment. The Clerk’s Default entered in this action in favor of Plaintiffs and against Defendant amounts to a finding that Defendant cannot defend itself as to the liability and damage issues presented in this case. The instant Motion is filed pursuant to Fla. R. Civ. P. 1.540, which provides, inter alia: On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power ofa court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court. Fla. R. Civ. P. 1.540(b). A default will be set aside upon establishing that: (1) excusable neglect led to the default; (2) a meritorious defense exists for the cause; and (3) due diligence was used to set aside the default. Latin Am. Prop & Cas. Inc. Co. v. Presher, 596 So. 2d 1174, 1175 (Fla. 4th DCA 1992); Decubells v. Richotte. 730 So. 2d 723, 727 (Fla. Sth DCA 1999). Florida courts favor setting aside defaults to allow resolution on the merits. Shaker Lakes Apartment Co. v. Dolinger, 714 So.2d 1040 (Fla. lst DCA 1998). Therefore, any reasonable doubt regarding the vacation of a default should be resolved in favor of trial on the merits. Applying the three-prong test to the facts of this case, it is clear that the Court should set aside the Clerk's Default entered in this case and allow NSIC to defend the substantive liability and damages issues presented. B. Excusable Neglect. Excusable neglect is established because the failure to file a responsive pleading in a timely manner, in this case, was the direct result of a reasonable and credible explanation. Somero v. Gen. Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985) (explaining "where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits."). As provided in NSIC’s Answer, Affirmative Defenses, and Request for Jury Trial dated December 22, 2022. See Exhibit B. Plaintiffs were required to file a statutorily required Property Insurance Intent to Initiate Litigation Notice. This would have provided NSIC with Notice of a pending lawsuit and to be on Notice of any potential litigation in this Court’s jurisdiction. However, that Notice was not filed by Plaintiffs. NSIC has no record of any Complaint being served as it relates to this matter. See Exhibit A. It has reviewed its records, and there are no records of a Complaint filed by Plaintiffs. Jd. NSIC’s untimely response to Plaintiffs’ Complaint is clearly the result of a clerical error or system gone awry on behalf of NSIC or the Chief Financial Officer of the state of Florida’s Office. Under similar circumstances or more egregious situations, Florida courts have repeatedly found that this type of situation is sufficient to establish excusable neglect on the part of NSIC, warranting an order setting aside a clerk’s Default or Final Default Judgment. In Atlantic Asphalt & Equip. Co., Inc. v. Mairena, 578 So. 2d 292 (Fla. 3d DCA 1991), the Third District Court of Appeal reversed a trial court's refusal to vacate a default where the defendant established that the Summons and Complaint were inadvertently misfiled and misplaced due to an error in office communication. Finding that the trial court abused its discretion by refusing to set aside the default, the appellate court emphasized,"[a] defendant's neglect in responding to a Complaint is excusable when the inadvertence was due to the mishandling or misfiling of suit papers." Mairena, 578 So. 2d at 293. Other appellate court decisions recognize that misplacement, mistake, and mishandling of suit papers is sufficient to establish excusable neglect. See, e.g., In re Estate of Cummins, 979 So. 2d 984 (Fla. 3d DCA 2008) (concluding that excusable neglect should have been found where legal assistant unsuccessfully attempted to procure a hearing date, then told counsel she would follow up on scheduling the hearing but subsequently stopped reporting for work, resulting in a failure to timely file notice of objections to discharge petition in probate case); GMAC v. Thornberry, 629 So. 2d 292, 293 (Fla. 3d DCA 1993) (recognizing that "under established precedent, a misrouting of suit papers under circumstances like these [where the papers were mistakenly routed to the wrong office] has been held to constitute excusable neglect."); Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So. 2d 83, 84 (Fla. 3d DCA 1987) (finding excusable where "the complaint, which had been transmitted from Florida to the corporate secretary at the company's national headquarters in Los Angeles, became 'lost' in a pile of unrelated documents on the desk of the general counsel, who was responsible for retaining a local attorney to file an appropriate response."). The Florida Supreme Court has established a policy of providing relief from defaults and allowing trials on the merits. North Shore Hosp., Inc. v. Barber, 143 So. 2d 849, 853 (Fla. 1962). If there is any reasonable doubt in the matter of vacating a default, it should be resolved in favor of granting the application and allowing the trial upon the merits. /d. Policy considerations and the fair administration of justice favor adjudication on the merits. As the Florida Supreme Court so aptly explained: The true purpose of an entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not a procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated, or a judgment reached without the difficulty that arises from a contest by the defendant. Jd. In the instant case, NSIC does not have any records of a Complaint being filed by Plaintiffs. See Exhibit A. As such, the fact that NSIC does not have any records clearly indicates that this was the result of improper routing and mishandling on the behalf of NSIC or the Chief Financial Officer of the state of Florida. Thus, because NSIC can establish that the failure to timely file a responsive pleading was the result of improper routing and mishandling, excusable neglect exists in this case. Under these circumstances, excusable neglect exists, and the Clerk's Default entered in this case on November 3, 2022, should be set aside. See Mairena, 578 So. 2d at 293. C. Meritorious defense. NSIC's meritorious defenses to the allegations of Plaintiffs’ Complaint are stated in the Answer and Affirmative Defenses filed and served in this case on December 22, 2022. See Exhibit A. A party may show meritorious defenses in this regard either by an unverified pleading, proposed answer, or affidavit. Merrill Lynch Mortg. Capital, Inc. v. Hallmark Indus., Inc., 627 So. 2d 12 (Fla. 2d DCA 1993); see also Gibson Trust, Inc. v. Office of Attorney Gen., 833 So. 2d 379, 383 83 (Fla. 4th DCA 2004). NSIC submits that the Answer speaks for itself as it sets forth several meritorious defenses applicable to the disputed issue of liability in this case. D. Due diligence The final element NSIC must demonstrate to have the default set aside is that NSIC, through undersigned counsel, exercised due diligence in seeking to set aside the Clerk's Default in question upon learning of its existence. The facts and circumstances in this case, fully outlined in the factual section of this motion, clearly demonstrate that NSIC exercised due diligence in its efforts to set aside the Clerk's Default. NSIC first learned of the lawsuit from an electronic message sent by Plaintiffs’ counsel on December 13, 2022, to NSIC’s agent. See Exhibit A. As discussed above, prior to the correspondence sent by Plaintiffs’ counsel, NSIC had no records of any lawsuits, any statutorily required Property Insurance Intent to Initiate Litigation Notice, Civil Remedy Notice of Insurer Violations, or Lawsuits filed by Plaintiffs. Jd. Upon receiving notice NSIC investigated the matter and retained counsel. Jd. The undersigned was retained in connection with this matter on December 19, 2022. The undersigned filed an Answer, Affirmative Defenses and Request for Jury Trial on December 22, 2022. See Exhibit B. After filing the Answer, the undersigned was contact by Plaintiffs’ counsel, and in response, the undersigned requested that Plaintiffs’ counsel agree to withdraw the Default. See Exhibit C. The undersigned did not get a response to the request to withdraw and filed this Motion the following day. Therefore, NSIC has established all three elements necessary to warrant an order setting aside the Clerk's Default of November 3, 2022. CONCLUSION For the reasons set forth, supra. NSIC respectfully requests that this Court set aside the Clerk's Default of November 3, 2022, and award such other relief as may be appropriate. Date: December 23, 2022 Respectfully submitted, By. /s/ Isaiah Floyd Isaiah K. Floyd, Esq. (Fla. Bar No. 117717) Brian P. Henry, Esq. (Fla. Bar No. 89069) ROLFES HENRY CO., LPA 5577 Broadcast Court Sarasota, Florida 34240 . (941) 684-0100 (941) 684-0109 ifloyd@rolfeshenry.com bberrio@rolfeshenry.com bhenry@rolfeshenry.com kdeglman@rolfeshenry.com Attorneys for Defendant National Specialty Insurance Company CERTIFICATE OF SERVICE ICERTIFY that a true and accurate copy of the foregoing has been electronically filed with the Clerk of the Courts by using the ECF system, which will send a notice of electronic filing to all parties of record, this December 23, 2022. I further certify that upon notification from the Clerk of the Court, a copy of the foregoing will be forwarded via U.S. Mail if a party is a non-ECF participant: John Bernstein, Esq. Bernstein Polsky 95 S. Federal Hwy #200 Boca Raton, FL 33432 T: 954.997.9947 E: service@bpinjury.com Attorney for Plaintiffs /s/ Isaiah Floyd Isaiah K. Floyd, Esq. (Fla. Bar No. 117717) EXHIBIT A TO DEFENDANT’S MOTION TO SET ASIDE CLERK’S DEFAUT AND INCORPORATED MEMORANDUM OF LAW IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA DEBORAH ASCENZI, BETHANY ASCENZI Plaintiffs, Vv. CASE NO.: 22000269CA NATIONAL SPECIALTY INSURANCE COMPANY, Defendant. / DEFENDANT’S CORPORATE REPRESENTATIVE’S IN SUPPORT OF DEFENDANT’S MOTION TO SET ASIDE DEFAULT Comes now the affiant, David Patrick, being first duly cautioned and sworn, and hereby states the following to be true and accurate to the best of his personal knowledge and belief: 1 My name is David Patrick, I am over the age of 21, believe in the obligations of my oath, and have personal knowledge of the facts herein. 2 I serve as the Corporate Representative for Defendant National Specialty Insurance Company, as administered by Velocity Risk Underwriters, LLC, in litigated matters. 3 I am duly authorized to execute this Affidavit on behalf of National Specialty Insurance Company. 4 I have personal knowledge of National Specialty Insurance Company’s regular business practices and the documents kept during the investigation of insureds/plaintiffs Deborah Ascenzi’s and Bethany Ascenzi’s insurance claim. 5 I have personally reviewed the claim documents and litigation documents pertaining to Plaintiffs’ insurance claim. 6. On December 21, 2022, National Specialty Insurance Company issued a coverage letter related to Plaintiffs’ insurance claim and closed its file. See Exhibit 1. 7 After the coverage letter was sent, National Specialty Insurance Company and its agents were under the belief that the insurance claim was resolved. 8 On December 13, 2022, Plaintiffs’ counsel Stephen Wilson sent correspondence to National Specialty Insurance Company’s agent related to the entry of a Clerk’s Default. See Exhibit 2. 9 At the time it received the correspondence from Plaintiffs’ counsel, National Specialty Insurance Company was not aware that Plaintiffs had filed a Complaint against National Specialty Insurance Company, and that a Motion for Default had been filed. 10. Upon notice of Plaintiffs’ Complaint and the entry of a Clerk’s Default had been granted, National Specialty Insurance Company reviewed its claim documents and records. 11. A review of its claim documents and records revealed that it has no record of any statutorily required Property Insurance Intent to Initiate Litigation Notice, Civil Remedy Notice of Insurer Violations, or Complaints filed by Plaintiffs. 12. After completing its review of the records, National Specialty Insurance Company immediately retained counsel, and filed an Answer to Plaintiffs’ Complaint. See Exhibit 3. FURTHER AFFIANT SAYETH NAUGHT. David Patrick Corporate Representative of National Specialty Insurance Company STATE OF FLORIDA. ) ) COUNTY OF ORANGE ) Sworn to before me and signed in my presence this ~ day of December 2022. } tiny, Arielle M. Pineda s Comm.:HH 285822 NOTARY PU BLIC Expires: July 10, 2026 My Commission Expires: “pS Notary Public - State of Florida Srin ot Flow Cony Anesered twenty kngten, at graced “een nine alta cA type a EXHIBIT 1 TO DEFENDANT’S CORPORATE REPRESENTATIVE’S AFFIDAVIT TO SET ASIDE CLERK’S DEFAULT LEADINGEDGE CLAIMS SERVICE December 15, 2021 DEBORAH ASCENZI 26223 BARCELOS CT PUNTA GORDA, FL 33983-5326 Re Policy #: VUW-HO-635074 Named Insured: Deborah Ascenzi Date of Loss: 09/20/2020 Claim #: VEL21003260 Location: 26223 Barcelos Ct., Punta Gorda, FL 33983 Dear Deborah Ascenzi: Leading Edge Claims Service is the Third-Party Claims Administrator for Velocity Claims, LLC, acting on behalf of National Specialty Insurance Company (“National Specialty”), administered by Velocity Risk Underwriters, LLC. We have been asked to complete an investigation of the reported loss for the insured property location above. We have reached the below coverage determination in this claim. The wind damage included in the estimate is covered by your insurance policy. Dwelling (Coverage A) Gross Claim Amount $2,327.25 Depreciation $771.64 Less Prior Payments $0.00 Deductible $2,500.00 INET PAYMENT $0.00 Enclosed is documentation which supports the basis for no payment being made at this time because the cost of the repairs falls below the applicable deductible. Your claim is now being closed. However, if you wish to make a Supplemental Claim or a Reopened Claim based on additional information which you believe would establish additional damages covered under the policy, please provide notice in accordance with the terms of the policy and send us any additional information you wish for us and National Specialty to consider. If you wish to make a Supplemental Claim or Reopened Claim because you believe that we have erred in assessing the loss or have omitted any portion of your claimed loss, please contact your assigned Account Manager as soon as possible. Please understand nothing contained in this letter, or in any prior or subsequent communication on behalf of National Specialty, voids, waives, or modifies any provision set forth in the Homeowners Policy issued to you, and all policy provisions are hereby expressly reserved, as well as all provisions of applicable law without exception or waiver. Regardless of applicable coverage, the policy requires that the insured protect the property and mitigate any damage. Please refer to “Duties” section in the Conditions portion of your policy to see the specific language on mitigation. If you have any questions or other information you would like us to consider, please contact your Account Manager shown below. Thank you. Respectfully, Fifa Ramona Garcia, Account Manager 817-767-2108, Ext 8404 arcia leadingedgeclaims.com Enclosure: Estimate CC: Whitco Insurance Agency LLC reports@whitcoinsurance.com Pursuant to F.S. 817.234: “Any person who knowingly and with intent to injure, defraud, or deceive any insurer files a statement of claim or an application containing any false, incomplete, or misleading information is guilty of a felony of the third degree.” EXHIBIT 2 TO DEFENDANT’S CORPORATE REPRESENTATIVE’S AFFIDAVIT TO SET ASIDE CLERK’S DEFAULT Sent: Tuesday, December 13, 2022 4:37 PM To: Stephen Wilson Subject: RE: Ascenzi Claim No. VEL21003260 Hello Stephen, | do not have any documentation in the claim file regarding notification of intent. If you forward that to me, | will forward it to the appropriate adjuster for handling. Thank you, Ramona Garcia | Account Manager FL License E142978 LEADINGEDGE CLAIMS SERVICE Offlce 817-767-2108 or 866-659-4525, Ext. 8621 | Fax 800-752-3124 ‘amona.garcia@leadingedgeclaims.com | www.leadingedgeclaims.com This e-mail and its attachments are intended only for the use of the addressee(s) and may contain privileged, conCHential or proprietary information. If you are not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notiCkd that any dissemination, distribution, displaying, copying, or use of this information is strictly prohibited. If you have received this communication in error, please inform the sender immediately and delete and destroy any record of this message. Thank you. From: Stephen Wilson jury.com: un Sent: Tuesday, December 13, 2022 3:32 PM To: Ramona Garcia Subject: Ascenzi Claim No. VEL21003260 Hi Ramona, I’m counsel for the Ascenzi’s. I’m trying to reach someone at National Specialty Ins. Co. regarding this claim. They never responded to the lawsuit my office filed. Would you be able to give a contact name and number? Regards, isuy BERNSTE THE taw oF FL CES STEPHEN C. WILSON, ESQ. 95 South Federal Highway, Suite 200 Boca Raton, Florida 33432 Office: 954.997.9947 | Cell: 305.962.2658 Fax: 954.301.2387 stephen@bpinjury.com | www.bpinjury.com The information in this e-mail, and any attachment therein, is conential and for use by the addressee only. Any use, disclosure, reproduction, modiCbation or distribution of the contents of this e-mail, or any part thereof, other than by the intended recipient, is strictly prohibited. If you are not the intended recipient, please return the e-mail to the sender and delete it from your computer. Although Velocity Risk Underwriters, LLC attempts to Page 5 of 6 EXHIBIT 3 TO DEFENDANT’S CORPORATE REPRESENTATIVE’S AFFIDAVIT TO SET ASIDE CLERK’S DEFAULT Filing # 163545962 E-Filed 12/22/2022 10:59:11 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA DEBORAH ASCENZI, BETHANY ASCENZI Plaintiffs, Vv. CASE NO.: 22000269CA NATIONAL SPECIALTY INSURANCE COMPANY, Defendant. / DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND JURY TRIAL Defendant National Specialty Insurance Company, by and through its undersigned counsel submits its Answer, Affirmative Defenses, and Demand for Jury Trial in response to the Plaintiffs’ Complaint dated March 1, 2022, and states as follows: 1 Defendant denies the allegations contained in Paragraph 1 of Plaintiffs’ Complaint. 2. Defendant has insufficient knowledge as to the truth or falsity of the allegations contained in Paragraph 2 of Plaintiffs’ Complaint and, therefore, said allegations are deemed denied. 3 With respect to paragraph 3 of Plaintiffs’ Complaint Defendant is a foreign for- profit company with its principal place of business in Texas and is authorized to insure properties located in the State of Florida. As to all the remaining allegations contained in Paragraph 3 of Plaintiffs’ Complaint, Defendant denies. 4 Defendant has insufficient knowledge as to the truth or falsity of the allegations contained in Paragraph 4 of Plaintiffs’ Complaint and, therefore, said allegations are deemed denied. 5 Defendant denies the allegations contained in Paragraph 5 of Plaintiffs’ Complaint. 6. Defendant admits to the allegations contained in Paragraph 6 of Plaintiffs’ Complaint. 7 Defendant denies the allegations contained in Paragraph 7 of Plaintiffs’ Complaint. 8 Defendant denies the allegations contained in Paragraph 8 of Plaintiffs’ Complaint. 9. Defendant denies the allegations contained in Paragraph 9 of Plaintiffs’ Complaint. 10. Defendant denies the allegations contained in Paragraph 10 of Plaintiffs’ Complaint. 11. Defendant denies the allegations contained in Paragraph 11 of Plaintiffs’ Complaint. 12. Defendant denies the allegations contained in Paragraph 12 of Plaintiffs’ Complaint. 13. Defendant denies the allegations contained in Paragraph 13 of Plaintiffs’ Complaint. 14. Defendant denies the allegations contained in Paragraph 14 of Plaintiffs’ Complaint. 15. Defendant denies the allegations contained in Paragraph 1S of Plaintiffs’ Complaint. 16. Defendant denies the allegations contained in Paragraph 16 of Plaintiffs’ Complaint. 17. Defendant denies the allegations contained in Paragraph 17 of Plaintiffs’ Complaint. 18. Defendant denies the allegations contained in Paragraph 18 of Plaintiffs’ Complaint. 19. With respect to Paragraph 19 of Plaintiffs’ Complaint, the paragraph contains no allegations of fact, and therefore, no response is required. If a response is required Defendant denies the allegation. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Defendant hereby incorporates the facts alleged by Plaintiffs in the Complaint to the extent not denied, and Defendant affirmatively states it is entitled to a set-off of any recovery against it to the extent that the value of all sums, benefits, and/or settlements paid or payable to or on behalf of Plaintiff or from any collateral sources pursuant to Florida law. SECOND AFFIRMATIVE DEFENSE Defendant hereby incorporates the facts alleged by Plaintiffs in the Complaint, to the extent not denied, and further asserts if it is entitled to a set-off of any recovery against up to the amount of applicable deductible and limits under the subject policy. THIRD AFFIRMATIVE DEFENSE Defendant has complied with the Loss Settlement provision in the subject insurance policy; therefore, it has not breached the contract. FOURTH AFFIRMATIVE DEFENSE The allegations in the Complaint fail to state a cause of action for the relief requested. Plaintiffs have failed to strictly adhere to the requirements of assignees under Florida Statute § 627.70152 and as a result have failed to comply with all statutory conditions precedent to bring this suit before this Court. See ExhibitA attached hereto. Florida Statute § 627.70152(3) states as follows: (3) NOTICE.— (a) As a condition precedent to filing a suit under a property insurance policy, a claimant must provide the department with written notice of intent to initiate litigation on a form provided by the department. Such notice must be given at least 10 business days before filing suit under the policy, but may not be given before the insurer has made a determination of coverage under s. 627.70131. Notice to the insurer must be provided by the department to the e-mail address designated by the insurer under s. 624.422. The notice must state with specificity all of the following information: 1 That the notice is provided pursuant to this section. 2 The alleged acts or omissions of the insurer giving rise to the suit, which may include a denial of coverage. 3 If provided by an attorney or other representative, that a copy of the notice was provided to the claimant. If the notice is provided following a denial of coverage, an estimate of damages, if known. If the notice is provided following acts or omissions by the insurer other than denial of coverage, both of the following: a. The presuit settlement demand, which must itemize the damages, attorney fees, and costs. b. The disputed amount. Documentation to support the information provided in this paragraph may be provided along with the notice to the insurer. (b) A claimant must serve a notice of intent to initiate litigation within the time limits provided in s. 95.11. However, the notice is not required if the suit is a counterclaim. Service of a notice tolls the time limits provided in s. 95.11 for 10 business days if such time limits will expire before the end of the 10-day notice period. The statute mandates that Plaintiffs must provide a notice of intent to initiate litigation with the Florida Department of Financial Services. A search of the Property Insurance Intent to Initiate Litigation database, reveals that to the date of this filing, no notice has been provided on behalf of either Plaintiff. Further, Defendant has never received any notice of intent to initiate litigation filed or provided by Plaintiffs. Defendant is currently seeking an affidavit from its records custodian to certify that Defendant is not in receipt of any notice to intent litigation. Upon receipt Defendant will file with the Court as supplemental authority upon receipt. It is plainly clear that Plaintiffs failed to comply with the strict requirements of Florida Statute § 627.70152(3), and as a result have failed to comply with the statutory conditions precedent to bring this suit. Florida Statute § 627.70152(5), further mandates: (5) DISMISSAL OF SUIT.—A court must dismiss without prejudice any claimant’s suit relating to a claim for which a notice of intent to initiate litigation was not given as required by this section or if such suit is commenced before the expiration of any time period provided under subsection (4), as applicable. As has been established through record evidence, Plaintiffs have failed to comply with the conditions precedent to bringing suit as defined under Florida Statute § 627.70152(3). As a result, Plaintiffs have not complied with all conditions precedent to bring this suit against Defendant in this matter and the complaint should be dismissed. REQUEST FOR TRIAL BY JURY Defendant hereby requests a trial by jury on all issues so triable of right by jury. Date: December 22, 2022 Respectfully submitted, By: /s/ Isaiah K. Floyd Isaiah K. Floyd, Esq. (117717) Brian P. Henry, Esq. (0089069) ROLFES HENRY CO., LPA 5577 Broadcast Court Sarasota, FL 34240 T. > (941) 684-0100 E ifloyd@rolfeshenry.com E : bberrio@rolfeshenry.com E : bhenry@rolfeshenry.com E : kmcclintock@rolfeshenry.com Attorney for Defendant National Specialty Insurance Company CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing has been electronically filed with the Clerk of the Courts by using the ECF system, which will send a notice of electronic filing to all parties of record, this 22"4 day of December 2022. I further certify that upon notification from the Clerk of the Court, a copy of the foregoing will be forwarded via U.S. Mail if a party is a non-ECF participant: John Bernstein, Esq. Bernstein Polsky 95 S. Federal Hwy #200 Boca Raton, FL 33432 T: 954.997.9947 E: service@bpinjury.com Attorney for Plaintiffs /s/ Isaiah K. Floyd Isaiah K. Floyd, Esq. EXHIBIT B TO DEFENDANT’S MOTION TO SET ASIDE CLERK’S DEFAUT AND INCORPORATED MEMORANDUM OF LAW Filing # 163545962 E-Filed 12/22/2022 10:59:11 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA DEBORAH ASCENZI, BETHANY ASCENZI Plaintiffs, Vv. CASE NO.: 22000269CA NATIONAL SPECIALTY INSURANCE COMPANY, Defendant. / DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND JURY TRIAL Defendant National Specialty Insurance Company, by and through its undersigned counsel submits its Answer, Affirmative Defenses, and Demand for Jury Trial in response to the Plaintiffs’ Complaint dated March 1, 2022, and states as follows: 1 Defendant denies the allegations contained in Paragraph 1 of Plaintiffs’ Complaint. 2. Defendant has insufficient knowledge as to the truth or falsity of the allegations contained in Paragraph 2 of Plaintiffs’ Complaint and, therefore, said allegations are deemed denied. 3 With respect to paragraph 3 of Plaintiffs’ Complaint Defendant is a foreign for- profit company with its principal place of business in Texas and is authorized to insure properties located in the State of Florida. As to all the remaining allegations contained in Paragraph 3 of Plaintiffs’ Complaint, Defendant denies. 4 Defendant has insufficient knowledge as to the truth or falsity of the allegations contained in Paragraph 4 of Plaintiffs’ Complaint and, therefore, said allegations are deemed denied. 5 Defendant denies the allegations contained in Paragraph 5 of Plaintiffs’ Complaint. 6. Defendant admits to the allegations contained in Paragraph 6 of Plaintiffs’ Complaint. 7 Defendant denies the allegations contained in Paragraph 7 of Plaintiffs’ Complaint. 8 Defendant denies the allegations contained in Paragraph 8 of Plaintiffs’ Complaint. 9. Defendant denies the allegations contained in Paragraph 9 of Plaintiffs’ Complaint. 10. Defendant denies the allegations contained in Paragraph 10 of Plaintiffs’ Complaint. 11. Defendant denies the allegations contained in Paragraph 11 of Plaintiffs’ Complaint. 12. Defendant denies the allegations contained in Paragraph 12 of Plaintiffs’ Complaint. 13. Defendant denies the allegations contained in Paragraph 13 of Plaintiffs’ Complaint. 14. Defendant denies the allegations contained in Paragraph 14 of Plaintiffs’ Complaint. 15. Defendant denies the allegations contained in Paragraph 1S of Plaintiffs’ Complaint. 16. Defendant denies the allegations contained in Paragraph 16 of Plaintiffs’ Complaint. 17. Defendant denies the allegations contained in Paragraph 17 of Plaintiffs’ Complaint. 18. Defendant denies the allegations contained in Paragraph 18 of Plaintiffs’ Complaint. 19. With respect to Paragraph 19 of Plaintiffs’ Complaint, the paragraph contains no allegations of fact, and therefore, no response is required. If a response is required Defendant denies the allegation. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Defendant hereby incorporates the facts alleged by Plaintiffs in the Complaint to the extent not denied, and Defendant affirmatively states it is entitled to a set-off of any recovery against it to the extent that the value of all sums, benefits, and/or settlements paid or payable to or on behalf of Plaintiff or from any collateral sources pursuant to Florida law. SECOND AFFIRMATIVE DEFENSE Defendant hereby incorporates the facts alleged by Plaintiffs in the Complaint, to the extent not denied, and further asserts if it is entitled to a set-off of any recovery against up to the amount of applicable deductible and limits under the subject policy. THIRD AFFIRMATIVE DEFENSE Defendant has complied with the Loss Settlement provision in the subject insurance policy; therefore, it has not breached the contract. FOURTH AFFIRMATIVE DEFENSE The allegations in the Complaint fail to state a cause of action for the relief requested. Plaintiffs have failed to strictly adhere to the requirements of assignees under Florida Statute § 627.70152 and as a result have failed to comply with all statutory conditions precedent to bring this suit before this Court. See ExhibitA attached hereto. Florida Statute § 627.70152(3) states as follows: (3) NOTICE.— (a) As a condition precedent to filing a suit under a property insurance policy, a claimant must provide the department with written notice of intent to initiate litigation on a form provided by the department. Such notice must be given at least 10 business days before filing suit under the policy, but may not be given before the insurer has made a determination of coverage under s. 627.70131. Notice to the insurer must be provided by the department to the e-mail address designated by the insurer under s. 624.422. The notice must state with specificity all of the following information: 1 That the notice is provided pursuant to this section. 2 The alleged acts or omissions of the insurer giving rise to the suit, which may include a denial of coverage. 3 If provided by an attorney or other representative, that a copy of the notice was provided to the claimant. If the notice is provided following a denial of coverage, an estimate of damages, if known. If the notice is provided following acts or omissions by the insurer other than denial of coverage, both of the following: a. The presuit settlement demand, which must itemize the damages, attorney fees, and costs. b. The disputed amount. Documentation to support the information provided in this paragraph may be provided along with the notice to the insurer. (b) A claimant must serve a notice of intent to initiate litigation within the time limits provided in s. 95.11. However, the notice is not required if the suit is a counterclaim. Service of a notice tolls the time limits provided in s. 95.11 for 10 business days if such time limits will expire before the end of the 10-day notice period. The statute mandates that Plaintiffs must provide a notice of intent to initiate litigation with the Florida Department of Financial Services. A search of the Property Insurance Intent to Initiate Litigation database, reveals that to the date of this filing, no notice has been provided on behalf of either Plaintiff. Further, Defendant has never received any notice of intent to initiate litigation filed or provided by Plaintiffs. Defendant is currently seeking an affidavit from its records custodian to certify that Defendant is not in receipt of any notice to intent litigation. Upon receipt Defendant will file with the Court as supplemental authority upon receipt. It is plainly clear that Plaintiffs failed to comply with the strict requirements of Florida Statute § 627.70152(3), and as a result have failed to comply with the statutory conditions precedent to bring this suit. Florida Statute § 627.70152(5), further mandates: (5) DISMISSAL OF SUIT.—A court must dismiss without prejudice any claimant’s suit relating to a claim for which a notice of intent to initiate litigation was not given as required by this section or if such suit is commenced before the expiration of any time period provided under subsection (4), as applicable. As has been established through record evidence, Plaintiffs have failed to comply with the conditions precedent to bringing suit as defined under Florida Statute § 627.70152(3). As a result, Plaintiffs have not complied with all conditions precedent to bring this suit against Defendant in this matter and the complaint should be dismissed. REQUEST FOR TRIAL BY JURY Defendant hereby requests a trial by jury on all issues so triable of right by jury. Date: December 22, 2022 Respectfully submitted, By: /s/ Isaiah K. Floyd Isaiah K. Floyd, Esq. (117717) Brian P. Henry, Esq. (0089069) ROLFES HENRY CO., LPA 5577 Broadcast Court Sarasota, FL 34240 T. > (941) 684-0100 E ifloyd@rolfeshenry.com E : bberrio@rolfeshenry.com E : bhenry@rolfeshenry.com E : kmcclintock@rolfeshenry.com Attorney for Defendant National Specialty Insurance Company CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing has been electronically filed with the Clerk of the Courts by using the ECF system, which will send a notice of electronic filing to all parties of record, this 22"4 day of December 2022. I further certify that upon notification from the Clerk of the Court, a copy of the foregoing will be forwarded via U.S. Mail if a party is a non-ECF participant: John Bernstein, Esq. Bernstein Polsky 95 S. Federal Hwy #200 Boca Raton, FL 33432 T: 954.997.9947 E: service@bpinjury.com Attorney for Plaintiffs /s/ Isaiah K. Floyd Isaiah K. Floyd, Esq. EXHIBIT C TO DEFENDANT’S MOTION TO SET ASIDE CLERK’S DEFAUT AND INCORPORATED MEMORANDUM OF LAW Fri