Preview
Filing # 128735107 E-Filed 06/14/2021 08:22:11 PM
IN THE CIRCUIT COURT OF THE
THIRTEENTH JUDICIAL CIRCUIT IN AND
FOR HILLSBOROUGH COUNTY, FLORIDA
CASE NO.: 21-CA-002884
SAMER SAMHOURY and
CHRYSSA SAMHOURY,
Plaintiffs,
v.
CENTAURI SPECIALTY
INSURANCE COMPANY,
Defendant.
/
PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES
COMES NOW Plaintiffs, Samer Samhoury and Chryssa Samhoury, by and through their
undersigned attorney, and pursuant to Rules 1.110(d) and 1.140(b), Florida Rules of Civil
Procedure, hereby file their Motion to Strike Defendant’s Affirmative Defenses. In support
thereof, Plaintiffs state as follows:
1 On or about April 10, 2021, Plaintiffs filed their Complaint in the above-styled
cause setting forth a claim for breach of contract against Defendant.
2 Said Complaint was served on Defendant on or about April 14, 2021.
3 On May 24, 2021, Defendant filed its Answer and Affirmative Defenses.!
4 In its Answer, Defendant identified fourteen affirmative defenses upon which it
seeks to rely on in response to Plaintiffs’ Complaint; however, Defendant’s First, Second, Sixth,
Seventh, and Fourteenth Affirmative Defenses fail to meet the pleading requirements set forth
under the Florida Rules of Civil Procedure. These Affirmative Defenses are inadequate as a
matter of law.
* Defendant’s Answer and Affirmative Defenses are attached hereto as “Exhibit A.”
5 Based upon the failure to adequately plea a defense, Plaintiffs seek an Order
striking Defendant’s aforementioned affirmative defenses or, alternatively, requiring Defendant
to provide more definite statements so that its defenses meet the pleading requirements of Rules
1.110(d) and 1.140(b).
LEGAL ARGUMENT AND MEMORANDUM OF LAW
Affirmative defenses are subject to the same pleading rules requiring specificity as the
complaint. See Continental Banking Co. v. Vincent, 634 So. 2d 242, 244 (Fla. 5th DCA 1994).
Affirmative defenses do not simply deny the facts of opposing party’s claim; they raise some
new matter which defeats an otherwise apparently valid claim. Wiggins v. Portmay Corp., 430
So. 2d 541, 542 (Fla. Ist DCA 1983). Therefore, a defendant must allege each element of the
defense and must state the factual basis for the same. L.B. Mcleod Const. Co. v. Cooper, 134 So.
2d 224, 225 (Fla. 1931). This is to reasonably inform the adversary and provide them with a fair
opportunity to prepare a response. Zito v. Washington Federal Sav. & Loan Assoc. of Miami
Beach, 318 So. 2d 175, 176 (Fla. 3d DCA 1975). Certainty is required when pleading defenses
and claims alike, and pleading conclusions of law unsupported by allegations of ultimate fact is
legally insufficient. Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982).
Consequently, when a pleading contains only statements of opinion or conclusions not supported
by specific facts, it is deficient under the Florida Rules of Civil Procedure. See Rishel v. Eastern
Airlines, Inc., 466 So. 2d 1136, 1138 (Fla. 3d DCA 1985) (“A pleading is deemed insufficient if
it contains mere statements of opinion or conclusions unsupported by specific, ultimate facts.”’);
Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988) (holding that
a defendant’s affirmative defenses lacked allegations of ultimate fact demonstrating a good
defense to the complaint and were thereby legally insufficient).
A plaintiff can move to strike an affirmative defense when it fails to meet the pleading
requirements under Florida law. Rule 1.140(b), Florida Rules of Civil Procedure, states in
pertinent part:
“If a pleading sets forth a claim for relief to which the adverse party is not
required to serve a responsive pleading, the adverse party may assert any defense
in law or fact to that claim for relief at the trial, except that the objection of failure
to state a legal defense in an answer or reply shall be asserted by motion to strike
the defense within 20 days after service of the answer or reply.”
Fla. R. Civ. P. 1.140(b)(2007).
The aforementioned affirmative defenses in Defendant’s Answer are improper because
they do not provide for affirmative relief. Defendant’s defenses are generic, boilerplate legal
assertions that are unsupported by any factual basis. Specifically, the affirmative defenses are
mere conclusory statements that fail to set forth adequate facts to establish its relevancy to the
proceedings. As such, they are immaterial and impertinent to the allegations contained within
the Complaint. See Bliss v. Carmona, 418 So. 2d at 1019; see also Chevy Chase Sav. & Loan,
Inc., 528 So. 2d at 138. Defendant’s affirmative defenses fail to provide any scintilla of fact in
support of these affirmative defenses.
Defendant’s failure to properly assert a claim of ultimate fact denies Plaintiffs the
opportunity to formulate a meaningful response or defend against Defendant’s allegations. The
failure of the Defendant to specifically alleged which policy provisions it relies upon along with
facts in support of same fails to provide any issue of material fact to bring to the jury. Pursuant
to Rule 1.140(b), Plaintiffs respectfully request this Honorable Court strike the aforementioned
affirmative defenses from Defendant’s Answer.
WHEREFORE Plaintiffs, Samer Samhoury and Chryssa Samhoury, respectfully request
this Honorable Court enter an Order striking Defendant’s First, Second, Sixth, Seventh, and
Fourteenth Affirmative Defenses from its Answer, or, alternatively, requiring Defendant to
provide a more definite statement that meets the pleading requirements under the Florida Rules
of Civil Procedure.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
to Counsel for Defendant via Florida’s E-Portal System on this 14" day of June, 2021.
s/ Kevin Vorhis
COHEN LAW GROUP
Kevin E. Vorhis, Esquire
Florida Bar Number: 0118482
FOR THE FIRM
350 North Lake Destiny Road, Suite 200
Maitland, Florida 32751
Phone: (407) 478-4878
Fax: (407) 478-0204
Primary: kvorhis@itsaboutjustice.law
Secondary: Rachael@ItsAboutJustice.law
Attorneys for Plaintiffs
EXHIBIT A
Filing # 127391606 E-Filed 05/24/2021 01:37:57 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
SAMER SAMHOURY and
CHRYSSA SAMHOURY,
Plaintifi{s),
vs. Case No.: 21-CA-002884
DIV. C
CENTAURI SPECIALTY INSURANCE
COMPANY,
Defendant(s).
/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFFS’ COMPLAINT
COMES NOW, Defendant, CENTAURI SPECIALTY INSURANCE COMPANY
(hereinafter “Centauri”), by and through its undersigned counsel and pursuant to Florida Rules of
Civil Procedure and hereby files its Answer and Affirmative Defenses to the Complaint filed by
Samer Samhoury and Chryssa Samhoury (hereinafter “Plaintiffs”), and states as follows in
chronological response to Plaintiffs’ allegations in the Complaint:
1 Admitted for jurisdictional purposes only.
2 Without knowledge, therefore denied.
3 Admitted only that Centauri is a Florida corporation licensed to and doing business
in Florida; otherwise, denied. Any and all remaining allegations in this Paragraph are denied.
4 Admitted for jurisdictional and venue purposes only.
5 Admitted only that Centauri issued and/or renewed a policy of insurance to Samer
Samhoury, policy number CHP5008780 (the “Policy”) for property located at 5404 Reflections
Boulevard, Lutz, Florida 33558 (the “Property”) for the period of April 30, 2018 to April 30, 2019.
Page 1 of 10
The Policy speaks for itself and is subject to its terms, conditions, exclusions and endorsements.
Any and all remaining allegations in this Paragraph are denied.
6. Admitted only that the Policy speaks for itself. Any and all remaining allegations
in this Paragraph are denied.
7
Admitted only that the Plaintiffs reported a claim on May 8, 2019 for a loss
purportedly occurring on December 29, 2018. Any and all remaining allegations in this Paragraph
are denied.
8 Admitted only that the Plaintiffs reported a claim on May 8, 2019 for a loss
purportedly occurring on December 29, 2018, and Centauri assigned claim number CL18205974.
Any and all remaining allegations in this Paragraph are denied.
COUNT I -BREACH OF CONTRACT AGAINST DEFENDANT
9 Centauri incorporates and reasserts its responses to Paragraphs one (1) through
eight (8) above, as if fully set forth herein.
10. Admitted only that Centauri issued and/or renewed the Policy for the Property for
the period of April 30, 2018 to April 30, 2019. The Policy speaks for itself and is subject to its
terms, conditions, exclusions and endorsements. Any and all remaining allegations in this
Paragraph are denied.
11. Denied.
12. Denied.
13 Denied.
14 Denied.
15 Denied.
16. Denied. Florida law speaks for itself.
Page 2 of 10
Denies each and every other allegation except as specifically admitted and those allegations
which constitute admissions against Plaintiffs’ interests.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ claim is barred because the Property did not suffer a “sudden and accidental
direct physical loss” to the Property; and/or was caused by wear and tear, deterioration, mechanical
breakdown, latent defect, inherent vice, shrinking or expansion of roofs with resultant cracking;
and/or was due to faulty, inadequate or defective workmanship, repair, material used in repair or
renovation, maintenance; or one of the other exclusions identified below, for which the Policy does
not insure. The Policy states, in pertinent part:
SECTION I - PERILS INSURED AGAINST
A. Coverage A — Dwelling and Coverage B — Other
Structures
Paragraph A.1. is deleted and replaced by the following:
1. We insure for sudden and accidental direct physical
loss to property described in Coverages A and B.
2. We do not insure however, for loss:
wee
a. Excluded under Section I - Exclusions
ce. Caused by:
(6) Any of the following:
(a) Wear and tear, marring, deterioration;
(b) Mechanical breakdown, latent defect,
inherent vice, or any quality in property that
causes it to damage or destroy itself;
(c) Smog, rust or other corrosion, “fungi”,
mold, wet or dry rot
(f) Settling, shrinking, bulging or expansion,
including resultant cracking, of bulkheads,
Page 3 of 10
pavements, patios, footings, foundations, walls,
floors, roofs or ceilings;
SECTION I - EXCLUSIONS
B. We do not insure for loss to property described in Coverages A
and B caused by any of the following. However, any ensuing
loss to property described in Coverages A and B not precluded
by any other provision in this policy is covered.
3. Faulty, inadequate or defective:
a. Planning, zoning, development, surveying, siting;
b. Design, specifications, workmanship, repair,
construction, renovation, remodeling, grading,
compaction;
c. Materials used in repair, construction, renovation or
remodeling; or
d. Maintenance;
of part or all of any property whether on or off the
“residence premises”.
SECOND AFFIRMATIVE DEFENSE
Plaintiffs’ claim is barred because the alleged damage was due to neglect, for which the
Policy does not insure. The Policy states, in pertinent part:
SECTION I - EXCLUSIONS
A We do not insure for loss caused directly or indirectly by any of
the following. Such loss is excluded regardless of any other
cause or event contributing concurrently or in any sequence to
the loss. These exclusions apply whether or not the loss event
results in widespread damage or affects a substantial area.
5. Neglect
Neglect means neglect of an “insured” to use all reasonable
means to save and preserve property at and after the time
of a loss.
Page 4 of 10
THIRD AFFIRMATIVE DEFENSE
Plaintiffs’ action is barred because Plaintiffs materially breached the Policy by failing to
satisfy their “Duties After Loss”, which irrevocably prejudiced Centauri. The Policy states, in
pertinent part:
SECTION I - CONDITIONS
B. Duties After Loss.
In case of a loss to covered property, we have no duty to
provide coverage under this policy if the failure to
comply with the following duties is prejudicial to us.
These duties must be performed either by you, an
“insured” seeking coverage, or a representative of either:
1. Give prompt notice to us or our agent;
4. Protect the covered property from further damage. The
following must be performed:
a. Take reasonable emergency measures that are
necessary to protect the covered property rom further
damage, as provided under Additional Coverage E. 2.
A reasonable emergency measure under 4.a. above
may include a permanent repair when necessary to
protect the covered property from further damage or to
prevent unwanted entry to the property. To the degree
reasonably possible, the damaged property must be
retained for us to inspect;
b. Keep an accurate record of repair expenses;
5. Cooperate with us in the investigation of a claim;
7. As often as we reasonably require;
a. Show us the damaged property;
b. Provide us with the records and documents we
request and permit us to make copies; and
c. In the county where the “residence premises” is
located you, your agents, your representatives and any
and all insureds must submit to examinations under
oath and sign same when requested by us. At our
discretion, the examinations will be conducted
Page 5 of 10
separately and not in the presence of any other persons
except legal representation and our representatives and
experts; and
d. Submit to a recorded statement.
10. a. To the degree reasonably possible, retain the
damaged property; and
b. Allow us to inspect, subject to 10.a. above,
all damaged property prior to its removal from the
“residence premises”;
Duties after loss apply regardless of whether you, an
“insured” seeking coverage, or a representative of either
retains or is assisted by a party who provides legal advice,
insurance advice or expert claim advice, regarding an
insurance claim under this policy.
Upon information and belief, Plaintiffs failed to provide Centauri with prompt notice of
the loss, protect the Property from further damage and/or perform repairs to the Property, cooperate
in the investigation of the claim, provide the requested records and documents and/or otherwise
perform the above duties after loss. Therefore, Plaintiffs’ loss is excluded from coverage pursuant
to the above-quoted Policy provision and/or the Plaintiffs are barred from bringing this action as a
result oftheir failure to comply with one or more conditions precedent to bringing suit.
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ action is barred because the damages alleged are not due and owing pursuant to
the Loss Settlement provision of the Policy which states, in pertinent part:
SECTION I - CONDITIONS
C. Loss Settlement
In this Condition C., the terms "cost to repair or replace" and
"replacement cost" do not include the increased costs incurred to
comply with the enforcement of any ordinance or law, except to the
extent that coverage for these increased costs is provided in E.11.
Ordinance Or Law under Section I — Property Coverages. Covered
property losses are settled as follows:
2. Buildings covered under Coverage A or B at replacement cost
without deduction for depreciation, subject to the following:
Page 6 of 10
d. We will initially pay at least the actual cash value of the
insured loss, less any applicable deductible. We will pay any
remaining amount necessary to perform such repairs as work is
performed and expenses are incurred. Ifa total loss of a building
or structure insured under this policy occurs, we will pay the
replacement cost coverage without reservation or holdback of
any depreciation in value, subject to policy limits.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ action is barred due to failure to comply with conditions precedent to bringing
suit. The Policy provides, in pertinent part:
SECTION I - CONDITIONS
G. Suit Against Us.
No action can be brought against us unless there has
been full compliance with all of the terms under
Section I of this Policy and the action is started
within five (5) years after the date of loss.
SIXTH AFFIRMATIVE DEFENSE
This action is governed by the terms, conditions, and exclusions of the Policy between
Plaintiffs and Centauri, and the Policy specifically excludes and/or limits coverage given the
factual scenario of this claim. Centauri reserves all rights under the terms, conditions, and
exclusions of the Policy.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ loss is subject to conditions precedent required under the express terms of the
Policy, including but not limited to, demonstrating the existence of a covered loss and that
Plaintiffs have incurred the particular expenses identified before entitlement to payment under the
Policy is required.
Page 7 of 10
EIGHTH AFFIRMATIVE DEFENSE
To the extent that any loss is deemed to be payable under the Policy, such loss shall be paid
as set forth under the Policy, including but not being limited to, Section I — Conditions and Loss
Settlement.
NINTH AFFIRMATIVE DEFENSE
Any loss payment shall be subject to the Mortgage Clause set forth in the Policy, which
sets forth that any loss payable under Coverage A or B will be paid to the mortgagee and the
insureds as interests appear.
TENTH AFFIRMATIVE DEFENSE
Any payment is subject to the Policy’s deductible and applicable Policy limits.
ELEVENTH AFFIRMATIVE DEFENSE
In the event Plaintiffs are entitled to recover, which is denied, any recovery must
necessarily be reduced by the amounts required to be paid, or the amounts previously paid, by
Centauri to any and all parties and/or non-parties as a result of the subject loss including, but not
limited to, all mortgagees, loss payees and/or lienholders named on the Policy.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiffs had a duty to mitigate the damages, that the Plaintiffs failed to do so, and that the
Plaintiffs’ failure to do so produced or was a legal cause of some portion of the loss or damage
alleged in the Plaintiffs’ Complaint; and, therefore, the Plaintiffs’ damages, if any, should be
barred and/or reduced accordingly.
THIRTEENTH AFFIRMATIVE DEFENSE
Page 8 of 10
Plaintiffs have failed to join an indispensable party, including but not limited to the
mortgagee; therefore, the Complaint should be dismissed.
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiffs have failed to state a cause of action for which relief may be granted and the
Complaint should be dismissed.
RESERVATION OF RIGHTS
Centauri reserves the right to amend its Answer and Affirmative Defenses to Plaintiffs’
Complaint as facts are revealed in discovery.
DEMAND FOR JURY TRIAL
Centauri hereby demands a trial by jury on all issues so triable herein.
WHEREFORE, Defendant, CENTAURI SPECIALTY INSURANCE COMPANY,
respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiffs
adjudging that Plaintiffs take nothing by this action and that the Defendant go hence without day
and recover its costs and fees, and for such other relief as this Court deems just and proper.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of the foregoing pleading was sent by
electronic mail on this 24th day of May, 2021, to Counsel for Plaintiff(s) listed below:
Kevin E. Vorhis, Esquire (FBN: 118482)
COHEN LAW GROUP
350 North Lake Destiny Road
Maitland, FL 32751
Phone: 407-478-4878
Fax: 407-478-0204
Email: kvorhis@itsaboutjustice.law
Email: rachael@itsaboutjustice.law
Attorneys for Plaintiffs
Page 9 of 10
ZINOBER DIANA & MONTEVERDE, P.A.
MinSoA
Fredric S. Zinober, Esq. (FBN: 0341657)
E-Service: Fred@zinoberdiana.com
E-Service: Shannon@zinoberdiana.com
Michelle E. Sabin, Esquire (FBN: 0059471)
E-Service: Michelle@zinoberdiana.com
E-Service: Pam@zinoberdiana.com
607 West Horatio Street
Tampa, FL 33606
Phone: 813-642-4229
Fax: 727-498-8902
Attorneys for Defendant
Page 10 of 10
Preview
Filing # 128735107 E-Filed 06/14/2021 08:22:11 PM IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CASE NO.: 21-CA-002884 SAMER SAMHOURY and CHRYSSA SAMHOURY, Plaintiffs, v. CENTAURI SPECIALTY INSURANCE COMPANY, Defendant. / PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES COMES NOW Plaintiffs, Samer Samhoury and Chryssa Samhoury, by and through their undersigned attorney, and pursuant to Rules 1.110(d) and 1.140(b), Florida Rules of Civil Procedure, hereby file their Motion to Strike Defendant’s Affirmative Defenses. In support thereof, Plaintiffs state as follows: 1 On or about April 10, 2021, Plaintiffs filed their Complaint in the above-styled cause setting forth a claim for breach of contract against Defendant. 2 Said Complaint was served on Defendant on or about April 14, 2021. 3 On May 24, 2021, Defendant filed its Answer and Affirmative Defenses.! 4 In its Answer, Defendant identified fourteen affirmative defenses upon which it seeks to rely on in response to Plaintiffs’ Complaint; however, Defendant’s First, Second, Sixth, Seventh, and Fourteenth Affirmative Defenses fail to meet the pleading requirements set forth under the Florida Rules of Civil Procedure. These Affirmative Defenses are inadequate as a matter of law. * Defendant’s Answer and Affirmative Defenses are attached hereto as “Exhibit A.” 5 Based upon the failure to adequately plea a defense, Plaintiffs seek an Order striking Defendant’s aforementioned affirmative defenses or, alternatively, requiring Defendant to provide more definite statements so that its defenses meet the pleading requirements of Rules 1.110(d) and 1.140(b). LEGAL ARGUMENT AND MEMORANDUM OF LAW Affirmative defenses are subject to the same pleading rules requiring specificity as the complaint. See Continental Banking Co. v. Vincent, 634 So. 2d 242, 244 (Fla. 5th DCA 1994). Affirmative defenses do not simply deny the facts of opposing party’s claim; they raise some new matter which defeats an otherwise apparently valid claim. Wiggins v. Portmay Corp., 430 So. 2d 541, 542 (Fla. Ist DCA 1983). Therefore, a defendant must allege each element of the defense and must state the factual basis for the same. L.B. Mcleod Const. Co. v. Cooper, 134 So. 2d 224, 225 (Fla. 1931). This is to reasonably inform the adversary and provide them with a fair opportunity to prepare a response. Zito v. Washington Federal Sav. & Loan Assoc. of Miami Beach, 318 So. 2d 175, 176 (Fla. 3d DCA 1975). Certainty is required when pleading defenses and claims alike, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982). Consequently, when a pleading contains only statements of opinion or conclusions not supported by specific facts, it is deficient under the Florida Rules of Civil Procedure. See Rishel v. Eastern Airlines, Inc., 466 So. 2d 1136, 1138 (Fla. 3d DCA 1985) (“A pleading is deemed insufficient if it contains mere statements of opinion or conclusions unsupported by specific, ultimate facts.”’); Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988) (holding that a defendant’s affirmative defenses lacked allegations of ultimate fact demonstrating a good defense to the complaint and were thereby legally insufficient). A plaintiff can move to strike an affirmative defense when it fails to meet the pleading requirements under Florida law. Rule 1.140(b), Florida Rules of Civil Procedure, states in pertinent part: “If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within 20 days after service of the answer or reply.” Fla. R. Civ. P. 1.140(b)(2007). The aforementioned affirmative defenses in Defendant’s Answer are improper because they do not provide for affirmative relief. Defendant’s defenses are generic, boilerplate legal assertions that are unsupported by any factual basis. Specifically, the affirmative defenses are mere conclusory statements that fail to set forth adequate facts to establish its relevancy to the proceedings. As such, they are immaterial and impertinent to the allegations contained within the Complaint. See Bliss v. Carmona, 418 So. 2d at 1019; see also Chevy Chase Sav. & Loan, Inc., 528 So. 2d at 138. Defendant’s affirmative defenses fail to provide any scintilla of fact in support of these affirmative defenses. Defendant’s failure to properly assert a claim of ultimate fact denies Plaintiffs the opportunity to formulate a meaningful response or defend against Defendant’s allegations. The failure of the Defendant to specifically alleged which policy provisions it relies upon along with facts in support of same fails to provide any issue of material fact to bring to the jury. Pursuant to Rule 1.140(b), Plaintiffs respectfully request this Honorable Court strike the aforementioned affirmative defenses from Defendant’s Answer. WHEREFORE Plaintiffs, Samer Samhoury and Chryssa Samhoury, respectfully request this Honorable Court enter an Order striking Defendant’s First, Second, Sixth, Seventh, and Fourteenth Affirmative Defenses from its Answer, or, alternatively, requiring Defendant to provide a more definite statement that meets the pleading requirements under the Florida Rules of Civil Procedure. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Counsel for Defendant via Florida’s E-Portal System on this 14" day of June, 2021. s/ Kevin Vorhis COHEN LAW GROUP Kevin E. Vorhis, Esquire Florida Bar Number: 0118482 FOR THE FIRM 350 North Lake Destiny Road, Suite 200 Maitland, Florida 32751 Phone: (407) 478-4878 Fax: (407) 478-0204 Primary: kvorhis@itsaboutjustice.law Secondary: Rachael@ItsAboutJustice.law Attorneys for Plaintiffs EXHIBIT A Filing # 127391606 E-Filed 05/24/2021 01:37:57 PM IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA SAMER SAMHOURY and CHRYSSA SAMHOURY, Plaintifi{s), vs. Case No.: 21-CA-002884 DIV. C CENTAURI SPECIALTY INSURANCE COMPANY, Defendant(s). / DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT COMES NOW, Defendant, CENTAURI SPECIALTY INSURANCE COMPANY (hereinafter “Centauri”), by and through its undersigned counsel and pursuant to Florida Rules of Civil Procedure and hereby files its Answer and Affirmative Defenses to the Complaint filed by Samer Samhoury and Chryssa Samhoury (hereinafter “Plaintiffs”), and states as follows in chronological response to Plaintiffs’ allegations in the Complaint: 1 Admitted for jurisdictional purposes only. 2 Without knowledge, therefore denied. 3 Admitted only that Centauri is a Florida corporation licensed to and doing business in Florida; otherwise, denied. Any and all remaining allegations in this Paragraph are denied. 4 Admitted for jurisdictional and venue purposes only. 5 Admitted only that Centauri issued and/or renewed a policy of insurance to Samer Samhoury, policy number CHP5008780 (the “Policy”) for property located at 5404 Reflections Boulevard, Lutz, Florida 33558 (the “Property”) for the period of April 30, 2018 to April 30, 2019. Page 1 of 10 The Policy speaks for itself and is subject to its terms, conditions, exclusions and endorsements. Any and all remaining allegations in this Paragraph are denied. 6. Admitted only that the Policy speaks for itself. Any and all remaining allegations in this Paragraph are denied. 7 Admitted only that the Plaintiffs reported a claim on May 8, 2019 for a loss purportedly occurring on December 29, 2018. Any and all remaining allegations in this Paragraph are denied. 8 Admitted only that the Plaintiffs reported a claim on May 8, 2019 for a loss purportedly occurring on December 29, 2018, and Centauri assigned claim number CL18205974. Any and all remaining allegations in this Paragraph are denied. COUNT I -BREACH OF CONTRACT AGAINST DEFENDANT 9 Centauri incorporates and reasserts its responses to Paragraphs one (1) through eight (8) above, as if fully set forth herein. 10. Admitted only that Centauri issued and/or renewed the Policy for the Property for the period of April 30, 2018 to April 30, 2019. The Policy speaks for itself and is subject to its terms, conditions, exclusions and endorsements. Any and all remaining allegations in this Paragraph are denied. 11. Denied. 12. Denied. 13 Denied. 14 Denied. 15 Denied. 16. Denied. Florida law speaks for itself. Page 2 of 10 Denies each and every other allegation except as specifically admitted and those allegations which constitute admissions against Plaintiffs’ interests. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiffs’ claim is barred because the Property did not suffer a “sudden and accidental direct physical loss” to the Property; and/or was caused by wear and tear, deterioration, mechanical breakdown, latent defect, inherent vice, shrinking or expansion of roofs with resultant cracking; and/or was due to faulty, inadequate or defective workmanship, repair, material used in repair or renovation, maintenance; or one of the other exclusions identified below, for which the Policy does not insure. The Policy states, in pertinent part: SECTION I - PERILS INSURED AGAINST A. Coverage A — Dwelling and Coverage B — Other Structures Paragraph A.1. is deleted and replaced by the following: 1. We insure for sudden and accidental direct physical loss to property described in Coverages A and B. 2. We do not insure however, for loss: wee a. Excluded under Section I - Exclusions ce. Caused by: (6) Any of the following: (a) Wear and tear, marring, deterioration; (b) Mechanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage or destroy itself; (c) Smog, rust or other corrosion, “fungi”, mold, wet or dry rot (f) Settling, shrinking, bulging or expansion, including resultant cracking, of bulkheads, Page 3 of 10 pavements, patios, footings, foundations, walls, floors, roofs or ceilings; SECTION I - EXCLUSIONS B. We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered. 3. Faulty, inadequate or defective: a. Planning, zoning, development, surveying, siting; b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; c. Materials used in repair, construction, renovation or remodeling; or d. Maintenance; of part or all of any property whether on or off the “residence premises”. SECOND AFFIRMATIVE DEFENSE Plaintiffs’ claim is barred because the alleged damage was due to neglect, for which the Policy does not insure. The Policy states, in pertinent part: SECTION I - EXCLUSIONS A We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area. 5. Neglect Neglect means neglect of an “insured” to use all reasonable means to save and preserve property at and after the time of a loss. Page 4 of 10 THIRD AFFIRMATIVE DEFENSE Plaintiffs’ action is barred because Plaintiffs materially breached the Policy by failing to satisfy their “Duties After Loss”, which irrevocably prejudiced Centauri. The Policy states, in pertinent part: SECTION I - CONDITIONS B. Duties After Loss. In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an “insured” seeking coverage, or a representative of either: 1. Give prompt notice to us or our agent; 4. Protect the covered property from further damage. The following must be performed: a. Take reasonable emergency measures that are necessary to protect the covered property rom further damage, as provided under Additional Coverage E. 2. A reasonable emergency measure under 4.a. above may include a permanent repair when necessary to protect the covered property from further damage or to prevent unwanted entry to the property. To the degree reasonably possible, the damaged property must be retained for us to inspect; b. Keep an accurate record of repair expenses; 5. Cooperate with us in the investigation of a claim; 7. As often as we reasonably require; a. Show us the damaged property; b. Provide us with the records and documents we request and permit us to make copies; and c. In the county where the “residence premises” is located you, your agents, your representatives and any and all insureds must submit to examinations under oath and sign same when requested by us. At our discretion, the examinations will be conducted Page 5 of 10 separately and not in the presence of any other persons except legal representation and our representatives and experts; and d. Submit to a recorded statement. 10. a. To the degree reasonably possible, retain the damaged property; and b. Allow us to inspect, subject to 10.a. above, all damaged property prior to its removal from the “residence premises”; Duties after loss apply regardless of whether you, an “insured” seeking coverage, or a representative of either retains or is assisted by a party who provides legal advice, insurance advice or expert claim advice, regarding an insurance claim under this policy. Upon information and belief, Plaintiffs failed to provide Centauri with prompt notice of the loss, protect the Property from further damage and/or perform repairs to the Property, cooperate in the investigation of the claim, provide the requested records and documents and/or otherwise perform the above duties after loss. Therefore, Plaintiffs’ loss is excluded from coverage pursuant to the above-quoted Policy provision and/or the Plaintiffs are barred from bringing this action as a result oftheir failure to comply with one or more conditions precedent to bringing suit. FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ action is barred because the damages alleged are not due and owing pursuant to the Loss Settlement provision of the Policy which states, in pertinent part: SECTION I - CONDITIONS C. Loss Settlement In this Condition C., the terms "cost to repair or replace" and "replacement cost" do not include the increased costs incurred to comply with the enforcement of any ordinance or law, except to the extent that coverage for these increased costs is provided in E.11. Ordinance Or Law under Section I — Property Coverages. Covered property losses are settled as follows: 2. Buildings covered under Coverage A or B at replacement cost without deduction for depreciation, subject to the following: Page 6 of 10 d. We will initially pay at least the actual cash value of the insured loss, less any applicable deductible. We will pay any remaining amount necessary to perform such repairs as work is performed and expenses are incurred. Ifa total loss of a building or structure insured under this policy occurs, we will pay the replacement cost coverage without reservation or holdback of any depreciation in value, subject to policy limits. FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ action is barred due to failure to comply with conditions precedent to bringing suit. The Policy provides, in pertinent part: SECTION I - CONDITIONS G. Suit Against Us. No action can be brought against us unless there has been full compliance with all of the terms under Section I of this Policy and the action is started within five (5) years after the date of loss. SIXTH AFFIRMATIVE DEFENSE This action is governed by the terms, conditions, and exclusions of the Policy between Plaintiffs and Centauri, and the Policy specifically excludes and/or limits coverage given the factual scenario of this claim. Centauri reserves all rights under the terms, conditions, and exclusions of the Policy. SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ loss is subject to conditions precedent required under the express terms of the Policy, including but not limited to, demonstrating the existence of a covered loss and that Plaintiffs have incurred the particular expenses identified before entitlement to payment under the Policy is required. Page 7 of 10 EIGHTH AFFIRMATIVE DEFENSE To the extent that any loss is deemed to be payable under the Policy, such loss shall be paid as set forth under the Policy, including but not being limited to, Section I — Conditions and Loss Settlement. NINTH AFFIRMATIVE DEFENSE Any loss payment shall be subject to the Mortgage Clause set forth in the Policy, which sets forth that any loss payable under Coverage A or B will be paid to the mortgagee and the insureds as interests appear. TENTH AFFIRMATIVE DEFENSE Any payment is subject to the Policy’s deductible and applicable Policy limits. ELEVENTH AFFIRMATIVE DEFENSE In the event Plaintiffs are entitled to recover, which is denied, any recovery must necessarily be reduced by the amounts required to be paid, or the amounts previously paid, by Centauri to any and all parties and/or non-parties as a result of the subject loss including, but not limited to, all mortgagees, loss payees and/or lienholders named on the Policy. TWELFTH AFFIRMATIVE DEFENSE Plaintiffs had a duty to mitigate the damages, that the Plaintiffs failed to do so, and that the Plaintiffs’ failure to do so produced or was a legal cause of some portion of the loss or damage alleged in the Plaintiffs’ Complaint; and, therefore, the Plaintiffs’ damages, if any, should be barred and/or reduced accordingly. THIRTEENTH AFFIRMATIVE DEFENSE Page 8 of 10 Plaintiffs have failed to join an indispensable party, including but not limited to the mortgagee; therefore, the Complaint should be dismissed. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiffs have failed to state a cause of action for which relief may be granted and the Complaint should be dismissed. RESERVATION OF RIGHTS Centauri reserves the right to amend its Answer and Affirmative Defenses to Plaintiffs’ Complaint as facts are revealed in discovery. DEMAND FOR JURY TRIAL Centauri hereby demands a trial by jury on all issues so triable herein. WHEREFORE, Defendant, CENTAURI SPECIALTY INSURANCE COMPANY, respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiffs adjudging that Plaintiffs take nothing by this action and that the Defendant go hence without day and recover its costs and fees, and for such other relief as this Court deems just and proper. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the foregoing pleading was sent by electronic mail on this 24th day of May, 2021, to Counsel for Plaintiff(s) listed below: Kevin E. Vorhis, Esquire (FBN: 118482) COHEN LAW GROUP 350 North Lake Destiny Road Maitland, FL 32751 Phone: 407-478-4878 Fax: 407-478-0204 Email: kvorhis@itsaboutjustice.law Email: rachael@itsaboutjustice.law Attorneys for Plaintiffs Page 9 of 10 ZINOBER DIANA & MONTEVERDE, P.A. MinSoA Fredric S. Zinober, Esq. (FBN: 0341657) E-Service: Fred@zinoberdiana.com E-Service: Shannon@zinoberdiana.com Michelle E. Sabin, Esquire (FBN: 0059471) E-Service: Michelle@zinoberdiana.com E-Service: Pam@zinoberdiana.com 607 West Horatio Street Tampa, FL 33606 Phone: 813-642-4229 Fax: 727-498-8902 Attorneys for Defendant Page 10 of 10