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Filing # 195370753 E-Filed 04/03/2024 11:00:42 AM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY FLORIDA
DONNA SCIUTO
AND STEPHEN SCIUTO,
Plaintiffs,
v. CASE NO.:
CASTLE KEY
INDEMNITY COMPANY,
Defendant.
_____________________________________/
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiffs sue Defendant and allege:
1. This is an action for damages that exceeds Fifty Thousand Dollars ($50,000.00)
exclusive of interest, costs, and attorney's fees.
2. At all times material hereto, in consideration of a premium paid by Plaintiffs, there
was in full force and effect a certain property insurance policy issued by Defendant with a policy
number of 000988780162 (Policy). A copy of the Policy is incorporated by reference as Plaintiffs
do not have a full copy of the Policy in Plaintiffs’ possession, custody, or control.
3. Accordingly, under the terms of the Policy, Defendant agreed to provide insurance
coverage to Plaintiffs’ property against certain losses for both the actual cash value and
replacement cost value.
4. Plaintiffs’ property is located at 2519 Thyme Way, North Port, FL 34289
(Property).
5. On or about 09/28/2022, while the Policy was in full force and effect, the Property
was damaged (Loss).
6. Promptly thereafter Plaintiffs reported the Loss to Defendant.
Filed 04/03/2024 02:02 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
7. Accordingly, Defendant assigned claim number 0688622778 to the Loss and
investigated the Loss.
8. Subsequently, Defendant failed to adjust the Loss pursuant to the unambiguous
terms of the Policy.
9. By failing to adjust the Loss pursuant to the unambiguous terms of the Policy,
Defendant has materially breached the Policy by failing to pay the actual cash value and
replacement cost value of the claim.
10. Plaintiffs suffered and continue to suffer damages resulting from Defendant’s
material breach of the Policy.
11. All (a) conditions precedent and (b) conditions subsequent to the filing of this action
have been satisfied or waived.
12. At least ten (10) business days prior to the filing of this lawsuit, pursuant to Fla.
Stat. § 627.70152 Plaintiffs sent a presuit settlement demand to Defendant.
13. Defendant failed to properly respond to said presuit settlement demand.
COUNT I – BREACH OF CONTRACT
14. Plaintiffs reincorporate paragraphs one (1) through thirteen (13) in Count I.
15. By failing to adjust the Loss pursuant to the unambiguous terms of the Policy and
by failing to properly respond to said presuit settlement demand, Defendant has materially
breached the Policy.
16. Plaintiffs suffered, and continue to suffer, damages resulting from Defendant’s
material breach of the Policy.
17. Plaintiffs were obligated to retain the undersigned attorneys for the prosecution of
this action and is entitled to reasonable attorneys’ fees and costs pursuant to Fla. Stat. § 768.79,
627.428, 626.9373, 627.70152, and or any other applicable Florida Statute, Rule, and or
contractual provision.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter
judgment against Defendant that Plaintiffs are entitled to reasonable attorneys’ fees and costs
pursuant to Fla. Stat. § 768.79, 627.428, 626.9373, 627.70152, and or any other applicable
Florida Statute, Rule, and or contractual provision.
COUNT II – PETITION FOR DECLARATORY RELIEF
1. Plaintiffs reincorporate paragraphs one (1) through thirteen (13) in Count II.
2. This is a first party action for property insurance benefits to which Florida law
applies.
3. The State of Florida has enacted multiple rounds of new legislation in 2021 and
2022, more specifically Florida Senate Bill 76, Florida Senate Bill 2A, Florida Senate Bill 2D and
Florida Senate Bill 4D, all of which seek to regulate, in part, first party lawsuits for property
insurance benefits.
4. Collectively, the new statutes and the amendments therein create a multitude of
changes to the way first party property lawsuits shall be litigated, including but not limited to new
conditions precedent to the filing of a first party action for property insurance benefits, placing
restrictions and limitations on an insured’s right to recover attorney’s fees, and placing
requirements upon the carrier for timely investigating and making coverage determinations on
claims.
5. Previously, the Florida Supreme Court held where the legislature passes new
legislation changing an insured’s substantive rights, such legislation may only apply prospectively
to insurance policies issued after the effective date of the legislation (even where the legislature
expressed an intent for their legislation to apply retroactively). See Menendez v. Progressive Exp.
Ins. Co., Inc., 35 So. 3d 873, 878 (Fla. 2010).
6. Plaintiffs believe, but are in doubt, that the changes in Florida Senate Bill 76,
Florida Senate Bill 2A, Florida Senate Bill 2D and Florida Senate Bill 4D do not apply in this
action.
7. Upon information and belief, the Defendant believes that certain changes in Florida
Senate Bill 76, Florida Senate Bill 2A, Florida Senate Bill 2D and Florida Senate Bill 4D do apply
in this action.
8. Therefore, there is a bona fide dispute between the parties regarding what changes
apply in this action and what changes do not.
9. Whether or not certain changes in these Statutes apply to Plaintiff’s claim creates a
justiciable question as to the existence or non-existence of some right, status, immunity, power,
privilege, or some fact upon which their existence may depend.
10. There exists a bona fide, actual, and present need for the declaration accordingly.
11. In this action, Plaintiffs retained the undersigned attorneys, in part, to determine
Plaintiffs’ rights as potentially modified by Florida Senate Bill 76, Florida Senate Bill 2A, Florida
Senate Bill 2D and Florida Senate Bill 4D and against the Defendant, therefore Plaintiff demands
Plaintiffs’ reasonable attorney’s fees are paid pursuant to Fla. Stat. § 768.79, 627.428, 626.9373,
627.70152, and or any other applicable Florida Statute, Rule, and or contractual provision.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter
judgment against Defendant that Plaintiffs are entitled to reasonable attorneys’ fees and costs
pursuant to Fla. Stat. § 768.79, 627.428, 626.9373, 627.70152, and or any other applicable
Florida Statute, Rule, and or contractual provision.
DEMAND FOR JURY TRIAL
Plaintiffs demand trial by jury of all issues triable as a matter of right.
Dated: March 21st , 2024.
Respectfully submitted,
By: /s/ Kevin Weisser
KEVIN WEISSER
Florida Bar No: 98828
WEISSER ELAZAR & KANTOR, PLLC
Attorneys for Plaintiff
800 East Broward Boulevard, Suite 510
Fort Lauderdale, FL 33301
T: (954) 486-2623
F: (954) 572-8695
Email: KW@WEKLaw.com
JK@WEKLaw.com
Service@WEKLaw.com
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Filing # 195370753 E-Filed 04/03/2024 11:00:42 AM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY FLORIDA DONNA SCIUTO AND STEPHEN SCIUTO, Plaintiffs, v. CASE NO.: CASTLE KEY INDEMNITY COMPANY, Defendant. _____________________________________/ COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiffs sue Defendant and allege: 1. This is an action for damages that exceeds Fifty Thousand Dollars ($50,000.00) exclusive of interest, costs, and attorney's fees. 2. At all times material hereto, in consideration of a premium paid by Plaintiffs, there was in full force and effect a certain property insurance policy issued by Defendant with a policy number of 000988780162 (Policy). A copy of the Policy is incorporated by reference as Plaintiffs do not have a full copy of the Policy in Plaintiffs’ possession, custody, or control. 3. Accordingly, under the terms of the Policy, Defendant agreed to provide insurance coverage to Plaintiffs’ property against certain losses for both the actual cash value and replacement cost value. 4. Plaintiffs’ property is located at 2519 Thyme Way, North Port, FL 34289 (Property). 5. On or about 09/28/2022, while the Policy was in full force and effect, the Property was damaged (Loss). 6. Promptly thereafter Plaintiffs reported the Loss to Defendant. Filed 04/03/2024 02:02 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 7. Accordingly, Defendant assigned claim number 0688622778 to the Loss and investigated the Loss. 8. Subsequently, Defendant failed to adjust the Loss pursuant to the unambiguous terms of the Policy. 9. By failing to adjust the Loss pursuant to the unambiguous terms of the Policy, Defendant has materially breached the Policy by failing to pay the actual cash value and replacement cost value of the claim. 10. Plaintiffs suffered and continue to suffer damages resulting from Defendant’s material breach of the Policy. 11. All (a) conditions precedent and (b) conditions subsequent to the filing of this action have been satisfied or waived. 12. At least ten (10) business days prior to the filing of this lawsuit, pursuant to Fla. Stat. § 627.70152 Plaintiffs sent a presuit settlement demand to Defendant. 13. Defendant failed to properly respond to said presuit settlement demand. COUNT I – BREACH OF CONTRACT 14. Plaintiffs reincorporate paragraphs one (1) through thirteen (13) in Count I. 15. By failing to adjust the Loss pursuant to the unambiguous terms of the Policy and by failing to properly respond to said presuit settlement demand, Defendant has materially breached the Policy. 16. Plaintiffs suffered, and continue to suffer, damages resulting from Defendant’s material breach of the Policy. 17. Plaintiffs were obligated to retain the undersigned attorneys for the prosecution of this action and is entitled to reasonable attorneys’ fees and costs pursuant to Fla. Stat. § 768.79, 627.428, 626.9373, 627.70152, and or any other applicable Florida Statute, Rule, and or contractual provision. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment against Defendant that Plaintiffs are entitled to reasonable attorneys’ fees and costs pursuant to Fla. Stat. § 768.79, 627.428, 626.9373, 627.70152, and or any other applicable Florida Statute, Rule, and or contractual provision. COUNT II – PETITION FOR DECLARATORY RELIEF 1. Plaintiffs reincorporate paragraphs one (1) through thirteen (13) in Count II. 2. This is a first party action for property insurance benefits to which Florida law applies. 3. The State of Florida has enacted multiple rounds of new legislation in 2021 and 2022, more specifically Florida Senate Bill 76, Florida Senate Bill 2A, Florida Senate Bill 2D and Florida Senate Bill 4D, all of which seek to regulate, in part, first party lawsuits for property insurance benefits. 4. Collectively, the new statutes and the amendments therein create a multitude of changes to the way first party property lawsuits shall be litigated, including but not limited to new conditions precedent to the filing of a first party action for property insurance benefits, placing restrictions and limitations on an insured’s right to recover attorney’s fees, and placing requirements upon the carrier for timely investigating and making coverage determinations on claims. 5. Previously, the Florida Supreme Court held where the legislature passes new legislation changing an insured’s substantive rights, such legislation may only apply prospectively to insurance policies issued after the effective date of the legislation (even where the legislature expressed an intent for their legislation to apply retroactively). See Menendez v. Progressive Exp. Ins. Co., Inc., 35 So. 3d 873, 878 (Fla. 2010). 6. Plaintiffs believe, but are in doubt, that the changes in Florida Senate Bill 76, Florida Senate Bill 2A, Florida Senate Bill 2D and Florida Senate Bill 4D do not apply in this action. 7. Upon information and belief, the Defendant believes that certain changes in Florida Senate Bill 76, Florida Senate Bill 2A, Florida Senate Bill 2D and Florida Senate Bill 4D do apply in this action. 8. Therefore, there is a bona fide dispute between the parties regarding what changes apply in this action and what changes do not. 9. Whether or not certain changes in these Statutes apply to Plaintiff’s claim creates a justiciable question as to the existence or non-existence of some right, status, immunity, power, privilege, or some fact upon which their existence may depend. 10. There exists a bona fide, actual, and present need for the declaration accordingly. 11. In this action, Plaintiffs retained the undersigned attorneys, in part, to determine Plaintiffs’ rights as potentially modified by Florida Senate Bill 76, Florida Senate Bill 2A, Florida Senate Bill 2D and Florida Senate Bill 4D and against the Defendant, therefore Plaintiff demands Plaintiffs’ reasonable attorney’s fees are paid pursuant to Fla. Stat. § 768.79, 627.428, 626.9373, 627.70152, and or any other applicable Florida Statute, Rule, and or contractual provision. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment against Defendant that Plaintiffs are entitled to reasonable attorneys’ fees and costs pursuant to Fla. Stat. § 768.79, 627.428, 626.9373, 627.70152, and or any other applicable Florida Statute, Rule, and or contractual provision. DEMAND FOR JURY TRIAL Plaintiffs demand trial by jury of all issues triable as a matter of right. Dated: March 21st , 2024. Respectfully submitted, By: /s/ Kevin Weisser KEVIN WEISSER Florida Bar No: 98828 WEISSER ELAZAR & KANTOR, PLLC Attorneys for Plaintiff 800 East Broward Boulevard, Suite 510 Fort Lauderdale, FL 33301 T: (954) 486-2623 F: (954) 572-8695 Email: KW@WEKLaw.com JK@WEKLaw.com Service@WEKLaw.com