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Filing # 31653315 E-Filed 09/02/2015 08:47:41 PM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY, FLORIDA
MARIA BARBAT, CASE NO.: CACE 15-013511 DIV 25
Plaintiff,
v.
UNITED PROPERTY & CASUALTY
INSURANCE COMPANY, INC.,
Defendant.
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
TO PLAINTIFF’S COMPLAINT
Defendant, UNITED PROPERTY & CASUALTY INSURANCE COMPANY, (“UPC
INSURANCE”), by and through undersigned counsel, pursuant to Fla. R. Civ. Pro. 1.110 and
1.140, hereby serves its Answer and Affirmative Defenses to Plaintiff's Complaint, and to each
and every allegation contained therein, states as follows:
L_ANSWER
1, Denied. Plaintiffs claim is under the jurisdictional amount of $15,000.00 at the
time of filing the Complaint, thus this Court is without jurisdiction to adjudicate Plaintiff’s claim.
Accordingly, this case must be transferred to County Court.
2. Admitted for jurisdictional purposes only.
3. Admitted that UPC INSURANCE is a properly licensed and qualified insurance
carrier engaged in the business of insurance within the State of Florida, including Broward
County, and fully complies with all regulations, statutes and laws governing insurance within the
State of Florida.
4. Admitted for jurisdictional purposes only.
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/2/2015 8:47:42 PM.****CASE NO.: CACE 15-013511
Page 2
5. Denied as stated herein and as alleged in the Defendant’s Affirmative Defenses.
BREACH OF CONTRACT FOR COVERED DAMAGES
Defendant hereby re-alleges its responses to Paragraphs 1-5 as if fully contained herein.
6. Admitted that UPC INSURANCE received a claim for damage to the insured
premises on or about May 14, 2015, with a purported date of loss of May 13, 2015. Denied that
Plaintiff's property sustained any greater covered damages than previously acknowledged by
UPC INSURANCE.
7. Admitted that UPC INSURANCE issued homeowner’s policy number
UHC6265952 (the “Policy”) to Maria Barbat for the property located at 5315 NW 93" Ave,
Sunrise, FL 33351 and that the Policy provides coverage for damages to the insured premises as
a result of a “covered” risk, but then only subject to the Policy’s terms, limitations, conditions
and exclusions. Denied that Plaintiff does not have a copy of the Policy. Moreover, Plaintiff's
allegation that the subject policy is not in the possession of Plaintiff, and therefore not attached
to the Complaint, creates an omission designed to deprive this Court of the opportunity to
enforce the conditions precedent to suit set forth in the Policy.
8. Admitted that the Policy provides coverage for damages to the insured premises
as a result of a “covered” risk, but then only subject to the Policy’s terms, limitations, conditions
and exclusions.
9. Denied as stated herein and as alleged in the Defendant’s Affirmative Defenses.
10. Denied.
ll. Admitted that the Policy provides coverage for damages to the insured premises
as a result of a “covered” risk, but then only subject to the Policy’s terms, limitations,CASE NO.: CACE 15-013511
Page 3
conditions and exclusions.
12. Denied.
13. Denied.
14. Denied.
15. Denied.
I AFFIRMATIVE DEFENSES
1. UPC INSURANCE affirmatively avers that this Court is without subject matter
jurisdiction. Specifically, Plaintiff’s claim is under the jurisdictional amount of $15,000.00 at
the time of filing the Complaint, thus this Court is without jurisdiction to adjudicate Plaintiff's
claim. Accordingly, this case must be transferred to County Court.
2. Plaintiff's claim is limited to the terms and conditions of the subject insurance
policy issued by UPC INSURANCE bearing number UHC6265952. UPC INSURANCE
affirmatively avers that the subject Policy specifically excludes coverage for Plaintiff’s losses
caused by any of the following:
(1) Wear and tear, marring, deterioration;
(2) Inherent vice, latent defect, mechanical breakdown;
(3) Smog, rust or other corrosion, mold, wet or dry rot;
To the extent that any claimed damages fall within these exclusions, they are not covered
by the Policy. Specifically, UPC INSURANCE conducted an inspection of the subject property
and discovered mechanical damages to the drywall in the garage, long-term water damage to the
baseboards behind the washer and dryer; and water stains to the concrete slab. Further, long-term
deterioration was observed in the wood framing behind the already removed baseboards in the
living/dining area and also in the baseboards behind the washer and dryer. Thus, an exclusion toCASE NO.: CACE 15-013511
Page 4
coverage under the policy applies to the Plaintiff's alleged loss, as well as, the fact that Plaintiff
breached her post-loss obligations to timely inform UPC INSURANCE of the subject damage.
3. UPC INSURANCE affirmatively avers that the Policy excludes from coverage:
Faulty, inadequate or defective:
(1) Planning, zoning, development, surveying, siting;
(2) Design, specifications, workmanship, repair, construction, renovation,
remodeling, grading, compaction;
(3) Materials used in repair, construction, renovation or remodeling; or
(4) Maintenance
To the extent that any claimed damages fall within these exclusions, they are not covered.
Specifically, UPC INSURANCE’s inspection revealed mechanical damage to the concrete slab,
damage to the tile floor and to the drywall. There was visible evidence of water damage to the
removed baseboards, the exposed wood framing behind the baseboards showed long-term water
damage, and water stains to the concrete slab. The visible long-term damage establishes
damage that had been occurring for an extended period of time. Any repairs made or materials
used to repairs such damages were faulty, inadequate or defective as the Plaintiff accepted
undisputed amounts to repair damaged items to their pre-loss condition, however, Plaintiff now
files this lawsuit for additional payment beyond those previously tendered to her. Thus, an
exclusion to coverage under the policy exists or Plaintiff has breached the post-loss conditions.
4. UPC INSURANCE affirmatively avers that the Policy excludes from coverage:
(9) Constant or repeated seepage or leakage of water or the presence of
condensation of humidity, moisture or vapor, over a period of weeks,
months or years; unless:
(a) Such seepage or leakage of water or the presence or condensate of
humidity, moisture or vapor and the resulting damage is unknown to all
“insureds”; and
(b) is hidden within the walls or ceilings or beneath the floors or above the
ceilings of a structure.
To the extent that any claimed damages fall within these exclusions, they are not coveredCASE NO.: CACE 15-013511
Page 5S
by the Policy. Specifically, UPC INSURANCE’s inspection clearly revealed long-term
damage. Any damage that occurred as result of continued or constant seepage or leakage of
water over a period of weeks, months, or years which was not unknown to Plaintiff. Thus, an
exclusion to coverage under the policy applies to Plaintiff’s loss. Further, Plaintiff breached
their post-loss obligation to timely inform UPC INSURANCE of the subject damage.
5. UPC INSURANCE affirmatively avers that the Policy excludes coverage from
loss caused by neglect, meaning neglect by Plaintiff to use all reasonable means to save and
preserve property at and after the time of loss.
a. Protect their property from further damage,
b. Make reasonable and necessary repairs to protect the property;
c. Keep an accurate record of repair expenses;
d. Prepare an inventory of damaged personal property showing the quantity,
description, actual cash value and amount of loss;
e. Attach all bills, receipts, and related documents that justify the figures in the
personal property inventory;
f. Show the damaged property before destroying the evidence of any actual
damages;
g. Provide United Property with records and documents United Property’ requests
and permit United Property to make copies; or
h Keep or provide receipts for additional living expenses incurred.
Plaintiff's loss is excluded from coverage caused by her neglect. The water damage
incurred at the subject property was not the result of a single, current incident, but the result of
long-term water seepage. Thus, it is clear that Plaintiff failed to protect her property from further
damage, make reasonable repairs to protect the property, and keep any records of any repairs.
Thus, an exclusion to coverage exists. Further, Plaintiff beached post-loss obligations as she
failed to timely notify UPC INSURANCE and failed to protect her property from further
damage.
6. Plaintiff’s claim is limited to the terms and conditions of the insurance policy
issued by Defendant bearing number UHC6265952. Specifically, and as set forth in the subjectCASE NO.: CACE 15-013511
Page 6
policy, Plaintiff is not entitled to recover damages against UPC INSURANCE because, even
assuming arguendo, UPC INSURANCE failed to preform its duties pursuant to terms and
conditions of the subject policy, it was relived of any such duties pursuant to the terms and
conditions of the subject policy, it was relieved of any such duties as a result of Plaintiff’s prior
breach. As expressly set forth in the subject policy and discussed in Defendant’s Affirmative
Defenses, Plaintiff's breach of the post-loss conditions relieved UPC INSURANCE from any
and all liability.
7, Plaintiffs failure to preserve evidence of her actual damaged property, or by
allowing such evidence to become spoiled, constitutes a waiver of their right to seek relief based
on those same damages.
8. Plaintiff's acceptance of undisputed payment by UPC INSURANCE for her
claims is now barred by the doctrine of accord and satisfaction, as well as, waiver and release.
9. Plaintiff failed to comply with conditions precedent. Specifically, pursuant to the
subject Policy, UPC INSURANCE must be timely notified of damages to the subject property.
In this case, Plaintiff failed to provide timely notice to UPC INSURANCE of the subject
damage.
10. UPC INSURANCE is entitled to a set-off based on prior undisputed payments
made to Plaintiff, and from any amounts recovered by Plaintiff for the damages in which he
alleges are owed as a result of the subject loss.
ll Plaintiff's claim for pre-judgement interest, as well as breach contract, is
procedurally premature. Specifically, section 627.70131, Florida Statutes, provides that within
90 days after an insurer receives notice of an initial, reopened, or supplemental property
insurance claim from a policyholder, the insurer shall pay or deny such claim or a portion of theCASE NO.: CACE 15-013511
Page 7
claim unless the failure to pay is caused by factors beyond the control of the insurer which
reasonably prevent such payment See Tower Hill Select Ins. Co. v. McKee, 151 So. 3d 2, 4 (Fla.
2d DCA 2014), reh'g granted (Oct. 27, 2014), review denied, 163 So. 3d 511 (Fla. 2015).
Specifically, Plaintiff's breach of contract claim is based on her allegation that Defendant failed
to pay Plaintiff's claim within 90 days from notification. However, Defendant was notified on
May 14, 2015. Plaintiff filed her Complaint on July 30, 2015. Ninety days from May 14, 2015,
is August 12, 2015, not July 30, 2015. Thus, by Plaintiff's own admission, Plaintiff is not
entitled to pre-judgment interest or her breach of contract claim.
Respectfully submitted,
s/Gregory P_ McMahon
GREGORY P. MCMAHON
Florida Bar No.: 0149977CASE NO.: CACE 15-013511
Page 8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2" day of September, 2015, a true and correct copy
hereof was e-filed and served via E-Mail to: Andres J. Correa, Esq.,
courtmail @jcmlawgroup.com
KOLEOS, ROSENBERG & McMAHON, PL
717 N. Magnolia Avenue
Orlando, Florida 32803
Telephone: (407) 637-8788
Facsimile: (407) 637-8789
s/Gregory P_ McMahon
GREGORY P. MCMAHON
Florida Bar No.: 0149977
Email: gom@krmlegalgroup.com
ANGELA M. DOMENECH
Florida Bar No.: 0050583
Email: amd@krmlegalgroup.com
Counsel for United Property
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Filing # 31653315 E-Filed 09/02/2015 08:47:41 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA MARIA BARBAT, CASE NO.: CACE 15-013511 DIV 25 Plaintiff, v. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, INC., Defendant. DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT Defendant, UNITED PROPERTY & CASUALTY INSURANCE COMPANY, (“UPC INSURANCE”), by and through undersigned counsel, pursuant to Fla. R. Civ. Pro. 1.110 and 1.140, hereby serves its Answer and Affirmative Defenses to Plaintiff's Complaint, and to each and every allegation contained therein, states as follows: L_ANSWER 1, Denied. Plaintiffs claim is under the jurisdictional amount of $15,000.00 at the time of filing the Complaint, thus this Court is without jurisdiction to adjudicate Plaintiff’s claim. Accordingly, this case must be transferred to County Court. 2. Admitted for jurisdictional purposes only. 3. Admitted that UPC INSURANCE is a properly licensed and qualified insurance carrier engaged in the business of insurance within the State of Florida, including Broward County, and fully complies with all regulations, statutes and laws governing insurance within the State of Florida. 4. Admitted for jurisdictional purposes only. *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/2/2015 8:47:42 PM.****CASE NO.: CACE 15-013511 Page 2 5. Denied as stated herein and as alleged in the Defendant’s Affirmative Defenses. BREACH OF CONTRACT FOR COVERED DAMAGES Defendant hereby re-alleges its responses to Paragraphs 1-5 as if fully contained herein. 6. Admitted that UPC INSURANCE received a claim for damage to the insured premises on or about May 14, 2015, with a purported date of loss of May 13, 2015. Denied that Plaintiff's property sustained any greater covered damages than previously acknowledged by UPC INSURANCE. 7. Admitted that UPC INSURANCE issued homeowner’s policy number UHC6265952 (the “Policy”) to Maria Barbat for the property located at 5315 NW 93" Ave, Sunrise, FL 33351 and that the Policy provides coverage for damages to the insured premises as a result of a “covered” risk, but then only subject to the Policy’s terms, limitations, conditions and exclusions. Denied that Plaintiff does not have a copy of the Policy. Moreover, Plaintiff's allegation that the subject policy is not in the possession of Plaintiff, and therefore not attached to the Complaint, creates an omission designed to deprive this Court of the opportunity to enforce the conditions precedent to suit set forth in the Policy. 8. Admitted that the Policy provides coverage for damages to the insured premises as a result of a “covered” risk, but then only subject to the Policy’s terms, limitations, conditions and exclusions. 9. Denied as stated herein and as alleged in the Defendant’s Affirmative Defenses. 10. Denied. ll. Admitted that the Policy provides coverage for damages to the insured premises as a result of a “covered” risk, but then only subject to the Policy’s terms, limitations,CASE NO.: CACE 15-013511 Page 3 conditions and exclusions. 12. Denied. 13. Denied. 14. Denied. 15. Denied. I AFFIRMATIVE DEFENSES 1. UPC INSURANCE affirmatively avers that this Court is without subject matter jurisdiction. Specifically, Plaintiff’s claim is under the jurisdictional amount of $15,000.00 at the time of filing the Complaint, thus this Court is without jurisdiction to adjudicate Plaintiff's claim. Accordingly, this case must be transferred to County Court. 2. Plaintiff's claim is limited to the terms and conditions of the subject insurance policy issued by UPC INSURANCE bearing number UHC6265952. UPC INSURANCE affirmatively avers that the subject Policy specifically excludes coverage for Plaintiff’s losses caused by any of the following: (1) Wear and tear, marring, deterioration; (2) Inherent vice, latent defect, mechanical breakdown; (3) Smog, rust or other corrosion, mold, wet or dry rot; To the extent that any claimed damages fall within these exclusions, they are not covered by the Policy. Specifically, UPC INSURANCE conducted an inspection of the subject property and discovered mechanical damages to the drywall in the garage, long-term water damage to the baseboards behind the washer and dryer; and water stains to the concrete slab. Further, long-term deterioration was observed in the wood framing behind the already removed baseboards in the living/dining area and also in the baseboards behind the washer and dryer. Thus, an exclusion toCASE NO.: CACE 15-013511 Page 4 coverage under the policy applies to the Plaintiff's alleged loss, as well as, the fact that Plaintiff breached her post-loss obligations to timely inform UPC INSURANCE of the subject damage. 3. UPC INSURANCE affirmatively avers that the Policy excludes from coverage: Faulty, inadequate or defective: (1) Planning, zoning, development, surveying, siting; (2) Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; (3) Materials used in repair, construction, renovation or remodeling; or (4) Maintenance To the extent that any claimed damages fall within these exclusions, they are not covered. Specifically, UPC INSURANCE’s inspection revealed mechanical damage to the concrete slab, damage to the tile floor and to the drywall. There was visible evidence of water damage to the removed baseboards, the exposed wood framing behind the baseboards showed long-term water damage, and water stains to the concrete slab. The visible long-term damage establishes damage that had been occurring for an extended period of time. Any repairs made or materials used to repairs such damages were faulty, inadequate or defective as the Plaintiff accepted undisputed amounts to repair damaged items to their pre-loss condition, however, Plaintiff now files this lawsuit for additional payment beyond those previously tendered to her. Thus, an exclusion to coverage under the policy exists or Plaintiff has breached the post-loss conditions. 4. UPC INSURANCE affirmatively avers that the Policy excludes from coverage: (9) Constant or repeated seepage or leakage of water or the presence of condensation of humidity, moisture or vapor, over a period of weeks, months or years; unless: (a) Such seepage or leakage of water or the presence or condensate of humidity, moisture or vapor and the resulting damage is unknown to all “insureds”; and (b) is hidden within the walls or ceilings or beneath the floors or above the ceilings of a structure. To the extent that any claimed damages fall within these exclusions, they are not coveredCASE NO.: CACE 15-013511 Page 5S by the Policy. Specifically, UPC INSURANCE’s inspection clearly revealed long-term damage. Any damage that occurred as result of continued or constant seepage or leakage of water over a period of weeks, months, or years which was not unknown to Plaintiff. Thus, an exclusion to coverage under the policy applies to Plaintiff’s loss. Further, Plaintiff breached their post-loss obligation to timely inform UPC INSURANCE of the subject damage. 5. UPC INSURANCE affirmatively avers that the Policy excludes coverage from loss caused by neglect, meaning neglect by Plaintiff to use all reasonable means to save and preserve property at and after the time of loss. a. Protect their property from further damage, b. Make reasonable and necessary repairs to protect the property; c. Keep an accurate record of repair expenses; d. Prepare an inventory of damaged personal property showing the quantity, description, actual cash value and amount of loss; e. Attach all bills, receipts, and related documents that justify the figures in the personal property inventory; f. Show the damaged property before destroying the evidence of any actual damages; g. Provide United Property with records and documents United Property’ requests and permit United Property to make copies; or h Keep or provide receipts for additional living expenses incurred. Plaintiff's loss is excluded from coverage caused by her neglect. The water damage incurred at the subject property was not the result of a single, current incident, but the result of long-term water seepage. Thus, it is clear that Plaintiff failed to protect her property from further damage, make reasonable repairs to protect the property, and keep any records of any repairs. Thus, an exclusion to coverage exists. Further, Plaintiff beached post-loss obligations as she failed to timely notify UPC INSURANCE and failed to protect her property from further damage. 6. Plaintiff’s claim is limited to the terms and conditions of the insurance policy issued by Defendant bearing number UHC6265952. Specifically, and as set forth in the subjectCASE NO.: CACE 15-013511 Page 6 policy, Plaintiff is not entitled to recover damages against UPC INSURANCE because, even assuming arguendo, UPC INSURANCE failed to preform its duties pursuant to terms and conditions of the subject policy, it was relived of any such duties pursuant to the terms and conditions of the subject policy, it was relieved of any such duties as a result of Plaintiff’s prior breach. As expressly set forth in the subject policy and discussed in Defendant’s Affirmative Defenses, Plaintiff's breach of the post-loss conditions relieved UPC INSURANCE from any and all liability. 7, Plaintiffs failure to preserve evidence of her actual damaged property, or by allowing such evidence to become spoiled, constitutes a waiver of their right to seek relief based on those same damages. 8. Plaintiff's acceptance of undisputed payment by UPC INSURANCE for her claims is now barred by the doctrine of accord and satisfaction, as well as, waiver and release. 9. Plaintiff failed to comply with conditions precedent. Specifically, pursuant to the subject Policy, UPC INSURANCE must be timely notified of damages to the subject property. In this case, Plaintiff failed to provide timely notice to UPC INSURANCE of the subject damage. 10. UPC INSURANCE is entitled to a set-off based on prior undisputed payments made to Plaintiff, and from any amounts recovered by Plaintiff for the damages in which he alleges are owed as a result of the subject loss. ll Plaintiff's claim for pre-judgement interest, as well as breach contract, is procedurally premature. Specifically, section 627.70131, Florida Statutes, provides that within 90 days after an insurer receives notice of an initial, reopened, or supplemental property insurance claim from a policyholder, the insurer shall pay or deny such claim or a portion of theCASE NO.: CACE 15-013511 Page 7 claim unless the failure to pay is caused by factors beyond the control of the insurer which reasonably prevent such payment See Tower Hill Select Ins. Co. v. McKee, 151 So. 3d 2, 4 (Fla. 2d DCA 2014), reh'g granted (Oct. 27, 2014), review denied, 163 So. 3d 511 (Fla. 2015). Specifically, Plaintiff's breach of contract claim is based on her allegation that Defendant failed to pay Plaintiff's claim within 90 days from notification. However, Defendant was notified on May 14, 2015. Plaintiff filed her Complaint on July 30, 2015. Ninety days from May 14, 2015, is August 12, 2015, not July 30, 2015. Thus, by Plaintiff's own admission, Plaintiff is not entitled to pre-judgment interest or her breach of contract claim. Respectfully submitted, s/Gregory P_ McMahon GREGORY P. MCMAHON Florida Bar No.: 0149977CASE NO.: CACE 15-013511 Page 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 2" day of September, 2015, a true and correct copy hereof was e-filed and served via E-Mail to: Andres J. Correa, Esq., courtmail @jcmlawgroup.com KOLEOS, ROSENBERG & McMAHON, PL 717 N. Magnolia Avenue Orlando, Florida 32803 Telephone: (407) 637-8788 Facsimile: (407) 637-8789 s/Gregory P_ McMahon GREGORY P. MCMAHON Florida Bar No.: 0149977 Email: gom@krmlegalgroup.com ANGELA M. DOMENECH Florida Bar No.: 0050583 Email: amd@krmlegalgroup.com Counsel for United Property