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Filing # 183543531 E-Filed 10/09/2023 02:27:03 PM
IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
OSCAR LEON AND
PAULA LEON,
Plaintiff,
v. CASE NO.: 2023-CA-004325-CI
NATIONAL SPECIALTY INSURANCE
COMPANY,
Defendant.
_______________________________________/
MOTION TO DISMISS PLAINTIFFS' COUNT II FOR DECLARATORY RELIEF, OR
IN THE ALTERNATIVE, MOTION TO STRIKE CLAIM FOR ATTORNEYS' FEES.
COMES NOW Defendant National Specialty Insurance Company, by and through its
undersigned counsel and, pursuant to Rule l.l40(b)(6) of the Florida Rules of Civil Procedure, and
hereby moves to dismiss Plaintiff’s Count II of Plaintiffs’ Complaint for Declaratory Relief or, in
the alternative, hereby moves to strike Plaintiffs’ claim for attorneys' fees, and, as grounds
therefore, states as follows:
1. Plaintiffs entered into an insurance contract with Defendant, said contract bearing
Policy Number VUW-HO-555344 ("the Policy"), which provided insurance coverage for property
located at 2629 Eagle Cliff Drive, Kissimmee, Florida ("the Property"). See Plaintiff’s Complaint
at ¶ 5.
2. On Jun 2, 2022, Plaintiffs reported a claim for loss to the Property, which allegedly
occurred as a result of a windstorm loss which occurred on January 29, 2022.
3. Defendant issued a coverage determination letter to Plaintiffs dated June 9, 2022,
indicating that the Policy did not afford coverage for the alleged loss.
4. Plaintiffs filed a two-count Complaint for Breach of Contract and Declaratory
Relief on September 13, 2023, which was served on Defendant on September 19, 2023, alleging,
in part, the following:
a. The Complaint was an action for breach of contract with damages greater than
$50,000.00.
b. Parties entered into a written contract providing coverage for the Property.
c. On or about January 29, 2022, a wind, water and/or mold event caused damage to
the Property.
d. The loss was covered under Plaintiffs’ Policy issued by Defendant.
e. Plaintiffs reported the loss and complied with all conditions of the policy.
f. Defendant refused to: (i) acknowledge coverage for the Loss: and/or (ii)
acknowledge that payment of insurance proceeds for the Loss will be forthcoming;
and/or (iii) issue payment in full of insurance proceeds for the Loss to Plaintiffs.
g. As a result of the aforementioned refusals, Defendant is in Breach of Contract.
g. Plaintiffs believe that the loss is covered and Plaintiffs’ estimate is accurate and
compensable.
h. Due to Defendant’s disagreement to Plaintiffs belief regarding coverage, Plaintiffs’
are uncertain as to the existence or non-existence of Plaintiffs’ rights to coverage
under the policy.
i. Plaintiffs are seeking judicial interpretation of the policy that the policy provides
coverage for the loss and their estimate is compensable.
j. Plaintiffs are entitled to interpretation of the Policy in their favor.
k. Plaintiffs are therefore seeking a declaration of their rights, obligations, and status
in accordance with the Policy and Florida Law.
l. Plaintiffs is entitled to a declaration that the policy provides coverage and are
entitled to attorney’s fees, and costs under Florida Statutes.
m. Plaintiffs are therefore seeking this Court to enter an order declaring Defendant is
in Breach of Contract, declare that the policy provides full coverage for the loss,
declare that Plaintiffs are entitled to be compensated to the full amount of their
demanded amount and payment of attorney’s fees.
5. Plaintiffs' Complaint is nothing more than a claim for breach of contract wherein
they added a petition for declaratory relief.
6. Plaintiffs' Complaint fails to allege any specific ambiguity in the Policy in need of
declaration. Rather Plaintiffs alleges that because of their disagreement with Defendant’s
interpretation to the Policy’s application to the facts of this case, the Court must provide a
declaration that Defendant is in breach of the contract and that Plaintiffs should be paid the entirety
of the amounts they have alleged for the loss, including attorney’s fees, costs, and prejudgment
interest. See Plaintiffs’ Complaint at the Wherefore Paragraph immediately following Paragraph ¶
33
7. Plaintiffs’ Complaint fails to allege any bonafide actual, present practical need for
the declaration as to the existence or non-existence of a particular fact or question of law.
8. The only uncertainty Plaintiffs alleges in their Complaint is as follows: " Plaintiffs
believe that the Loss is covered and that Plaintiffs’ estimate is accurate and compensable; however,
Defendant disagrees". See Plaintiffs’ Complaint at ¶ 22.
9. Plaintiffs have filed an action under an insurance contract seeking damages they
believe they are due under the contract and has called that action a "Breach of Contract Against
Defendant". However, Plaintiffs have simultaneously filed a second count that they have called
"Declaratory Relief ".
10. It is well settled that, pursuant to Florida Rule of Civil Procedure l.l40(b), a
proposed cause of action may be dismissed when a Petition (or Complaint) fails to state a claim
upon which relief may be granted. A motion to dismiss under Rule l .l40(b) tests whether
Petitioners have stated a cause of action, not whether they will prevail at trial. Meadows Cmty. Ass
'n. v. Russell-Tutty, 928 So. 2d 1276, 1280 (Fla. 3d DCA 2006). Additionally, all allegations must
be taken as true, and "any reasonable inferences drawn from the complaint must be construed in
favor of the non-moving party." Minor v. Brunetti, 43 So. 3d 178, 179 (Fla. 3d DCA 2010).
11. This matter is not appropriate for declaratory relief as Plaintiffs are seeking an
equitable remedy and a legal remedy where solely a clear and adequate legal remedy is both
available and appropriate under the circumstances.
12. Plaintiffs are not bona fide litigants seeking a declaration in circumstances of
genuine doubt regarding their rights, duties, or obligations under a contract for insurance. On the
contrary, Plaintiffs have brought this action asserting that Defendant's coverage determination
breached the terms of the policy and they are entitled to be awarded damages, while also inversely
arguing that due to their disagreement in Defendant's coverage determination, they are seeking to
have this court declare Defendant's liability for breach of contract and their alleged entitlement to
damages, while also subverting the jury trial process, by demanding that this Court enter a
judgment against Defendant.
13. While this may seem a harmless, but curious, litigation choice, which could not be
further from the case. By filing a complaint for breach of contract and a simultaneous action for
declaratory judgment, Plaintiffs potentially bar Defendant from removing the case to federal court
or obtaining attorneys' fees under the Offer for Settlement Statute, Florida Statute § 45.061.
14. Even viewing all reasonable inferences in favor of Plaintiffs, the Count II
Complaint for Declaratory Judgment must be dismissed with prejudice as it fails to state a claim
upon which relief can be granted.
15. In the alternative, Defendant moves to strike Plaintiffs’ claim for attorneys' fees and
costs, as seeking the legal remedy of damages in association with an equitable claim for relief is
improper.
16. Plaintiffs has additionally failed to comply with the statutory conditions precedent
to bringing this suit before the court.
17. Florida Statute § 627.70152 was passed by the Florida Legislature on or about April
30, 2021, which was then signed into law by Governor Ron DeSantis on June 11, 2021. The new
law became effective on July 1, 2021. See Florida Statute § 627.70152.
18. Florida Statute § 627.70152 requires, as a condition precedent to filing suit, that
Plaintiffs must provide the Department of Financial Services and Defendant with a written notice
of intent to initiate litigation which must contain specified information.
19. Plaintiffs failed to provide this notice of intent to initiate litigation prior to filing
suit. See Exhibit C Composite of Property NOI Search attached hereto.
20. As such, Plaintiffs lack standing to bring the present action as they have failed to
strictly adhere to the requirements under Florida Statute § 627.70152 and have therefore failed to
meet the statutory conditions precedent to bringing this suit.
WHEREFORE, Defendant respectfully requests the Court dismiss Plaintiffs' Complaint
without prejudice or, in the alternative, strike Plaintiffs' claim for attorneys' fees and costs. A
Memorandum of Law in Support of the foregoing Motion follows.
MEMORANDUM OF LAW
A. Equitable Relief Should Not be Granted When There Exists an Available
Remedy at Law.
There is no greater inequity than allowing Plaintiffs to bring a claim for equitable relief
when there exists a clear available remedy at law. If Plaintiffs were to prevail in their action for a
declaratory judgment, the final remedy they would seek would be an automatic award of the money
damages associated with the alleged breach of contract by Defendant, without allowing a jury to
determine the amount of those damages. A declaratory judgment is improper in this action as
Plaintiffs have a clear and adequate legal remedy in the form of a breach of contract action, which
they have simultaneously filed.
The declaratory judgment act is not intended to provide a Plaintiffs with "a catch-all for
any type of proceeding at law or in equity." M & E Land Co. v. Siegel, 177 So. 2d 769, 773 (Fla.
1st DCA 1965). "The statute authorizing declaratory relief should not be 'so broadly construed as
to make it a procedural juggernaut which would ride down and crush out the other valuable, well-
defined, and time-proven equitable and statutory remedies."' See Jacksonville Expressway Auth. v.
Duval County, 189 So. 2d 837, 840 (Fla. 1st DCA 1966) ( quoting Ready v. Safeway Rock Co., 157
Fla. 27, 24 So.2d 808 (1946)).
"It is well-settled that 'equitable relief is available only in the absence of an adequate
remedy at law." SME Racks, Inc. v. Sistemas Mecanicos Para, Electronica, SA. , 243 Fed. Appx.
502, 503-04 (11th Cir. 2007) ( quoting Mitsubishi Int'l. Corp. v. Cardinal Textile Sales, 14 F.3d
1507, 1518 (11th Cir. 1994); Deckert v. Independence Shares Corp., 311 U.S. 282, 289, 61 S.Ct.
229, 233, 85 L.Ed. 189 (1940)). The purpose of a declaratory judgment action is to clarify legal
relations and to settle controversies prior to a breach of the contract. Eisenberg v. Standard Ins.
Co., No. 09-80199-CIV, 2009 U.S. Dist. LEXIS 53945 (S.D. Fla. June 24, 2009) at *8-9. 1
Regarding a claim for declaratory relief arising under contract, the Eisenberg court found
"[a] petition seeking declaratory judgment that alleges breach of duties and obligations under the
terms of a contract and asks the court to declare those terms breached, is nothing more than a
petition claiming breach of contract." Id. at *7 (citing Amerisure Mut. Ins. Co. v. Maschmeyer
Landscapers, Inc. , No. 4:06-CV-1308 (CEJ), 2007 U.S. Dist. LEXIS 70815 (E.D. Mo. Sep. 24,
2007) at *4.)
In Advanced Fluids Sols., LLC v. NASCAR, No. 6:ll-cv-16-Orl-22KRS, 2011 U.S. Dist.
LEXIS 98165 (M.D. Fla. July 26, 2011), the court dismissed the Plaintiffs’ claim for declaratory
judgment finding that the Plaintiffs failed to cite a specific provision of the contract at issue
necessitating declaratory relief. Id. at *11 (emphasis added). The Plaintiffs in Advanced Fluids
alleged that it "[was] in doubt as to its rights under the contract due to latent or patent ambiguities
in the contract." Id. at 11 ( quoting Amended Complaint, Doc. No. 19 ¶ 29). The court found that
the Plaintiffs did not "plausibly allege facts indicating that it is in doubt as to some right or status
or that there is an actual need for the declaration." Id. at *11.
Likewise, Ocean's 11 Bar & Grill, Inc. v. Indem. Ins. Corp., 2011 U.S. Dist. LEXIS 95836
(S.D. Fla. Aug. 25, 2011), involved a claim for declaratory judgment for a duty to defend arising
under an insurance contract. In Ocean's 11 Bar & Grill, the court found that although the insured
1
While the Federal Court sitting in diversity jurisdiction applied 28 U.S.C. § 2201 instead of Florida's Declaratory
Judgment Act, Federal courts have found "[a]s a practical matter, however, the elements required under the federal
or state declaratory judgment acts are not materially different." Advanced Fluids Sols., LLC v. NASCAR, No. 6:l l-
cv- 16-0rl-22KRS, 2011 U.S. Dist. LEXIS 98165 (M.D. Fla. July 26, 2011) at *10 (quoting Nirvana Condo. Ass'n v.
QBE Ins. Corp., 589 F. Supp. 2d 1336 (S.D. Fla. 2008)).
also brought a breach of contract claim, the relief sought under each claim was different and,
therefore, the breach of contract claim did not subsume the declaratory-relief claim: "[h]ere,
Plaintiffs seek different relief under each claim. In the declaratory relief claim, Plaintiffs seek, in
addition to a declaration, relief that amounts to an injunction or specific performance. In the
breach-of-contract claim, it seeks money damages." Id. at *11. (emphasis added, internal citations
omitted). The relief sought in the count for declaratory judgment in Ocean's 11 Bar & Grill was
the duty to defend the insured in a third-party tort action, such relief being necessarily equitable.
The relief sought in the second count for breach of contract was money damages. Because the
remedies under each count were different, the Ocean's 11 Bar & Grill court allowed both counts
to proceed. Here, for all practicable purposes, Plaintiffs do not seek an equitable remedy - they
seek money damages. Plaintiffs may not seek an equitable remedy where there is a clear legal
remedy available in the form of a breach of contract action. While Plaintiffs have plead for
declaratory relief, the final relief sought is the same relief available under the breach of contract
claim.
In short, there is simply nothing for this Court to declare in this case. Plaintiffs have
identified no particular fact or ambiguous provision of the subject policy for which they seek a
declaration. Plaintiffs have failed to identify a single supposedly ambiguous term of the contract.
Like Advanced Fluids, Plaintiffs assert a general claim of doubt rather than alleging any single
term of the policy in need of a declaration, which is altogether improper:
Plaintiffs believe that the loss is covered and that Plaintiffs’ estimate is accurate and
compensable; however, Defendant disagrees. Consequently, the parties can only
resolve their differences when coverage is determined by this Court.
Complaint at ¶ 22. The claim for Declaratory Judgment must be dismissed as Plaintiffs has an
adequate and available remedy at law. A breach of contract claim for the damages alleged in Count
I of the Complaint provides a proper remedy to Plaintiffs, without depriving Defendant of its legal
rights.
B. Plaintiffs Seeks a Declaratory Judgment but Fail to Demonstrate a Bona Fide
Need for Such a Declaration.
Plaintiffs have filed a breach of contract of contract action while also seeking Declaratory
Judgment. Plaintiffs are not seeking a declaration of their rights under an unambiguous insurance
policy, but rather are asserting that Defendant’s failure to provide coverage for their claim, and the
parties disagreement to the value of the loss, is a breach the terms of the insurance policy. On this
point, Florida Statute § 86.011 provides:
The circuit and county courts have jurisdiction within their respective jurisdictional
amounts to declare rights, status, and other equitable or legal relations whether or not
further relief is or could be claimed. No action or procedure is open to objection on the
ground that a declaratory judgment is demanded. The court’s declaration may be either
affirmative or negative in form and effect and such declaration has the force and effect of
a final judgment. The court may render declaratory judgments on the existence, or
nonexistence:
(1) Of any immunity, power, privilege, or right; or
(2) Of any fact upon which the existence or nonexistence of such immunity, power,
privilege, or right does or may depend, whether such immunity, power, privilege,
or right now exists or will arise in the future. Any person seeking a declaratory
judgment may also demand additional, alternative, coercive, subsequent, or
supplemental relief in the same action.
Generally, under Florida law, “to be entitled to declaratory relief, a party must show he is
in doubt as to some right or status and that he is entitled to have such doubt removed.” Palumbo v.
Moore, 777 So. 2d 1177 (Fla. 5th DCA 2001) (citing § 86.021 Fla. Stat. (2000)); Kelner v. Woody,
399 So. 2d 35, 37 (Fla. 3d DCA 1981)). As explained by the Florida Supreme Court in May v.
Holley, 59 So. 2d 636 (Fla. 1952):
[b]efore any proceeding for declaratory relief should be entertained it should be clearly
made to appear that there is a bona fide, actual, present practical need for the declaration;
that the declaration should deal with a present, ascertained or ascertainable state of facts or
present controversy as to a state of facts; that some immunity, power, privilege or right of
the complaining party is dependent upon the facts or the law applicable to the facts; that
there is some person or persons who have, or reasonably may have an actual, present,
adverse and antagonistic interest in the subject matter, either in fact or law; that the
antagonistic and adverse interest are all before the court by proper process or class
representation and that the relief sought is not merely the giving of legal advice by the
courts or the answer to questions propounded from curiosity. These elements are necessary
in order to maintain the status of the proceeding as being judicial in nature and therefore
within the constitutional powers of the courts.
May, 59 So. 2d at 639 (emphasis added). More plainly, a complaint must allege that:
[1] there is a bona fide dispute between the parties,
[2] that the moving party has a justiciable question as to the existence or non-existence of
some right, status, immunity, power or privilege, or as to some fact upon which the
existence of such right, status, immunity, power or privilege does or may depend,
[3] that Plaintiffs is in doubt as to the right, status, immunity, power or privilege, and
[4] that there is a bona fide, actual, present need for the declaration.
Romo v. Amdex Ins. Co., 930 2d 643, 648 (Fla. 3d DCA 2006) (citing Smith v. City of Fort Myers,
898 So. 2d 1177, 1178 (Fla. 2d DCA 2005) (emphasis added).
Furthermore, “Florida law is clear that declaratory relief is not generally available to settle
. . . questions under an insurance contract that are clear and unambiguous, because such instances
present no need for contract construction.” See Tobon v. American Sec. Ins. Co., 2007 WL 1796250,
at 2 (S.D. Fla. 2007). In Tobon, the court stated that “the complaint does not satisfy [the] essential
pleading requirement, as it does not identify any provision of the insurance contract in doubt and
in need of construction . . . .” Id. at 6.
Further the Federal Courts have ruled:
In general, "[t]he point of a declaratory judgment is to permit 'actual controversies
to be settled before they ripen into violations of law,' not to adjudicate past
conduct." Great Lakes Reinsurance (UK) PLC v. TLU Ltd., 07-61259-Civ, 2008
U.S. Dist. LEXIS 24318, 2008 WL 828122, at *1 (S.D. Fla. Mar. 27, 2008)
(citations and internal quotation marks omitted); see also Young v. Lexington Ins.
Co., No. 18-62468-CIV, 2018 U.S. Dist. LEXIS 207069, 2018 WL 7572240, *2
(S.D. Fla. Dec. 6, 2018) ("The Declaratory Judgment Act permits actual
controversies to be settled before they ripen into violations of law or a breach of
contractual duty." (citations and internal quotation marks omitted)).
Plaintiffs alleges in Count II that Defendant failed to perform its contractual
obligations pursuant to the insurance policy. See ECF No. [1-1] at 7 ¶ 20
(incorporating by reference paragraph 11 which alleges that Defendant breached
the insurance policy). Thus, Plaintiffs’ request for declaratory relief is improper as
there is no actual controversy to settle before it ripens into a violation of a law or a
breach of contractual duty. See Great Lakes, 2008 U.S. Dist. LEXIS 24318, 2008
WL 828122, at *1. Further, the declaratory relief sought — i.e., a declaration that
the policy covers the loss — is the same remedy that would logically follow if
Plaintiffs were to prevail on the breach of contract claim. As such, dismissal of
Count II is appropriate, and the Court need not further address Defendant's
arguments in the alternative.
Cruz v. W. World Ins. Co., No. 21-cv-23982-BLOOM/Otazo-Reyes, 2021 U.S. Dist. LEXIS
240107, at *8-9 (S.D. Fla. Dec. 15, 2021)
The purpose of a declaration judgment is to permit “actual controversies to be settled before
they ripen into violations of the law” and not to adjudicate past conduct. Plaintiff’s’ Count II of the
complaint seeks only for this Court to make an interpretation as to the events that occurred with
regard to Plaintiffs’ specific claim surrounding the alleged damage to the property which was
alleged to have occurred as a result of wind and/or water event occurring on June 22, 2021.
Plaintiffs are seeking this Court to find that their property incurred damage on the alleged date of
loss, that the policy provides coverage for the damage, that Defendant’s “interpretation” is
wrongful, and therefore they should be awarded attorney’s fees, be awarded a declaration that
Defendant must provide coverage for their loss, and a Judgment in favor of Plaintiffs when it
comes to the cost of repairs and damages. The complaint alleges no actual controversy to settle the
case before it ripens but rather seeks to have this Court interpret the policy and adjudicate the past
conduct of the Defendant in its coverage determination.
Here, Plaintiffs’ Complaint does not allege any dispute or a bona fide, actual, present need
for a declaration. Plaintiffs have not alleged any ambiguity exists in the policy, but rather seeks
this court to enter a declaration finding ambiguity. They do not assert a single doubt as to the
existence or non-existence of any particular right under the Policy and, in fact, their Sworn
Statement in Proof of Law demonstrates the opposite. Plaintiffs do not argue that there is a bona
fide controversy about whether the Policy has been interpreted correctly. Rather, Plaintiffs allege
Defendant’s refusal to acknowledge coverage, acknowledge that payment would be forthcoming,
and or issue payment “ in full of insurance proceeds for the Loss to Plaintiffs, constitutes a breach
of contract.” Complaint at ¶ 13. Plaintiffs do not allege that the existence or nonexistence of a
particular disputed fact would determine their rights under the policy. On the contrary, Plaintiffs
claim that, “Defendant’s refusal to: (i) acknowledge coverage for the Loss: and/or (ii) acknowledge
that payment of insurance proceeds for the Loss will be forthcoming; and/or (iii) issue payment in
full of insurance proceeds for the Loss to Plaintiffs….” Plaintiffs is entitled to receive insurance
proceeds, costs, attorney’s fees. Complaint at ¶¶ 13, 14 and Wherefore Cl. Plaintiffs are asserting
that they are in doubt as to their entitlement of coverage, and this doubt creates an actual bona-fide
controversy solely because “of the conflicting positions of the parties.” Complaint at ¶24. Such is
not an equitable issue, but rather a contractual one – and a classic, textbook example of a breach
of contract claim.
Essentially, Plaintiffs’ Complaint represents a fundamental misunderstanding of what
constitutes a bona fide need for a declaration under Florida law. Typically, declaratory judgment
actions have been reserved to questions of legal rights. A recent line of cases, however, has
narrowly expanded declaratory judgments in insurance disputes as proper to determine a specific
fact upon which legal rights and obligations depend. These cases have confused litigants into
believing that declaratory judgment actions are appropriate to determine purely factual and
valuation disputes arising under insurance policies. Such is not the case.
The case most often cited for this errant theory is the Florida Supreme Court of Higgins v.
State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004), in which the court analyzed whether an
insurer may pursue a declaratory action in order to have its obligation declared under an
unambiguous policy even if the court must determine the existence or nonexistence of a fact in
order to determine the insurer’s responsibility. In Higgins, an insurer sought a declaratory
judgment involving its duty to defend and indemnify an insured against a suit by a third party
alleging intentional torts of assault and battery. Id. at 8. In the underlying suit against Higgins, the
Plaintiffs initially filed a complaint seeking damages for the intentional torts of assault and battery.
Id. at 7. The Plaintiffs then amended the complaint to remove intentional tort allegations, and
instead plead general allegations of injury on the insured’s property by the insured “while under
the influence of and impaired by alcohol.” Id. The property in question was the subject of a
homeowners’ insurance policy issued to Higgins by State Farm Fire and Casualty Company (“State
Farm”). Id. The policy provided coverage for bodily injuries “caused by an ‘occurrence’” defined
as “an accident . . . which results in . . . bodily injury . . . .” Id. Critically, the policy exclusions
provided no coverage for bodily injury “which is either expected or intended by an insured . . . or
which is the result of willful and malicious acts of an insured.” Id.
Higgins demanded that State Farm defend and indemnify him in the underlying suit
brought by the Plaintiffs. Id. In response, State Farm sought a declaratory judgment that the
underlying suit did not constitute an “occurrence” under the policy and that the two policy
exclusions provided no coverage for bodily injury that is either intentional, willful, or malicious.
Id. At a jury trial in the declaratory action, the jury found that Higgins intended or expected to
cause the injuries for which the underlying Plaintiffs was seeking damages and, therefore, State
Farm had no duty to indemnify or defend. Id. at 8.
The trial court in Higgins recognized the existence of case law that held the declaratory
judgment statute was not available in the application of insurance policy language to factual
circumstances. Id. at 8 (citing Columbia Cas. Co. v. Zimmerman, 62 So. 2d 338 (Fla. 1952)
(holding that declaratory relief was not available in a tort action if factual issues remained)).
Thereafter, the following question was certified for review: “MAY THE INSURER PURSUE A
DECLARATORY ACTION IN ORDER TO HAVE DECLARED ITS OBLIGATION UNDER AN
UNAMBIGUOUS POLICY EVEN IF THE COURT MUST DETERMINE THE EXISTENCE
OR NONEXISTENCE OF A FACT IN ORDER TO DETERMINE THE INSURER'S
RESPONSIBILITY?” Id. at 8-9.
The Higgins court held in the affirmative – finding that a declaratory judgment action was
proper even if it required the determination of a fact upon which an insurer’s obligation to
indemnify or defend an insured my depend. Id. at 15. In Higgins, the jury’s factual determination
of Higgins’s intent to cause the injury to the Plaintiffs was necessary to determine the underlying
legal obligation – whether or not State Farm had a duty to defend him.
While Higgins overruled the Court’s previous holding in Columbia Cas. Co., its holding
was limited in that the Court found “the declaratory judgment statutes authorize declaratory
judgments in respect to insurance policy indemnity coverage and defense obligations in cases in
which it is necessary to resolve issues of fact in order to decide the declaratory judgment action.”
Id. at 15 (emphasis added). More plainly, Higgins concerned a bona fide controversy in that
whether or not the insured acted with intent affected the scope of the insurer’s obligations under
the policy.
Litigants in this state have misinterpreted the holding of Higgins to stand for the
proposition that a declaratory judgment may be utilized to determine purely factual and valuation
disputes underlying any coverage determination under an insurance policy. As noted, such is
clearly noting the law, as the dissent warned in Higgins:
Both the majority in this case and other states that have allowed this extension of a
declaratory judgment action have done so espousing the principle that declaratory
judgment jurisdiction should be liberally construed and administered. See § 86.101, Fla.
Stat. (2003). However, such liberal constructions should only be done to further the purpose
of declaratory actions. The purpose of such actions is to declare rights, status, and other
equitable or legal relations. See Coalition for Adequacy and Fairness in School Funding,
Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996); State Farm Mut. Auto. Ins. Co. v. Marshall, 618
So. 2d 1377 (Fla. 5th DCA 1993). Declaratory relief is not available to try disputed
questions of fact rather than rights, status or relations of the parties. See X Corp v. Y Person,
622 So. 2d 1098 (Fla. 2d DCA 1993).
Higgins, 894 So.2d at 19. The extension of the declaratory judgment statute may be proper in
limited instances which require the determination of a fact which would necessitate or preclude
rights under the policy. See Higgins, 894 So.2d 5. However, this extension of the declaratory
judgment statute is specific and limited. Higgins does not stand for the proposition that a
declaratory judgment action is proper under any suit arising under an insurance contract. The
limited cases in which the declaratory judgment statute has been applied in insurance cases
exemplifies the distinction between the bona fide, genuine need for a declaration of rights, and the
run-of-the-mill insurance claim coverage determination.
For example, the Fifth District Court of Appeal addressed this scenario in Sec. First Ins.
Co. v. Phillips, 45 Fla. L. Weekly D1426 (Fla. 5th DCA June 12, 2020), which dealt with a bona
fide need for declaration as to a specific insurance policy provision. In Phillips, the insurer sought
a declaratory judgment seeking a declaration of its right to deny an insured’s claim where there
was a dispute as to whether the claimed damage occurred prior to the inception of the policy. Id.
at *4. In Phillips, an insured homeowner purchased a property from development group LHG
Consulting, LLC on February 23, 2018. See Phillips v. Geller, et al., Complaint at ¶ 13, August 27,
2018, No. 77069196, (Fla. 5th DCA) (attached as Exhibit A). Unbeknownst to the insured, the
property had been previously condemned in 2017 after a catastrophic ground cover collapse.
Exhibit A at ¶ 19.
Following a subsequent ground cover collapse, the insured filed an insurance claim on
December 5, 2018, with Security First for damages to the dwelling. See Sec. First Ins. Co. v.
Phillips, Complaint at ¶ 11, March 19, 2019, No. 86646534 (Fla. 5th DCA) (attached as Exhibit
B). Security First then sought a declaratory judgment citing two specific policy provisions: a
provision providing coverage for “Catastrophic Ground Cover Collapse” and an “Existing Damage
Exclusion Endorsement.” Exhibit B at ¶ 9-10. As described in its Complaint, Security First asserted
that it was “in doubt as to its duties and obligations under the Policy,” due to the undisclosed
previous condemnation. Exhibit B at ¶ 17.
The appellate court, citing Higgins, found that the insurer properly invoked the declaratory
jurisdiction of the trial court. Sec. First Ins. Co. v. Phillips, 45 Fla. L. Weekly D1426 at *6.
Coverage depended in the case on the single factual determination of whether the damage claimed
happened before the inception of the policy. Id. at *4. By asking it to make the limited factual
determination “with respect to whether the ground damage occurred before the inception of
Security First’s insurance policy,” the insurer alleged a bona fide controversy in need of
declaration. Id. at *6.
Of paramount importance are the differences in the manner the Phillips court applied the
declaratory judgment statute and the manner in which Plaintiffs in this case seeks to have this
Court apply the statute. In Phillips, the action was brought by the insurer, and the insurer cited in
its Complaint two conflicting policy provisions in need of interpretation in light of the knowledge
of the previous condemnation. Exhibit B at ¶ 8-10. Here, the action is brought by the insureds, who
have not cited a single policy provision in need of declaration or a single fact upon which they
believe their rights under the policy may depend. Instead, they contradictorily assert that
Defendant’s refusal to “(i) acknowledge coverage for the Loss: and/or (ii) acknowledge that
payment of insurance proceeds for the Loss will be forthcoming; and/or (iii) issue payment in full
of insurance proceeds for the Loss to Plaintiffs, constitutes a breach of contract,” and “As a result
of Defendant’s assertions of applicable policy exclusion(s)/exception(s) and Defendant’s apparent
belief that the entire and/or the pricing issues, Plaintiffs are in doubt as to Plaintiffs’ entitlement to
coverage under the Plaintiffs’ Policy and/or as to the Defendant’s denial.” Complaint at ¶¶ 13, 21.
Likewise, People’s Tr. Ins. Co. v. Franco, 305 So. 3d 579 (Fla. 3d DCA 2020) presented a
unique scenario where a declaration of rights was necessary for the insurer. In Franco, the insurer
offered, and the insured chose, a policy with a designated contractor endorsement in exchange for
a premium discount. Id. at 580. Following water damage to the property, the insurer attempted to
exercise its rights under the policy by having the designated contractor repair the damage but was
met with refusal by the insured and its public adjuster. Id. at 581. The court held that the insurer
stated a claim for declaratory judgment because the insureds rejected and repudiated the insurer’s
election to repair water damage and were impeding insurer’s designated contractor’s performance,
both of which were the insurer’s rights under the contract. Id. at 583. As the court noted, “[i]n the
present lawsuit, [insurer] seeks a declaration regarding those rights and remedies. . . on detailed
allegations that an insured and its public adjuster are repudiating the endorsement and impeding
the Contractor's performance. This is the kind of concrete scenario addressed by Florida’s
declaratory judgment statute.” Id. at 583 (emphasis added). Further, the insured’s actions impeded
the rights of the insurer under the policy. The insurer could not seek a breach of contract, as its
relief was necessarily equitable – the right to repair the damage with its designated contractor. Id.
at 581. Moreover, the action for declaratory judgment provided “detailed allegations” concerning
a single endorsement. Id. at 583.
Here, as previously shown, Plaintiffs have an adequate remedy at law, namely, damages
for breach of contract, which they filed an action for in conjunction with the supposed action for
declaratory relief. The declaratory relief sought by Plaintiffs is based on conclusory
generalizations, not detailed allegations citing a particular provision of the policy in need of
declaration. The present case bears no resemblance to the situation in Franco.
In summary, Higgins and its progeny do not stand for the proposition that a declaratory
judgment action is proper in any first-party property litigation following the denial of a claim.
Extending Higgins to that extent goes far beyond the holding offered by the Higgins court and the
intent of Chapter 86. The above cases provide unique and limited circumstances where a court
may justifiably need to determine the existence of a particular fact and the rights or obligations
which flow from the existence of that fact. That, however, is not the case at bar. Plaintiffs has failed
to allege any portion of the policy that is ambiguous or any particular fact upon which their legal
rights depend. The Count II claim for declaratory relief must be dismissed as Plaintiffs fails to
demonstrate a bona fide need for a declaration.
C. Plaintiffs’ Complaint for Declaratory Judgment Deprives Defendant of the Benefit of
the Proposal for Settlement Statute.
Plaintiffs’ Complaint for Declaratory Judgment is more than a procedural choice - it
purposefully acts to deprive Defendant of its right to attorneys' fees and costs under Florida's Offers
for Settlement Statute, Fla. Stat. § 45.061. If Plaintiffs had properly plead this action as solely a
breach of contract, Defendant would still be entitled to all available remedies, including the
possibility of attorneys' fees under Florida Statute § 45.061. This Court sits in equity, and Plaintiffs'
attempt to subvert a two-way fee statute is inherently inequitable.
Florida's Offer of Settlement statute, Fla. Stat. §45.061, is premised upon damages being
in dispute. The statute facilitates settlement without trial by penalizing a party for unreasonably
rejecting a settlement offer. The statute provides for two-way fee shifting, ensuring that both
Plaintiffs and defendants are compensated for the unreasonable rejection of settlement offers: "an
offer shall be presumed to have been unreasonably rejected by a Plaintiffs if the judgment entered
is at least twenty-five (25) percent less than the offer rejected." Fla. Stat. § 45.061(2). If a Plaintiffs
unreasonably rejects an offer, the court may award the defendant the costs and expenses incurred
in preparation for trial and the statutory rate of interest that could have been earned had the
Plaintiffs accepted the offer. See Fla. Stat. § 45.061 (3). The clear statutory intent of Fla. Stat. §
45.061 is to "encourage parties to settle claims without going to trial." Aspen v. Bayless, 564 So.
2d l 081, 1083 (Fla. 1990).
In a declaratory judgement action, there is no jury verdict that can come in above or below
the Proposal for Settlement. In this case, Plaintiffs asks the Court to render judgment that there is
coverage and that coverage defenses do not apply. They then ask the Court to reserve jurisdiction
to enforce its declaration and seek summary judgment, utilizing this Court's decision as to the
declaratory relief, to demand payment of insurance proceeds and attorney's fees. This process
would completely subvert the jury trial process. If the action were plead as a breach of contract
only, Defendant would have an opportunity to make a reasonable settlement offer. If Plaintiffs
were to reject that offer before they obtained a judgment of twenty-five (25) percent less,
Defendant would be entitled to attorneys' fees for the time spent litigating the case.
To compound the inequity presented by this tactic from Plaintiffs, in a declaratory judgment
action such as that which Plaintiffs have advanced, attorneys' fees are available to Plaintiffs, but
unavailable to Defendant. Although Florida Statute Chapter 86 "does not provide for attorneys'
fees for either party," (see Chesterfield Co. v. Ritzenheim , 350 So. 2d 15, 16 (Fla. 4th DCA 1977)),
Plaintiffs may be awarded attorneys' fees in its declaratory judgment action, as provided by Fla.
Stat. § 627.428, as the dispute arises under the insurance contract:
If a dispute is within the scope of section 627.428 and an insured must enforce
rights under a contract and a judgment is rendered against the insurer, the insurer is
required to pay attorney's fees to the insured or beneficiary. This applies when an
insured prevails in a declaratory judgment action regarding coverage.
Bassette v. Standard Fire Ins. Co., 803 So. 2d 744 (Fla. 2d DCA 200 l )( citing Bell v. US.B. Acq.
Co., 734 So. 2d 403 (Fla. 1999); Aetna Cas. & Sur. Co. v. Mills, 192 So. 2d 59 (Fla. 3d DCA
1966)). By pleading this matter arising under their insurance policy as both a breach of contract
and an action for declaratory judgment, Plaintiffs are attempting to bypass the two-way fee statute
of Fla. Stat. § 45.061 while still asserting an entitlement to attorneys' fees. This practice is
inherently inequitable.
Historically, "courts of equity came into being in order to provide a forum for the granting
of relief in accordance with the broad principles of right and justice in cases where the restrictive
technicalities of the law prevented the giving of relief." Hedges v. Lysek, 84 So. 2d 28, 31 (Fla.
1955). It undermines principles of equity and fairness to allow Plaintiffs to assert a claim for
attorneys' fees while Defendant has no such ability. Such a windfall for Plaintiffs is entirely
avoidable if the action proceeds as an action at law only on the breach of contract claim.
D. In the Alternative, Plaintiffs' Prayer for Attorneys' Fees Should be Stricken.
Plaintiffs' Complaint for Declaratory Judgment should be dismissed for failure to state a
claim upon which relief may be granted. In the alternative, this Court should strike Plaintiffs' claim
for attorneys' fees, as granting attorneys' fees to Plaintiffs would be inherently inequitable when
Defendant has no such opportunity to recover its fees pursuant to statute.
Specifically, Plaintiffs’ Complaint for Declaratory Judgment requests that this Court “take
the following actions, including, but not limited to . . . declare that the Plaintiffs’ Policy provides
coverage for the loss… declare that the Plaintiffs is entitled to a claim for attorneys’ fees, costs and
prejudgment interest against Defendant under Fla. Stat. § 86.011, 626.9373, 627.428, and 57.041.
. . .” Complaint at Wherefore Cl. As explained above, by pleading this action as both a breach of
contract and a declaratory judgment claim, Plaintiffs is attempting to recover attorneys’ fees while
prohibiting Defendant from the possibility of any such award under the Offer for Settlement
statute. A court sitting in equity must consider the fundamental irreparable unfairness to Defendant.
This practice clearly undermines the legislative intent of the Offer for Settlement Statute and, if
allowed, would further inhibit settlement negotiations regarding insurance coverage disputes.
E. Conclusion.
While Plaintiffs’ counsel's tactical gamesmanship can be admired, the fundamental
inequities and improprieties presented by Plaintiffs’ declaratory judgment action, in conjunction
with the breach of contract action, cannot be overstated. Viewing the allegations in the light most
favorable to Plaintiffs, the allegations in the Complaint fail to state a claim upon which relief may
be granted. Plaintiffs are not seeking anything different in the Count II declaratory judgment action
than they are seeking from the Count I breach of contract action. There is no harm to Plaintiffs to
remove the declaratory action and plead this as a breach of contract action solely, yet there will be
irreparable harm to Defendant if the Court allows this action to proceed in equity, rather than solely
as a breach of contract. Plaintiffs’ Complaint for declaratory relief does not demonstrate any bona
fide need for a declaration, an adequate remedy at law exists in the form of their breach of contract
action which has been filed contemporaneously, and the Complaint for Declaratory Judgment
prohibits Defendant from available remedies under the Offer for Settlement Statute. For those
reasons, Defendant's Motion to Dismiss must be granted.
WHEREFORE, Defendant National Specialty Insurance Company respectfully requests
the entry of an Order dismissing Count II of Plaintiffs’ Complaint in its entirety, and/or, in the
alternative, an Order striking Plaintiffs’ prayer for attorneys' fees, and for other such relief this
Court deems just and equitable.
Date: October 9, 2023 Respectfully submitted,
By: /s/ William M. Mims ________________________
William M. Mims (Fla. Bar No. 0099567)
Brian P. Henry (Fla. Bar No. 0089069)
ROLFES HENRY COMPANY, LPA
3165 McCrory Place, Suite 174
Orlando, FL 32803
Telephone: (407) 284-4990
Email: wmims@rolfeshenry.com
bhenry@rolfeshenry.com
jamador@rolfeshenry.com
kmcclintock@rolfeshenry.com
Attorneys for Defendant
National Specialty Insurance Company
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the foregoing has been served via e-
mail on counsel for all parties at the email addresses below or has been served by automatic service
by the Court's e-filing system, on this 9th day of October, 2023:
Clayton T. Kuhn, Esq. (Fla. Bar No.: 097982)
KUHN RASLAVICH, P.A.
2110 West Platt Street
Tampa, FL 33606
Telephone: (813) 422-7782
Fax: (813) 422-7783
Email: Clay@thekrfirm.com
Attorney for Plaintiff
/s/ William M. Mims_________________________
William M. Mims (Fla. Bar No. 0099567)
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Intent to Initiate Litigation Notice (Notice). This system determines whether a filing is accepted based on whether it
contains a response in all required fields necessary to submit a complete Property Insurance Intent to Initiate
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Filing # 183543531 E-Filed 10/09/2023 02:27:03 PM IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA OSCAR LEON AND PAULA LEON, Plaintiff, v. CASE NO.: 2023-CA-004325-CI NATIONAL SPECIALTY INSURANCE COMPANY, Defendant. _______________________________________/ MOTION TO DISMISS PLAINTIFFS' COUNT II FOR DECLARATORY RELIEF, OR IN THE ALTERNATIVE, MOTION TO STRIKE CLAIM FOR ATTORNEYS' FEES. COMES NOW Defendant National Specialty Insurance Company, by and through its undersigned counsel and, pursuant to Rule l.l40(b)(6) of the Florida Rules of Civil Procedure, and hereby moves to dismiss Plaintiff’s Count II of Plaintiffs’ Complaint for Declaratory Relief or, in the alternative, hereby moves to strike Plaintiffs’ claim for attorneys' fees, and, as grounds therefore, states as follows: 1. Plaintiffs entered into an insurance contract with Defendant, said contract bearing Policy Number VUW-HO-555344 ("the Policy"), which provided insurance coverage for property located at 2629 Eagle Cliff Drive, Kissimmee, Florida ("the Property"). See Plaintiff’s Complaint at ¶ 5. 2. On Jun 2, 2022, Plaintiffs reported a claim for loss to the Property, which allegedly occurred as a result of a windstorm loss which occurred on January 29, 2022. 3. Defendant issued a coverage determination letter to Plaintiffs dated June 9, 2022, indicating that the Policy did not afford coverage for the alleged loss. 4. Plaintiffs filed a two-count Complaint for Breach of Contract and Declaratory Relief on September 13, 2023, which was served on Defendant on September 19, 2023, alleging, in part, the following: a. The Complaint was an action for breach of contract with damages greater than $50,000.00. b. Parties entered into a written contract providing coverage for the Property. c. On or about January 29, 2022, a wind, water and/or mold event caused damage to the Property. d. The loss was covered under Plaintiffs’ Policy issued by Defendant. e. Plaintiffs reported the loss and complied with all conditions of the policy. f. Defendant refused to: (i) acknowledge coverage for the Loss: and/or (ii) acknowledge that payment of insurance proceeds for the Loss will be forthcoming; and/or (iii) issue payment in full of insurance proceeds for the Loss to Plaintiffs. g. As a result of the aforementioned refusals, Defendant is in Breach of Contract. g. Plaintiffs believe that the loss is covered and Plaintiffs’ estimate is accurate and compensable. h. Due to Defendant’s disagreement to Plaintiffs belief regarding coverage, Plaintiffs’ are uncertain as to the existence or non-existence of Plaintiffs’ rights to coverage under the policy. i. Plaintiffs are seeking judicial interpretation of the policy that the policy provides coverage for the loss and their estimate is compensable. j. Plaintiffs are entitled to interpretation of the Policy in their favor. k. Plaintiffs are therefore seeking a declaration of their rights, obligations, and status in accordance with the Policy and Florida Law. l. Plaintiffs is entitled to a declaration that the policy provides coverage and are entitled to attorney’s fees, and costs under Florida Statutes. m. Plaintiffs are therefore seeking this Court to enter an order declaring Defendant is in Breach of Contract, declare that the policy provides full coverage for the loss, declare that Plaintiffs are entitled to be compensated to the full amount of their demanded amount and payment of attorney’s fees. 5. Plaintiffs' Complaint is nothing more than a claim for breach of contract wherein they added a petition for declaratory relief. 6. Plaintiffs' Complaint fails to allege any specific ambiguity in the Policy in need of declaration. Rather Plaintiffs alleges that because of their disagreement with Defendant’s interpretation to the Policy’s application to the facts of this case, the Court must provide a declaration that Defendant is in breach of the contract and that Plaintiffs should be paid the entirety of the amounts they have alleged for the loss, including attorney’s fees, costs, and prejudgment interest. See Plaintiffs’ Complaint at the Wherefore Paragraph immediately following Paragraph ¶ 33 7. Plaintiffs’ Complaint fails to allege any bonafide actual, present practical need for the declaration as to the existence or non-existence of a particular fact or question of law. 8. The only uncertainty Plaintiffs alleges in their Complaint is as follows: " Plaintiffs believe that the Loss is covered and that Plaintiffs’ estimate is accurate and compensable; however, Defendant disagrees". See Plaintiffs’ Complaint at ¶ 22. 9. Plaintiffs have filed an action under an insurance contract seeking damages they believe they are due under the contract and has called that action a "Breach of Contract Against Defendant". However, Plaintiffs have simultaneously filed a second count that they have called "Declaratory Relief ". 10. It is well settled that, pursuant to Florida Rule of Civil Procedure l.l40(b), a proposed cause of action may be dismissed when a Petition (or Complaint) fails to state a claim upon which relief may be granted. A motion to dismiss under Rule l .l40(b) tests whether Petitioners have stated a cause of action, not whether they will prevail at trial. Meadows Cmty. Ass 'n. v. Russell-Tutty, 928 So. 2d 1276, 1280 (Fla. 3d DCA 2006). Additionally, all allegations must be taken as true, and "any reasonable inferences drawn from the complaint must be construed in favor of the non-moving party." Minor v. Brunetti, 43 So. 3d 178, 179 (Fla. 3d DCA 2010). 11. This matter is not appropriate for declaratory relief as Plaintiffs are seeking an equitable remedy and a legal remedy where solely a clear and adequate legal remedy is both available and appropriate under the circumstances. 12. Plaintiffs are not bona fide litigants seeking a declaration in circumstances of genuine doubt regarding their rights, duties, or obligations under a contract for insurance. On the contrary, Plaintiffs have brought this action asserting that Defendant's coverage determination breached the terms of the policy and they are entitled to be awarded damages, while also inversely arguing that due to their disagreement in Defendant's coverage determination, they are seeking to have this court declare Defendant's liability for breach of contract and their alleged entitlement to damages, while also subverting the jury trial process, by demanding that this Court enter a judgment against Defendant. 13. While this may seem a harmless, but curious, litigation choice, which could not be further from the case. By filing a complaint for breach of contract and a simultaneous action for declaratory judgment, Plaintiffs potentially bar Defendant from removing the case to federal court or obtaining attorneys' fees under the Offer for Settlement Statute, Florida Statute § 45.061. 14. Even viewing all reasonable inferences in favor of Plaintiffs, the Count II Complaint for Declaratory Judgment must be dismissed with prejudice as it fails to state a claim upon which relief can be granted. 15. In the alternative, Defendant moves to strike Plaintiffs’ claim for attorneys' fees and costs, as seeking the legal remedy of damages in association with an equitable claim for relief is improper. 16. Plaintiffs has additionally failed to comply with the statutory conditions precedent to bringing this suit before the court. 17. Florida Statute § 627.70152 was passed by the Florida Legislature on or about April 30, 2021, which was then signed into law by Governor Ron DeSantis on June 11, 2021. The new law became effective on July 1, 2021. See Florida Statute § 627.70152. 18. Florida Statute § 627.70152 requires, as a condition precedent to filing suit, that Plaintiffs must provide the Department of Financial Services and Defendant with a written notice of intent to initiate litigation which must contain specified information. 19. Plaintiffs failed to provide this notice of intent to initiate litigation prior to filing suit. See Exhibit C Composite of Property NOI Search attached hereto. 20. As such, Plaintiffs lack standing to bring the present action as they have failed to strictly adhere to the requirements under Florida Statute § 627.70152 and have therefore failed to meet the statutory conditions precedent to bringing this suit. WHEREFORE, Defendant respectfully requests the Court dismiss Plaintiffs' Complaint without prejudice or, in the alternative, strike Plaintiffs' claim for attorneys' fees and costs. A Memorandum of Law in Support of the foregoing Motion follows. MEMORANDUM OF LAW A. Equitable Relief Should Not be Granted When There Exists an Available Remedy at Law. There is no greater inequity than allowing Plaintiffs to bring a claim for equitable relief when there exists a clear available remedy at law. If Plaintiffs were to prevail in their action for a declaratory judgment, the final remedy they would seek would be an automatic award of the money damages associated with the alleged breach of contract by Defendant, without allowing a jury to determine the amount of those damages. A declaratory judgment is improper in this action as Plaintiffs have a clear and adequate legal remedy in the form of a breach of contract action, which they have simultaneously filed. The declaratory judgment act is not intended to provide a Plaintiffs with "a catch-all for any type of proceeding at law or in equity." M & E Land Co. v. Siegel, 177 So. 2d 769, 773 (Fla. 1st DCA 1965). "The statute authorizing declaratory relief should not be 'so broadly construed as to make it a procedural juggernaut which would ride down and crush out the other valuable, well- defined, and time-proven equitable and statutory remedies."' See Jacksonville Expressway Auth. v. Duval County, 189 So. 2d 837, 840 (Fla. 1st DCA 1966) ( quoting Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808 (1946)). "It is well-settled that 'equitable relief is available only in the absence of an adequate remedy at law." SME Racks, Inc. v. Sistemas Mecanicos Para, Electronica, SA. , 243 Fed. Appx. 502, 503-04 (11th Cir. 2007) ( quoting Mitsubishi Int'l. Corp. v. Cardinal Textile Sales, 14 F.3d 1507, 1518 (11th Cir. 1994); Deckert v. Independence Shares Corp., 311 U.S. 282, 289, 61 S.Ct. 229, 233, 85 L.Ed. 189 (1940)). The purpose of a declaratory judgment action is to clarify legal relations and to settle controversies prior to a breach of the contract. Eisenberg v. Standard Ins. Co., No. 09-80199-CIV, 2009 U.S. Dist. LEXIS 53945 (S.D. Fla. June 24, 2009) at *8-9. 1 Regarding a claim for declaratory relief arising under contract, the Eisenberg court found "[a] petition seeking declaratory judgment that alleges breach of duties and obligations under the terms of a contract and asks the court to declare those terms breached, is nothing more than a petition claiming breach of contract." Id. at *7 (citing Amerisure Mut. Ins. Co. v. Maschmeyer Landscapers, Inc. , No. 4:06-CV-1308 (CEJ), 2007 U.S. Dist. LEXIS 70815 (E.D. Mo. Sep. 24, 2007) at *4.) In Advanced Fluids Sols., LLC v. NASCAR, No. 6:ll-cv-16-Orl-22KRS, 2011 U.S. Dist. LEXIS 98165 (M.D. Fla. July 26, 2011), the court dismissed the Plaintiffs’ claim for declaratory judgment finding that the Plaintiffs failed to cite a specific provision of the contract at issue necessitating declaratory relief. Id. at *11 (emphasis added). The Plaintiffs in Advanced Fluids alleged that it "[was] in doubt as to its rights under the contract due to latent or patent ambiguities in the contract." Id. at 11 ( quoting Amended Complaint, Doc. No. 19 ¶ 29). The court found that the Plaintiffs did not "plausibly allege facts indicating that it is in doubt as to some right or status or that there is an actual need for the declaration." Id. at *11. Likewise, Ocean's 11 Bar & Grill, Inc. v. Indem. Ins. Corp., 2011 U.S. Dist. LEXIS 95836 (S.D. Fla. Aug. 25, 2011), involved a claim for declaratory judgment for a duty to defend arising under an insurance contract. In Ocean's 11 Bar & Grill, the court found that although the insured 1 While the Federal Court sitting in diversity jurisdiction applied 28 U.S.C. § 2201 instead of Florida's Declaratory Judgment Act, Federal courts have found "[a]s a practical matter, however, the elements required under the federal or state declaratory judgment acts are not materially different." Advanced Fluids Sols., LLC v. NASCAR, No. 6:l l- cv- 16-0rl-22KRS, 2011 U.S. Dist. LEXIS 98165 (M.D. Fla. July 26, 2011) at *10 (quoting Nirvana Condo. Ass'n v. QBE Ins. Corp., 589 F. Supp. 2d 1336 (S.D. Fla. 2008)). also brought a breach of contract claim, the relief sought under each claim was different and, therefore, the breach of contract claim did not subsume the declaratory-relief claim: "[h]ere, Plaintiffs seek different relief under each claim. In the declaratory relief claim, Plaintiffs seek, in addition to a declaration, relief that amounts to an injunction or specific performance. In the breach-of-contract claim, it seeks money damages." Id. at *11. (emphasis added, internal citations omitted). The relief sought in the count for declaratory judgment in Ocean's 11 Bar & Grill was the duty to defend the insured in a third-party tort action, such relief being necessarily equitable. The relief sought in the second count for breach of contract was money damages. Because the remedies under each count were different, the Ocean's 11 Bar & Grill court allowed both counts to proceed. Here, for all practicable purposes, Plaintiffs do not seek an equitable remedy - they seek money damages. Plaintiffs may not seek an equitable remedy where there is a clear legal remedy available in the form of a breach of contract action. While Plaintiffs have plead for declaratory relief, the final relief sought is the same relief available under the breach of contract claim. In short, there is simply nothing for this Court to declare in this case. Plaintiffs have identified no particular fact or ambiguous provision of the subject policy for which they seek a declaration. Plaintiffs have failed to identify a single supposedly ambiguous term of the contract. Like Advanced Fluids, Plaintiffs assert a general claim of doubt rather than alleging any single term of the policy in need of a declaration, which is altogether improper: Plaintiffs believe that the loss is covered and that Plaintiffs’ estimate is accurate and compensable; however, Defendant disagrees. Consequently, the parties can only resolve their differences when coverage is determined by this Court. Complaint at ¶ 22. The claim for Declaratory Judgment must be dismissed as Plaintiffs has an adequate and available remedy at law. A breach of contract claim for the damages alleged in Count I of the Complaint provides a proper remedy to Plaintiffs, without depriving Defendant of its legal rights. B. Plaintiffs Seeks a Declaratory Judgment but Fail to Demonstrate a Bona Fide Need for Such a Declaration. Plaintiffs have filed a breach of contract of contract action while also seeking Declaratory Judgment. Plaintiffs are not seeking a declaration of their rights under an unambiguous insurance policy, but rather are asserting that Defendant’s failure to provide coverage for their claim, and the parties disagreement to the value of the loss, is a breach the terms of the insurance policy. On this point, Florida Statute § 86.011 provides: The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence: (1) Of any immunity, power, privilege, or right; or (2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action. Generally, under Florida law, “to be entitled to declaratory relief, a party must show he is in doubt as to some right or status and that he is entitled to have such doubt removed.” Palumbo v. Moore, 777 So. 2d 1177 (Fla. 5th DCA 2001) (citing § 86.021 Fla. Stat. (2000)); Kelner v. Woody, 399 So. 2d 35, 37 (Fla. 3d DCA 1981)). As explained by the Florida Supreme Court in May v. Holley, 59 So. 2d 636 (Fla. 1952): [b]efore any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts. May, 59 So. 2d at 639 (emphasis added). More plainly, a complaint must allege that: [1] there is a bona fide dispute between the parties, [2] that the moving party has a justiciable question as to the existence or non-existence of some right, status, immunity, power or privilege, or as to some fact upon which the existence of such right, status, immunity, power or privilege does or may depend, [3] that Plaintiffs is in doubt as to the right, status, immunity, power or privilege, and [4] that there is a bona fide, actual, present need for the declaration. Romo v. Amdex Ins. Co., 930 2d 643, 648 (Fla. 3d DCA 2006) (citing Smith v. City of Fort Myers, 898 So. 2d 1177, 1178 (Fla. 2d DCA 2005) (emphasis added). Furthermore, “Florida law is clear that declaratory relief is not generally available to settle . . . questions under an insurance contract that are clear and unambiguous, because such instances present no need for contract construction.” See Tobon v. American Sec. Ins. Co., 2007 WL 1796250, at 2 (S.D. Fla. 2007). In Tobon, the court stated that “the complaint does not satisfy [the] essential pleading requirement, as it does not identify any provision of the insurance contract in doubt and in need of construction . . . .” Id. at 6. Further the Federal Courts have ruled: In general, "[t]he point of a declaratory judgment is to permit 'actual controversies to be settled before they ripen into violations of law,' not to adjudicate past conduct." Great Lakes Reinsurance (UK) PLC v. TLU Ltd., 07-61259-Civ, 2008 U.S. Dist. LEXIS 24318, 2008 WL 828122, at *1 (S.D. Fla. Mar. 27, 2008) (citations and internal quotation marks omitted); see also Young v. Lexington Ins. Co., No. 18-62468-CIV, 2018 U.S. Dist. LEXIS 207069, 2018 WL 7572240, *2 (S.D. Fla. Dec. 6, 2018) ("The Declaratory Judgment Act permits actual controversies to be settled before they ripen into violations of law or a breach of contractual duty." (citations and internal quotation marks omitted)). Plaintiffs alleges in Count II that Defendant failed to perform its contractual obligations pursuant to the insurance policy. See ECF No. [1-1] at 7 ¶ 20 (incorporating by reference paragraph 11 which alleges that Defendant breached the insurance policy). Thus, Plaintiffs’ request for declaratory relief is improper as there is no actual controversy to settle before it ripens into a violation of a law or a breach of contractual duty. See Great Lakes, 2008 U.S. Dist. LEXIS 24318, 2008 WL 828122, at *1. Further, the declaratory relief sought — i.e., a declaration that the policy covers the loss — is the same remedy that would logically follow if Plaintiffs were to prevail on the breach of contract claim. As such, dismissal of Count II is appropriate, and the Court need not further address Defendant's arguments in the alternative. Cruz v. W. World Ins. Co., No. 21-cv-23982-BLOOM/Otazo-Reyes, 2021 U.S. Dist. LEXIS 240107, at *8-9 (S.D. Fla. Dec. 15, 2021) The purpose of a declaration judgment is to permit “actual controversies to be settled before they ripen into violations of the law” and not to adjudicate past conduct. Plaintiff’s’ Count II of the complaint seeks only for this Court to make an interpretation as to the events that occurred with regard to Plaintiffs’ specific claim surrounding the alleged damage to the property which was alleged to have occurred as a result of wind and/or water event occurring on June 22, 2021. Plaintiffs are seeking this Court to find that their property incurred damage on the alleged date of loss, that the policy provides coverage for the damage, that Defendant’s “interpretation” is wrongful, and therefore they should be awarded attorney’s fees, be awarded a declaration that Defendant must provide coverage for their loss, and a Judgment in favor of Plaintiffs when it comes to the cost of repairs and damages. The complaint alleges no actual controversy to settle the case before it ripens but rather seeks to have this Court interpret the policy and adjudicate the past conduct of the Defendant in its coverage determination. Here, Plaintiffs’ Complaint does not allege any dispute or a bona fide, actual, present need for a declaration. Plaintiffs have not alleged any ambiguity exists in the policy, but rather seeks this court to enter a declaration finding ambiguity. They do not assert a single doubt as to the existence or non-existence of any particular right under the Policy and, in fact, their Sworn Statement in Proof of Law demonstrates the opposite. Plaintiffs do not argue that there is a bona fide controversy about whether the Policy has been interpreted correctly. Rather, Plaintiffs allege Defendant’s refusal to acknowledge coverage, acknowledge that payment would be forthcoming, and or issue payment “ in full of insurance proceeds for the Loss to Plaintiffs, constitutes a breach of contract.” Complaint at ¶ 13. Plaintiffs do not allege that the existence or nonexistence of a particular disputed fact would determine their rights under the policy. On the contrary, Plaintiffs claim that, “Defendant’s refusal to: (i) acknowledge coverage for the Loss: and/or (ii) acknowledge that payment of insurance proceeds for the Loss will be forthcoming; and/or (iii) issue payment in full of insurance proceeds for the Loss to Plaintiffs….” Plaintiffs is entitled to receive insurance proceeds, costs, attorney’s fees. Complaint at ¶¶ 13, 14 and Wherefore Cl. Plaintiffs are asserting that they are in doubt as to their entitlement of coverage, and this doubt creates an actual bona-fide controversy solely because “of the conflicting positions of the parties.” Complaint at ¶24. Such is not an equitable issue, but rather a contractual one – and a classic, textbook example of a breach of contract claim. Essentially, Plaintiffs’ Complaint represents a fundamental misunderstanding of what constitutes a bona fide need for a declaration under Florida law. Typically, declaratory judgment actions have been reserved to questions of legal rights. A recent line of cases, however, has narrowly expanded declaratory judgments in insurance disputes as proper to determine a specific fact upon which legal rights and obligations depend. These cases have confused litigants into believing that declaratory judgment actions are appropriate to determine purely factual and valuation disputes arising under insurance policies. Such is not the case. The case most often cited for this errant theory is the Florida Supreme Court of Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004), in which the court analyzed whether an insurer may pursue a declaratory action in order to have its obligation declared under an unambiguous policy even if the court must determine the existence or nonexistence of a fact in order to determine the insurer’s responsibility. In Higgins, an insurer sought a declaratory judgment involving its duty to defend and indemnify an insured against a suit by a third party alleging intentional torts of assault and battery. Id. at 8. In the underlying suit against Higgins, the Plaintiffs initially filed a complaint seeking damages for the intentional torts of assault and battery. Id. at 7. The Plaintiffs then amended the complaint to remove intentional tort allegations, and instead plead general allegations of injury on the insured’s property by the insured “while under the influence of and impaired by alcohol.” Id. The property in question was the subject of a homeowners’ insurance policy issued to Higgins by State Farm Fire and Casualty Company (“State Farm”). Id. The policy provided coverage for bodily injuries “caused by an ‘occurrence’” defined as “an accident . . . which results in . . . bodily injury . . . .” Id. Critically, the policy exclusions provided no coverage for bodily injury “which is either expected or intended by an insured . . . or which is the result of willful and malicious acts of an insured.” Id. Higgins demanded that State Farm defend and indemnify him in the underlying suit brought by the Plaintiffs. Id. In response, State Farm sought a declaratory judgment that the underlying suit did not constitute an “occurrence” under the policy and that the two policy exclusions provided no coverage for bodily injury that is either intentional, willful, or malicious. Id. At a jury trial in the declaratory action, the jury found that Higgins intended or expected to cause the injuries for which the underlying Plaintiffs was seeking damages and, therefore, State Farm had no duty to indemnify or defend. Id. at 8. The trial court in Higgins recognized the existence of case law that held the declaratory judgment statute was not available in the application of insurance policy language to factual circumstances. Id. at 8 (citing Columbia Cas. Co. v. Zimmerman, 62 So. 2d 338 (Fla. 1952) (holding that declaratory relief was not available in a tort action if factual issues remained)). Thereafter, the following question was certified for review: “MAY THE INSURER PURSUE A DECLARATORY ACTION IN ORDER TO HAVE DECLARED ITS OBLIGATION UNDER AN UNAMBIGUOUS POLICY EVEN IF THE COURT MUST DETERMINE THE EXISTENCE OR NONEXISTENCE OF A FACT IN ORDER TO DETERMINE THE INSURER'S RESPONSIBILITY?” Id. at 8-9. The Higgins court held in the affirmative – finding that a declaratory judgment action was proper even if it required the determination of a fact upon which an insurer’s obligation to indemnify or defend an insured my depend. Id. at 15. In Higgins, the jury’s factual determination of Higgins’s intent to cause the injury to the Plaintiffs was necessary to determine the underlying legal obligation – whether or not State Farm had a duty to defend him. While Higgins overruled the Court’s previous holding in Columbia Cas. Co., its holding was limited in that the Court found “the declaratory judgment statutes authorize declaratory judgments in respect to insurance policy indemnity coverage and defense obligations in cases in which it is necessary to resolve issues of fact in order to decide the declaratory judgment action.” Id. at 15 (emphasis added). More plainly, Higgins concerned a bona fide controversy in that whether or not the insured acted with intent affected the scope of the insurer’s obligations under the policy. Litigants in this state have misinterpreted the holding of Higgins to stand for the proposition that a declaratory judgment may be utilized to determine purely factual and valuation disputes underlying any coverage determination under an insurance policy. As noted, such is clearly noting the law, as the dissent warned in Higgins: Both the majority in this case and other states that have allowed this extension of a declaratory judgment action have done so espousing the principle that declaratory judgment jurisdiction should be liberally construed and administered. See § 86.101, Fla. Stat. (2003). However, such liberal constructions should only be done to further the purpose of declaratory actions. The purpose of such actions is to declare rights, status, and other equitable or legal relations. See Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996); State Farm Mut. Auto. Ins. Co. v. Marshall, 618 So. 2d 1377 (Fla. 5th DCA 1993). Declaratory relief is not available to try disputed questions of fact rather than rights, status or relations of the parties. See X Corp v. Y Person, 622 So. 2d 1098 (Fla. 2d DCA 1993). Higgins, 894 So.2d at 19. The extension of the declaratory judgment statute may be proper in limited instances which require the determination of a fact which would necessitate or preclude rights under the policy. See Higgins, 894 So.2d 5. However, this extension of the declaratory judgment statute is specific and limited. Higgins does not stand for the proposition that a declaratory judgment action is proper under any suit arising under an insurance contract. The limited cases in which the declaratory judgment statute has been applied in insurance cases exemplifies the distinction between the bona fide, genuine need for a declaration of rights, and the run-of-the-mill insurance claim coverage determination. For example, the Fifth District Court of Appeal addressed this scenario in Sec. First Ins. Co. v. Phillips, 45 Fla. L. Weekly D1426 (Fla. 5th DCA June 12, 2020), which dealt with a bona fide need for declaration as to a specific insurance policy provision. In Phillips, the insurer sought a declaratory judgment seeking a declaration of its right to deny an insured’s claim where there was a dispute as to whether the claimed damage occurred prior to the inception of the policy. Id. at *4. In Phillips, an insured homeowner purchased a property from development group LHG Consulting, LLC on February 23, 2018. See Phillips v. Geller, et al., Complaint at ¶ 13, August 27, 2018, No. 77069196, (Fla. 5th DCA) (attached as Exhibit A). Unbeknownst to the insured, the property had been previously condemned in 2017 after a catastrophic ground cover collapse. Exhibit A at ¶ 19. Following a subsequent ground cover collapse, the insured filed an insurance claim on December 5, 2018, with Security First for damages to the dwelling. See Sec. First Ins. Co. v. Phillips, Complaint at ¶ 11, March 19, 2019, No. 86646534 (Fla. 5th DCA) (attached as Exhibit B). Security First then sought a declaratory judgment citing two specific policy provisions: a provision providing coverage for “Catastrophic Ground Cover Collapse” and an “Existing Damage Exclusion Endorsement.” Exhibit B at ¶ 9-10. As described in its Complaint, Security First asserted that it was “in doubt as to its duties and obligations under the Policy,” due to the undisclosed previous condemnation. Exhibit B at ¶ 17. The appellate court, citing Higgins, found that the insurer properly invoked the declaratory jurisdiction of the trial court. Sec. First Ins. Co. v. Phillips, 45 Fla. L. Weekly D1426 at *6. Coverage depended in the case on the single factual determination of whether the damage claimed happened before the inception of the policy. Id. at *4. By asking it to make the limited factual determination “with respect to whether the ground damage occurred before the inception of Security First’s insurance policy,” the insurer alleged a bona fide controversy in need of declaration. Id. at *6. Of paramount importance are the differences in the manner the Phillips court applied the declaratory judgment statute and the manner in which Plaintiffs in this case seeks to have this Court apply the statute. In Phillips, the action was brought by the insurer, and the insurer cited in its Complaint two conflicting policy provisions in need of interpretation in light of the knowledge of the previous condemnation. Exhibit B at ¶ 8-10. Here, the action is brought by the insureds, who have not cited a single policy provision in need of declaration or a single fact upon which they believe their rights under the policy may depend. Instead, they contradictorily assert that Defendant’s refusal to “(i) acknowledge coverage for the Loss: and/or (ii) acknowledge that payment of insurance proceeds for the Loss will be forthcoming; and/or (iii) issue payment in full of insurance proceeds for the Loss to Plaintiffs, constitutes a breach of contract,” and “As a result of Defendant’s assertions of applicable policy exclusion(s)/exception(s) and Defendant’s apparent belief that the entire and/or the pricing issues, Plaintiffs are in doubt as to Plaintiffs’ entitlement to coverage under the Plaintiffs’ Policy and/or as to the Defendant’s denial.” Complaint at ¶¶ 13, 21. Likewise, People’s Tr. Ins. Co. v. Franco, 305 So. 3d 579 (Fla. 3d DCA 2020) presented a unique scenario where a declaration of rights was necessary for the insurer. In Franco, the insurer offered, and the insured chose, a policy with a designated contractor endorsement in exchange for a premium discount. Id. at 580. Following water damage to the property, the insurer attempted to exercise its rights under the policy by having the designated contractor repair the damage but was met with refusal by the insured and its public adjuster. Id. at 581. The court held that the insurer stated a claim for declaratory judgment because the insureds rejected and repudiated the insurer’s election to repair water damage and were impeding insurer’s designated contractor’s performance, both of which were the insurer’s rights under the contract. Id. at 583. As the court noted, “[i]n the present lawsuit, [insurer] seeks a declaration regarding those rights and remedies. . . on detailed allegations that an insured and its public adjuster are repudiating the endorsement and impeding the Contractor's performance. This is the kind of concrete scenario addressed by Florida’s declaratory judgment statute.” Id. at 583 (emphasis added). Further, the insured’s actions impeded the rights of the insurer under the policy. The insurer could not seek a breach of contract, as its relief was necessarily equitable – the right to repair the damage with its designated contractor. Id. at 581. Moreover, the action for declaratory judgment provided “detailed allegations” concerning a single endorsement. Id. at 583. Here, as previously shown, Plaintiffs have an adequate remedy at law, namely, damages for breach of contract, which they filed an action for in conjunction with the supposed action for declaratory relief. The declaratory relief sought by Plaintiffs is based on conclusory generalizations, not detailed allegations citing a particular provision of the policy in need of declaration. The present case bears no resemblance to the situation in Franco. In summary, Higgins and its progeny do not stand for the proposition that a declaratory judgment action is proper in any first-party property litigation following the denial of a claim. Extending Higgins to that extent goes far beyond the holding offered by the Higgins court and the intent of Chapter 86. The above cases provide unique and limited circumstances where a court may justifiably need to determine the existence of a particular fact and the rights or obligations which flow from the existence of that fact. That, however, is not the case at bar. Plaintiffs has failed to allege any portion of the policy that is ambiguous or any particular fact upon which their legal rights depend. The Count II claim for declaratory relief must be dismissed as Plaintiffs fails to demonstrate a bona fide need for a declaration. C. Plaintiffs’ Complaint for Declaratory Judgment Deprives Defendant of the Benefit of the Proposal for Settlement Statute. Plaintiffs’ Complaint for Declaratory Judgment is more than a procedural choice - it purposefully acts to deprive Defendant of its right to attorneys' fees and costs under Florida's Offers for Settlement Statute, Fla. Stat. § 45.061. If Plaintiffs had properly plead this action as solely a breach of contract, Defendant would still be entitled to all available remedies, including the possibility of attorneys' fees under Florida Statute § 45.061. This Court sits in equity, and Plaintiffs' attempt to subvert a two-way fee statute is inherently inequitable. Florida's Offer of Settlement statute, Fla. Stat. §45.061, is premised upon damages being in dispute. The statute facilitates settlement without trial by penalizing a party for unreasonably rejecting a settlement offer. The statute provides for two-way fee shifting, ensuring that both Plaintiffs and defendants are compensated for the unreasonable rejection of settlement offers: "an offer shall be presumed to have been unreasonably rejected by a Plaintiffs if the judgment entered is at least twenty-five (25) percent less than the offer rejected." Fla. Stat. § 45.061(2). If a Plaintiffs unreasonably rejects an offer, the court may award the defendant the costs and expenses incurred in preparation for trial and the statutory rate of interest that could have been earned had the Plaintiffs accepted the offer. See Fla. Stat. § 45.061 (3). The clear statutory intent of Fla. Stat. § 45.061 is to "encourage parties to settle claims without going to trial." Aspen v. Bayless, 564 So. 2d l 081, 1083 (Fla. 1990). In a declaratory judgement action, there is no jury verdict that can come in above or below the Proposal for Settlement. In this case, Plaintiffs asks the Court to render judgment that there is coverage and that coverage defenses do not apply. They then ask the Court to reserve jurisdiction to enforce its declaration and seek summary judgment, utilizing this Court's decision as to the declaratory relief, to demand payment of insurance proceeds and attorney's fees. This process would completely subvert the jury trial process. If the action were plead as a breach of contract only, Defendant would have an opportunity to make a reasonable settlement offer. If Plaintiffs were to reject that offer before they obtained a judgment of twenty-five (25) percent less, Defendant would be entitled to attorneys' fees for the time spent litigating the case. To compound the inequity presented by this tactic from Plaintiffs, in a declaratory judgment action such as that which Plaintiffs have advanced, attorneys' fees are available to Plaintiffs, but unavailable to Defendant. Although Florida Statute Chapter 86 "does not provide for attorneys' fees for either party," (see Chesterfield Co. v. Ritzenheim , 350 So. 2d 15, 16 (Fla. 4th DCA 1977)), Plaintiffs may be awarded attorneys' fees in its declaratory judgment action, as provided by Fla. Stat. § 627.428, as the dispute arises under the insurance contract: If a dispute is within the scope of section 627.428 and an insured must enforce rights under a contract and a judgment is rendered against the insurer, the insurer is required to pay attorney's fees to the insured or beneficiary. This applies when an insured prevails in a declaratory judgment action regarding coverage. Bassette v. Standard Fire Ins. Co., 803 So. 2d 744 (Fla. 2d DCA 200 l )( citing Bell v. US.B. Acq. Co., 734 So. 2d 403 (Fla. 1999); Aetna Cas. & Sur. Co. v. Mills, 192 So. 2d 59 (Fla. 3d DCA 1966)). By pleading this matter arising under their insurance policy as both a breach of contract and an action for declaratory judgment, Plaintiffs are attempting to bypass the two-way fee statute of Fla. Stat. § 45.061 while still asserting an entitlement to attorneys' fees. This practice is inherently inequitable. Historically, "courts of equity came into being in order to provide a forum for the granting of relief in accordance with the broad principles of right and justice in cases where the restrictive technicalities of the law prevented the giving of relief." Hedges v. Lysek, 84 So. 2d 28, 31 (Fla. 1955). It undermines principles of equity and fairness to allow Plaintiffs to assert a claim for attorneys' fees while Defendant has no such ability. Such a windfall for Plaintiffs is entirely avoidable if the action proceeds as an action at law only on the breach of contract claim. D. In the Alternative, Plaintiffs' Prayer for Attorneys' Fees Should be Stricken. Plaintiffs' Complaint for Declaratory Judgment should be dismissed for failure to state a claim upon which relief may be granted. In the alternative, this Court should strike Plaintiffs' claim for attorneys' fees, as granting attorneys' fees to Plaintiffs would be inherently inequitable when Defendant has no such opportunity to recover its fees pursuant to statute. Specifically, Plaintiffs’ Complaint for Declaratory Judgment requests that this Court “take the following actions, including, but not limited to . . . declare that the Plaintiffs’ Policy provides coverage for the loss… declare that the Plaintiffs is entitled to a claim for attorneys’ fees, costs and prejudgment interest against Defendant under Fla. Stat. § 86.011, 626.9373, 627.428, and 57.041. . . .” Complaint at Wherefore Cl. As explained above, by pleading this action as both a breach of contract and a declaratory judgment claim, Plaintiffs is attempting to recover attorneys’ fees while prohibiting Defendant from the possibility of any such award under the Offer for Settlement statute. A court sitting in equity must consider the fundamental irreparable unfairness to Defendant. This practice clearly undermines the legislative intent of the Offer for Settlement Statute and, if allowed, would further inhibit settlement negotiations regarding insurance coverage disputes. E. Conclusion. While Plaintiffs’ counsel's tactical gamesmanship can be admired, the fundamental inequities and improprieties presented by Plaintiffs’ declaratory judgment action, in conjunction with the breach of contract action, cannot be overstated. Viewing the allegations in the light most favorable to Plaintiffs, the allegations in the Complaint fail to state a claim upon which relief may be granted. Plaintiffs are not seeking anything different in the Count II declaratory judgment action than they are seeking from the Count I breach of contract action. There is no harm to Plaintiffs to remove the declaratory action and plead this as a breach of contract action solely, yet there will be irreparable harm to Defendant if the Court allows this action to proceed in equity, rather than solely as a breach of contract. Plaintiffs’ Complaint for declaratory relief does not demonstrate any bona fide need for a declaration, an adequate remedy at law exists in the form of their breach of contract action which has been filed contemporaneously, and the Complaint for Declaratory Judgment prohibits Defendant from available remedies under the Offer for Settlement Statute. For those reasons, Defendant's Motion to Dismiss must be granted. WHEREFORE, Defendant National Specialty Insurance Company respectfully requests the entry of an Order dismissing Count II of Plaintiffs’ Complaint in its entirety, and/or, in the alternative, an Order striking Plaintiffs’ prayer for attorneys' fees, and for other such relief this Court deems just and equitable. Date: October 9, 2023 Respectfully submitted, By: /s/ William M. Mims ________________________ William M. Mims (Fla. Bar No. 0099567) Brian P. Henry (Fla. Bar No. 0089069) ROLFES HENRY COMPANY, LPA 3165 McCrory Place, Suite 174 Orlando, FL 32803 Telephone: (407) 284-4990 Email: wmims@rolfeshenry.com bhenry@rolfeshenry.com jamador@rolfeshenry.com kmcclintock@rolfeshenry.com Attorneys for Defendant National Specialty Insurance Company CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing has been served via e- mail on counsel for all parties at the email addresses below or has been served by automatic service by the Court's e-filing system, on this 9th day of October, 2023: Clayton T. Kuhn, Esq. (Fla. Bar No.: 097982) KUHN RASLAVICH, P.A. 2110 West Platt Street Tampa, FL 33606 Telephone: (813) 422-7782 Fax: (813) 422-7783 Email: Clay@thekrfirm.com Attorney for Plaintiff /s/ William M. Mims_________________________ William M. Mims (Fla. Bar No. 0099567) E X H I B I T A& B EXHIBITA&B E X H I B I T C EXHIBITC 7/21/22, 2:55 PM https://piitil.myfloridacfo.gov/SearchNotice Search Notices * The Department of Financial Services (Department) does not review entries for accuracy, determine the validity of the allegations, nor verify that the proper insurance company has been selected on the Property Insurance Intent to Initiate Litigation Notice (Notice). This system determines whether a filing is accepted based on whether it contains a response in all required fields necessary to submit a complete Property Insurance Intent to Initiate Litigation Notice. No determination is made as to the legal sufficiency of the information provided by the consumer or their counsel in the submission Search Clear Notice Notice Number: Date Range: From: To: Notice Status: Active Notices Only Withdrawn Notices Only All Notices, regardless of status Claimant Name: Tony Cox Email: Street Address: 8213 NW 57th Court https://piitil.myfloridacfo.gov/SearchNotice 1/4 7/21/22, 2:55 PM https://piitil.myfloridacfo.gov/SearchNotice City: Tamarac State: Florida Zip Code: 33321 Policy Number: VUW-HO-634144 C