Preview
Filing # 32493463 E-Filed 09/25/2015 11:50:53 AM
151825/4
IN THE CIRCUIT COURT OF THE 17 JUDICIAL
CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. CACE-15-013643
JUAN AQUINO and ROSARIO AQUINO,
Plaintiffs,
Vv.
OLYMPUS INSURANCE COMPANY,
Defendant.
/
DEFENDANT'S ANSWER WITH AFFIRMATIVE DEFENSES TO PLAINTIFFS’
COMPLAINT
COMES NOW, Defendant, OLYMPUS INSURANCE COMPANY (hereinafter
“OLYMPUS’), by and through the undersigned counsel, and hereby files this, its Answer
with Affirmative Defenses to Plaintiffs’ Complaint and responds to the consecutively
numbered paragraphs in the Complaint as follows:
1. That as to paragraph 1 of Plaintiffs’ Complaint, OLYMPUS admits the
allegations for jurisdictional purposes only.
2. That as to Paragraph 2 of Plaintiffs’ Complaint, OLYMPUS is without
specific knowledge as to Plaintiffs’ residency, and therefore denies the allegations made
and demands strict proof thereof.
3. That as to Paragraph 3 of Plaintiffs’ Complaint, OLYMPUS admits the
allegations for jurisdictional purposes only.
4, That as to Paragraph 4 of Plaintiffs’ Complaint, OLYMPUS is without
specific knowledge as to Plaintiffs’ ownership of said property, and therefore denies the
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/25/2015 11:50:53 AM.****CASE NO. CACE-15-013643
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
allegations made and demands strict proof thereof.
5. That as to Paragraph 5 of Plaintiffs’ Complaint, OLYMPUS admits only
that it assumed a policy of insurance issued by Citizens Property Insurance Corporation
to Plaintiffs, bearing policy number FRJP7002058-01-00, with effective dates of
coverage from June 3, 2014 to June 3, 2015, pertaining to the property located at 26
Northeast 1* Court, Unit 28, Dania Beach, Florida 33004, and subject to all of the
policy’s terms, limitations, conditions, exclusions and deductible provisions. OLYMPUS
also admits that it is in possession of a copy of the Policy.
6. That as to Paragraph 6 of Plaintiffs’ Complaint, OLYMPUS admits only
that it assumed a policy of insurance issued by Citizens Property Insurance Corporation
to Plaintiffs, bearing policy number FRJP7002058-01-00, with effective dates of
coverage from June 3, 2014 to June 3, 2015, pertaining to the property located at 26
Northeast 1* Court, Unit 28, Dania Beach, Florida 33004, and subject to all of the
policy’s terms, limitations, conditions, exclusions and deductible provisions.
7. That as to Paragraph 7 of Plaintiffs’ Complaint, OLYMPUS admits only
that it assumed a policy of insurance issued by Citizens Property Insurance Corporation
to Plaintiffs, bearing policy number FRJP7002058-01-00, with effective dates of
coverage from June 3, 2014 to June 3, 2015, pertaining to the property located at 26
Northeast 1° Court, Unit 28, Dania Beach, Florida 33004, and subject to all of the
policy’s terms, limitations, conditions, exclusions and deductible provisions.CASE NO. CACE-15-013643
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
8. That as to Paragraph 8 of Plaintiffs’ Complaint, OLYMPUS admits only
that a claim was made for a loss reportedly occurring on January 21, 2015 at the
property located at 26 Northeast 4° Court, Unit 28, Dania Beach, Florida 33004,
purportedly as a result of a failed plumbing system, and that OLYMPUS assigned claim
number OLCP15010081 to same.
9. That as to Paragraph 9 of Plaintiffs’ Complaint, OLYMPUS denies the
allegations and demands strict proof thereof.
10. That as to Paragraph 10 of Plaintiffs’ Complaint, OLYMPUS denies the
allegations and demands strict proof thereof.
11. That as to Paragraph 11 of Plaintiffs’ Complaint, OLYMPUS denies the
allegations and demands strict proof thereof.
12. That as to Paragraph 12 of Plaintiffs’ Complaint, OLYMPUS denies the
allegations and demands strict proof thereof. Specifically, OLYMPUS denies that
Plaintiffs complied with all conditions precedent to the filing of this lawsuit, including but
not limited to their breach of conditions under the policy, such as their failure to provide
prompt notice of the loss and failure to protect the property from further damage.
13. That as to Paragraph 13 of Plaintiffs’ Complaint, OLYMPUS denies the
allegations and demands strict proof thereof.
14. All allegations not specifically admitted herein are hereby denied with strict
proof demanded thereof.CASE NO. CACE-15-013643
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
AFFIRMATIVE DEFENSES
15. FIRST AFFIRMATIVE DEFENSE:
The liability of OLYMPUS to Plaintiffs, if any, is limited by the terms and
conditions of the policy, including all exclusions, limitations and deductible provisions
contained therein.
16. SECOND AFFIRMATIVE DEFENSE:
OLYMPUS demands a set-off for any and all collateral sources paid or payable
to Plaintiffs as a result of the acts or events referred to in Plaintiffs’ Complaint.
17. THIRD AFFIRMATIVE DEFENSE:
OLYMPUS asserts that there is no coverage for Plaintiffs’ claim because the loss
was caused by perils not insured against under the insurance policy and/or is excluded
by the terms, conditions, limitations and exclusions of the insurance policy, which states
in pertinent part as follows:
SECTION | - PERILS INSURED AGAINST
COVERAGE A - DWELLING and COVERAGE B - OTHER
STRUCTURES
We insure against risk of direct loss to property described in
Coverages A and B only if that loss is a physical loss to property.
However, we do not insure loss:
2. Caused by:CASE NO. CACE-15-013643
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
g. Accidental discharge or overflow of water or steam;
Unless loss to property covered under Coverage A or B
results from an accidental discharge or overflow of water or
steam from within a plumbing, heating, air conditioning or
automatic fire protective sprinkler system or household
appliance on the Described Location.
Loss to property covered under Coverage A or B that
results from an accidental discharge or overflow of water or
steam from within a plumbing, heating, air conditioning or
automatic fire protective sprinkler system or household
appliance on the Described Location includes the cost to
tear out and replace any part of a building or other
structure covered under Coverage A or B, on the
Described Location, but only when necessary to repair the
system or appliance.
However, we do not cover:
(1) Loss to the system or appliance from which this water
or steam escaped;
(3) Loss caused by constant or repeated seepage or
leakage of water or steam, or the presence or
condensation of humidity, moisture or vapor which occurs
over a period of time, whether hidden or not and results in
damage such as wet or dry rot, “fungi,” deterioration, rust,
decay or other corrosion; or
(4) Loss otherwise excluded.
For purposes of this provision, a plumbing system or
household appliance does not include:
(1) A sump, sump pump, irrigation system or related
equipment; or
(2) A roof drain, gutter, down spout or similar fixtures or
equipment.CASE NO. CACE-15-013643
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
18. FOURTH AFFIRMATIVE DEFENSE:
OLYMPUS asserts that there is no coverage for Plaintiffs’ claim because the loss
was caused by perils not insured against under the insurance policy and/or is excluded
by the terms, conditions, limitations and exclusions of the insurance policy, which states
in pertinent part as follows:
SECTION | - PERILS INSURED AGAINST
COVERAGE A - DWELLING and COVERAGE B - OTHER
STRUCTURES
We insure against risk of direct loss to property described in
Coverages A and B only if that loss is a physical loss to property.
However, we do not insure loss:
2. Caused by:
j.: (1) Wear and tear, marring, deterioration;
(2) Inherent vice, latent defect, defect or mechanical
breakdown;
(3) Smog, rust, decay or other corrosion;
If any of these cause water damage not otherwise
excluded, from a plumbing, heating, air conditioning or
automatic fire sprinkler system or household appliance, we
cover loss caused by the water including the cost of tearing
out and replacing any part of a building covered under
Coverage A or B necessary to repair the system or
appliance.CASE NO. CACE-15-013643
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
We do not cover loss to the system or appliance from
which this water escaped.
For purposes of this provision, a plumbing system or
household appliance does not include:
(1) A sump, sump pump, irrigation system or related
equipment; or
(2) A roof drain, gutter, down spout or similar fixtures or
equipment.
3. Excluded under General Exclusions.
Under items 1. and 2., any ensuing loss to property
described in Coverages A and B not excluded or otherwise
excepted in this policy is covered.
19. FIFTH AFFIRMATIVE DEFENSE:
OLYMPUS asserts that Plaintiffs’ claim is excluded by the terms, conditions,
limitations and exclusions of the insurance policy, which states in pertinent part as
follows:
SECTION | - EXCLUSIONS
1. We do not insure for loss caused directly or indirectly by any of the
following. Such loss is excluded regardless of any other cause or
event contributing concurrently or in any sequence to the loss.
e. Neglect, meaning your or any other insured’s neglect to use
all reasonable means to save and preserve property at and
after the time of a loss.CASE NO. CACE-15-013643
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
20. SIXTH AFFIRMATIVE DEFENSE:
OLYMPUS asserts that Plaintiffs’ claim is excluded by the terms, conditions,
limitations and exclusions of the insurance policy, which states in pertinent part as
follows:
SECTION | - EXCLUSIONS
1. We do not insure for loss caused directly or indirectly by any of the
following. Such loss is excluded regardless of any other cause or
event contributing concurrently or in any sequence to the loss.
k. Existing Damage, meaning:
(1) Damages which occurred prior to policy inception
regardless of whether such damages were apparent at the
time of the inception of this policy or discovered at a later
date; or
(2) Claims or damages arising out of workmanship, repairs
or lack of repairs arising from damage which occurred prior
to policy inception.
21. SEVENTH AFFIRMATIVE DEFENSE:
OLYMPUS asserts that Plaintiffs’ claim is excluded by the terms, conditions,
limitations and exclusions of the insurance policy, which states in pertinent part as
follows:
SECTION | - EXCLUSIONS
1. We do not insure for loss caused directly or indirectly by any of the
following. Such loss is excluded regardless of any other cause or
event contributing concurrently or in any sequence to the loss.CASE NO. CACE-15-013643
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
I. Smog, Rust, Decay or Other Corrosion.
This policy does not include loss caused by smog, rust, decay or
other corrosion.
22. EIGHTH AFFIRMATIVE DEFENSE:
OLYMPUS asserts that Plaintiffs’ claim is excluded by the terms, conditions,
limitations and exclusions of the insurance policy, which states in pertinent part as
follows:
SECTION I - EXCLUSIONS
1. We do not insure for loss caused directly or indirectly by any of the
following. Such loss is excluded regardless of any other cause or
event contributing concurrently or in any sequence to the loss.
n. Constant or repeated seepage or leakage of water or
steam, or the presence of condensation or humidity,
moisture or vapor; which occurs over a period of time,
whether hidden or not and results in damage such as wet or
dry rot, “fungi,” deterioration, rust, decay or other corrosion.
23. NINTH AFFIRMATIVE DEFENSE:
OLYMPUS asserts that Plaintiffs’ claim is excluded by the terms, conditions,
limitations and exclusions of the insurance policy, which states in pertinent part as
follows:
SECTION | - EXCLUSIONSCASE NO. CACE-15-013643
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
2. We do not insure for loss to property described in Coverages
A and B caused by any of the following. However, any ensuing loss
to property described in Coverages A and B not otherwise
excluded or excepted in this policy is covered.
c. Faulty, inadequate or defective:
(2) Design, specifications, | workmanship, repair,
construction, renovation, remodeling, grading,
compaction;
(3) | Materials used in repair, construction, renovation or
remodeling; or
(4) Maintenance;
of part or all of any property whether on or off the Described
Location.
24. TENTH AFFIRMATIVE DEFENSE:
OLYMPUS asserts that coverage for Plaintiffs’ claim was subject to compliance
with the following conditions, which Plaintiffs did not satisfy and thus constituted a
breach of the insurance policy which precludes coverage:
SECTION | - CONDITIONS
4. Duties After Loss.
You must see that the following are done in the event of loss
or damage to covered property:
a. Give prompt notice to us or our agent;
10CASE NO. CACE-15-013643
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
b. Protect the property from further damage. If repairs to
the property are required, you must:
(1) | Make reasonable and necessary temporary
repairs to protect the property;
25. ELEVENTH AFFIRMATIVE DEFENSE:
Plaintiffs have failed to comply with all of the insurance contract's conditions
precedent to filing suit, and the lawsuit is therefore barred from the instant litigation
based upon the following policy condition:
SECTION | —- CONDITIONS
11. Suit Against Us.
No action can be brought against us; unless:
a. There has been full compliance with all of the terms of
this policy; and
b. The action is started within 5 years after the date of loss.
26. OLYMPUS reserves the right to assert any additional affirmative defenses
that may become known during discovery.
DEMAND FOR JURY TRIAL
27. OLYMPUS hereby demands trial by jury on all counts so triable.
11CASE NO. CACE-15-013643
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
WHEREFORE, Defendant, OLYMPUS INSURANCE COMPANY, respectfully
requests this Honorable Court dismiss with prejudice Plaintiffs’ Complaint and/or to
enter judgment in favor of OLYMPUS, and to further grant OLYMPUS’s reasonable
attorney's fees and costs pursuant to applicable or appropriate statute, law or Florida
Rule of Civil Procedure, and any other relief this Honorable Court deems just and
proper.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy hereof has been furnished by service through
the eportal to: Thomas J. Morgan, Jr., Esquire, The Morgan Law Group, P.A., 55
Merrick Way, Suite 404, Coral Gables, Florida 33134, Attorney for Plaintiffs, on this 25th
day of September, 2015.
CONROY | SIMBERG
Attorneys for Olympus Insurance Company
3440 Hollywood Boulevard, Second Floor
Hollywood, Florida 33021
Telephone: 954.961.1400
Facsimile: 954.967.8577
By: /s/A. Lizette Flores
A. Lizette Flores, Esquire
Florida Bar No. 892181
Primary Email: eservicehwd@conroysimberg
Secondary Email: Iflores@conroysimberg.com
Bianca R. Zuluaga, Esquire
Florida Bar No. 92175
Primary Email: eservicehwd@conroysimberg
Secondary Email: bzuluaga@conroysimberg.com
12
Preview
Filing # 32493463 E-Filed 09/25/2015 11:50:53 AM 151825/4 IN THE CIRCUIT COURT OF THE 17 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. CACE-15-013643 JUAN AQUINO and ROSARIO AQUINO, Plaintiffs, Vv. OLYMPUS INSURANCE COMPANY, Defendant. / DEFENDANT'S ANSWER WITH AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT COMES NOW, Defendant, OLYMPUS INSURANCE COMPANY (hereinafter “OLYMPUS’), by and through the undersigned counsel, and hereby files this, its Answer with Affirmative Defenses to Plaintiffs’ Complaint and responds to the consecutively numbered paragraphs in the Complaint as follows: 1. That as to paragraph 1 of Plaintiffs’ Complaint, OLYMPUS admits the allegations for jurisdictional purposes only. 2. That as to Paragraph 2 of Plaintiffs’ Complaint, OLYMPUS is without specific knowledge as to Plaintiffs’ residency, and therefore denies the allegations made and demands strict proof thereof. 3. That as to Paragraph 3 of Plaintiffs’ Complaint, OLYMPUS admits the allegations for jurisdictional purposes only. 4, That as to Paragraph 4 of Plaintiffs’ Complaint, OLYMPUS is without specific knowledge as to Plaintiffs’ ownership of said property, and therefore denies the *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/25/2015 11:50:53 AM.****CASE NO. CACE-15-013643 DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT allegations made and demands strict proof thereof. 5. That as to Paragraph 5 of Plaintiffs’ Complaint, OLYMPUS admits only that it assumed a policy of insurance issued by Citizens Property Insurance Corporation to Plaintiffs, bearing policy number FRJP7002058-01-00, with effective dates of coverage from June 3, 2014 to June 3, 2015, pertaining to the property located at 26 Northeast 1* Court, Unit 28, Dania Beach, Florida 33004, and subject to all of the policy’s terms, limitations, conditions, exclusions and deductible provisions. OLYMPUS also admits that it is in possession of a copy of the Policy. 6. That as to Paragraph 6 of Plaintiffs’ Complaint, OLYMPUS admits only that it assumed a policy of insurance issued by Citizens Property Insurance Corporation to Plaintiffs, bearing policy number FRJP7002058-01-00, with effective dates of coverage from June 3, 2014 to June 3, 2015, pertaining to the property located at 26 Northeast 1* Court, Unit 28, Dania Beach, Florida 33004, and subject to all of the policy’s terms, limitations, conditions, exclusions and deductible provisions. 7. That as to Paragraph 7 of Plaintiffs’ Complaint, OLYMPUS admits only that it assumed a policy of insurance issued by Citizens Property Insurance Corporation to Plaintiffs, bearing policy number FRJP7002058-01-00, with effective dates of coverage from June 3, 2014 to June 3, 2015, pertaining to the property located at 26 Northeast 1° Court, Unit 28, Dania Beach, Florida 33004, and subject to all of the policy’s terms, limitations, conditions, exclusions and deductible provisions.CASE NO. CACE-15-013643 DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT 8. That as to Paragraph 8 of Plaintiffs’ Complaint, OLYMPUS admits only that a claim was made for a loss reportedly occurring on January 21, 2015 at the property located at 26 Northeast 4° Court, Unit 28, Dania Beach, Florida 33004, purportedly as a result of a failed plumbing system, and that OLYMPUS assigned claim number OLCP15010081 to same. 9. That as to Paragraph 9 of Plaintiffs’ Complaint, OLYMPUS denies the allegations and demands strict proof thereof. 10. That as to Paragraph 10 of Plaintiffs’ Complaint, OLYMPUS denies the allegations and demands strict proof thereof. 11. That as to Paragraph 11 of Plaintiffs’ Complaint, OLYMPUS denies the allegations and demands strict proof thereof. 12. That as to Paragraph 12 of Plaintiffs’ Complaint, OLYMPUS denies the allegations and demands strict proof thereof. Specifically, OLYMPUS denies that Plaintiffs complied with all conditions precedent to the filing of this lawsuit, including but not limited to their breach of conditions under the policy, such as their failure to provide prompt notice of the loss and failure to protect the property from further damage. 13. That as to Paragraph 13 of Plaintiffs’ Complaint, OLYMPUS denies the allegations and demands strict proof thereof. 14. All allegations not specifically admitted herein are hereby denied with strict proof demanded thereof.CASE NO. CACE-15-013643 DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT AFFIRMATIVE DEFENSES 15. FIRST AFFIRMATIVE DEFENSE: The liability of OLYMPUS to Plaintiffs, if any, is limited by the terms and conditions of the policy, including all exclusions, limitations and deductible provisions contained therein. 16. SECOND AFFIRMATIVE DEFENSE: OLYMPUS demands a set-off for any and all collateral sources paid or payable to Plaintiffs as a result of the acts or events referred to in Plaintiffs’ Complaint. 17. THIRD AFFIRMATIVE DEFENSE: OLYMPUS asserts that there is no coverage for Plaintiffs’ claim because the loss was caused by perils not insured against under the insurance policy and/or is excluded by the terms, conditions, limitations and exclusions of the insurance policy, which states in pertinent part as follows: SECTION | - PERILS INSURED AGAINST COVERAGE A - DWELLING and COVERAGE B - OTHER STRUCTURES We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. However, we do not insure loss: 2. Caused by:CASE NO. CACE-15-013643 DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT g. Accidental discharge or overflow of water or steam; Unless loss to property covered under Coverage A or B results from an accidental discharge or overflow of water or steam from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance on the Described Location. Loss to property covered under Coverage A or B that results from an accidental discharge or overflow of water or steam from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance on the Described Location includes the cost to tear out and replace any part of a building or other structure covered under Coverage A or B, on the Described Location, but only when necessary to repair the system or appliance. However, we do not cover: (1) Loss to the system or appliance from which this water or steam escaped; (3) Loss caused by constant or repeated seepage or leakage of water or steam, or the presence or condensation of humidity, moisture or vapor which occurs over a period of time, whether hidden or not and results in damage such as wet or dry rot, “fungi,” deterioration, rust, decay or other corrosion; or (4) Loss otherwise excluded. For purposes of this provision, a plumbing system or household appliance does not include: (1) A sump, sump pump, irrigation system or related equipment; or (2) A roof drain, gutter, down spout or similar fixtures or equipment.CASE NO. CACE-15-013643 DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT 18. FOURTH AFFIRMATIVE DEFENSE: OLYMPUS asserts that there is no coverage for Plaintiffs’ claim because the loss was caused by perils not insured against under the insurance policy and/or is excluded by the terms, conditions, limitations and exclusions of the insurance policy, which states in pertinent part as follows: SECTION | - PERILS INSURED AGAINST COVERAGE A - DWELLING and COVERAGE B - OTHER STRUCTURES We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. However, we do not insure loss: 2. Caused by: j.: (1) Wear and tear, marring, deterioration; (2) Inherent vice, latent defect, defect or mechanical breakdown; (3) Smog, rust, decay or other corrosion; If any of these cause water damage not otherwise excluded, from a plumbing, heating, air conditioning or automatic fire sprinkler system or household appliance, we cover loss caused by the water including the cost of tearing out and replacing any part of a building covered under Coverage A or B necessary to repair the system or appliance.CASE NO. CACE-15-013643 DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT We do not cover loss to the system or appliance from which this water escaped. For purposes of this provision, a plumbing system or household appliance does not include: (1) A sump, sump pump, irrigation system or related equipment; or (2) A roof drain, gutter, down spout or similar fixtures or equipment. 3. Excluded under General Exclusions. Under items 1. and 2., any ensuing loss to property described in Coverages A and B not excluded or otherwise excepted in this policy is covered. 19. FIFTH AFFIRMATIVE DEFENSE: OLYMPUS asserts that Plaintiffs’ claim is excluded by the terms, conditions, limitations and exclusions of the insurance policy, which states in pertinent part as follows: SECTION | - EXCLUSIONS 1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. e. Neglect, meaning your or any other insured’s neglect to use all reasonable means to save and preserve property at and after the time of a loss.CASE NO. CACE-15-013643 DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT 20. SIXTH AFFIRMATIVE DEFENSE: OLYMPUS asserts that Plaintiffs’ claim is excluded by the terms, conditions, limitations and exclusions of the insurance policy, which states in pertinent part as follows: SECTION | - EXCLUSIONS 1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. k. Existing Damage, meaning: (1) Damages which occurred prior to policy inception regardless of whether such damages were apparent at the time of the inception of this policy or discovered at a later date; or (2) Claims or damages arising out of workmanship, repairs or lack of repairs arising from damage which occurred prior to policy inception. 21. SEVENTH AFFIRMATIVE DEFENSE: OLYMPUS asserts that Plaintiffs’ claim is excluded by the terms, conditions, limitations and exclusions of the insurance policy, which states in pertinent part as follows: SECTION | - EXCLUSIONS 1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.CASE NO. CACE-15-013643 DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT I. Smog, Rust, Decay or Other Corrosion. This policy does not include loss caused by smog, rust, decay or other corrosion. 22. EIGHTH AFFIRMATIVE DEFENSE: OLYMPUS asserts that Plaintiffs’ claim is excluded by the terms, conditions, limitations and exclusions of the insurance policy, which states in pertinent part as follows: SECTION I - EXCLUSIONS 1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. n. Constant or repeated seepage or leakage of water or steam, or the presence of condensation or humidity, moisture or vapor; which occurs over a period of time, whether hidden or not and results in damage such as wet or dry rot, “fungi,” deterioration, rust, decay or other corrosion. 23. NINTH AFFIRMATIVE DEFENSE: OLYMPUS asserts that Plaintiffs’ claim is excluded by the terms, conditions, limitations and exclusions of the insurance policy, which states in pertinent part as follows: SECTION | - EXCLUSIONSCASE NO. CACE-15-013643 DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT 2. We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not otherwise excluded or excepted in this policy is covered. c. Faulty, inadequate or defective: (2) Design, specifications, | workmanship, repair, construction, renovation, remodeling, grading, compaction; (3) | Materials used in repair, construction, renovation or remodeling; or (4) Maintenance; of part or all of any property whether on or off the Described Location. 24. TENTH AFFIRMATIVE DEFENSE: OLYMPUS asserts that coverage for Plaintiffs’ claim was subject to compliance with the following conditions, which Plaintiffs did not satisfy and thus constituted a breach of the insurance policy which precludes coverage: SECTION | - CONDITIONS 4. Duties After Loss. You must see that the following are done in the event of loss or damage to covered property: a. Give prompt notice to us or our agent; 10CASE NO. CACE-15-013643 DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT b. Protect the property from further damage. If repairs to the property are required, you must: (1) | Make reasonable and necessary temporary repairs to protect the property; 25. ELEVENTH AFFIRMATIVE DEFENSE: Plaintiffs have failed to comply with all of the insurance contract's conditions precedent to filing suit, and the lawsuit is therefore barred from the instant litigation based upon the following policy condition: SECTION | —- CONDITIONS 11. Suit Against Us. No action can be brought against us; unless: a. There has been full compliance with all of the terms of this policy; and b. The action is started within 5 years after the date of loss. 26. OLYMPUS reserves the right to assert any additional affirmative defenses that may become known during discovery. DEMAND FOR JURY TRIAL 27. OLYMPUS hereby demands trial by jury on all counts so triable. 11CASE NO. CACE-15-013643 DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT WHEREFORE, Defendant, OLYMPUS INSURANCE COMPANY, respectfully requests this Honorable Court dismiss with prejudice Plaintiffs’ Complaint and/or to enter judgment in favor of OLYMPUS, and to further grant OLYMPUS’s reasonable attorney's fees and costs pursuant to applicable or appropriate statute, law or Florida Rule of Civil Procedure, and any other relief this Honorable Court deems just and proper. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy hereof has been furnished by service through the eportal to: Thomas J. Morgan, Jr., Esquire, The Morgan Law Group, P.A., 55 Merrick Way, Suite 404, Coral Gables, Florida 33134, Attorney for Plaintiffs, on this 25th day of September, 2015. CONROY | SIMBERG Attorneys for Olympus Insurance Company 3440 Hollywood Boulevard, Second Floor Hollywood, Florida 33021 Telephone: 954.961.1400 Facsimile: 954.967.8577 By: /s/A. Lizette Flores A. Lizette Flores, Esquire Florida Bar No. 892181 Primary Email: eservicehwd@conroysimberg Secondary Email: Iflores@conroysimberg.com Bianca R. Zuluaga, Esquire Florida Bar No. 92175 Primary Email: eservicehwd@conroysimberg Secondary Email: bzuluaga@conroysimberg.com 12