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Filing # 198562985 E-Filed 05/17/2024 01:00:33 PM
22595756
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR LEE COUNTY, FLORIDA
PEOPLE'S TRUST INSURANCE COMPANY,
Plaintiff,
vs. CASE NO.
JACQUELIN JOSEPH
GUERDINE CINEUS
Defendants.
_____________________________________/
COMPLAINT
COMES NOW Plaintiff PEOPLE'S TRUST INSURANCE COMPANY (hereinafter
“PTI”), by and through its undersigned attorney and files this its Complaint against
JACQUELIN JOSEPH AND GUERDINE CINEUS (hereinafter “INSURED”), and in
support thereof states as follows:
GENERAL ALLEGATIONS
1. Count I is an action for specific performance to compel right-to-repair against
JACQUELIN JOSEPH AND GUERDINE CINEUS with amount in controversy greater than
Fifty-Thousand Dollars ($50,000.00) and within the jurisdiction of this court.
2. Count II is an action for declaratory relief against JACQUELIN JOSEPH AND
GUERDINE CINEUS with amount in controversy greater than Fifty-Thousand Dollars
($50,000.00) and within the jurisdiction of this court.
3. At all times material hereto, Plaintiff PTI was and is a corporation organized and
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existing under the laws of Florida, with its principal place of business located in Broward County
and is doing business in the state of Florida as a licensed insurance company.
4. At all times material hereto, Defendants JACQUELIN JOSEPH AND
GUERDINE CINEUS were insured pursuant to policy No. PFL380155-03 with effective
coverage dates 2/19/2022-2/19/2023. (PTI EXB A-13-83)
5. Venue is proper in Lee County, Florida, because the subject insured dwelling and
property owned by Defendants JACQUELIN JOSEPH AND GUERDINE CINEUS is
situated in Lee County, Florida.
6. Venue is proper in Lee County, Florida, because the insured Defendants
JACQUELIN JOSEPH AND GUERDINE CINEUS were residents and domiciled in Lee
County County, Florida.
7. On November 23, 2022, insured or designated representative, on behalf of all
insureds, reported a claim of hurricane loss and damage to PTI.
8. In follow up to first report, on November 23, 2022, PTI assigned Claim No.
CFL22595756 and requested insured’s compliance with duties after loss including request for any
documentation related to the loss and any claim of damage.
9. On November 23, 2022, PTI received communication from insured’s designated
claims agent alleging loss date September 28, 2022 arising from hurricane damage to the insured
dwelling.
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10. On December 5, 2022, PTI's designated agent inspected the loss.
11. On January 3, 2023, insured was notified in writing of PTI’s request for proof of
loss and supporting documentation.
12. On January 3, 2023, insured was notified in writing of PTI’s coverage for the loss
and invocation of election-to-repair the covered loss pursuant to PTI's estimate of repair dated
December 9, 2022 with repair to be performed by its selected preferred contractor . (PTI EXB A
-84-111 of 285)
13. The same item of January 3, 2023 correspondence also notified insured of request
for proof of loss if there is disagreement as to the scope of covered repair, stating in pertinent part:
NOTE: THIS REQUIRES ACTION ON YOUR PART
If you AGREE with our determination of which covered repairs RRT must perform:
If you agree with our enclosed “Estimate and Scope of Repairs,” you must let us know so
we can close our claim file since the total cost of those covered repairs falls below your
deductible.
If you DISAGREE with our determination of which covered repairs RRT must
perform:
If you disagree with our enclosed “Estimate and Scope of Repairs,” we hereby request that
you send us within 60 days your fully executed Sworn Proof of Loss (“SPOL”) and
detailed estimate of repairs you believe the policy covers for your claim pursuant to our
election. Please refer to the policy, under “SECTION I – CONDITIONS, C. Duties After
Loss,” for specific information the SPOL must include. A blank SPOL form is enclosed
for your convenience.
14. The same item of January 3, 2023 correspondence also notified insured of the
availability of appraisal for resolution of disputes as to the scope of repair, stating in pertinent
part:
What happens if you disagree with our estimate of which repairs the policy covers?
If you disagree with our “Estimate and Scope of Repairs,” you must send us a fully
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executed SPOL and detailed supporting estimate within sixty (60) days. Once we receive
those documents, we will evaluate them and decide whether we agree with you on which
covered repairs RRT must perform. If you and we still disagree, either may demand
appraisal. When that happens, an “appraisal panel” will form consisting of an appraiser
representing each party and a neutral umpire those appraisers select to resolve any
disagreements they have. The panel will then generate an “appraisal award” establishing
which repairs RRT shall perform, the methods of repair, general types of materials or
property to be used, and amount of money PTI must initially pay RRT to perform those
repairs provided that the final scope of covered repairs and amount of loss exceeds the
applicable policy deductible. Each party must pay for its own appraiser and split all other
appraisal expenses equally.
15. The same item of January 3, 2023 correspondence also notified insured of PTI’s
request for payment of the Hurricane deductible, or for the making of arrangements for financing
of the deductible amount if necessary, pursuant to the subject policy’s post-loss conditions, stating
in pertinent part:
1. As with any insurance policy, you must cover your applicable policy deductible of
$11,414.00, meaning you must pay RRT that amount towards your repairs and PTI will
pay RRT the balance. Someone will contact you before RRT starts performing your
covered repairs to discuss different payment methods RRT accepts.
16. The same item of January 3, 2023 correspondence also notified insured of PTI’s
request for return of an executed work authorization and enclosed a proposed work authorization
for the insured’s signature and return pursuant to the subject policy’s post-loss conditions, stating
in pertinent part:
2. A representative from PTI or RRT will request a signed “Work Authorization” form
granting RRT and any subcontractors access to perform the covered repairs at your
property during normal business hours, and for your cooperation to begin the permitting
process if required. A proposed Work Authorization will be provided for your review and
consideration. If you have any questions or concerns about its wording, we will gladly
work with you to see terms are mutually acceptable.
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17. The same item of January 3, 2023 correspondence also notified insured of the
requirement to cooperate with project logistics, stating in pertinent part:
3. An RRT project manager will then meet with you to discuss all aspects of the
repair process, including anticipated start dates and completion schedules, scope of
repairs, logistics of accessing your property, materials selection, permitting issues, and
any special needs or concerns you or they might have unique to your situation or
property. That “Projects Logistics Meeting” or “PLM” will occur promptly at a mutually
coordinated time and officially starts the process of returning your covered damaged
property to its pre-loss condition. We would also encourage you to contact your
designated PTI adjuster and RRT project manager throughout the entire repairs process
with any questions or concerns you might have so they are quickly addressed.
18. The same item of January 3, 2023 correspondence also notified insured of the
availability of DFS Mediation as a mechanism for resolution of disputes, stating in pertinent part:
"Please note that, under Florida Statute §627.7015, you may be entitled to participate in
nonbinding mediation with PTI through a program offered by the Florida Department of
Financial Services (DFS) if your claim qualifies. Generally speaking, the program is
available to Florida policyholders who have a dispute relating to a material issue of fact
on a residential property claim before appraisal or litigation has commenced, with
exceptions for certain types of disputes. Enclosed for your review is a DFS Mediation
brochure, which provides eligibility requirements to help you determine if your claim
qualifies along with contact information and other details about the program."
19. On April 24, 2023, PTI received insured's estimate dated March 16, 2023 setting
forth the insured's claimed scope of loss required to restore the insured dwelling and property to
its pre-loss condition.
20. On May 17, 2023, PTI notified insured of its demand for appraisal based upon the
ripe and pending dispute as to the amount of loss, including the scope of repair required to restore
the insured's dwelling and property to its pre-loss condition.
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21. On July 21, 2023, the parties’ designated appraisers inspected the subject insured
dwelling.
22. In follow up to the conclusion of the appraisal process, on or about March 15,
2024, PTI furnished the insured with the appraisal award and estimated scope of repair with PTI's
request for cooperation and compliance with the insured's duties related to election-to-repair. (PTI
EXB A-241-257 of 285)
23. In follow up to PTI's coverage determination and election-to-repair, PTI notified
the insured of its request for compliance with the election-to-repair and related post-loss duties by
way of correspondence dated: 3/26/2024, 4/3/2024, 4/4/2024, 4/10/2024, 4/11/2024, 4/23/2024
24. At all times material hereto, INSURED has failed to comply with PTI's request for
compliance with the appraisal award, election-to-repair and related duties.
25. The subject E023 0621 insurance policy sets forth in the policy declarations the
E023 “Preferred Contractor” Endorsement for which the insured was given adequate
monetary consideration by way of a $64.00 premium discount. (PTI EXB A-14 of 285)
26. The subject E023 0621 insurance policy included the E023 “Preferred
Contractor” Endorsement including the “LOSS PAYMENT” clause, stating in pertinent part
(emphasis supplied) (PTI EXB A-70 of 285):
K. Loss Payment, the following is added:
4. When we have exercised our option to repair “your” damaged property pursuant to this
Preferred Contractor Endorsement, we will repair the damaged property with material of
like kind and quality without deduction for depreciation. Such repair is in lieu of issuing
any loss payment that would otherwise be due under the policy.
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27. The subject E023 0621 insurance policy contained “OUR OPTION” condition,
stating in pertinent part (emphasis supplied) (PTI EXB A-68 of 285):
J. Our Option is deleted and replaced with the following:
At our option:
1. For losses settled on an actual cash value basis, we may repair or replace any part of
the damaged property with material or property of like kind and quality.
2. For losses covered under Coverage A – Dwelling, insured for Replacement Cost Loss
Settlement as outlined in SECTION I – CONDITIONS, Loss Settlement, we may repair the
damaged property with material of like kind and quality without deduction for depreciation.
3. We will send written notice to you no later than thirty (30) days after our inspection of
the reported loss, unless factors beyond our control reasonably prevent “us” from doing
so. However, following a “hurricane occurrence” or multiple “weather events” within a sixty
(60) day period, we will send written notice to you no later than sixty (60) days after our
inspection of the reported loss, unless factors beyond our control reasonably prevent “us”
from doing so .
4. You must comply with the duties described in SECTION I – CONDITIONS, C. 7 and 8.
5. You must provide access to the property and execute any necessary municipal, county
or other governmental documentation or permits for repairs to be undertaken.
6. You must execute all work authorizations to allow our preferred contractors and any
subcont ractors and related parties entry to the property. The signed form must specify
insured’s identification of the estimated scope of repair for purposes of restoring the
insured dwelling.
7. You must otherwise cooperate with repairs to the property. If non-covered damage(s) to
the dwelling are your responsibility and the covered damage is resulting from the non-
covered damage(s), including but not limited to roof repairs, such damage shall be
repaired in compliance with local and state governmental regulations and in a workman
like manner prior to commencement of covered repairs. Any dispute as to the amount of
loss, including scope of covered repairs shall be resolved as provided by the policy and its
endorsements.
8. You are responsible for payment of the deductible stated in your Declarations page
directly to our preferred contractor.
9 . Our right to repair or replace, and our decision to do so, is a material part of this
contract and under no circumstances relieves you or us of our mutual duties and
obligations under this contract. Our acceptance of your estimated scope of repair shall be
binding upon the parties for purposes of restoring the insured dwelling.
10. You and we must cooperate with alternate scope dispute resolution as to loss to
property arising under Coverage A or B, including but not limited to Department of
Financial Services mediation, demand for appraisal and all related duties, or either party’s
acceptance of a dwelling estimate or scope of proposed repair(s) furnished by either party
to the other for consideration and acceptance.
11. Any “action” or assertion of a claim for loss as a result of a “construction defect” arising
from the repairs or restoration services performed by our preferred contractor, its
subcontractors, suppliers, or design professionals under this endorsement are subject to
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certain notice and cure requirements as set forth in this Preferred Contractor
Endorsement.
28. The subject E023 0621 insurance policy E023 “Preferred Contractor”
Endorsement, which contains the “APPRAISAL" clause, stating in pertinent part (emphasis
supplied) (PTI EXB A-70-71 of 285):
S. Appraisal, the following is added to the policy:
Where “we” elect to repair:
1. If “you” and “we” fail to agree on the amount of loss, which includes the scope
of repairs, either may demand an appraisal as to the amount of loss and the scope
of repairs. In this event, each party will choose a competent appraiser within 20 days
after receiving a written request from the other. The two appraisers will choose an umpire.
If they cannot agree upon an umpire within 15 days, “you” or “we” may request that the
choice be made by a judge of a court of record in the state where the "residence
premises" is located. The appraisers will separately set the amount of loss and scope of
repairs. If the appraisers submit a written report of an agreement to “us”, the amount of
loss and scope of repairs agreed upon will be the amount of loss and scope of repairs. If
they fail to agree, they will submit their differences to the umpire. A decision agreed to by
any two will set the amount of loss and the scope of repairs. Each party will pay its own
appraiser, and bear the other expenses of the appraisal and umpire equally.
2. The scope of repairs shall establish the work to be performed and completed by Rapid
Response Team, LLC™. Such repair is in lieu of issuing any loss payment to “you” that
otherwise would be due under the policy. The amount of loss shall establish only the
initial amount paid to Rapid Response Team, LLC™ by “us”, and any additional amounts
required to complete repairs shall be “our” responsibility and will be paid to Rapid
Response Team, LLC™ without regard to policy limits or the amount of initial payments.
29. PTI has suffered material prejudice by way of the insured’s material breach of its
election-to-repair which is an integral component of the insuring agreement as read in pari
materia with the E023 “Preferred Contractor” Endorsement, and as such, a material term and
condition of the insuring agreement. Such prejudice includes but is not limited to:
(i) the loss and deprivation of benefit of the bargain regarding Defendant’s invocation of
its election-to-repair the covered ensuing loss as contemplated by the terms and conditions
of the policy and the E023 preferred contractor discount;
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(ii) the expenditure of legal and company resources in participating in appraisal and
prosecuting this lawsuit to enforce and defend the terms and conditions of the insuring
agreement;
(iii) the loss of premium and benefit of the bargain associated with the E023 preferred
contractor discount;
(iv) the accretion of loss or damage to the insured dwelling and/or spoliation of tangible
property;
(v) damage to the sanctity of PTI’s insurance contract and E023 Endorsement;
(vi) irreparable harm to PTI’s continuing ability to write and renew HO3 and other
coverage at competitive rates in Lee County as well as the State of Florida at large.
30. At all times material hereto, INSURED failed to substantially comply with the
terms and conditions of the insuring agreement and the newly formed “Drew” repair contract and
concomitant post-lost duties including but not limited to election-to-repair, return of some form of
signed work authorization specifying acceptance of the appraisal award dated January 19, 2024
and scope of repair dated December 22, 2023 together with compliance with the applicable
hurricane deductible and related duties and imposition of extracontractual demands which are
atypical in the setting of residential repair and restoration. Drew v. Mobile USA Ins. Co., 920
th
So.2d 832 (Fla. 4 DCA, 2006), c.f. Robinson v. Fla. Peninsula Ins. Co., 178 So. 3d 947, (Fla. 4th
DCA, 2015); See generally,Peoples Trust Ins Co v Garcia, 2019 WL 287381 (Fla 3d DCA, Jan.
23, 2019) citing People's Trust Ins. Co. v. Tracey, 251 So. 3d 931 (Fla. 4th DCA 2018)(reversed
and remanded compelling appraisal citing Johnson v. Nationwide); People's Trust v.
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Nowroozpoor, 331 So. 3d 193, (Fla. 4th DCA 2019)(Trial Court erred denying PTI specific
enforcement of appraisal and right-to-repair).
31. As result of the insured’s material breach and failure to cure, PTI is entitled to
either specific performance to compel right-to-repair, or in the alternative, to voidance of its
coverage obligations arising from the subject Claim No. CFL22595756. See generally
Ganzemuller v. Omega Ins. Co., 244 So. 3d 1189 (Fla. 2d DCA 2018)(carrier entitled to voidance
of coverage for the loss arising from insured's failure to comply with election-to-repair and
deductible obligation; People's Trust Ins. Co. v. Valentin, 305 So. 3d 324 (Fla 3d DCA)(Carrier
states cause of action for specific performance of right-to-repair); Castro v People's Trust Ins. Co.,
568 So. 3d 483 (Fla 4th DCA)(summary judgment affirmed where insured failed to furnish work
authorization and payment of deductible citing Franco Ganzemuller Arguello); People's Trust Ins.
Co. v. Amaro, 319 So. 3d 747 (Fla. 3d DCA 2021)(rev Order compelling PTI payment Award
Judgment for PTI).
32. PTI has performed all conditions precedent to the maintenance of this action.
COUNT I
SPECIFIC PERFORMANCE TO COMPEL RIGHT-TO-REPAIR
Plaintiff, People's Trust Insurance Company restates and realleges Paragraphs 1 through
32 above as if fully set forth herein.
33. On July 21, 2023, the parties’ designated appraisers inspected the subject insured
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dwelling.
34. In follow up to the conclusion of the appraisal process, on or about March 15,
2024, PTI furnished the insured with the appraisal award and estimated scope of repair with PTI's
request for cooperation and compliance with the insured's duties related to election-to-repair.
35. As of the filing of the instant action, the insured has failed to substantially comply
with election-to-repair, including but not limited failure to:
(a) failure to acknowledge PTI's legal right to commence repairs through its preferred
contractor pursuant to the appraisal panel's award and scope of repair;
(b) failure to cooperate with PTI's preferred contractor for purpose of setting up a project
management meeting in follow up to the rendition of the appraisal award;
(c) failure to return some form of written authorization authorizing PTI's preferred
contractor to commence repair pursuant to the appraisal panel's award and scope of repair;
(d) failure to pay the applicable deductible to PTI's preferred contractor, or to furnish
proof of payment or satisfaction of the applicable deductible, or in the alternative, to make
suitable undertakings with PTI’s preferred contractor for payment or financing of the
applicable deductible.
36. As a consequence of PTI's exercise of its election-to-repair, a new (Drew) contract
for repair was formed which allowed PTI to select its preferred contractor for restoration of the
covered loss, and which election was binding on the insured.
37. Pursuant to the newly formed (Drew) repair contract, PTI is legally and
contractually bound to restore the subject dwelling to its pre-loss condition within the coverages
afforded by the policy, within a reasonable time frame. Drew v. Mobile USA Ins. Co., 920 So. 2d
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th
832 (Fla. 4 DCA 2006)
38. Pursuant to the newly formed (Drew) repair contract, PTI has the unilateral
contractual right under the insuring agreement and applicable E023 endorsement, to select its
preferred contractor to perform the covered repairs, and therefore made a timely selection of
licensed general contractor pursuant to its correspondence to the insured with enclosures dated
January 3, 2023 and subsequent correspondence.
39. Pursuant to the terms, conditions and endorsements to the insuring agreement and
the applicable E023 “Preferred Contractor Endorsement,” PTI has lawfully and timely, invoked its
election-to-repair the loss. Travelers Indemnity Co. v. Parkman, 300 So. 2d 284 (Fla. 4th DCA
1974), and Arch Roberts & Co. v. Auto-Owners Insurance Co., 305 So. 2d 882 (Fla. 1st DCA
1974); Drew v. Mobile USA Ins. Co., 920 So. 2d 832 (Fla. 4th DCA, 2006); Ganzemuller v.
Omega Ins. Co., 244 So. 3d 1189 (Fla. 2d DCA 2018).
40. The insured having failed to substantially comply with PTI's election-to-repair, is
in material breach of the insuring agreement and the newly formed “Drew” repair agreement. As
result of the insured’s material breach and failure to cure, PTI is entitled to specific performance
or other equitable relief, or in the alternative, to voidance of its coverage obligations arising from
the subject Claim No. CFL22595756.
41. The appraisal award rendered by a duly constituted appraisal panel constitutes a
final adjudication as to the amount of loss, including the scope of repair required to restore the
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insured dwelling to its pre-loss condition in compliance with PTI’s election-to-repair pursuant to
the insuring agreement as read in pari materia with the (Drew) repair contract. Cincinnati Ins. Co.
v. Cannon Ranch Partners, Inc., 162 So. 3d 140 (Fla. 2d DCA 2014) citing Johnson v. Nationwide
Mut. Ins. Co., 828 So. 2d 1021 (Fla. 2002).
42. At all times material hereto, the actions or omissions of the insured’s designated
claims agents were legally imputed and binding on the insured.
43. That the insured was at all times material hereto, required to comply with all post-
loss duties including but not limited to compliance with PTI’s election-to-repair pursuant to the
insuring agreement as read in pari materia with the newly formed (Drew) repair contract.
44. By the actions or omissions of the insured and/or their designated claims agents,
the insured is in material breach of both the insuring agreement and the newly formed (Drew)
repair contract by virtue of the insured’s refusal to unequivocally comply with PTI’s election-
to-repair.
45. At all times material hereto, PTI has been on a de facto basis, prevented from
exercising its contractual election-to-repair, thus depriving PTI of the benefit of the bargain,
which bestowed upon PTI the right to select its preferred contractor pursuant to the “E023
Preferred Contractor Endorsement” in consideration of a premium discount furnished to the
insured in the amount of $64.00 (PTI EXB A-14 of 285).
46. At all times material hereto, PTI had no legal or contractual obligation to tender
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any sums in monetary indemnity based upon the insured's material breach of both the insuring
agreement and the newly formed (Drew) repair contract.
47. At all times material hereto, PTI’s election-to-repair and restore the dwelling to its
pre-loss condition stood in full and complete satisfaction of its legal or contractual obligations
arising under the insuring agreement as read in pari materia with the "Preferred Contractor
Endorsement."
48. PTI’s timely exercise of its election-to-repair stands as a lawful and contractually
based means of fulfilling its indemnity obligations under the insuring agreement.
49. PTI has at all times material hereto been ready, willing and able to commence
repairs to restore the insured dwelling and property to its pre-loss condition pursuant to the
appraisal award.
50. As a result of the insured’s material breach of both the insuring agreement and the
newly formed (Drew) repair contract, PTI lacks an adequate remedy at law, and therefore seeks
specific performance or other equitable relief, or in the alternative specific performance of both
the insuring agreement and the newly formed “Drew” repair contract.
51. In the absence of an order granting specific performance or other equitable relief of
PTI’s legal and contractual obligation to repair and restore the insured dwelling and property to
its pre-loss condition within the coverages afforded under the insuring agreement remains
inchoate. This subjects PTI to future unliquidated claims from the insured or assignees known
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and unknown, from which PTI lacks adequate remedy at law by way of pecuniary damages which
are unavailable to an insurance company in the context of the insured's material breach of post-
loss duties.
52. In the absence of an order granting specific performance or other equitable relief,
PTI will suffer irreparable harm as its legal and contractual obligation to indemnify the insured
will be unfulfilled, and subject to the accretion of unrepaired damage to the insured dwelling
structure and property, thus constituting unjustified economic waste and degradation of the
dwelling premises in violation of public policy.
53. In the absence of an order granting specific performance or other equitable relief,
PTI will suffer irreparable harm as it has been deprived of the benefit of the bargain, for which
monetary damages are unavailable and for which legal remedy including voidance of its coverage
obligation is inadequate, thereby depriving PTI of the sanctity of its contractual agreement with
the insured.
54. PTI has a clear legal right or interest in the subject matter of the suit, to wit:
commencement of repairs of the covered losses to the insured dwelling structure pursuant to its
legally consequent and binding election-to-repair.
55. PTI alleges that the public interest will not be disserved by the granting of specific
performance or other equitable relief, and in fact, that the public interest will be enhanced by
preserving the sanctity of contracts as well as preventing unjustified economic waste and
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degradation of the dwelling premises.
56. PTI alleges that the public interest will not be disserved by the granting of specific
performance or other equitable relief, and in fact, that the public interest will be enhanced by
preserving the sanctity of contracts as well as preserving PTI’s access to competitive pricing of
reinsurance, and preserving and maintaining PTI’s ability to write coverage in the State of Florida
at large.
57. In the event that the Court grants temporary mandatory injunctive relief in the
alternative to specific performance, PTI is prepared to post reasonable bond pursuant to Rule
1.610(b) in an amount determined by the court.
58. PTI has a clear right of relief and substantial likelihood of prevailing on the merits
based upon the following indisputable facts:
PTI made a timely inspection of the insured’s dwelling structure;
PTI timely notified the insured of its coverage determination and invocation of
election-to-repair by its preferred contractor who is prepared to restore the loss to its pre-
loss condition in a commercially reasonable manner consistent with prevailing community
standards and pursuant to the conditions set forth in the E023 Endorsement;
PTI timely notified the insured of its acceptance of the appraisal award and
estimated scope of repair setting forth the framework for restoration of the insured
dwelling and property to its pre-loss condition.
59. PTI has a clear legal and equitable right to enforce the terms and conditions of the
Policy and the newly formed “Drew” repair contract and may not be coerced by the refusal of the
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insured to comply with the insuring agreement into waiving its election-to-repair.
60. PTI has performed all conditions precedent to the maintenance of this action.
WHEREFORE, Plaintiff PEOPLE'S TRUST INSURANCE COMPANY demands the
following relief:
A. That this Court enter an order granting specific performance compelling the
insured’s compliance with PTI's election-to-repair and restore the dwelling to its pre-loss
condition pursuant to the scope of repair set forth in the appraisal award’s estimate; and/or
B. That upon entry of equitable relief, this Court abate the pending action and reserve
jurisdiction to enter such further orders as may be required to enforce the Court 's issuance of
legal or equitable relief, or consistent with the court’s declaration of the parties' rights and
obligations; and
C. For an award of reasonable costs and such other and further relief as this
Honorable Court deems just and proper.
COUNT II
FOR DECLARATORY RELIEF
Plaintiff PEOPLE'S TRUST INSURANCE COMPANY readopts and realleges
paragraphs 1 through 32 above as if fully set forth herein, and further states:
61. This is an action in the alternative to Count I, for declaratory relief pursuant to
Florida Statutes Chapter 86 and the court's general equity powers to declare the parties’ rights and
obligations arising from the terms and conditions of the insurance policy and related writings, and
governing statutes.
62. PTI wants all parties to be in compliance with the terms and conditions of the
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insurance policy, as well as the legal and proper interpretation of any other writing material to this
cause, including the election-to-repair and exhibits and writings attached hereto.
63. PTI has a manifest good faith belief in its interpretation of the insurance policy and
related writings, and alleges that its interpretation is correct, and creates no ambiguity in regard to
Policy meaning or interpretation and, as such, PTI is entitled to a declaration and application in its
favor and in favor of the creation of a newly formed (Drew) repair contract, including its right to
select its preferred contractor and move forward with repair and restoration of the insured
dwelling pursuant to the appraisal award dated January 19, 2024 and estimated scope of repair
dated December 22, 2023 rendered by the appraisal panel.
64. PTI has a manifest good faith belief in its interpretation of the insurance policy
and related writings, and alleges that its interpretation is correct, and creates no ambiguity in
regard to Policy meaning or interpretation and, as such, PTI is entitled to a declaration and
application in its favor and in favor of the creation of a newly formed (Drew) repair contract,
including its right to select its preferred contractor and move forward with repair of the covered
loss in a commercially reasonable manner.
65. PTI has been made unsure by virtue of the actions of omission or commission of
the insured and designated claims agents, as to their rights, obligations and duties in regard to the
subject policy and the various writings attached hereto.
66. PTI has been made unsure by virtue of the actions of commission or omission of
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the insured and designated claims agent, as to its rights, obligations and duties in regard to its
election-to-repair.
67. PTI wishes all parties to be in full compliance with the subject insurance policy
and Florida law, and as to any contracts to which it is party or intended third party beneficiary or
obligee, and therefore has present and actual need for this Court’s declaration and application of
law to the facts as determined by the finder of the fact of the present controversy.
68. Declaratory relief is just and proper to determine the duties, rights and obligations
of the parties in the context of PTI’s election-to-repair based upon the Court’s declaration as to the
terms, conditions, exclusions and limitations of the subject insurance policy and endorsements
thereto as applied to existing law.
69. Declaratory relief is proper to determine the rights and duties of the parties herein
in regard to the context of the parties’ obligations regarding the insurance claim.
70. Declaratory relief is proper to determine and obtain the Court’s declaration as to
whether the insured had an obligation to comply with PTI’s election-to-repair to restore the
dwelling to its pre-loss condition to be performed by PTI's selected preferred contractor.
71. Declaratory relief is proper to determine and obtain the Court’s declaration as to
whether the insured had an obligation to comply with PTI’s election-to-repair and return of some
form of signed work authorization specifying acceptance of the appraisal panel's estimate as a
condition precedent to commencement of repairs by PTI’s selected preferred contractor.
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72. Declaratory relief is proper to determine and obtain the Court’s declaration as to
whether the insured had an obligation to comply with contractual obligations applicable to the
subject deductible as a condition precedent to commencement of repairs by PTI’s selected
preferred contractor.
73. Declaratory relief is proper to determine and obtain the Court’s declaration as to
whether the insured’s omnibus failure to comply with PTI’s election-to-repair, constituted material
breach of the insuring agreement and the newly formed “Drew” repair contract, thus voiding PTI's
further obligations under the insuring agreement or the newly formed “Drew” contract.
74. Declaratory relief is proper to determine and obtain the Court’s declaration as to
whether the insured’s failure to return some form of signed work authorization, constituted
material breach of the insuring agreement and the newly formed “Drew” repair contract, thus
voiding PTI's further obligations under the insuring agreement or the newly formed “Drew”
contract.
75. PTI genuinely believes that the terms and conditions of the insuring agreement
required the insured to furnish a written work authorization in writing to PTI’s designated
preferred contractor subsequent to the rendition of the appraisal award, and that the insured’s
ignoring of this post-award request has made PTI unsure of their rights, obligations and duties
under the Policy and the exercise of its election-to-repair (Drew) agreement.
76. Declaratory relief is proper to determine and obtain the Court’s declaration as to
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whether the insured was required to pay to the selected preferred contractor the amount of the
applicable hurricane deductible, or in the alternative, to make arrangements for financing of the
subject deductible, or any remaining unpaid balance thereof, pursuant to the subject policy’s
Section I post-loss duties as a condition precedent to performance of repair, and if so, whether
such failure if any, should act as a legal bar to recovery for claim No. CFL22595756.
77. Declaratory relief is proper to determine and obtain the Court’s declaration as to
whether the insured substantially complied with PTI's election-to-repair, and whether such failure
if any, should act as a legal bar to recovery for claim No. CFL22595756.
78. Declaratory relief is proper to determine and obtain the Court’s declaration as to
whether the insured’s failure to unequivocally agree to allow the preferred contractor to proceed
with repair, or the insured's demand for tender of payment of the amount of the appraisal award or
such other amount of loss, constituted material breach of the insuring agreement and the “Drew”
repair contract, such repudiation being in material breach, and acting as a legal bar to any
recovery by the insured arising from the subject claim;
79. Pursuant to the Declaratory Judgment Statutes, the Court has the jurisdiction
and power to construe relations that are affected by the construction of any contracts or writings,
and issue a declaratory decree/judgment in regard to same.
80. The actions by way of commission or omission of the insured and designated
claims agent, have created genuine doubt or uncertainty as to PTI's rights or status under the
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subject insurance policy, the election-to-repair “Drew” contract, and its rights and obligations
regarding all documents reference herein.
81. PTI is entitled to have removed by judicial decree, all doubts raised by the actions
of omission or commission by insured, and in particular, concerning whether the parties to the
insurance contract, their designated agents and assigns, have complied with the duties imposed
upon them under the subject insurance policy consistent with prevailing law.
82. Accordingly, PTI has filed this request for declaratory relief seeking the Court's
declaration as to the policy of insurance and all writings attached hereto, as well as Florida law,
and ask that the Court retain jurisdiction of this matter thereafter.
WHEREFORE, PEOPLE'S TRUST INSURANCE COMPANY prays this Honorable
Court take jurisdiction of this matter in regard to the following:
A. for a declaration of the parties' rights, duties and obligations under the documents
and writings referenced herein;
B. declaring that the insured is required to execute some post-appraisal award writing
authorizing PTI’s preferred contractor and any required subcontractors to enter upon the insured
dwelling and property for performance of covered repairs pursuant to the appraisal panel’s award
as to the scope of covered repairs;
C. declaring that the insured is required to make payment of the applicable hurricane
deductible to PTI or its preferred contractor or to make suitable and acceptable arrangements for
payment of same as a condition precedent to performance of covered repairs pursuant to the
appraisal panel’s award as to the scope of covered repairs;
D. declaring that PTI’s preferred contractor is entitled to perform covered repairs in a
commercially reasonable manner, consistent with the customs and practices of licensed
contractors performing similar repairs and restoration projects in County, Florida;
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E. In the alternative, declaring that the insured’s failure to unequivocally agree to
allow the preferred contractor and any required subcontractors to proceed with repair, or the
insured's demand for tender of payment of the amount of the appraisal award or such other
amount of loss, constituted material breach of the insuring agreement and the “Drew” repair
contract, such repudiation being in material breach, and acting as a legal bar to any recovery by
the insured arising from the subject claim;
F. for a reservation of jurisdiction to enter such further orders as may be required to
enforce the Court 's declaration of the parties' rights and obligations; and
G. for an award of such other and further relief as this Court deems just, proper and
equitable.
DEMAND FOR JURY TRIAL
PEOPLE'S TRUST INSURANCE COMPANY demands a jury trial for all issues triable
as a matter of right by a jury.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing will be served by
ORIGINAL PROCESS on the Defendant(s) named herein.
By: s/Jonathan M. Sabghir, Esq.
Florida Bar Number: 394696
People's Trust Insurance Company
18 People’s Trust Way, Ste. 100
Deerfield Beach, FL 33441
Tel: 561-417-1200
EserviceJMS@pti.insure
pcunningham@pti.insure
jsabghir@pti.insure
jsabghir@gmail.com
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Sent: Wednesday, November 23, 2022 4:18 PM
To: JOSEPHJACQUELIN1958@GMAIL.COM
Subject: What to Expect
Claim #CFL22595756
To help protect y our priv acy , Microsoft O ffice prev ented automatic download of this picture from the Internet.
JACQUELINE JOSEPH
Thank you for contacting People’s Trust Insurance and advising us of your recent
claim. We understand that loss or damage to your property can be a frustrating and
difficult experience. Our team is here to assist you and we strive to make the claims
pr
Preview
Filing # 198562985 E-Filed 05/17/2024 01:00:33 PM 22595756 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA PEOPLE'S TRUST INSURANCE COMPANY, Plaintiff, vs. CASE NO. JACQUELIN JOSEPH GUERDINE CINEUS Defendants. _____________________________________/ COMPLAINT COMES NOW Plaintiff PEOPLE'S TRUST INSURANCE COMPANY (hereinafter “PTI”), by and through its undersigned attorney and files this its Complaint against JACQUELIN JOSEPH AND GUERDINE CINEUS (hereinafter “INSURED”), and in support thereof states as follows: GENERAL ALLEGATIONS 1. Count I is an action for specific performance to compel right-to-repair against JACQUELIN JOSEPH AND GUERDINE CINEUS with amount in controversy greater than Fifty-Thousand Dollars ($50,000.00) and within the jurisdiction of this court. 2. Count II is an action for declaratory relief against JACQUELIN JOSEPH AND GUERDINE CINEUS with amount in controversy greater than Fifty-Thousand Dollars ($50,000.00) and within the jurisdiction of this court. 3. At all times material hereto, Plaintiff PTI was and is a corporation organized and -1- eFiled Lee County Clerk of Courts Page 1 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. existing under the laws of Florida, with its principal place of business located in Broward County and is doing business in the state of Florida as a licensed insurance company. 4. At all times material hereto, Defendants JACQUELIN JOSEPH AND GUERDINE CINEUS were insured pursuant to policy No. PFL380155-03 with effective coverage dates 2/19/2022-2/19/2023. (PTI EXB A-13-83) 5. Venue is proper in Lee County, Florida, because the subject insured dwelling and property owned by Defendants JACQUELIN JOSEPH AND GUERDINE CINEUS is situated in Lee County, Florida. 6. Venue is proper in Lee County, Florida, because the insured Defendants JACQUELIN JOSEPH AND GUERDINE CINEUS were residents and domiciled in Lee County County, Florida. 7. On November 23, 2022, insured or designated representative, on behalf of all insureds, reported a claim of hurricane loss and damage to PTI. 8. In follow up to first report, on November 23, 2022, PTI assigned Claim No. CFL22595756 and requested insured’s compliance with duties after loss including request for any documentation related to the loss and any claim of damage. 9. On November 23, 2022, PTI received communication from insured’s designated claims agent alleging loss date September 28, 2022 arising from hurricane damage to the insured dwelling. -2- eFiled Lee County Clerk of Courts Page 2 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. 10. On December 5, 2022, PTI's designated agent inspected the loss. 11. On January 3, 2023, insured was notified in writing of PTI’s request for proof of loss and supporting documentation. 12. On January 3, 2023, insured was notified in writing of PTI’s coverage for the loss and invocation of election-to-repair the covered loss pursuant to PTI's estimate of repair dated December 9, 2022 with repair to be performed by its selected preferred contractor . (PTI EXB A -84-111 of 285) 13. The same item of January 3, 2023 correspondence also notified insured of request for proof of loss if there is disagreement as to the scope of covered repair, stating in pertinent part: NOTE: THIS REQUIRES ACTION ON YOUR PART If you AGREE with our determination of which covered repairs RRT must perform: If you agree with our enclosed “Estimate and Scope of Repairs,” you must let us know so we can close our claim file since the total cost of those covered repairs falls below your deductible. If you DISAGREE with our determination of which covered repairs RRT must perform: If you disagree with our enclosed “Estimate and Scope of Repairs,” we hereby request that you send us within 60 days your fully executed Sworn Proof of Loss (“SPOL”) and detailed estimate of repairs you believe the policy covers for your claim pursuant to our election. Please refer to the policy, under “SECTION I – CONDITIONS, C. Duties After Loss,” for specific information the SPOL must include. A blank SPOL form is enclosed for your convenience. 14. The same item of January 3, 2023 correspondence also notified insured of the availability of appraisal for resolution of disputes as to the scope of repair, stating in pertinent part: What happens if you disagree with our estimate of which repairs the policy covers? If you disagree with our “Estimate and Scope of Repairs,” you must send us a fully -3- eFiled Lee County Clerk of Courts Page 3 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. executed SPOL and detailed supporting estimate within sixty (60) days. Once we receive those documents, we will evaluate them and decide whether we agree with you on which covered repairs RRT must perform. If you and we still disagree, either may demand appraisal. When that happens, an “appraisal panel” will form consisting of an appraiser representing each party and a neutral umpire those appraisers select to resolve any disagreements they have. The panel will then generate an “appraisal award” establishing which repairs RRT shall perform, the methods of repair, general types of materials or property to be used, and amount of money PTI must initially pay RRT to perform those repairs provided that the final scope of covered repairs and amount of loss exceeds the applicable policy deductible. Each party must pay for its own appraiser and split all other appraisal expenses equally. 15. The same item of January 3, 2023 correspondence also notified insured of PTI’s request for payment of the Hurricane deductible, or for the making of arrangements for financing of the deductible amount if necessary, pursuant to the subject policy’s post-loss conditions, stating in pertinent part: 1. As with any insurance policy, you must cover your applicable policy deductible of $11,414.00, meaning you must pay RRT that amount towards your repairs and PTI will pay RRT the balance. Someone will contact you before RRT starts performing your covered repairs to discuss different payment methods RRT accepts. 16. The same item of January 3, 2023 correspondence also notified insured of PTI’s request for return of an executed work authorization and enclosed a proposed work authorization for the insured’s signature and return pursuant to the subject policy’s post-loss conditions, stating in pertinent part: 2. A representative from PTI or RRT will request a signed “Work Authorization” form granting RRT and any subcontractors access to perform the covered repairs at your property during normal business hours, and for your cooperation to begin the permitting process if required. A proposed Work Authorization will be provided for your review and consideration. If you have any questions or concerns about its wording, we will gladly work with you to see terms are mutually acceptable. -4- eFiled Lee County Clerk of Courts Page 4 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. 17. The same item of January 3, 2023 correspondence also notified insured of the requirement to cooperate with project logistics, stating in pertinent part: 3. An RRT project manager will then meet with you to discuss all aspects of the repair process, including anticipated start dates and completion schedules, scope of repairs, logistics of accessing your property, materials selection, permitting issues, and any special needs or concerns you or they might have unique to your situation or property. That “Projects Logistics Meeting” or “PLM” will occur promptly at a mutually coordinated time and officially starts the process of returning your covered damaged property to its pre-loss condition. We would also encourage you to contact your designated PTI adjuster and RRT project manager throughout the entire repairs process with any questions or concerns you might have so they are quickly addressed. 18. The same item of January 3, 2023 correspondence also notified insured of the availability of DFS Mediation as a mechanism for resolution of disputes, stating in pertinent part: "Please note that, under Florida Statute §627.7015, you may be entitled to participate in nonbinding mediation with PTI through a program offered by the Florida Department of Financial Services (DFS) if your claim qualifies. Generally speaking, the program is available to Florida policyholders who have a dispute relating to a material issue of fact on a residential property claim before appraisal or litigation has commenced, with exceptions for certain types of disputes. Enclosed for your review is a DFS Mediation brochure, which provides eligibility requirements to help you determine if your claim qualifies along with contact information and other details about the program." 19. On April 24, 2023, PTI received insured's estimate dated March 16, 2023 setting forth the insured's claimed scope of loss required to restore the insured dwelling and property to its pre-loss condition. 20. On May 17, 2023, PTI notified insured of its demand for appraisal based upon the ripe and pending dispute as to the amount of loss, including the scope of repair required to restore the insured's dwelling and property to its pre-loss condition. -5- eFiled Lee County Clerk of Courts Page 5 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. 21. On July 21, 2023, the parties’ designated appraisers inspected the subject insured dwelling. 22. In follow up to the conclusion of the appraisal process, on or about March 15, 2024, PTI furnished the insured with the appraisal award and estimated scope of repair with PTI's request for cooperation and compliance with the insured's duties related to election-to-repair. (PTI EXB A-241-257 of 285) 23. In follow up to PTI's coverage determination and election-to-repair, PTI notified the insured of its request for compliance with the election-to-repair and related post-loss duties by way of correspondence dated: 3/26/2024, 4/3/2024, 4/4/2024, 4/10/2024, 4/11/2024, 4/23/2024 24. At all times material hereto, INSURED has failed to comply with PTI's request for compliance with the appraisal award, election-to-repair and related duties. 25. The subject E023 0621 insurance policy sets forth in the policy declarations the E023 “Preferred Contractor” Endorsement for which the insured was given adequate monetary consideration by way of a $64.00 premium discount. (PTI EXB A-14 of 285) 26. The subject E023 0621 insurance policy included the E023 “Preferred Contractor” Endorsement including the “LOSS PAYMENT” clause, stating in pertinent part (emphasis supplied) (PTI EXB A-70 of 285): K. Loss Payment, the following is added: 4. When we have exercised our option to repair “your” damaged property pursuant to this Preferred Contractor Endorsement, we will repair the damaged property with material of like kind and quality without deduction for depreciation. Such repair is in lieu of issuing any loss payment that would otherwise be due under the policy. -6- eFiled Lee County Clerk of Courts Page 6 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. 27. The subject E023 0621 insurance policy contained “OUR OPTION” condition, stating in pertinent part (emphasis supplied) (PTI EXB A-68 of 285): J. Our Option is deleted and replaced with the following: At our option: 1. For losses settled on an actual cash value basis, we may repair or replace any part of the damaged property with material or property of like kind and quality. 2. For losses covered under Coverage A – Dwelling, insured for Replacement Cost Loss Settlement as outlined in SECTION I – CONDITIONS, Loss Settlement, we may repair the damaged property with material of like kind and quality without deduction for depreciation. 3. We will send written notice to you no later than thirty (30) days after our inspection of the reported loss, unless factors beyond our control reasonably prevent “us” from doing so. However, following a “hurricane occurrence” or multiple “weather events” within a sixty (60) day period, we will send written notice to you no later than sixty (60) days after our inspection of the reported loss, unless factors beyond our control reasonably prevent “us” from doing so . 4. You must comply with the duties described in SECTION I – CONDITIONS, C. 7 and 8. 5. You must provide access to the property and execute any necessary municipal, county or other governmental documentation or permits for repairs to be undertaken. 6. You must execute all work authorizations to allow our preferred contractors and any subcont ractors and related parties entry to the property. The signed form must specify insured’s identification of the estimated scope of repair for purposes of restoring the insured dwelling. 7. You must otherwise cooperate with repairs to the property. If non-covered damage(s) to the dwelling are your responsibility and the covered damage is resulting from the non- covered damage(s), including but not limited to roof repairs, such damage shall be repaired in compliance with local and state governmental regulations and in a workman like manner prior to commencement of covered repairs. Any dispute as to the amount of loss, including scope of covered repairs shall be resolved as provided by the policy and its endorsements. 8. You are responsible for payment of the deductible stated in your Declarations page directly to our preferred contractor. 9 . Our right to repair or replace, and our decision to do so, is a material part of this contract and under no circumstances relieves you or us of our mutual duties and obligations under this contract. Our acceptance of your estimated scope of repair shall be binding upon the parties for purposes of restoring the insured dwelling. 10. You and we must cooperate with alternate scope dispute resolution as to loss to property arising under Coverage A or B, including but not limited to Department of Financial Services mediation, demand for appraisal and all related duties, or either party’s acceptance of a dwelling estimate or scope of proposed repair(s) furnished by either party to the other for consideration and acceptance. 11. Any “action” or assertion of a claim for loss as a result of a “construction defect” arising from the repairs or restoration services performed by our preferred contractor, its subcontractors, suppliers, or design professionals under this endorsement are subject to -7- eFiled Lee County Clerk of Courts Page 7 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. certain notice and cure requirements as set forth in this Preferred Contractor Endorsement. 28. The subject E023 0621 insurance policy E023 “Preferred Contractor” Endorsement, which contains the “APPRAISAL" clause, stating in pertinent part (emphasis supplied) (PTI EXB A-70-71 of 285): S. Appraisal, the following is added to the policy: Where “we” elect to repair: 1. If “you” and “we” fail to agree on the amount of loss, which includes the scope of repairs, either may demand an appraisal as to the amount of loss and the scope of repairs. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, “you” or “we” may request that the choice be made by a judge of a court of record in the state where the "residence premises" is located. The appraisers will separately set the amount of loss and scope of repairs. If the appraisers submit a written report of an agreement to “us”, the amount of loss and scope of repairs agreed upon will be the amount of loss and scope of repairs. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss and the scope of repairs. Each party will pay its own appraiser, and bear the other expenses of the appraisal and umpire equally. 2. The scope of repairs shall establish the work to be performed and completed by Rapid Response Team, LLC™. Such repair is in lieu of issuing any loss payment to “you” that otherwise would be due under the policy. The amount of loss shall establish only the initial amount paid to Rapid Response Team, LLC™ by “us”, and any additional amounts required to complete repairs shall be “our” responsibility and will be paid to Rapid Response Team, LLC™ without regard to policy limits or the amount of initial payments. 29. PTI has suffered material prejudice by way of the insured’s material breach of its election-to-repair which is an integral component of the insuring agreement as read in pari materia with the E023 “Preferred Contractor” Endorsement, and as such, a material term and condition of the insuring agreement. Such prejudice includes but is not limited to: (i) the loss and deprivation of benefit of the bargain regarding Defendant’s invocation of its election-to-repair the covered ensuing loss as contemplated by the terms and conditions of the policy and the E023 preferred contractor discount; -8- eFiled Lee County Clerk of Courts Page 8 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. (ii) the expenditure of legal and company resources in participating in appraisal and prosecuting this lawsuit to enforce and defend the terms and conditions of the insuring agreement; (iii) the loss of premium and benefit of the bargain associated with the E023 preferred contractor discount; (iv) the accretion of loss or damage to the insured dwelling and/or spoliation of tangible property; (v) damage to the sanctity of PTI’s insurance contract and E023 Endorsement; (vi) irreparable harm to PTI’s continuing ability to write and renew HO3 and other coverage at competitive rates in Lee County as well as the State of Florida at large. 30. At all times material hereto, INSURED failed to substantially comply with the terms and conditions of the insuring agreement and the newly formed “Drew” repair contract and concomitant post-lost duties including but not limited to election-to-repair, return of some form of signed work authorization specifying acceptance of the appraisal award dated January 19, 2024 and scope of repair dated December 22, 2023 together with compliance with the applicable hurricane deductible and related duties and imposition of extracontractual demands which are atypical in the setting of residential repair and restoration. Drew v. Mobile USA Ins. Co., 920 th So.2d 832 (Fla. 4 DCA, 2006), c.f. Robinson v. Fla. Peninsula Ins. Co., 178 So. 3d 947, (Fla. 4th DCA, 2015); See generally,Peoples Trust Ins Co v Garcia, 2019 WL 287381 (Fla 3d DCA, Jan. 23, 2019) citing People's Trust Ins. Co. v. Tracey, 251 So. 3d 931 (Fla. 4th DCA 2018)(reversed and remanded compelling appraisal citing Johnson v. Nationwide); People's Trust v. -9- eFiled Lee County Clerk of Courts Page 9 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. Nowroozpoor, 331 So. 3d 193, (Fla. 4th DCA 2019)(Trial Court erred denying PTI specific enforcement of appraisal and right-to-repair). 31. As result of the insured’s material breach and failure to cure, PTI is entitled to either specific performance to compel right-to-repair, or in the alternative, to voidance of its coverage obligations arising from the subject Claim No. CFL22595756. See generally Ganzemuller v. Omega Ins. Co., 244 So. 3d 1189 (Fla. 2d DCA 2018)(carrier entitled to voidance of coverage for the loss arising from insured's failure to comply with election-to-repair and deductible obligation; People's Trust Ins. Co. v. Valentin, 305 So. 3d 324 (Fla 3d DCA)(Carrier states cause of action for specific performance of right-to-repair); Castro v People's Trust Ins. Co., 568 So. 3d 483 (Fla 4th DCA)(summary judgment affirmed where insured failed to furnish work authorization and payment of deductible citing Franco Ganzemuller Arguello); People's Trust Ins. Co. v. Amaro, 319 So. 3d 747 (Fla. 3d DCA 2021)(rev Order compelling PTI payment Award Judgment for PTI). 32. PTI has performed all conditions precedent to the maintenance of this action. COUNT I SPECIFIC PERFORMANCE TO COMPEL RIGHT-TO-REPAIR Plaintiff, People's Trust Insurance Company restates and realleges Paragraphs 1 through 32 above as if fully set forth herein. 33. On July 21, 2023, the parties’ designated appraisers inspected the subject insured -10- eFiled Lee County Clerk of Courts Page 10 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. dwelling. 34. In follow up to the conclusion of the appraisal process, on or about March 15, 2024, PTI furnished the insured with the appraisal award and estimated scope of repair with PTI's request for cooperation and compliance with the insured's duties related to election-to-repair. 35. As of the filing of the instant action, the insured has failed to substantially comply with election-to-repair, including but not limited failure to: (a) failure to acknowledge PTI's legal right to commence repairs through its preferred contractor pursuant to the appraisal panel's award and scope of repair; (b) failure to cooperate with PTI's preferred contractor for purpose of setting up a project management meeting in follow up to the rendition of the appraisal award; (c) failure to return some form of written authorization authorizing PTI's preferred contractor to commence repair pursuant to the appraisal panel's award and scope of repair; (d) failure to pay the applicable deductible to PTI's preferred contractor, or to furnish proof of payment or satisfaction of the applicable deductible, or in the alternative, to make suitable undertakings with PTI’s preferred contractor for payment or financing of the applicable deductible. 36. As a consequence of PTI's exercise of its election-to-repair, a new (Drew) contract for repair was formed which allowed PTI to select its preferred contractor for restoration of the covered loss, and which election was binding on the insured. 37. Pursuant to the newly formed (Drew) repair contract, PTI is legally and contractually bound to restore the subject dwelling to its pre-loss condition within the coverages afforded by the policy, within a reasonable time frame. Drew v. Mobile USA Ins. Co., 920 So. 2d -11- eFiled Lee County Clerk of Courts Page 11 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. th 832 (Fla. 4 DCA 2006) 38. Pursuant to the newly formed (Drew) repair contract, PTI has the unilateral contractual right under the insuring agreement and applicable E023 endorsement, to select its preferred contractor to perform the covered repairs, and therefore made a timely selection of licensed general contractor pursuant to its correspondence to the insured with enclosures dated January 3, 2023 and subsequent correspondence. 39. Pursuant to the terms, conditions and endorsements to the insuring agreement and the applicable E023 “Preferred Contractor Endorsement,” PTI has lawfully and timely, invoked its election-to-repair the loss. Travelers Indemnity Co. v. Parkman, 300 So. 2d 284 (Fla. 4th DCA 1974), and Arch Roberts & Co. v. Auto-Owners Insurance Co., 305 So. 2d 882 (Fla. 1st DCA 1974); Drew v. Mobile USA Ins. Co., 920 So. 2d 832 (Fla. 4th DCA, 2006); Ganzemuller v. Omega Ins. Co., 244 So. 3d 1189 (Fla. 2d DCA 2018). 40. The insured having failed to substantially comply with PTI's election-to-repair, is in material breach of the insuring agreement and the newly formed “Drew” repair agreement. As result of the insured’s material breach and failure to cure, PTI is entitled to specific performance or other equitable relief, or in the alternative, to voidance of its coverage obligations arising from the subject Claim No. CFL22595756. 41. The appraisal award rendered by a duly constituted appraisal panel constitutes a final adjudication as to the amount of loss, including the scope of repair required to restore the -12- eFiled Lee County Clerk of Courts Page 12 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. insured dwelling to its pre-loss condition in compliance with PTI’s election-to-repair pursuant to the insuring agreement as read in pari materia with the (Drew) repair contract. Cincinnati Ins. Co. v. Cannon Ranch Partners, Inc., 162 So. 3d 140 (Fla. 2d DCA 2014) citing Johnson v. Nationwide Mut. Ins. Co., 828 So. 2d 1021 (Fla. 2002). 42. At all times material hereto, the actions or omissions of the insured’s designated claims agents were legally imputed and binding on the insured. 43. That the insured was at all times material hereto, required to comply with all post- loss duties including but not limited to compliance with PTI’s election-to-repair pursuant to the insuring agreement as read in pari materia with the newly formed (Drew) repair contract. 44. By the actions or omissions of the insured and/or their designated claims agents, the insured is in material breach of both the insuring agreement and the newly formed (Drew) repair contract by virtue of the insured’s refusal to unequivocally comply with PTI’s election- to-repair. 45. At all times material hereto, PTI has been on a de facto basis, prevented from exercising its contractual election-to-repair, thus depriving PTI of the benefit of the bargain, which bestowed upon PTI the right to select its preferred contractor pursuant to the “E023 Preferred Contractor Endorsement” in consideration of a premium discount furnished to the insured in the amount of $64.00 (PTI EXB A-14 of 285). 46. At all times material hereto, PTI had no legal or contractual obligation to tender -13- eFiled Lee County Clerk of Courts Page 13 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. any sums in monetary indemnity based upon the insured's material breach of both the insuring agreement and the newly formed (Drew) repair contract. 47. At all times material hereto, PTI’s election-to-repair and restore the dwelling to its pre-loss condition stood in full and complete satisfaction of its legal or contractual obligations arising under the insuring agreement as read in pari materia with the "Preferred Contractor Endorsement." 48. PTI’s timely exercise of its election-to-repair stands as a lawful and contractually based means of fulfilling its indemnity obligations under the insuring agreement. 49. PTI has at all times material hereto been ready, willing and able to commence repairs to restore the insured dwelling and property to its pre-loss condition pursuant to the appraisal award. 50. As a result of the insured’s material breach of both the insuring agreement and the newly formed (Drew) repair contract, PTI lacks an adequate remedy at law, and therefore seeks specific performance or other equitable relief, or in the alternative specific performance of both the insuring agreement and the newly formed “Drew” repair contract. 51. In the absence of an order granting specific performance or other equitable relief of PTI’s legal and contractual obligation to repair and restore the insured dwelling and property to its pre-loss condition within the coverages afforded under the insuring agreement remains inchoate. This subjects PTI to future unliquidated claims from the insured or assignees known -14- eFiled Lee County Clerk of Courts Page 14 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. and unknown, from which PTI lacks adequate remedy at law by way of pecuniary damages which are unavailable to an insurance company in the context of the insured's material breach of post- loss duties. 52. In the absence of an order granting specific performance or other equitable relief, PTI will suffer irreparable harm as its legal and contractual obligation to indemnify the insured will be unfulfilled, and subject to the accretion of unrepaired damage to the insured dwelling structure and property, thus constituting unjustified economic waste and degradation of the dwelling premises in violation of public policy. 53. In the absence of an order granting specific performance or other equitable relief, PTI will suffer irreparable harm as it has been deprived of the benefit of the bargain, for which monetary damages are unavailable and for which legal remedy including voidance of its coverage obligation is inadequate, thereby depriving PTI of the sanctity of its contractual agreement with the insured. 54. PTI has a clear legal right or interest in the subject matter of the suit, to wit: commencement of repairs of the covered losses to the insured dwelling structure pursuant to its legally consequent and binding election-to-repair. 55. PTI alleges that the public interest will not be disserved by the granting of specific performance or other equitable relief, and in fact, that the public interest will be enhanced by preserving the sanctity of contracts as well as preventing unjustified economic waste and -15- eFiled Lee County Clerk of Courts Page 15 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. degradation of the dwelling premises. 56. PTI alleges that the public interest will not be disserved by the granting of specific performance or other equitable relief, and in fact, that the public interest will be enhanced by preserving the sanctity of contracts as well as preserving PTI’s access to competitive pricing of reinsurance, and preserving and maintaining PTI’s ability to write coverage in the State of Florida at large. 57. In the event that the Court grants temporary mandatory injunctive relief in the alternative to specific performance, PTI is prepared to post reasonable bond pursuant to Rule 1.610(b) in an amount determined by the court. 58. PTI has a clear right of relief and substantial likelihood of prevailing on the merits based upon the following indisputable facts: PTI made a timely inspection of the insured’s dwelling structure; PTI timely notified the insured of its coverage determination and invocation of election-to-repair by its preferred contractor who is prepared to restore the loss to its pre- loss condition in a commercially reasonable manner consistent with prevailing community standards and pursuant to the conditions set forth in the E023 Endorsement; PTI timely notified the insured of its acceptance of the appraisal award and estimated scope of repair setting forth the framework for restoration of the insured dwelling and property to its pre-loss condition. 59. PTI has a clear legal and equitable right to enforce the terms and conditions of the Policy and the newly formed “Drew” repair contract and may not be coerced by the refusal of the -16- eFiled Lee County Clerk of Courts Page 16 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. insured to comply with the insuring agreement into waiving its election-to-repair. 60. PTI has performed all conditions precedent to the maintenance of this action. WHEREFORE, Plaintiff PEOPLE'S TRUST INSURANCE COMPANY demands the following relief: A. That this Court enter an order granting specific performance compelling the insured’s compliance with PTI's election-to-repair and restore the dwelling to its pre-loss condition pursuant to the scope of repair set forth in the appraisal award’s estimate; and/or B. That upon entry of equitable relief, this Court abate the pending action and reserve jurisdiction to enter such further orders as may be required to enforce the Court 's issuance of legal or equitable relief, or consistent with the court’s declaration of the parties' rights and obligations; and C. For an award of reasonable costs and such other and further relief as this Honorable Court deems just and proper. COUNT II FOR DECLARATORY RELIEF Plaintiff PEOPLE'S TRUST INSURANCE COMPANY readopts and realleges paragraphs 1 through 32 above as if fully set forth herein, and further states: 61. This is an action in the alternative to Count I, for declaratory relief pursuant to Florida Statutes Chapter 86 and the court's general equity powers to declare the parties’ rights and obligations arising from the terms and conditions of the insurance policy and related writings, and governing statutes. 62. PTI wants all parties to be in compliance with the terms and conditions of the -17- eFiled Lee County Clerk of Courts Page 17 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. insurance policy, as well as the legal and proper interpretation of any other writing material to this cause, including the election-to-repair and exhibits and writings attached hereto. 63. PTI has a manifest good faith belief in its interpretation of the insurance policy and related writings, and alleges that its interpretation is correct, and creates no ambiguity in regard to Policy meaning or interpretation and, as such, PTI is entitled to a declaration and application in its favor and in favor of the creation of a newly formed (Drew) repair contract, including its right to select its preferred contractor and move forward with repair and restoration of the insured dwelling pursuant to the appraisal award dated January 19, 2024 and estimated scope of repair dated December 22, 2023 rendered by the appraisal panel. 64. PTI has a manifest good faith belief in its interpretation of the insurance policy and related writings, and alleges that its interpretation is correct, and creates no ambiguity in regard to Policy meaning or interpretation and, as such, PTI is entitled to a declaration and application in its favor and in favor of the creation of a newly formed (Drew) repair contract, including its right to select its preferred contractor and move forward with repair of the covered loss in a commercially reasonable manner. 65. PTI has been made unsure by virtue of the actions of omission or commission of the insured and designated claims agents, as to their rights, obligations and duties in regard to the subject policy and the various writings attached hereto. 66. PTI has been made unsure by virtue of the actions of commission or omission of -18- eFiled Lee County Clerk of Courts Page 18 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. the insured and designated claims agent, as to its rights, obligations and duties in regard to its election-to-repair. 67. PTI wishes all parties to be in full compliance with the subject insurance policy and Florida law, and as to any contracts to which it is party or intended third party beneficiary or obligee, and therefore has present and actual need for this Court’s declaration and application of law to the facts as determined by the finder of the fact of the present controversy. 68. Declaratory relief is just and proper to determine the duties, rights and obligations of the parties in the context of PTI’s election-to-repair based upon the Court’s declaration as to the terms, conditions, exclusions and limitations of the subject insurance policy and endorsements thereto as applied to existing law. 69. Declaratory relief is proper to determine the rights and duties of the parties herein in regard to the context of the parties’ obligations regarding the insurance claim. 70. Declaratory relief is proper to determine and obtain the Court’s declaration as to whether the insured had an obligation to comply with PTI’s election-to-repair to restore the dwelling to its pre-loss condition to be performed by PTI's selected preferred contractor. 71. Declaratory relief is proper to determine and obtain the Court’s declaration as to whether the insured had an obligation to comply with PTI’s election-to-repair and return of some form of signed work authorization specifying acceptance of the appraisal panel's estimate as a condition precedent to commencement of repairs by PTI’s selected preferred contractor. -19- eFiled Lee County Clerk of Courts Page 19 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. 72. Declaratory relief is proper to determine and obtain the Court’s declaration as to whether the insured had an obligation to comply with contractual obligations applicable to the subject deductible as a condition precedent to commencement of repairs by PTI’s selected preferred contractor. 73. Declaratory relief is proper to determine and obtain the Court’s declaration as to whether the insured’s omnibus failure to comply with PTI’s election-to-repair, constituted material breach of the insuring agreement and the newly formed “Drew” repair contract, thus voiding PTI's further obligations under the insuring agreement or the newly formed “Drew” contract. 74. Declaratory relief is proper to determine and obtain the Court’s declaration as to whether the insured’s failure to return some form of signed work authorization, constituted material breach of the insuring agreement and the newly formed “Drew” repair contract, thus voiding PTI's further obligations under the insuring agreement or the newly formed “Drew” contract. 75. PTI genuinely believes that the terms and conditions of the insuring agreement required the insured to furnish a written work authorization in writing to PTI’s designated preferred contractor subsequent to the rendition of the appraisal award, and that the insured’s ignoring of this post-award request has made PTI unsure of their rights, obligations and duties under the Policy and the exercise of its election-to-repair (Drew) agreement. 76. Declaratory relief is proper to determine and obtain the Court’s declaration as to -20- eFiled Lee County Clerk of Courts Page 20 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. whether the insured was required to pay to the selected preferred contractor the amount of the applicable hurricane deductible, or in the alternative, to make arrangements for financing of the subject deductible, or any remaining unpaid balance thereof, pursuant to the subject policy’s Section I post-loss duties as a condition precedent to performance of repair, and if so, whether such failure if any, should act as a legal bar to recovery for claim No. CFL22595756. 77. Declaratory relief is proper to determine and obtain the Court’s declaration as to whether the insured substantially complied with PTI's election-to-repair, and whether such failure if any, should act as a legal bar to recovery for claim No. CFL22595756. 78. Declaratory relief is proper to determine and obtain the Court’s declaration as to whether the insured’s failure to unequivocally agree to allow the preferred contractor to proceed with repair, or the insured's demand for tender of payment of the amount of the appraisal award or such other amount of loss, constituted material breach of the insuring agreement and the “Drew” repair contract, such repudiation being in material breach, and acting as a legal bar to any recovery by the insured arising from the subject claim; 79. Pursuant to the Declaratory Judgment Statutes, the Court has the jurisdiction and power to construe relations that are affected by the construction of any contracts or writings, and issue a declaratory decree/judgment in regard to same. 80. The actions by way of commission or omission of the insured and designated claims agent, have created genuine doubt or uncertainty as to PTI's rights or status under the -21- eFiled Lee County Clerk of Courts Page 21 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. subject insurance policy, the election-to-repair “Drew” contract, and its rights and obligations regarding all documents reference herein. 81. PTI is entitled to have removed by judicial decree, all doubts raised by the actions of omission or commission by insured, and in particular, concerning whether the parties to the insurance contract, their designated agents and assigns, have complied with the duties imposed upon them under the subject insurance policy consistent with prevailing law. 82. Accordingly, PTI has filed this request for declaratory relief seeking the Court's declaration as to the policy of insurance and all writings attached hereto, as well as Florida law, and ask that the Court retain jurisdiction of this matter thereafter. WHEREFORE, PEOPLE'S TRUST INSURANCE COMPANY prays this Honorable Court take jurisdiction of this matter in regard to the following: A. for a declaration of the parties' rights, duties and obligations under the documents and writings referenced herein; B. declaring that the insured is required to execute some post-appraisal award writing authorizing PTI’s preferred contractor and any required subcontractors to enter upon the insured dwelling and property for performance of covered repairs pursuant to the appraisal panel’s award as to the scope of covered repairs; C. declaring that the insured is required to make payment of the applicable hurricane deductible to PTI or its preferred contractor or to make suitable and acceptable arrangements for payment of same as a condition precedent to performance of covered repairs pursuant to the appraisal panel’s award as to the scope of covered repairs; D. declaring that PTI’s preferred contractor is entitled to perform covered repairs in a commercially reasonable manner, consistent with the customs and practices of licensed contractors performing similar repairs and restoration projects in County, Florida; -22- eFiled Lee County Clerk of Courts Page 22 People's Trust Insurance Company vs. Jacquelin Joseph Complaint for Specific Performance etc. et al Case No. E. In the alternative, declaring that the insured’s failure to unequivocally agree to allow the preferred contractor and any required subcontractors to proceed with repair, or the insured's demand for tender of payment of the amount of the appraisal award or such other amount of loss, constituted material breach of the insuring agreement and the “Drew” repair contract, such repudiation being in material breach, and acting as a legal bar to any recovery by the insured arising from the subject claim; F. for a reservation of jurisdiction to enter such further orders as may be required to enforce the Court 's declaration of the parties' rights and obligations; and G. for an award of such other and further relief as this Court deems just, proper and equitable. DEMAND FOR JURY TRIAL PEOPLE'S TRUST INSURANCE COMPANY demands a jury trial for all issues triable as a matter of right by a jury. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing will be served by ORIGINAL PROCESS on the Defendant(s) named herein. By: s/Jonathan M. Sabghir, Esq. Florida Bar Number: 394696 People's Trust Insurance Company 18 People’s Trust Way, Ste. 100 Deerfield Beach, FL 33441 Tel: 561-417-1200 EserviceJMS@pti.insure pcunningham@pti.insure jsabghir@pti.insure jsabghir@gmail.com -23- eFiled Lee County Clerk of Courts Page 23 Sent: Wednesday, November 23, 2022 4:18 PM To: JOSEPHJACQUELIN1958@GMAIL.COM Subject: What to Expect Claim #CFL22595756 To help protect y our priv acy , Microsoft O ffice prev ented automatic download of this picture from the Internet. JACQUELINE JOSEPH Thank you for contacting People’s Trust Insurance and advising us of your recent claim. We understand that loss or damage to your property can be a frustrating and difficult experience. Our team is here to assist you and we strive to make the claims pr