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Filing # 130663792 E-Filed 07/14/2021 04:06:22 PM
IN THE CIRCUIT COURT OF THE 17th
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
ANDRELIE and PHANES JOISSAINT, CASE NO.: CACE21-009224 (02)
Plaintiffs,
VS.
CITIZENS PROPERTY INSURANCE
CORPORATION,
Defendant.
i
PLAINTIFFS' REPLY TO DEFENDANT'S ANSWER & AFFIRMATIVE DEFENSES
The Plaintiffs, ANDRELIE AND PHANES JOISSAINTError! Reference source not
found., by and through the undersigned counsel, hereby file this Reply to Defendant'sAnswer and
Affirmative Defenses, and state as follows:
1. Plaintiff denies each and every affirmative defense plead by Defendant and
demands strict proof there.
2. As to Defendant's First 4#irmativeDefense, Plaintiffstates the pre-suit coverage
determination is a concession as to coverage and the only matter in dispute is the remaining balance
owed. Plaintiff states as follows: It is undisputed that Defendant acknowledged coverage for the
loss and made a partial payment towardsthe claim. It is also undisputed that Defendant unilaterally
determined both the scope of the damages as well as cost of repair when making said payments.
Plaintiff at no time agreed to the actual cash value of the loss determined by Defendant. There is
no unilateral presumption of correctness and/or irrefutablepresumptionthat an estimate prepared
by an insurance company adjuster is correct. In the matter at bar, there is a clear factual dispute
regarding both the scope of the repairs, as well as the cost of repairs, relative to the damages
sustained by Plaintiff. Therefore, material issues of fact remain as to whether or not Defendant
paid the actual cash value of the subject loss. Interestingly enough, the issue has already been
***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/14/2021 04:06:16 PM.****
addressedin Latonya Francis v. Tower Hill Prime Insurance Company, 42 Fla. L. Weekly D1565,
2017 WL 2960690 (Fla. 3d DCA July 12,2017), Servando Vazquez and Silvia Vazquez v. Southern
Fidelio' Propero' & Casualo;, Inc., 2017 WL 4529692 316-915 (Fla. 3d DCA October 11,2017),
Ryan Escobar v. Tower Hill Signature Insurance Company, 226 So.3d 1084, 2017 WL 4399096
3D16-1844 (Fla. 3d DCA October 4, 2017). and Rhulien Milhomme and Marie Milhomme v.
Tower Hill SignatureInsurance Company, 227 So.3d 724, 2017 WL 4158850 3D16-2089 (Fla. 3d
DCA September 20, 2017).
Insofar as it can be viewed as a cognizable defense, Plaintiff denies same, demands strict
proofthereof at trial.
3. As to Defendant's Second AffirmativeDefenses, the Plaintiffs denies the allegations
set forth and demand strict proof at trial. The policy at issue provides coverage on an "All-Risks"
basis and covers all causes of loss unless specifically excluded. See, e.g., Citizens Property
Insurance Corporation v. Munoz, 158 So. 3d 671 (Fla. 2d DCA 2015). All Risks coverage is
"triggered" when the "insured property suffer[sl a loss while the policy was in effect." Mejia v.
Citizens Prop. Ins. Corp., 161 So. 3d 576, 578 (Fla. 2d DCA 2014). The insurer then bears the
burden ofproving that an exclusion applies to bar coverage. See, e.g., Jones v. Federated National
Insurance Company, 235 So. 3d 936 (Fla. 4th DCA 2018). Ambiguous policy provisions are
strictly construed against the insurer, and exclusionary policy language even more so. See, e.g.,
Sebo v. Am. Home Assurance Co., Inc., 208 So. 3d 694,697 (Fla. 2016). Defendant has failed to
prove the damage to the roof was solely caused by excluded wear and tear or that wear and tear is
the efficient proximate cause. The Efficient proximate cause is repeated exposure to wind, rain
and sun causing the expansion and contractionwhich resulted in the cracks or openings. Weather
conditions are the efficient proximate cause of the wear and tear in the roof. Damage due to
"weather conditions" is covered under the subject policy unless weather conditions combine with
certain other exclusions to produce the loss.
4. Here, Defendant's Second A#irmativeDefense allege that the Policy's exclusion
for faulty, inadequate design, specifications,workmanship or repair bars coverage for Plaintiffs'
claim. While the policy exclusion cited by Citizens would exclude the cost of repairing the point
of entry of the water, the ensuing damages would be covered. Insofar as it can be viewed as a
cognizable defense, Plaintiffs deny same, demands strict proof thereof at trial.
5. As to Defendant's Third H#irmative Defense Plaintiff states that the policy
provisions cited by the Defendant do not apply or that Defendant has waived, or is otherwise
estopped from asserting said defense, due to its conduct to date. Additionally, Plaintiff states that
the policy provisions relied upon by Defendant are inapplicable under the circumstances and
governing law.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on July 14, 2021, a true and correct copy of the foregoing
was electronically filed through the Florida Courts E-Filing Portal which will send a notice of
filing to: Hanton H. Walters, Esq., P.O. Box 2928, Orlando, FL 32802, at HWalters@drml-
law.com Soraya@drml-law.com
BY- INZ.DideDUd.eue
L. DICK DUCHEINE, ESQ.
Florida Bar No: 54913
THE DIENER FIRM, P.A.
Attorneys for Plaintiff
8751 W. Broward Blvd., Suite 404
Plantation, FL 33324
T: (954) 541-2117 / F: (954) 541-2195
Preview
Filing # 130663792 E-Filed 07/14/2021 04:06:22 PM IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA ANDRELIE and PHANES JOISSAINT, CASE NO.: CACE21-009224 (02) Plaintiffs, VS. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. i PLAINTIFFS' REPLY TO DEFENDANT'S ANSWER & AFFIRMATIVE DEFENSES The Plaintiffs, ANDRELIE AND PHANES JOISSAINTError! Reference source not found., by and through the undersigned counsel, hereby file this Reply to Defendant'sAnswer and Affirmative Defenses, and state as follows: 1. Plaintiff denies each and every affirmative defense plead by Defendant and demands strict proof there. 2. As to Defendant's First 4#irmativeDefense, Plaintiffstates the pre-suit coverage determination is a concession as to coverage and the only matter in dispute is the remaining balance owed. Plaintiff states as follows: It is undisputed that Defendant acknowledged coverage for the loss and made a partial payment towardsthe claim. It is also undisputed that Defendant unilaterally determined both the scope of the damages as well as cost of repair when making said payments. Plaintiff at no time agreed to the actual cash value of the loss determined by Defendant. There is no unilateral presumption of correctness and/or irrefutablepresumptionthat an estimate prepared by an insurance company adjuster is correct. In the matter at bar, there is a clear factual dispute regarding both the scope of the repairs, as well as the cost of repairs, relative to the damages sustained by Plaintiff. Therefore, material issues of fact remain as to whether or not Defendant paid the actual cash value of the subject loss. Interestingly enough, the issue has already been *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/14/2021 04:06:16 PM.**** addressedin Latonya Francis v. Tower Hill Prime Insurance Company, 42 Fla. L. Weekly D1565, 2017 WL 2960690 (Fla. 3d DCA July 12,2017), Servando Vazquez and Silvia Vazquez v. Southern Fidelio' Propero' & Casualo;, Inc., 2017 WL 4529692 316-915 (Fla. 3d DCA October 11,2017), Ryan Escobar v. Tower Hill Signature Insurance Company, 226 So.3d 1084, 2017 WL 4399096 3D16-1844 (Fla. 3d DCA October 4, 2017). and Rhulien Milhomme and Marie Milhomme v. Tower Hill SignatureInsurance Company, 227 So.3d 724, 2017 WL 4158850 3D16-2089 (Fla. 3d DCA September 20, 2017). Insofar as it can be viewed as a cognizable defense, Plaintiff denies same, demands strict proofthereof at trial. 3. As to Defendant's Second AffirmativeDefenses, the Plaintiffs denies the allegations set forth and demand strict proof at trial. The policy at issue provides coverage on an "All-Risks" basis and covers all causes of loss unless specifically excluded. See, e.g., Citizens Property Insurance Corporation v. Munoz, 158 So. 3d 671 (Fla. 2d DCA 2015). All Risks coverage is "triggered" when the "insured property suffer[sl a loss while the policy was in effect." Mejia v. Citizens Prop. Ins. Corp., 161 So. 3d 576, 578 (Fla. 2d DCA 2014). The insurer then bears the burden ofproving that an exclusion applies to bar coverage. See, e.g., Jones v. Federated National Insurance Company, 235 So. 3d 936 (Fla. 4th DCA 2018). Ambiguous policy provisions are strictly construed against the insurer, and exclusionary policy language even more so. See, e.g., Sebo v. Am. Home Assurance Co., Inc., 208 So. 3d 694,697 (Fla. 2016). Defendant has failed to prove the damage to the roof was solely caused by excluded wear and tear or that wear and tear is the efficient proximate cause. The Efficient proximate cause is repeated exposure to wind, rain and sun causing the expansion and contractionwhich resulted in the cracks or openings. Weather conditions are the efficient proximate cause of the wear and tear in the roof. Damage due to "weather conditions" is covered under the subject policy unless weather conditions combine with certain other exclusions to produce the loss. 4. Here, Defendant's Second A#irmativeDefense allege that the Policy's exclusion for faulty, inadequate design, specifications,workmanship or repair bars coverage for Plaintiffs' claim. While the policy exclusion cited by Citizens would exclude the cost of repairing the point of entry of the water, the ensuing damages would be covered. Insofar as it can be viewed as a cognizable defense, Plaintiffs deny same, demands strict proof thereof at trial. 5. As to Defendant's Third H#irmative Defense Plaintiff states that the policy provisions cited by the Defendant do not apply or that Defendant has waived, or is otherwise estopped from asserting said defense, due to its conduct to date. Additionally, Plaintiff states that the policy provisions relied upon by Defendant are inapplicable under the circumstances and governing law. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on July 14, 2021, a true and correct copy of the foregoing was electronically filed through the Florida Courts E-Filing Portal which will send a notice of filing to: Hanton H. Walters, Esq., P.O. Box 2928, Orlando, FL 32802, at HWalters@drml- law.com Soraya@drml-law.com BY- INZ.DideDUd.eue L. DICK DUCHEINE, ESQ. Florida Bar No: 54913 THE DIENER FIRM, P.A. Attorneys for Plaintiff 8751 W. Broward Blvd., Suite 404 Plantation, FL 33324 T: (954) 541-2117 / F: (954) 541-2195