Preview
Filing # 127988010 E-Filed 06/02/2021 05:50:02 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTHJUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
ANDRELIE and PHANES JOISSAINT, CASE NO: CACE-21-009224 (02)
Plaintiffs,
VS.
CITIZENS PROPERTY INSURANCE
CORPORATION,
Defendant.
i
MOTION TO DISMISS
Defendant, CITIZENS PROPERTY INSURANCE CORPORATION [hereinafter
"Citizens"I, by and through undersigned counsel and pursuant to Fla. R. Civ. P. 1.140(b)(6),
hereby moves to dismiss, and in support thereof states as follows:
INTRODUCTION
1. The instant lawsuit arises from a claim for insurance proceeds alleged by the
Plaintiffs to be due as a result of a windstorm which caused damage to the Plaintiffs' property
th
located at 5360 NE 9U Terrace, Pompano Beach, Florida.
2. The Plaintiffs have filed a two-count Complaint as follows: Count I for breach of
contract; and Count II for declaratory relief pursuant to their homeowner's insurance policy
issued by Citizens. Plaintiffs allege they have suffered a covered loss and Citizens is in breach
of its contractual duties by failing to make full payment to the Plaintiffs for their losses.
3 Notwithstanding, Plaintiffs have simultaneously and contradictorily asserted a
claim for declaratory relief pursuant to Count II purporting to be uncertain about their rights
under the policy, to wit, whether coverage exists. Count II fails to plead a valid cause of action
for declaratoryrelief and is completely duplicative of the breach of contract claim.
***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/02/2021 05:50:02 PM.****
4. Moreover, Plaintiffs have failed to demonstrate any ambiguity whatsoever in the
contract which would require judicial construction and entitle Plaintiffs to declaratory relief.
Indeed, the Count for declaratoryrelief is designed solely to impair Citizens' rights in this matter
and needlessly increase the costs of litigation. Therefore, Count II for declaratoryrelief should be
dismissed.
MEMORANDUM OF LAW
5. Plaintiffs purport to plead their breach of contract and declaratory reliefclaims in
the alternative. However, they are not alternative claims, but rather are completely duplicativeof
eachother.
6. The declaratory relief claim should be dismissed because it is merely seeking a
declaration of ultimate facts and issues (coverage and damages) to be resolved by the factfinder
in the breach of contract claim. Whether Plaintiffs claim to know or merely believe there is
coverage under the policy, the existence of coverage will be determined in the breach of contract
claim rendering the claim for declaratoryrelief duplicative and unnecessary.
7. Further, there is absolutely no allegation that any policy terms are ambiguous
requiring construction by the Court. In Florida, the right to declaratoryjudgment for a party in
doubt of its contractual rights was statutorily created by Florida Statute § 86.021, which states, in
pertinent part:
Any person claiming to be interested or who may be in doubt about
his or her rights under deed, will, contract, or other article,
memorandum, or instrument in writing or whose rights, status, or
other equitable or legal relation are affected by statute, or any
regulation made under statutory authority, or by municipal
ordinance, contract, deed, will, franchise, or any article,
memorandum in writing may have determined any question of
construction or validity arising under such statute, regulation,
municipal ordinance, contract, deed, will, franchise, or other
article, memorandum, or instrument in writing, or any part thereof,
and obtain a declaration of rights, status, or other equitable or legal
relations thereunder.
2
Fla. Stat. § 86.021; see Martinez v. Scanlan, 518 So. 2d 1167, 1170 (Fla. 1991); see also Johnson
v. Alt. Nat'l. Ins. Co., 155 So. 2d 886 (Fla. 3d DCA 1963) (any action for declaratory relief will
not lie where the insurance contract is clear and unambiguous and presents no need for
construction; a question must be raised either on construction of the insurance policy or the
validity of the policy).
8 Purportedly, the Plaintiffs are asking the Court to enter declaratoryjudgment to
clear up doubts as to the rights of the Plaintiffs under the policy. However, the purpose of an
action for declaratory relief on an insurance contract is for interpretation of an ambiguity in a
policy. See Martinez, 582 So. 2d at 117 and Johnson, 155 So. 2d at 886.
9- Here, the Plaintiffs fail to cite any alleged ambiguous policy provisions that
would necessitate judicial interpretation.
10. Instead, the Plaintiffs are asking the Court to issue an advisory opinion to clear up
their alleged doubts as to whether there is coverage under the policy. However, it is well settled
that mere doubt, due to disputed questions of fact (in contrast with a contractual ambiguity) is
not sufficient to make a declaratoryjudgment available to litigants. Barrett v. Pickard, 85 So. 2d
630 (Fla. 1956); Perez v. State Automobile Ins. Ass'n., 170 So. ld 377 (Fla. 3d DCA 1972).
Florida law is well settled that declaratoryjudgment actions are not advisory opinions to advise
attorneys as to the proper path to pursue. See Kelner v.
Woody, 399 So. 2d 38 (Fla. 3d DCA
1981).
11. Plaintiffs cite to Higgins v. State Farm, 894 So. 2d 5 (2004) in support of their
claim for declaratory relief. However, the facts of Higgins are completely distinguishable from
the facts alleged in the instant matter. Higgins addressed the trial court's ability to issue
declaratory relief in instances where the insurer sought a declaratoryjudgment pertaining to its
3
duty to defend an insured in a third-party tort suit. This is clearly distinguishable from the case at
bar where the insureds are seeking a declaratoryjudgment in a first-party breach of contract suit.
12. Indeed, the facts of Higgins have been distinguished from the facts involving a
first party claim brought by "one of the contractingparties directly against the other party under
.th
the policy of insurance." Legion Ins. Co. v. Moore, 846 So. 2d 1183, 1187 (Fla. 4 DCA 2003).
In Moore, the Fourth District affirmed the trial court's dismissal of the insurer's declaratory
action in a first-party claim distinguishing the case from third party declaratory actions as
follows:
Unlike the circumstances arising with third party claims in which the issue of a
defense of a suit against the insured is at stake, here we face nothing more than
a mine-run, disputed UM claim as to which the issue is whether the nature of
the accident places the claim within such coverage. In this sense the claim in
suit is notfunctionallydifferent from those cases in which the carrier disputes the
UM claim by contending that its insured (rather than a third party) was the cause
of the accident, or that the claimant's injuries were not caused by the accident...In
short, there is a logical basis for the court's determination that a declaratory
judgment action would not serve any useful purpose under the circumstances
of this case and might impair or defeat rights of the parties.
Id.
13. Likewise, in the instant suit, Plaintiffs' claims are nothing more than a standard
breach of contract claim in which the sole factual dispute is whether the alleged damages were
caused by a covered peril, and if so, the amount of those damages. Here, the language of
Citizens' policy is clear and unambiguous and there are no
allegations to the contrary. Thus, a
declaratoryjudgment action would serve no useful purpose under the circumstancesof this case.
14. Additionally, there is no issue regarding the duty to defend in the instant case as
there was in Higgins. In Higgins, a declaratory action was the only manner in which the insurers
could obtain an adjudication of the issue of coverage, without having to wait to be sued by the
insured or await the resolution of a legal action against its insured. Higgins, 894 So. 2d at 15.
As aptly stated by the Court:
4
Why should an insured be placed in a position of having to have a substantial
judgment against the insured without knowing whether there is coverage from a
policy? Why should an insurer be placed in a position of either paying what it
believes to be an uncovered claim or being in jeopardy of a bad faith judgment
for failure to pay a claim? These are precisely the issues recognized by this
Court in other contexts that are intended to within the purpose of the
come
declaratory judgment statute's "relief from insecurity and uncertainty with
,,
respect to rights, status, and other equitable or legal relations.'
Id.
15. These scenarios do not apply to the instant matter because Plaintiffs have not
demonstrated any need for "relief from insecurity and uncertainty with respect to rights, status,
and other equitable or legal relations." Indeed, Plaintiffs assert pursuant to their breach of
contract claim that there is in fact coverage. Thus there is no logical basis for this Court to
determine that a declaratory judgment action would serve a useful purpose under the
circumstances of this case. See Moore, 846 So. 2d at 1187. Instead, declaratory relief would
impair or defeat the rights of Citizens.
16. Further, unlike the insurer in Higgins in which a breach of contract action could
not be brought against the insured to determine coverage, such relief is available to the Plaintiffs
and in fact, they have asserted a breach of contract claim in Count II.
17. By proceeding with the breach of contract claim alone, a jury can make the
resolution of the facts that have been alluded to in Count I for Declaratory Relief, and can also
bring finality to the matter by awarding damages should there be a determination that there was a
breach of the insurance contract by Citizens. Trial on the breach of contract claim alone would
bring finality to the entire matter without wasting time presenting superfluous claims to the jury.
18. In sum, it is well settled that mere doubt, due to disputed questions of fact (in
contrast with a contractual ambiguity), is not sufficient to make a declaratoryjudgment available
to litigants. Barrett v. Pickard, 85 So. 2d 630 (Fla. 1956); Perez v. State Automobile Ins. Ass'n,
270 So. 2d 377 (Fla. 3d DCA 1972); Burns v. Hartford Accident & Indemnity Co., 157 So. 2d 84
5
(Fla. 3d DCA 1963). Santa Rosa County v. Administrative Commission, 661 So. 2d 1190 (Fla. 3d
DCA 1963). Florida law is well settled that declaratory judgment actions are not advisory
opinions.
19. Plaintiffs' Count for Declaratory Relief simply requests the Court determine the
ultimate issues at stake in the breach of contract claim -
coverage and damages. There is no
ambiguity asserted and the Plaintiffs are merely seeking an advisory opinion from the Court in
the form of declaratory relief. Thus Count I for declaratory relief should be dismissed.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 2, 2021, the foregoing was electronically filed
through the Florida Courts E-Filing Portal which will send a notice of electronic filing to L. Dick
Ducheine, Esq, The Diener Firm, P.A., 8751 W. Broward Blvd, Suite 404, Plantation, FL 33324,
/sl Hanton H. Walters
HANTON H. WALTERS, ESQ.
Florida Bar No. 430005
Dean, Ringers, Morgan & Lawton, P.A.
Post Office Box 2928
Orlando, Florida 32802-2928
Tel: 407-422-4310 Fax: 407-648-0233
Soraya@drml-law.com
Attorneys for Defendant
6
Preview
Filing # 127988010 E-Filed 06/02/2021 05:50:02 PM IN THE CIRCUIT COURT OF THE SEVENTEENTHJUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA ANDRELIE and PHANES JOISSAINT, CASE NO: CACE-21-009224 (02) Plaintiffs, VS. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. i MOTION TO DISMISS Defendant, CITIZENS PROPERTY INSURANCE CORPORATION [hereinafter "Citizens"I, by and through undersigned counsel and pursuant to Fla. R. Civ. P. 1.140(b)(6), hereby moves to dismiss, and in support thereof states as follows: INTRODUCTION 1. The instant lawsuit arises from a claim for insurance proceeds alleged by the Plaintiffs to be due as a result of a windstorm which caused damage to the Plaintiffs' property th located at 5360 NE 9U Terrace, Pompano Beach, Florida. 2. The Plaintiffs have filed a two-count Complaint as follows: Count I for breach of contract; and Count II for declaratory relief pursuant to their homeowner's insurance policy issued by Citizens. Plaintiffs allege they have suffered a covered loss and Citizens is in breach of its contractual duties by failing to make full payment to the Plaintiffs for their losses. 3 Notwithstanding, Plaintiffs have simultaneously and contradictorily asserted a claim for declaratory relief pursuant to Count II purporting to be uncertain about their rights under the policy, to wit, whether coverage exists. Count II fails to plead a valid cause of action for declaratoryrelief and is completely duplicative of the breach of contract claim. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/02/2021 05:50:02 PM.**** 4. Moreover, Plaintiffs have failed to demonstrate any ambiguity whatsoever in the contract which would require judicial construction and entitle Plaintiffs to declaratory relief. Indeed, the Count for declaratoryrelief is designed solely to impair Citizens' rights in this matter and needlessly increase the costs of litigation. Therefore, Count II for declaratoryrelief should be dismissed. MEMORANDUM OF LAW 5. Plaintiffs purport to plead their breach of contract and declaratory reliefclaims in the alternative. However, they are not alternative claims, but rather are completely duplicativeof eachother. 6. The declaratory relief claim should be dismissed because it is merely seeking a declaration of ultimate facts and issues (coverage and damages) to be resolved by the factfinder in the breach of contract claim. Whether Plaintiffs claim to know or merely believe there is coverage under the policy, the existence of coverage will be determined in the breach of contract claim rendering the claim for declaratoryrelief duplicative and unnecessary. 7. Further, there is absolutely no allegation that any policy terms are ambiguous requiring construction by the Court. In Florida, the right to declaratoryjudgment for a party in doubt of its contractual rights was statutorily created by Florida Statute § 86.021, which states, in pertinent part: Any person claiming to be interested or who may be in doubt about his or her rights under deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relation are affected by statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or any article, memorandum in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder. 2 Fla. Stat. § 86.021; see Martinez v. Scanlan, 518 So. 2d 1167, 1170 (Fla. 1991); see also Johnson v. Alt. Nat'l. Ins. Co., 155 So. 2d 886 (Fla. 3d DCA 1963) (any action for declaratory relief will not lie where the insurance contract is clear and unambiguous and presents no need for construction; a question must be raised either on construction of the insurance policy or the validity of the policy). 8 Purportedly, the Plaintiffs are asking the Court to enter declaratoryjudgment to clear up doubts as to the rights of the Plaintiffs under the policy. However, the purpose of an action for declaratory relief on an insurance contract is for interpretation of an ambiguity in a policy. See Martinez, 582 So. 2d at 117 and Johnson, 155 So. 2d at 886. 9- Here, the Plaintiffs fail to cite any alleged ambiguous policy provisions that would necessitate judicial interpretation. 10. Instead, the Plaintiffs are asking the Court to issue an advisory opinion to clear up their alleged doubts as to whether there is coverage under the policy. However, it is well settled that mere doubt, due to disputed questions of fact (in contrast with a contractual ambiguity) is not sufficient to make a declaratoryjudgment available to litigants. Barrett v. Pickard, 85 So. 2d 630 (Fla. 1956); Perez v. State Automobile Ins. Ass'n., 170 So. ld 377 (Fla. 3d DCA 1972). Florida law is well settled that declaratoryjudgment actions are not advisory opinions to advise attorneys as to the proper path to pursue. See Kelner v. Woody, 399 So. 2d 38 (Fla. 3d DCA 1981). 11. Plaintiffs cite to Higgins v. State Farm, 894 So. 2d 5 (2004) in support of their claim for declaratory relief. However, the facts of Higgins are completely distinguishable from the facts alleged in the instant matter. Higgins addressed the trial court's ability to issue declaratory relief in instances where the insurer sought a declaratoryjudgment pertaining to its 3 duty to defend an insured in a third-party tort suit. This is clearly distinguishable from the case at bar where the insureds are seeking a declaratoryjudgment in a first-party breach of contract suit. 12. Indeed, the facts of Higgins have been distinguished from the facts involving a first party claim brought by "one of the contractingparties directly against the other party under .th the policy of insurance." Legion Ins. Co. v. Moore, 846 So. 2d 1183, 1187 (Fla. 4 DCA 2003). In Moore, the Fourth District affirmed the trial court's dismissal of the insurer's declaratory action in a first-party claim distinguishing the case from third party declaratory actions as follows: Unlike the circumstances arising with third party claims in which the issue of a defense of a suit against the insured is at stake, here we face nothing more than a mine-run, disputed UM claim as to which the issue is whether the nature of the accident places the claim within such coverage. In this sense the claim in suit is notfunctionallydifferent from those cases in which the carrier disputes the UM claim by contending that its insured (rather than a third party) was the cause of the accident, or that the claimant's injuries were not caused by the accident...In short, there is a logical basis for the court's determination that a declaratory judgment action would not serve any useful purpose under the circumstances of this case and might impair or defeat rights of the parties. Id. 13. Likewise, in the instant suit, Plaintiffs' claims are nothing more than a standard breach of contract claim in which the sole factual dispute is whether the alleged damages were caused by a covered peril, and if so, the amount of those damages. Here, the language of Citizens' policy is clear and unambiguous and there are no allegations to the contrary. Thus, a declaratoryjudgment action would serve no useful purpose under the circumstancesof this case. 14. Additionally, there is no issue regarding the duty to defend in the instant case as there was in Higgins. In Higgins, a declaratory action was the only manner in which the insurers could obtain an adjudication of the issue of coverage, without having to wait to be sued by the insured or await the resolution of a legal action against its insured. Higgins, 894 So. 2d at 15. As aptly stated by the Court: 4 Why should an insured be placed in a position of having to have a substantial judgment against the insured without knowing whether there is coverage from a policy? Why should an insurer be placed in a position of either paying what it believes to be an uncovered claim or being in jeopardy of a bad faith judgment for failure to pay a claim? These are precisely the issues recognized by this Court in other contexts that are intended to within the purpose of the come declaratory judgment statute's "relief from insecurity and uncertainty with ,, respect to rights, status, and other equitable or legal relations.' Id. 15. These scenarios do not apply to the instant matter because Plaintiffs have not demonstrated any need for "relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations." Indeed, Plaintiffs assert pursuant to their breach of contract claim that there is in fact coverage. Thus there is no logical basis for this Court to determine that a declaratory judgment action would serve a useful purpose under the circumstances of this case. See Moore, 846 So. 2d at 1187. Instead, declaratory relief would impair or defeat the rights of Citizens. 16. Further, unlike the insurer in Higgins in which a breach of contract action could not be brought against the insured to determine coverage, such relief is available to the Plaintiffs and in fact, they have asserted a breach of contract claim in Count II. 17. By proceeding with the breach of contract claim alone, a jury can make the resolution of the facts that have been alluded to in Count I for Declaratory Relief, and can also bring finality to the matter by awarding damages should there be a determination that there was a breach of the insurance contract by Citizens. Trial on the breach of contract claim alone would bring finality to the entire matter without wasting time presenting superfluous claims to the jury. 18. In sum, it is well settled that mere doubt, due to disputed questions of fact (in contrast with a contractual ambiguity), is not sufficient to make a declaratoryjudgment available to litigants. Barrett v. Pickard, 85 So. 2d 630 (Fla. 1956); Perez v. State Automobile Ins. Ass'n, 270 So. 2d 377 (Fla. 3d DCA 1972); Burns v. Hartford Accident & Indemnity Co., 157 So. 2d 84 5 (Fla. 3d DCA 1963). Santa Rosa County v. Administrative Commission, 661 So. 2d 1190 (Fla. 3d DCA 1963). Florida law is well settled that declaratory judgment actions are not advisory opinions. 19. Plaintiffs' Count for Declaratory Relief simply requests the Court determine the ultimate issues at stake in the breach of contract claim - coverage and damages. There is no ambiguity asserted and the Plaintiffs are merely seeking an advisory opinion from the Court in the form of declaratory relief. Thus Count I for declaratory relief should be dismissed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 2, 2021, the foregoing was electronically filed through the Florida Courts E-Filing Portal which will send a notice of electronic filing to L. Dick Ducheine, Esq, The Diener Firm, P.A., 8751 W. Broward Blvd, Suite 404, Plantation, FL 33324, /sl Hanton H. Walters HANTON H. WALTERS, ESQ. Florida Bar No. 430005 Dean, Ringers, Morgan & Lawton, P.A. Post Office Box 2928 Orlando, Florida 32802-2928 Tel: 407-422-4310 Fax: 407-648-0233 Soraya@drml-law.com Attorneys for Defendant 6