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Filing # 180539652 E-Filed 08/25/2023 01:53:12 PM
IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CASE NO.: 23001703CA
COLAZO, LLC, AND RANDY KOHORST,
Plaintiff,
TOWER HILL SIGNATURE INSURANCE
COMPANY,
Defendant.
DEFENDANT'S MOTION FOR RECONSIDERATION IN REFERENCE TO THE COURT'S
ORDER ENTERED AUGUST 17, 2023
COMES NOW, the Defendant, TOWER HILL SIGNATURE INSURANCE
COMPANY (hereinafter, “Defendant” or "Tower Hill"), by and through its undersigned
counsel, pursuant to Florida Rule of Civil Procedure 1.530, hereby files this Motion for
Reconsideration in reference to the Court's Order entered August 17, 2023, and in support
thereof states as follows:
1 This is an action involving the Plaintiffs claim for benefits under their
homeowner insurance policy for their home located at 27 Tropicana Drive, Punta Gorda,
Florida 33950 (hereinafter the “Subject Property’).
Case No.: 23001703CA
Motion for Reconsideration
Page 2
2 On May 11, 2023, the Plaintiffs Colazo, LLC, and Randy Kohorst served the
Defendant with a one-count Complaint for breach of contract. Please see Complaint
attached as Defendant's Exhibit “A.”
3 Therein, the Plaintiffs alleged that the Defendant issued to them a policy of
insurance (hereinafter the “Subject Policy”) bearing policy number W013345872 that
provided coverage for the property located at 27 Tropicana Drive, Punta Gorda, Florida
33950 (hereinafter the “Subject Property”).
4 The Plaintiffs’ Complaint further alleges that the Plaintiffs timely filed a claim
for damage to the subject property resulting from Hurricane lan on or about September
28, 2022, and that Tower Hill Signature Insurance Company breached the terms of the
subject policy by failing to provide coverage for the alleged loss.
5 On June 19, 2023, Tower Hill filed its Motion to Dismiss the Plaintiffs’
Complaint for lack of standing and failure to comply with Section 627.70152(3)(a), Florida
Statutes. Please see Motion to Dismiss attached as Defendant's Exhibit “B.”
6 On August 15, 2023, Defendant's Motion to Dismiss Plaintiffs’ Complaint
was heard and subsequently granted by the court. Please see Order on Defendant's
Motion to Dismiss Plaintiffs’ Complaint attached as Defendant's Exhibit “C.”
7 The Court further ordered that Defendant produce a certified copy of the
subject policy and declaration sheet within 10 days of the Court's executed Order. See
paragraph (2) of Exhibit “C.”
Case No.: 23001703CA
Motion for Reconsideration
Page 3
8 Neither the Plaintiffs nor their Counsel requested a certified copy of the
policy. Rather, the Court at its own discretion ordered that the Defendant produce a
certified copy within 10 days from entry of the Court's order.
9 Tower Hill requests that the Court reconsiders its order as the Plaintiffs did
not request a certified copy of the policy.
MEMORANDUM OF LAW
I Legal Standard on Motion for Reconsideration
A motion to reconsider the Court's order is proper for Defendant's request. Motions
for “reconsideration” apply to nonfinal, interlocutory orders, and are based on trial court's
“inherent authority to reconsider and, if deemed appropriate, alter or retract any of its
nonfinal rulings prior to entry of the final judgment or order terminating an action...”
Sigler v. Bell, 148 So. 3d 473, 478 (Fla. 5th DCA 2014)(citing Silverstrone v. Edell, 721 So.
2d 1173, 1175 (Fla. 1998). A motion for reconsideration is the proper remedy to change
an interlocutory ruling. Bettez, 510 So.2d at 1243. The purpose of a motion for
reconsideration is to provide the trial court with an opportunity to consider matters which
were not properly considered or overlooked. See /d.
A motion to reconsider may be filed at any time before the entry of final judgment.
See Siegler, 148 So. 3d at 479. In this matter, only a few days have passed since the Court
Case No.: 23001703CA
Motion for Reconsideration
Page 4
issued its ruling. Therefore, Defendant moves for reconsideration as the Plaintiffs would
not be prejudice by such request.
I. Applying the above principles to the present case.
Based on the aforementioned rule, this Court should reconsider its ruling outlined
in paragraph (2) of this Court's Order entered on August 17, 2023. As discussed above,
Plaintiffs’ Complaint was dismissed for lack of standing and failure to file a Notice of Intent
pursuant to Section 627.70152(3)(a), Florida Statutes. Plaintiffs, via its Counsel, never
made a request to the court for a certified copy of the subject policy and/or declaration
page. This Court improperly assumes that Plaintiffs were in need of a copy of the subject
policy despite the fact that Defendant's Motion to Dismiss was granted.
Hh. Conclusion
The Plaintiffs did not request a copy of the certified policy and/or declaration page; as
such, Defendant should be release from the Court's order to provide the same.
Furthermore, the Plaintiffs would not be prejudiced should the Court reconsider its Order
entered August 17, 2023.
WHEREFORE, for the reasons stated above, Defendant respectfully requests that
this Court grants this Motion and enters an Order omitting the paragraph (2) the Court's
Order entered August 17, 2023.
Case No.: 23001703CA
Motion for Reconsideration
Page 5
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via Electronic Mail, to all counsel of record on the attached Service List, this 25‘
day of August, 2023.
LUKS, SANTANIELLO, PETRILLO, COHEN &
PETERFRIEND
Attorneys for Defendant
110 SE 6TH STREET
20TH FLOOR
FORT LAUDERDALE, FL 33301
Telephone: (954) 761-9900
Facsimile: (954) 761-9940
By: ‘s/ Lorraine L. Young
DANIEL J. SANTANIELLO
Florida Bar No.: 860948
Lorraine L. Young
Florida Bar No.: 106807
LUKSFLL-Pleadings@LS-Law.com
SERVICE LIST
VISHIO WATKINS FORRY
Andrew J. Dean, Esq.
1112 Goodlette-Frank Rd.
Suite #204
Naples, Florida 34102)
adean @vishioforry.com
aclemont@vishioforry.com
service@vishioforry.com
Filing # 172150389 E-Filed 05/01/2023 01:40:54 PM
EXHIBIT A
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION
COLAZO, LLC and RANDY
KOHORST,
Plaintiffs,
VS. CASE NO.
TOWER HILL SIGNATURE INSURANCE
COMPANY,
Defendant.
/
COMPLAINT FOR DAMAGES
COMES NOW, Plaintiffs, COLAZO, LLC and RANDY KOHORST (hereinafter,
collectively “Plaintiffs”), by and through the undersigned counsel, brings this action against
Defendant, TOWER HILL SIGNATURE INSURANCE COMPANY (hereinafter “Defendant”
and/or “TOWER HILL”), and alleges the following:
GENERAL ALLEGATIONS, JURISDICTION, AND VENUE
1 This is an action for damages in excess of Fifty Thousand Dollars ($50,000.00),
exclusive of interest, costs, and attorney’s fees.
2. At all material times relevant to this Complaint, Plaintiffs have been and are the
owners of real and personal property in the State of Florida at 27 Tropicana Drive, Punta Gorda,
Florida 33950 (hereinafter, the “Subject Property”), and is otherwise sui juris.
3 At all material times relevant to this Complaint, Plaintiffs have been and are
residents of Charlotte County, Florida.
4 Defendant, TOWER HILL, has been and is now a corporation authorized to insure
all properties located in the State of Florida including properties located in Charlotte County,
Florida, and is otherwise sui juris.
5 In consideration for the premiums paid to it, Defendant issued Plaintiffs a valid,
binding, and enforceable policy of insurance bearing policy number W013345872 (hereinafter, the
“Policy”), at all times material hereto.
6. The Policy is an “all risk” policy that covers all direct physical losses to the Subject
Property that are not otherwise expressly excluded.
7 Plaintiffs paid all premiums on the Policy and the Policy was in full and continuing
force and effect at all relevant times herein.
8 The Policy was in full force and effect on September 28, 2022.
9 On or about September 28, 2022, the Subject Property sustained a direct physical
loss and ensuing damages as the result of Hurricane Ian (hereinafter the “Loss”).
10. Damages caused by hurricanes are covered under the Subject Policy.
11. Damages caused by hurricanes are not expressly excluded from the Subject Policy.
12. Plaintiffs made a timely application for insurance benefits under the Subject Policy
as a result of the Loss.
13. Defendant responded to the Loss by opening claim number 3300411546
(hereinafter the “Claim”).
14. The damages for the Loss and Claim as alleged herein arose as a direct and
proximate result of Hurricane Ian that occurred on or about September 28, 2022.
15. Defendant has been afforded the opportunity to fully inspect the Loss, investigate
the cause of the Loss, and quantify the amount of the Loss.
16. The Defendant and their representatives were able to, and did, inspect the Loss and
the Property in its investigation of the Claim.
17. Defendant acknowledged coverage for the Claim but severely undervalued the
damages sustained to the property.
18. On or about April 12, 2023, Plaintiffs, through the undersigned attorney, filed their
Notice of Intent to Initiate Litigation pursuant to Section 627.70152, Florida Statutes.
19. However, as of the date of this Complaint, Defendant has refused to fully indemnity
Plaintiffs for the Loss.
20. All conditions precedent to obtaining payment for benefits under the Subject Policy
for the Loss from Defendant have been complied with, met, or waived.
COUNT I - BREACH OF CONTRACT
21. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 20 as if fully
set forth herein and further state:
22. This is a cause of action for breach of contract arising out of the Policy that was in
effect at the time of the Loss to the Subject Property.
23. The Loss at the Subject Property has caused Plaintiffs to suffer economic damages
and substantial hardship as a result of a covered loss to the Subject Property and Plaintiffs continue
to suffer the Loss.
24. Plaintiffs timely notified Defendant of the Loss and filed the Claim in accordance
with the terms and conditions of the Policy.
25. Defendant fully inspected the Property and was provided the full opportunity to
evaluate the Loss, cause of loss, and amount of damages.
26. Defendant has failed and/or refused to honor the contractual coverage in the Policy
by failing and/or refusing to fully compensate Plaintiffs by failing and/or refusing to pay benefits
owed under the Policy of the Claim based on the Loss.
27. Plaintiffs have suffered damages including, but not limited to, insurance benefits
under the Policy and damages from Defendant’s breach of the insurance Policy.
28. Plaintiffs have at all times cooperated with Defendant in the adjustment of the
Claim.
29. Plaintiffs have also complied with all of the obligations under the Policy or, in the
alternative, has been excused from performance by the acts, representations, omissions, or conduct
of Defendant.
30. Notwithstanding the foregoing, Defendant has failed to pay the full amount due and
owing under the Policy for the covered Loss sustained.
31. Defendant’s failure to pay all amounts due and owing under the Policy is a breach
of the insurance contract.
32. Plaintiffs are entitled to the full cost of repair of the damage to the subject property
as a result of the Loss, along with all other coverages afforded by the Policy for this Loss.
33. As a result of this dispute, and due to Defendant’s refusal to pay and/or fully
indemnity Plaintiffs for the Loss, it has become necessary that Plaintiffs retain the services of the
undersigned counsel and Plaintiffs are obligated to pay a reasonable fee for the undersigned
counsel’s services in bringing this action plus costs. Therefore, Plaintiffs are entitled to
reimbursement of these fees and costs by the Defendant subject to Section 627.428, Florida
Statutes.
34. Should Plaintiffs prevail in this action, Plaintiffs shall be entitled to interest from
the date of the loss or date of the breach as prescribed by Florida law.
35. Plaintiffs respectfully request that the Court enter an award of damages, interest,
attorney’s fees and costs, and any and all other relief deemed just and appropriate by this
Honorable Court.
WHEREFORE, Plaintiffs respectfully request this Court enter an award of all:
A. Damages;
B. Interest;
C. Attorney’s fees and costs pursuant to Section 627.428, Florida Statutes;
D. Costs incurred as a result of the instant litigation;
E. Trial by jury of all issues triable as a matter of right; and
F. Any such other and further relief as this Court deems just and appropriate.
DEMAND FOR JURY TRIAL
Plaintiffs, COLAZO, LLC and RANDY KOHORST, hereby demand a trial by jury on all
issues so triable.
DATED this 1“ day of May, 2023.
VISHIO * WATKINS * FORRY
/s/_ AndrewJ. Dean, Esq.
Andrew J. Dean, Esq.
Fla. Bar 121808
Attorneys for Plaintiff
1112 Goodlette-Frank Rd. N.
Suite #204
Naples, Florida 34102
P: (239) 703-7210
F: (239) 900-1993 (Fax)
adean@vishioforry.com
clemont@vishioforry.com
ervice@vishioforry.com
Filing # 172150389 E-Filed 05/01/2023 04:22:47 PM
IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA CIVIL ACTION
Plaintiff(s),
VS. CASE NO: 23001703CA
Defendant(s).
/
STANDING ORDER IN CIRCUIT CIVIL CASES IN THE
TWENTIETH JUDICIAL CIRCUIT
PURSUANT to Florida Rule of Civil Procedure 1.200(a), Florida Rule of Judicial Administration
2.545, and Administrative Order 1.13 (as amended) entered by the Chief Judge of this Circuit, the
parties are ordered to adhere to the following information and procedures applicable to civil lawsuits:
1, SERVICE OF THIS ORDER. The Plaintiff is directed to serve a copy of this order with
each Summons issued in this case. One copy of this Order is to be filed with the Clerk of the Circuit
Court with proof of service. The Plaintiff shall pay the appropriate statutory clerk’s fees for copies for
each Standing Order issued and attached to the Summons.
2. CIVIL CASE MANAGEMENT SYSTEM. The Supreme Court of Florida has established
guidelines for the prompt processing and resolution of civil cases. This Court has adopted a case
management system to help meet those guidelines. In contested cases (other than residential
foreclosures, involuntary commitment of sexually violent predators , Extraordinary Writs, 90 day
Notice of Medical Malpractice Claim, and Administrative Appeals), the parties are required to
participate in the case management system. The Court will issue a Case Management Plan after 150
days of the filing of a case in the event the parties have not submitted an Agreed Case Management
Plan that has been approved by the Court. However, if it becomes necessary to amend the court-issued
Case Management Plan, the parties may submit an Agreed Case Management Plan, subject to approval
by the Court, or if the parties cannot agree on an Amended Plan, the parties may request a case
management conference. The form of the Agreed Case Management Plan may be accessed at the
Court’s website at: http://www.ca.cjis20.org/web/main/civil.asp. If a case management conference is
scheduled, attendance by trial counsel and those parties who are not represented by counsel is
mandatory.
3. ALTERNATIVE DISPUTE RESOLUTION (ADR). ADR provides parties with an out-
of-court alternative for settling disagreements. The Court requires the parties to participate in ADR
prior to trial. Mediation is mandatory unless the parties agree to another form of ADR. Mediation is a
conference at which an independent third party attempts to arrange a settlement between the parties.
The Court, at its discretion, may order the case be referred to Non-Binding Arbitration. Non-Binding
Arbitration is the process in which the court refers a case to a registered arbitrator, or panel of
arbitrators, who will hear evidence and make an award which may become a final judgment if a
Motion for Trial De Novo is not timely filed pursuant to Fla. R. Civ. P. 1820(h).
4. FAILURE TO PROSECUTE. The Court will issue a Notice of Intent to Dismiss a case if
there is no record of activity within a ten (10) month period of time.
5. RULES OF PROFESSIONALISM. The Twentieth Judicial Circuit has adopted
Administrative Order 2.20, which sets forth standards of professional courtesy and conduct for all
counsel practicing within the Circuit and self-represented litigants. The Court requires that all parties
familiarize themselves and comply with Administrative Order 2.20. Administrative Order 2.20 may be
viewed on the Court’s website at: http:/Avww.ca.cjis20.org/web/main/ao_admin.asp
DONE AND ORDERED in Punta Gorda, Charlotte County, Florida, on April 30, 2021.
HONORABLE GEOFFREY GENTILE
CUIT JUDGE
Filing # 175650054 E-Filed 06/19/2023 05:38:13 PM
EXHIBIT B
IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CASE NO.: 23001703CA
COLAZO, LLC, AND RANDY KOHORST,
Plaintiffs,
v.
TOWER HILL SIGNATURE INSURANCE
COMPANY,
Defendant.
DEFENDANT, TOWER HILL SIGNATURE INSURANCE COMPANY’S,
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT.
COMES NOW, the Defendant, TOWER HILL SIGNATURE INSURANCE COMPANY
(hereinafter, “Defendant” or “Tower Hill”), by and through its undersigned counsel, pursuant to
Florida Rule of Civil Procedure 1.140, and hereby moves to dismiss the Plaintiffs’ Complaint for
violation of Section 627.70152, Florida Statutes, and for lack of standing, and as grounds thereto
states the following:
1 On May 11, 2023, the Plaintiffs Colazo, LLC, and Randy Kohorst served the
Defendant with a one-count Complaint for breach of contract. Please see Complaint attached as
Defendant’s Exhibit “A.”
2. Therein, the Plaintiffs alleged that the Defendant issued to them a policy of
insurance (hereinafter the “Subject Policy”) bearing policy number W013345872 that provided
Case No.: 23001703CA
Motion to Dismiss Plaintiffs’ Complaint
Page 2
coverage for the property located at 27 Tropicana Drive, Punta Gorda, Florida 33950 (hereinafter
the “Subject Property”).
3 The Plaintiffs’ Complaint further alleges that the Plaintiffs timely filed a claim for
damage to the subject property resulting from Hurricane Ian on or about September 28, 2022, and
that the Plaintiffs complied with all obligations under the Policy before filing suit against the
Defendant.
4 The Plaintiffs’ Complaint also alleges that Tower Hill Signature Insurance
Company breached the terms of the subject policy by failing to provide coverage for the alleged
loss.
5 Notwithstanding the Plaintiffs’ allegation, the Defendant Tower Hill Signature
Insurance Company contends that it did not hold privity of contract with Colazo, LLC, or Randy
Kohorst, on the date of loss September 28, 2022, as the subject policy #W013345872 that is
referenced by the Plaintiffs’ Complaint was issued solely to Randy Kohorst by Tower Hill
Insurance Exchange on September 1, 2022. Please see the Subject Policy attached hereto as
Defendant’s Exhibit “B.”
6. Therefore, given the Plaintiffs’ failure to name the proper defendant, this matter
must be dismissed because the Plaintiffs lack standing to file suit against Tower Hill Signature
Insurance Company.
6. The Defendant further contends that the Plaintiffs failed to provide the Department
of Financial Services (hereinafter, the “Department”) with a proper Notice of Intent to Initiate
Litigation against the correct carrier Tower Hill Insurance Exchange and pursuant to Section
627.70152(3)(a), Florida Statutes, (hereinafter “Notice of Intent”).
Case No.: 23001703CA
Motion to Dismiss Plaintiffs’ Complaint
Page 3
7 Due to the Plaintiffs’ failure to file a proper Notice of Intent with the Department
as required by law, the Court should find that the Plaintiffs failed to meet a statutory condition
precedent to filing suit; and thus, the Plaintiffs’ Complaint must be dismissed pursuant to Section
627.70152(5), Florida Statutes.
MEMORANDUM OF LAW
I Legal Standard on a Motion to Dismiss
The question for the Court to decide is simply whether, assuming all allegations in the
complaint are true, the plaintiff would be entitled to the relief requested. Sobi v. Fairfield Resorts,
Inc., 846 So. 2d 1204, 1206 (Fla. 5th DCA 2003) (citing Provence v. Palm Beach Taverns, Inc.,
676 So. 2d 1022, 1024 (Fla. 4th DCA 1996)). When a statute is clear and unambiguous, the Court
must use the plain language and avoid rules of statutory construction. Daniels v. Fla. Dept. of
Health, 898 So. 2d 61, 64 (Fla. 2005). Failure to allege, even generally, compliance with a
condition precedent mandates dismissal. See, Southeast Land Developers, Inc. v. All Florida Site
and Utilities, Inc., 28 So. 3d 166, 168 (Fla. Ist DCA 2010)(failure to allege that conditions
precedent have been met renders a complaint “fatally defective” for failing to state a cause of
action); Nguyen v. Roth Realty, Inc., 550 So. 2d 490 (Fla. 5th DCA 1989)(Complaint without
allegations regarding conditions precedent does not state a cause of action). However, section
627.70152 expressly requires dismissal of an action in the event the insured fails to comply with
the Notice requirement set forth in subjection (3). Fla. Stat. 627.70152(5); See Stokes v. Florida
Peninsula Ins. Co., No. 50-2021-CA-011402, 2022 WL 2734568, at *2 (Fla. 15th Jud. Cir., Mar.
07, 2022).
Il. Plaintiffs’ Complaint Does Not Comply with Fla. Stat. 627.70152(3)
Case No.: 23001703CA
Motion to Dismiss Plaintiffs’ Complaint
Page 4
Plaintiffs Complaint does not comply with Section 627.70152(3), Florida Statutes, which
prescribes numerous requirements that a Plaintiff, other than an assignee, must perform prior to
filing suit against an insurer such as Tower Hill. Among other things, Section 627.70152(3),
Florida Statutes, mandates that Plaintiffs file a proper Notice of Intent with the Department prior
to initiating litigation.
627.70152 — SUITS ARISING UNDER A PROPERTY INSURANCE POLICY
GQ) 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 inten
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.
Pursuant to Section 627.70152(5), Florida Statutes, “[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.” In the instant case, the
Plaintiff did not comply with the requirements by failing to notify the Department of alleged acts
of omissions committed by Tower Hill Insurance Exchange. Thus, as clearly laid out in the statute,
the court must dismiss the instant suit as notice was not given of the Plaintiffs’ intent to file suit
against Tower Hill Insurance Exchange “as required by this section”. Fla. Stat. 627.70152(5).
Case No.: 23001703CA
Motion to Dismiss Plaintiffs’ Complaint
Page 5
Til. Naming Wrong Defendant/Lack of Standing Is Additional Grounds for
Dismissal
In addition to the above, this Honorable Court may consider documents that, while not
attached to the complaint, are referenced by the complaint when determining whether a plaintiffs
claim should be dismissed. See, e.g., Woolzy v. Government Employees Ins. Co., 360 So.2d 1153,
1154 (Fla. 3rd DCA 1978); Posigian v. American Reliance Ins. Co. of New Jersey, 549 So.2d 751,
753 (Fla. 3rd DCA 1989) (trial court properly considered documents referred to in complaint but
provided by defendant on motion to dismiss);_In Re Estate Deluca, 748 So. 2d 1086 (Fla. 4" DCA
2000) (if a document is specifically referenced in a Complaint, it is considered an Exhibit and
within the four corners of the Complaint, and can be considered on a Motion to Dismiss).
Further, an inconsistency between the pleading and the exhibit is fatal to the Complaint
and subjects it to dismissal. See, e.g., Friedman v. New York Life Ins. Co., 985 So.2d 56, 59 (Fla.
4th DCA 2008) (“If an exhibit facially negates the cause of action asserted, the document attached
as an exhibit controls and must be considered in determining a motion to dismiss”); Harry Pepper
& Associates, Inc. v. Lasseter, 247 So.2d 736-737 (Fla. 3d DCA 1971) (inconsistencies between
the allegations in a pleading and the contents of an attached exhibit “have the effect of neutralizing
each allegation as against the other, thus rendering the pleading objectionable”); Hillcrest Pacific
Corp. v. Yamamura, 727 So.2d 1053, 1055-1056 (Fla. 4th DCA 1999); Striton Properties, Inc. v.
City of Jacksonville Beach, 533 So.2d 1174, 1179 (Fla.lst DCA 1988) (affirming dismissal of
complaint because exhibit “negate[d] the inconsistent allegation” in the complaint regarding
defendant’s rights, power and authority).
The law in Florida is very clear as to the duties and liabilities, and thus standing, of third
parties to a contract. First, a contract does not bind someone who is not a party to the contract.
Case No.: 23001703CA
Motion to Dismiss Plaintiffs’ Complaint
Page 6
See, e.g., Prudential-Bache Securities, Inc. v. U.S. Optical Frame Co., 534 So.2d 793, 795 (Fla. 3d
DCA 1988) (“It is hornbook law that, to be bound, one must be a party to a contract”); Pozo v.
Re oadhouse Grill, Inc., 790 So.2d 1255, 1260 (Fla. 5th DCA 2001) (“the obligation of contracts is
limited to the parties making them”); CH2M Hill Southeast, Inc. v. Pinellas County, 598 So.2d 85,
89 (Fla. 2d DCA 1992); In re Estate of Donner, 364 So.2d 742, 749 (Fla. 3d DCA 1978). Since
the Defendant is not a party to the subject insurance policy, the Defendant has no duties or
responsibilities under the same and cannot, as a matter of law, breach the same. See, e.g., In re
Estate of Donner, 364 So.2d at 749 (holding person “cannot be said to have breached” a contract
to which she was not a party).
In this matter, the subject Policy referenced by the Plaintiffs’ Complaint was issued by
Tower Hill Insurance Exchange to Plaintiff Randy Kohorst alone. The subject Policy was not
issued by Tower Hill Signature Insurance Company. Therefore, it is clear that the Plaintiffs’
Complaint is improper and warrants dismissal, as Tower Hill Signature Insurance Company is not
a party to the insurance contract at issue and thus, an improperly named defendant.
IV. Conclusion
The Plaintiffs did not provide proper pre-suit Notice of Intent in compliance with Section
627.70152(3)(a), Florida Statutes. Therefore, the Plaintiffs have failed to comply with a condition
precedent to filing suit; rendering their lawsuit legally deficient. They also lack standing to file
the current breach of contract claim against the Defendant Tower Hill Signature Company, as no
insurance policy existed between the Defendant and the Plaintiffs on the alleged date of loss.
Therefore, the Plaintiffs’ Complaint must be dismissed for failure to provide a proper pre-suit
Notice of Intent, pursuant to Section 627.70152(5), Florida Statutes, and for failure to name a
proper defendant.
Case No.: 23001703CA
Motion to Dismiss Plaintiffs’ Complaint
Page 7
WHEREFORE, Defendant respectfully requests this Court enter an order dismissing
Plaintiffs’ Complaint for the grounds set forth above and order any further relief this Court deems
just and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via Electronic Mail, to all counsel of record on the attached Service List, this 19th day of June,
2023.
LUKS, SANTANIELLO, PETRILLO,
COHEN & PETERFRIEND
Attorneys for Defendant
110 SE 6TH STREET
20TH FLOOR
FORT LAUDERDALE, FL 33301
Telephone: (954) 761-9900
Facsimile: (954) 761-9940
By: /s/ Lorraine L. Young
DANIEL J. SANTANIELLO
Florida Bar No.: 860948
Lorraine L. Young
Florida Bar No.: 106807
LUKSFLL-Pleadings@LS-Law.com
SERVICE LIST
VISHIO WATKINS FORRY
Andrew J. Dean, Esq.
1112 Goodlette-Frank Rd. N.
Suite #204
Naples, Florida 34102)
adean@vishioforry.com
aclemont@vishioforry.com
service@vishioforry.com
Filing # 179872403 E-Filed 08/17/2023 10:55:22 AM
EXHIBIT C
IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CASE NO.: 23001703CA
COLAZO, LLC, AND RANDY KOHORST,
Plaintiff,
v.
TOWER HILL SIGNATURE INSURANCE
COMPANY,
Defendant.
/
ORDER ON DEF. IDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
THIS CAUSE, having come before the Court on Defendant’s Motion to Dismiss Plaintiffs’
Complaint during the Uniform Motion Hearing of August 15, 2023, the Court having heard argument of
the parties, and being otherwise fully advised of the premises therein, it is hereupon,
ORDERED AND ADJUDGED that:
Defendant’s Motion to Dismiss is hereby GRANTED.
The Defendant will provide counsel for Plaintiff with a certified copy of the declaration sheet and
policy within 10 days of the Court’s executed Order.
The Plaintiff will have 30 days from the date the certified declaration sheet and policy are received
to file an Amended Complaint.
DONE AND ORDERED.
Van
esigh Ctl £2 FREY Hin 230017038
con 08/17/202310.55.13 CMc8ZEWL
Electronic Service List
Andrew Dean , ,
Lorraine L Young , ,
LORRAINE L YOUNG
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Filing # 180539652 E-Filed 08/25/2023 01:53:12 PM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO.: 23001703CA COLAZO, LLC, AND RANDY KOHORST, Plaintiff, TOWER HILL SIGNATURE INSURANCE COMPANY, Defendant. DEFENDANT'S MOTION FOR RECONSIDERATION IN REFERENCE TO THE COURT'S ORDER ENTERED AUGUST 17, 2023 COMES NOW, the Defendant, TOWER HILL SIGNATURE INSURANCE COMPANY (hereinafter, “Defendant” or "Tower Hill"), by and through its undersigned counsel, pursuant to Florida Rule of Civil Procedure 1.530, hereby files this Motion for Reconsideration in reference to the Court's Order entered August 17, 2023, and in support thereof states as follows: 1 This is an action involving the Plaintiffs claim for benefits under their homeowner insurance policy for their home located at 27 Tropicana Drive, Punta Gorda, Florida 33950 (hereinafter the “Subject Property’). Case No.: 23001703CA Motion for Reconsideration Page 2 2 On May 11, 2023, the Plaintiffs Colazo, LLC, and Randy Kohorst served the Defendant with a one-count Complaint for breach of contract. Please see Complaint attached as Defendant's Exhibit “A.” 3 Therein, the Plaintiffs alleged that the Defendant issued to them a policy of insurance (hereinafter the “Subject Policy”) bearing policy number W013345872 that provided coverage for the property located at 27 Tropicana Drive, Punta Gorda, Florida 33950 (hereinafter the “Subject Property”). 4 The Plaintiffs’ Complaint further alleges that the Plaintiffs timely filed a claim for damage to the subject property resulting from Hurricane lan on or about September 28, 2022, and that Tower Hill Signature Insurance Company breached the terms of the subject policy by failing to provide coverage for the alleged loss. 5 On June 19, 2023, Tower Hill filed its Motion to Dismiss the Plaintiffs’ Complaint for lack of standing and failure to comply with Section 627.70152(3)(a), Florida Statutes. Please see Motion to Dismiss attached as Defendant's Exhibit “B.” 6 On August 15, 2023, Defendant's Motion to Dismiss Plaintiffs’ Complaint was heard and subsequently granted by the court. Please see Order on Defendant's Motion to Dismiss Plaintiffs’ Complaint attached as Defendant's Exhibit “C.” 7 The Court further ordered that Defendant produce a certified copy of the subject policy and declaration sheet within 10 days of the Court's executed Order. See paragraph (2) of Exhibit “C.” Case No.: 23001703CA Motion for Reconsideration Page 3 8 Neither the Plaintiffs nor their Counsel requested a certified copy of the policy. Rather, the Court at its own discretion ordered that the Defendant produce a certified copy within 10 days from entry of the Court's order. 9 Tower Hill requests that the Court reconsiders its order as the Plaintiffs did not request a certified copy of the policy. MEMORANDUM OF LAW I Legal Standard on Motion for Reconsideration A motion to reconsider the Court's order is proper for Defendant's request. Motions for “reconsideration” apply to nonfinal, interlocutory orders, and are based on trial court's “inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action...” Sigler v. Bell, 148 So. 3d 473, 478 (Fla. 5th DCA 2014)(citing Silverstrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998). A motion for reconsideration is the proper remedy to change an interlocutory ruling. Bettez, 510 So.2d at 1243. The purpose of a motion for reconsideration is to provide the trial court with an opportunity to consider matters which were not properly considered or overlooked. See /d. A motion to reconsider may be filed at any time before the entry of final judgment. See Siegler, 148 So. 3d at 479. In this matter, only a few days have passed since the Court Case No.: 23001703CA Motion for Reconsideration Page 4 issued its ruling. Therefore, Defendant moves for reconsideration as the Plaintiffs would not be prejudice by such request. I. Applying the above principles to the present case. Based on the aforementioned rule, this Court should reconsider its ruling outlined in paragraph (2) of this Court's Order entered on August 17, 2023. As discussed above, Plaintiffs’ Complaint was dismissed for lack of standing and failure to file a Notice of Intent pursuant to Section 627.70152(3)(a), Florida Statutes. Plaintiffs, via its Counsel, never made a request to the court for a certified copy of the subject policy and/or declaration page. This Court improperly assumes that Plaintiffs were in need of a copy of the subject policy despite the fact that Defendant's Motion to Dismiss was granted. Hh. Conclusion The Plaintiffs did not request a copy of the certified policy and/or declaration page; as such, Defendant should be release from the Court's order to provide the same. Furthermore, the Plaintiffs would not be prejudiced should the Court reconsider its Order entered August 17, 2023. WHEREFORE, for the reasons stated above, Defendant respectfully requests that this Court grants this Motion and enters an Order omitting the paragraph (2) the Court's Order entered August 17, 2023. Case No.: 23001703CA Motion for Reconsideration Page 5 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic Mail, to all counsel of record on the attached Service List, this 25‘ day of August, 2023. LUKS, SANTANIELLO, PETRILLO, COHEN & PETERFRIEND Attorneys for Defendant 110 SE 6TH STREET 20TH FLOOR FORT LAUDERDALE, FL 33301 Telephone: (954) 761-9900 Facsimile: (954) 761-9940 By: ‘s/ Lorraine L. Young DANIEL J. SANTANIELLO Florida Bar No.: 860948 Lorraine L. Young Florida Bar No.: 106807 LUKSFLL-Pleadings@LS-Law.com SERVICE LIST VISHIO WATKINS FORRY Andrew J. Dean, Esq. 1112 Goodlette-Frank Rd. Suite #204 Naples, Florida 34102) adean @vishioforry.com aclemont@vishioforry.com service@vishioforry.com Filing # 172150389 E-Filed 05/01/2023 01:40:54 PM EXHIBIT A IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION COLAZO, LLC and RANDY KOHORST, Plaintiffs, VS. CASE NO. TOWER HILL SIGNATURE INSURANCE COMPANY, Defendant. / COMPLAINT FOR DAMAGES COMES NOW, Plaintiffs, COLAZO, LLC and RANDY KOHORST (hereinafter, collectively “Plaintiffs”), by and through the undersigned counsel, brings this action against Defendant, TOWER HILL SIGNATURE INSURANCE COMPANY (hereinafter “Defendant” and/or “TOWER HILL”), and alleges the following: GENERAL ALLEGATIONS, JURISDICTION, AND VENUE 1 This is an action for damages in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest, costs, and attorney’s fees. 2. At all material times relevant to this Complaint, Plaintiffs have been and are the owners of real and personal property in the State of Florida at 27 Tropicana Drive, Punta Gorda, Florida 33950 (hereinafter, the “Subject Property”), and is otherwise sui juris. 3 At all material times relevant to this Complaint, Plaintiffs have been and are residents of Charlotte County, Florida. 4 Defendant, TOWER HILL, has been and is now a corporation authorized to insure all properties located in the State of Florida including properties located in Charlotte County, Florida, and is otherwise sui juris. 5 In consideration for the premiums paid to it, Defendant issued Plaintiffs a valid, binding, and enforceable policy of insurance bearing policy number W013345872 (hereinafter, the “Policy”), at all times material hereto. 6. The Policy is an “all risk” policy that covers all direct physical losses to the Subject Property that are not otherwise expressly excluded. 7 Plaintiffs paid all premiums on the Policy and the Policy was in full and continuing force and effect at all relevant times herein. 8 The Policy was in full force and effect on September 28, 2022. 9 On or about September 28, 2022, the Subject Property sustained a direct physical loss and ensuing damages as the result of Hurricane Ian (hereinafter the “Loss”). 10. Damages caused by hurricanes are covered under the Subject Policy. 11. Damages caused by hurricanes are not expressly excluded from the Subject Policy. 12. Plaintiffs made a timely application for insurance benefits under the Subject Policy as a result of the Loss. 13. Defendant responded to the Loss by opening claim number 3300411546 (hereinafter the “Claim”). 14. The damages for the Loss and Claim as alleged herein arose as a direct and proximate result of Hurricane Ian that occurred on or about September 28, 2022. 15. Defendant has been afforded the opportunity to fully inspect the Loss, investigate the cause of the Loss, and quantify the amount of the Loss. 16. The Defendant and their representatives were able to, and did, inspect the Loss and the Property in its investigation of the Claim. 17. Defendant acknowledged coverage for the Claim but severely undervalued the damages sustained to the property. 18. On or about April 12, 2023, Plaintiffs, through the undersigned attorney, filed their Notice of Intent to Initiate Litigation pursuant to Section 627.70152, Florida Statutes. 19. However, as of the date of this Complaint, Defendant has refused to fully indemnity Plaintiffs for the Loss. 20. All conditions precedent to obtaining payment for benefits under the Subject Policy for the Loss from Defendant have been complied with, met, or waived. COUNT I - BREACH OF CONTRACT 21. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 20 as if fully set forth herein and further state: 22. This is a cause of action for breach of contract arising out of the Policy that was in effect at the time of the Loss to the Subject Property. 23. The Loss at the Subject Property has caused Plaintiffs to suffer economic damages and substantial hardship as a result of a covered loss to the Subject Property and Plaintiffs continue to suffer the Loss. 24. Plaintiffs timely notified Defendant of the Loss and filed the Claim in accordance with the terms and conditions of the Policy. 25. Defendant fully inspected the Property and was provided the full opportunity to evaluate the Loss, cause of loss, and amount of damages. 26. Defendant has failed and/or refused to honor the contractual coverage in the Policy by failing and/or refusing to fully compensate Plaintiffs by failing and/or refusing to pay benefits owed under the Policy of the Claim based on the Loss. 27. Plaintiffs have suffered damages including, but not limited to, insurance benefits under the Policy and damages from Defendant’s breach of the insurance Policy. 28. Plaintiffs have at all times cooperated with Defendant in the adjustment of the Claim. 29. Plaintiffs have also complied with all of the obligations under the Policy or, in the alternative, has been excused from performance by the acts, representations, omissions, or conduct of Defendant. 30. Notwithstanding the foregoing, Defendant has failed to pay the full amount due and owing under the Policy for the covered Loss sustained. 31. Defendant’s failure to pay all amounts due and owing under the Policy is a breach of the insurance contract. 32. Plaintiffs are entitled to the full cost of repair of the damage to the subject property as a result of the Loss, along with all other coverages afforded by the Policy for this Loss. 33. As a result of this dispute, and due to Defendant’s refusal to pay and/or fully indemnity Plaintiffs for the Loss, it has become necessary that Plaintiffs retain the services of the undersigned counsel and Plaintiffs are obligated to pay a reasonable fee for the undersigned counsel’s services in bringing this action plus costs. Therefore, Plaintiffs are entitled to reimbursement of these fees and costs by the Defendant subject to Section 627.428, Florida Statutes. 34. Should Plaintiffs prevail in this action, Plaintiffs shall be entitled to interest from the date of the loss or date of the breach as prescribed by Florida law. 35. Plaintiffs respectfully request that the Court enter an award of damages, interest, attorney’s fees and costs, and any and all other relief deemed just and appropriate by this Honorable Court. WHEREFORE, Plaintiffs respectfully request this Court enter an award of all: A. Damages; B. Interest; C. Attorney’s fees and costs pursuant to Section 627.428, Florida Statutes; D. Costs incurred as a result of the instant litigation; E. Trial by jury of all issues triable as a matter of right; and F. Any such other and further relief as this Court deems just and appropriate. DEMAND FOR JURY TRIAL Plaintiffs, COLAZO, LLC and RANDY KOHORST, hereby demand a trial by jury on all issues so triable. DATED this 1“ day of May, 2023. VISHIO * WATKINS * FORRY /s/_ AndrewJ. Dean, Esq. Andrew J. Dean, Esq. Fla. Bar 121808 Attorneys for Plaintiff 1112 Goodlette-Frank Rd. N. Suite #204 Naples, Florida 34102 P: (239) 703-7210 F: (239) 900-1993 (Fax) adean@vishioforry.com clemont@vishioforry.com ervice@vishioforry.com Filing # 172150389 E-Filed 05/01/2023 04:22:47 PM IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION Plaintiff(s), VS. CASE NO: 23001703CA Defendant(s). / STANDING ORDER IN CIRCUIT CIVIL CASES IN THE TWENTIETH JUDICIAL CIRCUIT PURSUANT to Florida Rule of Civil Procedure 1.200(a), Florida Rule of Judicial Administration 2.545, and Administrative Order 1.13 (as amended) entered by the Chief Judge of this Circuit, the parties are ordered to adhere to the following information and procedures applicable to civil lawsuits: 1, SERVICE OF THIS ORDER. The Plaintiff is directed to serve a copy of this order with each Summons issued in this case. One copy of this Order is to be filed with the Clerk of the Circuit Court with proof of service. The Plaintiff shall pay the appropriate statutory clerk’s fees for copies for each Standing Order issued and attached to the Summons. 2. CIVIL CASE MANAGEMENT SYSTEM. The Supreme Court of Florida has established guidelines for the prompt processing and resolution of civil cases. This Court has adopted a case management system to help meet those guidelines. In contested cases (other than residential foreclosures, involuntary commitment of sexually violent predators , Extraordinary Writs, 90 day Notice of Medical Malpractice Claim, and Administrative Appeals), the parties are required to participate in the case management system. The Court will issue a Case Management Plan after 150 days of the filing of a case in the event the parties have not submitted an Agreed Case Management Plan that has been approved by the Court. However, if it becomes necessary to amend the court-issued Case Management Plan, the parties may submit an Agreed Case Management Plan, subject to approval by the Court, or if the parties cannot agree on an Amended Plan, the parties may request a case management conference. The form of the Agreed Case Management Plan may be accessed at the Court’s website at: http://www.ca.cjis20.org/web/main/civil.asp. If a case management conference is scheduled, attendance by trial counsel and those parties who are not represented by counsel is mandatory. 3. ALTERNATIVE DISPUTE RESOLUTION (ADR). ADR provides parties with an out- of-court alternative for settling disagreements. The Court requires the parties to participate in ADR prior to trial. Mediation is mandatory unless the parties agree to another form of ADR. Mediation is a conference at which an independent third party attempts to arrange a settlement between the parties. The Court, at its discretion, may order the case be referred to Non-Binding Arbitration. Non-Binding Arbitration is the process in which the court refers a case to a registered arbitrator, or panel of arbitrators, who will hear evidence and make an award which may become a final judgment if a Motion for Trial De Novo is not timely filed pursuant to Fla. R. Civ. P. 1820(h). 4. FAILURE TO PROSECUTE. The Court will issue a Notice of Intent to Dismiss a case if there is no record of activity within a ten (10) month period of time. 5. RULES OF PROFESSIONALISM. The Twentieth Judicial Circuit has adopted Administrative Order 2.20, which sets forth standards of professional courtesy and conduct for all counsel practicing within the Circuit and self-represented litigants. The Court requires that all parties familiarize themselves and comply with Administrative Order 2.20. Administrative Order 2.20 may be viewed on the Court’s website at: http:/Avww.ca.cjis20.org/web/main/ao_admin.asp DONE AND ORDERED in Punta Gorda, Charlotte County, Florida, on April 30, 2021. HONORABLE GEOFFREY GENTILE CUIT JUDGE Filing # 175650054 E-Filed 06/19/2023 05:38:13 PM EXHIBIT B IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO.: 23001703CA COLAZO, LLC, AND RANDY KOHORST, Plaintiffs, v. TOWER HILL SIGNATURE INSURANCE COMPANY, Defendant. DEFENDANT, TOWER HILL SIGNATURE INSURANCE COMPANY’S, MOTION TO DISMISS PLAINTIFFS’ COMPLAINT. COMES NOW, the Defendant, TOWER HILL SIGNATURE INSURANCE COMPANY (hereinafter, “Defendant” or “Tower Hill”), by and through its undersigned counsel, pursuant to Florida Rule of Civil Procedure 1.140, and hereby moves to dismiss the Plaintiffs’ Complaint for violation of Section 627.70152, Florida Statutes, and for lack of standing, and as grounds thereto states the following: 1 On May 11, 2023, the Plaintiffs Colazo, LLC, and Randy Kohorst served the Defendant with a one-count Complaint for breach of contract. Please see Complaint attached as Defendant’s Exhibit “A.” 2. Therein, the Plaintiffs alleged that the Defendant issued to them a policy of insurance (hereinafter the “Subject Policy”) bearing policy number W013345872 that provided Case No.: 23001703CA Motion to Dismiss Plaintiffs’ Complaint Page 2 coverage for the property located at 27 Tropicana Drive, Punta Gorda, Florida 33950 (hereinafter the “Subject Property”). 3 The Plaintiffs’ Complaint further alleges that the Plaintiffs timely filed a claim for damage to the subject property resulting from Hurricane Ian on or about September 28, 2022, and that the Plaintiffs complied with all obligations under the Policy before filing suit against the Defendant. 4 The Plaintiffs’ Complaint also alleges that Tower Hill Signature Insurance Company breached the terms of the subject policy by failing to provide coverage for the alleged loss. 5 Notwithstanding the Plaintiffs’ allegation, the Defendant Tower Hill Signature Insurance Company contends that it did not hold privity of contract with Colazo, LLC, or Randy Kohorst, on the date of loss September 28, 2022, as the subject policy #W013345872 that is referenced by the Plaintiffs’ Complaint was issued solely to Randy Kohorst by Tower Hill Insurance Exchange on September 1, 2022. Please see the Subject Policy attached hereto as Defendant’s Exhibit “B.” 6. Therefore, given the Plaintiffs’ failure to name the proper defendant, this matter must be dismissed because the Plaintiffs lack standing to file suit against Tower Hill Signature Insurance Company. 6. The Defendant further contends that the Plaintiffs failed to provide the Department of Financial Services (hereinafter, the “Department”) with a proper Notice of Intent to Initiate Litigation against the correct carrier Tower Hill Insurance Exchange and pursuant to Section 627.70152(3)(a), Florida Statutes, (hereinafter “Notice of Intent”). Case No.: 23001703CA Motion to Dismiss Plaintiffs’ Complaint Page 3 7 Due to the Plaintiffs’ failure to file a proper Notice of Intent with the Department as required by law, the Court should find that the Plaintiffs failed to meet a statutory condition precedent to filing suit; and thus, the Plaintiffs’ Complaint must be dismissed pursuant to Section 627.70152(5), Florida Statutes. MEMORANDUM OF LAW I Legal Standard on a Motion to Dismiss The question for the Court to decide is simply whether, assuming all allegations in the complaint are true, the plaintiff would be entitled to the relief requested. Sobi v. Fairfield Resorts, Inc., 846 So. 2d 1204, 1206 (Fla. 5th DCA 2003) (citing Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022, 1024 (Fla. 4th DCA 1996)). When a statute is clear and unambiguous, the Court must use the plain language and avoid rules of statutory construction. Daniels v. Fla. Dept. of Health, 898 So. 2d 61, 64 (Fla. 2005). Failure to allege, even generally, compliance with a condition precedent mandates dismissal. See, Southeast Land Developers, Inc. v. All Florida Site and Utilities, Inc., 28 So. 3d 166, 168 (Fla. Ist DCA 2010)(failure to allege that conditions precedent have been met renders a complaint “fatally defective” for failing to state a cause of action); Nguyen v. Roth Realty, Inc., 550 So. 2d 490 (Fla. 5th DCA 1989)(Complaint without allegations regarding conditions precedent does not state a cause of action). However, section 627.70152 expressly requires dismissal of an action in the event the insured fails to comply with the Notice requirement set forth in subjection (3). Fla. Stat. 627.70152(5); See Stokes v. Florida Peninsula Ins. Co., No. 50-2021-CA-011402, 2022 WL 2734568, at *2 (Fla. 15th Jud. Cir., Mar. 07, 2022). Il. Plaintiffs’ Complaint Does Not Comply with Fla. Stat. 627.70152(3) Case No.: 23001703CA Motion to Dismiss Plaintiffs’ Complaint Page 4 Plaintiffs Complaint does not comply with Section 627.70152(3), Florida Statutes, which prescribes numerous requirements that a Plaintiff, other than an assignee, must perform prior to filing suit against an insurer such as Tower Hill. Among other things, Section 627.70152(3), Florida Statutes, mandates that Plaintiffs file a proper Notice of Intent with the Department prior to initiating litigation. 627.70152 — SUITS ARISING UNDER A PROPERTY INSURANCE POLICY GQ) 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 inten 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. Pursuant to Section 627.70152(5), Florida Statutes, “[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.” In the instant case, the Plaintiff did not comply with the requirements by failing to notify the Department of alleged acts of omissions committed by Tower Hill Insurance Exchange. Thus, as clearly laid out in the statute, the court must dismiss the instant suit as notice was not given of the Plaintiffs’ intent to file suit against Tower Hill Insurance Exchange “as required by this section”. Fla. Stat. 627.70152(5). Case No.: 23001703CA Motion to Dismiss Plaintiffs’ Complaint Page 5 Til. Naming Wrong Defendant/Lack of Standing Is Additional Grounds for Dismissal In addition to the above, this Honorable Court may consider documents that, while not attached to the complaint, are referenced by the complaint when determining whether a plaintiffs claim should be dismissed. See, e.g., Woolzy v. Government Employees Ins. Co., 360 So.2d 1153, 1154 (Fla. 3rd DCA 1978); Posigian v. American Reliance Ins. Co. of New Jersey, 549 So.2d 751, 753 (Fla. 3rd DCA 1989) (trial court properly considered documents referred to in complaint but provided by defendant on motion to dismiss);_In Re Estate Deluca, 748 So. 2d 1086 (Fla. 4" DCA 2000) (if a document is specifically referenced in a Complaint, it is considered an Exhibit and within the four corners of the Complaint, and can be considered on a Motion to Dismiss). Further, an inconsistency between the pleading and the exhibit is fatal to the Complaint and subjects it to dismissal. See, e.g., Friedman v. New York Life Ins. Co., 985 So.2d 56, 59 (Fla. 4th DCA 2008) (“If an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls and must be considered in determining a motion to dismiss”); Harry Pepper & Associates, Inc. v. Lasseter, 247 So.2d 736-737 (Fla. 3d DCA 1971) (inconsistencies between the allegations in a pleading and the contents of an attached exhibit “have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable”); Hillcrest Pacific Corp. v. Yamamura, 727 So.2d 1053, 1055-1056 (Fla. 4th DCA 1999); Striton Properties, Inc. v. City of Jacksonville Beach, 533 So.2d 1174, 1179 (Fla.lst DCA 1988) (affirming dismissal of complaint because exhibit “negate[d] the inconsistent allegation” in the complaint regarding defendant’s rights, power and authority). The law in Florida is very clear as to the duties and liabilities, and thus standing, of third parties to a contract. First, a contract does not bind someone who is not a party to the contract. Case No.: 23001703CA Motion to Dismiss Plaintiffs’ Complaint Page 6 See, e.g., Prudential-Bache Securities, Inc. v. U.S. Optical Frame Co., 534 So.2d 793, 795 (Fla. 3d DCA 1988) (“It is hornbook law that, to be bound, one must be a party to a contract”); Pozo v. Re oadhouse Grill, Inc., 790 So.2d 1255, 1260 (Fla. 5th DCA 2001) (“the obligation of contracts is limited to the parties making them”); CH2M Hill Southeast, Inc. v. Pinellas County, 598 So.2d 85, 89 (Fla. 2d DCA 1992); In re Estate of Donner, 364 So.2d 742, 749 (Fla. 3d DCA 1978). Since the Defendant is not a party to the subject insurance policy, the Defendant has no duties or responsibilities under the same and cannot, as a matter of law, breach the same. See, e.g., In re Estate of Donner, 364 So.2d at 749 (holding person “cannot be said to have breached” a contract to which she was not a party). In this matter, the subject Policy referenced by the Plaintiffs’ Complaint was issued by Tower Hill Insurance Exchange to Plaintiff Randy Kohorst alone. The subject Policy was not issued by Tower Hill Signature Insurance Company. Therefore, it is clear that the Plaintiffs’ Complaint is improper and warrants dismissal, as Tower Hill Signature Insurance Company is not a party to the insurance contract at issue and thus, an improperly named defendant. IV. Conclusion The Plaintiffs did not provide proper pre-suit Notice of Intent in compliance with Section 627.70152(3)(a), Florida Statutes. Therefore, the Plaintiffs have failed to comply with a condition precedent to filing suit; rendering their lawsuit legally deficient. They also lack standing to file the current breach of contract claim against the Defendant Tower Hill Signature Company, as no insurance policy existed between the Defendant and the Plaintiffs on the alleged date of loss. Therefore, the Plaintiffs’ Complaint must be dismissed for failure to provide a proper pre-suit Notice of Intent, pursuant to Section 627.70152(5), Florida Statutes, and for failure to name a proper defendant. Case No.: 23001703CA Motion to Dismiss Plaintiffs’ Complaint Page 7 WHEREFORE, Defendant respectfully requests this Court enter an order dismissing Plaintiffs’ Complaint for the grounds set forth above and order any further relief this Court deems just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic Mail, to all counsel of record on the attached Service List, this 19th day of June, 2023. LUKS, SANTANIELLO, PETRILLO, COHEN & PETERFRIEND Attorneys for Defendant 110 SE 6TH STREET 20TH FLOOR FORT LAUDERDALE, FL 33301 Telephone: (954) 761-9900 Facsimile: (954) 761-9940 By: /s/ Lorraine L. Young DANIEL J. SANTANIELLO Florida Bar No.: 860948 Lorraine L. Young Florida Bar No.: 106807 LUKSFLL-Pleadings@LS-Law.com SERVICE LIST VISHIO WATKINS FORRY Andrew J. Dean, Esq. 1112 Goodlette-Frank Rd. N. Suite #204 Naples, Florida 34102) adean@vishioforry.com aclemont@vishioforry.com service@vishioforry.com Filing # 179872403 E-Filed 08/17/2023 10:55:22 AM EXHIBIT C IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO.: 23001703CA COLAZO, LLC, AND RANDY KOHORST, Plaintiff, v. TOWER HILL SIGNATURE INSURANCE COMPANY, Defendant. / ORDER ON DEF. IDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT THIS CAUSE, having come before the Court on Defendant’s Motion to Dismiss Plaintiffs’ Complaint during the Uniform Motion Hearing of August 15, 2023, the Court having heard argument of the parties, and being otherwise fully advised of the premises therein, it is hereupon, ORDERED AND ADJUDGED that: Defendant’s Motion to Dismiss is hereby GRANTED. The Defendant will provide counsel for Plaintiff with a certified copy of the declaration sheet and policy within 10 days of the Court’s executed Order. The Plaintiff will have 30 days from the date the certified declaration sheet and policy are received to file an Amended Complaint. DONE AND ORDERED. Van esigh Ctl £2 FREY Hin 230017038 con 08/17/202310.55.13 CMc8ZEWL Electronic Service List Andrew Dean , , Lorraine L Young , , LORRAINE L YOUNG