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Filing # 37997784 E-Filed 02/18/2016 04:25:38 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
LUZ DEL CARMEN FLORES,
Plaintiff, CASE NO. CACE-15-022300
vs.
SAFEPOINT INSURANCE COMPANY,
Defendant.
/
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES
Defendant, SAFEPOINT INSURANCE COMPANY, pursuant to Florida Rule of
Civil Procedure 1.110, files its Answer and Affirmative Defenses in response to Plaintiff's
Complaint, and states as follows:
ALLEGATIONS COMMON TO ALL COUNTS AND INCORPORATED THEREIN
1. Admitted for jurisdictional purposes only; otherwise, denied.
2. Defendant is without knowledge; therefore, denied.
3. Admitted.
4. Admitted for jurisdictional purposes only; otherwise, denied.
5. Denied. Plaintiff failed to provide prompt notice of the loss by waiting seven
days to report the claim. In addition, Plaintiff failed to make reasonable and necessary
repairs to the roof to protect the property from further damage. Plaintiff's failure to comply
with policy conditions prejudiced Defendant's investigation.
6. Denied.
7. Denied as phrased.
8. Denied as phrased.
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 2/18/2016 4:25:38 PM.****9. Denied.
10. Admitted that claim number 7631 was assigned to Plaintiff's claim;
otherwise, denied.
11. Denied.
COUNT I
ACTION TO REFORM AN ILLUSORY CONTRACT TO CONFORM WITH A JURY’S
DETERMINATION OF THE PARTIES’ INTENT IF PROVEN TO BE DIFFERENT
FROM THE PLAIN WORDING OF THE POLICY AND UPON SUCH
DETERMINATION, ACTION FOR A DECLARATORY JUDGMENT DETERMINING
WHETHER THE “WEAR AND TEAR, MARRING, DETERIORATION” EXCEPTION
RENDERS THE POLICY ILLUSORY OR WHETHER THE PROVISION IS VOID
12. Defendant incorporates its responses to paragraphs 1-11.
13. Denied."
14. Admitted that policy number SPIH0256678-02 was in effect from December
28, 2014 to December 28, 2015 for the property located at 521 SW 70 Terrace,
Pembroke Pines, Florida; otherwise, denied.
15. Defendant is without knowledge; therefore, denied.
16. Admitted that policy number SPIH0256678-02 was in effect from December
28, 2014 to December 28, 2015 for the property located at 521 SW 70" Terrace,
Pembroke Pines, Florida and that said policy speaks for itself; otherwise, denied.
17. Denied as phrased.
18. Denied.
19. Denied.
' Defendant denies any and all allegations stating that the insurance policy is void or illusory. The policy
language referenced in Paragraph 13 of Plaintiffs Complaint was approved by the Florida Office of
Insurance Regulation ("OIR”). Defendant denies that this language results in a void or illusory contract, as
the language was approved by the OIR, which is charged by statute not to approve any insurance policy
which contains “inconsistent, ambiguous, or misleading clauses, or exceptions and conditions which
deceptively affect the risk purported to be assumed in the general coverage of the contract.” Fla. Stat. §
627.411.20.
21.
22.
23.
24,
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
Denied.
Denied.
Denied.
Denied.
Denied as phrased.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.COUNT 2
COMMON LAW NEGLIGENT MISREPRESENTATION, Alternatively; in the event
that there is no contract
42. Defendant incorporates its responses to paragraphs 1-41.
43. Defendant is without knowledge; therefore, denied.
44. Denied.
45. Denied.
46. Denied.
47. Denied as phrased.
48. Denied.
49. Denied.
50. Denied.
51. Denied.
52. Denied.
53. Denied.
COMMON LAW FRAUDULENT INDUGEMENT ALTERNATIVELY: in the event that
there is no contract
54. Defendant incorporates its responses to paragraphs 1-53.
55. Admitted that policy number SPIHO256678-02 was in effect from December
28, 2014 to December 28, 2015 for the property located at 521 SW 70" Terrace,
Pembroke Pines, Florida and that said policy speaks for itself; otherwise, denied.
56. Denied.
57. Denied.
58. Denied.59.
60.
61.
62.
63.
Denied as phrased.
Denied.
Denied.
Denied.
Denied.
COUNT 4
COMMON LAW FRAUD ALTERNATIVELY: in the event that there is no contract
64.
65.
Defendant incorporates its responses to paragraphs 1-63.
Admitted that policy number SPIHO256678-02 was in effect from December
28, 2014 to December 28, 2015 for the property located at 521 SW 70" Terrace,
Pembroke Pines, Florida and that said policy speaks for itself; otherwise, denied.
66.
67.
68.
69.
70.
71.
72.
73.
74,
75.
76.
77.
Denied.
Denied.
Denied.
Denied.
Denied as phrased.
Denied.
Denied.
Denied.
Denied.
COUNT 5 - CONSTRUCTIVE FRAUD
Defendant incorporates its responses to paragraphs 1-74.
Denied as phrased.
Denied.78. Denied.
79. Denied.
80. Denied.
81. Denied as phrased.
82. Denied.
83. Denied.
84. Denied.
85. Denied.
COUNT 6
Common Law Estoppel Alternatively: in the event that there is no contract
86. Defendant incorporates its responses to paragraphs 1-85.
87. Denied as phrased.
88. Denied as phrased.
89. Denied.
90. Denied.
91. Denied.
92. Denied.
93. Denied.
94. Denied.
95. Denied.
96. Denied.
COUNT 7
DECLARATORY JUDGMENT ACTION SEEKING A DECLARATION THAT THE
LOSS PAYMENT CONDITION CONTAINING THE DUTY TO ADJUST IS A
CONDITION PRECEDENT TO ANY OTHER DUTY UNDER ANY OTHER CONDITION
IN THE CONTRACT97. Defendant incorporates its responses to paragraphs 1-96.
98. Denied.
99. Admitted that policy number SPIHO256678-02 was in effect from December
28, 2014 to December 28, 2015 for the property located at 521 SW 70 Terrace,
Pembroke Pines, Florida and that said policy speaks for itself; otherwise, denied.
100. Denied.
101. Defendant is without knowledge; therefore, denied.
102. Defendant is without knowledge; therefore, denied.
103. Denied.
104, Denied.
105. Denied.
106. Denied.
107. Denied as phrased.
108. Denied.
109. Denied.
110. Denied.
111. Denied as phrased.
112. Denied.
113. Denied.
COUNT 8 — BREACH OF CONTRACT [if there is a contract]
114. Defendant incorporates its responses to paragraphs 1-113.115. Admitted that policy number SPIHO256678-02 was in effect from December
28, 2014 to December 28, 2015 for the property located at 521 SW 70" Terrace,
Pembroke Pines, Florida and that said policy speaks for itself; otherwise, denied.
116. Denied.
117. Denied.
DEMAND FOR JURY TRIAL
Defendant demands a jury trial on all issues so triable.
AFFIRMATIVE DEFENSES
1. There is no coverage for damage to the roof pursuant to the following policy
provisions:
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.
We do not insure, however, for loss:
2. Caused by:
i. Any of the following:
(1) Wear and tear, marring, deterioration;
(2) Inherent vice, latent defect, defect or mechanical breakdown;
(3) Smog, rust, decay or other corrosion;
(6) Settling, shrinking, bulging or expansion, including resultant cracking of pavements,
patios, foundations, walls, floors, roofs or ceilings; or
* * *
SECTION | - EXCLUSIONS
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:
a. Planning, zoning, development, surveying, siting;
b. Design, specifications, workmanship, repair, construction, renovation, remodeling,
grading, compaction;
c. Materials used in repair, construction, renovation or remodeling; or
d. Maintenance;
of part or ail of any property whether on or off the “residence premises.”
Specifically, GHD Engineering concluded that the damage to the roof was caused
by long-term wear.
2. There is no coverage for the ensuing loss pursuant to the following policy
provisions:
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.
We do not insure, however, for loss:
2. Caused by:
h. Rain, snow, sleet, sand or dust to the interior of a building unless a covered peril first
damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand
or dust enters through this opening.
Specifically, GHD observed some interior water damage caused by moisture that
did not enter through an opening in the roof caused by a covered peril.
3. There is no coverage for Plaintiffs claim to the extent Plaintiff failed to
comply with the following policy conditions:
SECTION | - CONDITIONS
2. 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;
d. Protect the property from further damage. | f repairs to the property are required, you
must:(1) Make reasonable and necessary temporary repairs to protect the property; and
(2) Keep an accurate record of repair expenses;
e. Cooperate with us in the investigation of a claim;
9. As often as we reasonably require:
(1) Show the damaged property;
(2) Provide us with records and documents we request and permit us to make copies;
Specifically, Plaintiff failed to provide prompt notice of the loss by waiting seven
days to report the claim. In addition, Plaintiff failed to make reasonable and necessary
repairs to the roof to protect the property from further damage. Plaintiff's failure to comply
with policy conditions prejudiced Defendant's investigation.
4. Plaintiff's entire Complaint should be stricken as it is replete with immaterial,
irrelevant and redundant allegations in violation of Florida Rule of Civil Procedure 1.100.
5. Plaintiff's claim is barred, in whole or in part, under the doctrine of primary
jurisdiction.
6. Plaintiff's claim is barred by Plaintiff's failure to timely pursue and/or exhaust
all required administrative remedies and/or to satisfy all necessary jurisdictional
prerequisites to the filing of this suit.
7. In the event of a loss for which a dwelling is insured, Defendant is required
to issue benefits as prescribed by the subject policy and Florida law on the basis of
replacement costs. Pursuant to the policy, Defendant is only responsible for the actual
cost to repair the loss less any applicable deductible. Defendant is not required to issue
additional funds until work is performed and additional expenses are incurred. See
Slayton v. Universal Property and Casualty Ins. Co., 103 So. 3d 934 (Fla. 5" DCA 2012).CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this say of February, 2016, a true and correct
copy of the foregoing was filed with the Clerk of Broward County by using the Florida
Courts e-Filing Portal, which will send an automatic email message to the following parties
registered with the e-Filing Portal system: abarnard@barnardlawlp.com;
dbarnard@barnardlawlp.com; office@barnardlawip.com; Andrew C. Barnard, Esq.,
Barnard Law Offices LP, 9655 S. Dixie Hwy., Suite 200, Miami, FL 33156, Attorney for
Plaintiff.
By: /si Andrew L. Bickford
ANDREW L. BICKFORD, ESQ.
FBN: 092262
Attorney for Defendant
SafePoint Insurance Company
12640 Telecom Drive
Tampa, Florida 33637
E-Mail: abickford@safepointins.com
2"¢ E-Mail: apowers@safepointins.com
Telephone: (813) 575-1128
Facsimile: (813) 534-5108
Preview
Filing # 37997784 E-Filed 02/18/2016 04:25:38 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA LUZ DEL CARMEN FLORES, Plaintiff, CASE NO. CACE-15-022300 vs. SAFEPOINT INSURANCE COMPANY, Defendant. / DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES Defendant, SAFEPOINT INSURANCE COMPANY, pursuant to Florida Rule of Civil Procedure 1.110, files its Answer and Affirmative Defenses in response to Plaintiff's Complaint, and states as follows: ALLEGATIONS COMMON TO ALL COUNTS AND INCORPORATED THEREIN 1. Admitted for jurisdictional purposes only; otherwise, denied. 2. Defendant is without knowledge; therefore, denied. 3. Admitted. 4. Admitted for jurisdictional purposes only; otherwise, denied. 5. Denied. Plaintiff failed to provide prompt notice of the loss by waiting seven days to report the claim. In addition, Plaintiff failed to make reasonable and necessary repairs to the roof to protect the property from further damage. Plaintiff's failure to comply with policy conditions prejudiced Defendant's investigation. 6. Denied. 7. Denied as phrased. 8. Denied as phrased. *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 2/18/2016 4:25:38 PM.****9. Denied. 10. Admitted that claim number 7631 was assigned to Plaintiff's claim; otherwise, denied. 11. Denied. COUNT I ACTION TO REFORM AN ILLUSORY CONTRACT TO CONFORM WITH A JURY’S DETERMINATION OF THE PARTIES’ INTENT IF PROVEN TO BE DIFFERENT FROM THE PLAIN WORDING OF THE POLICY AND UPON SUCH DETERMINATION, ACTION FOR A DECLARATORY JUDGMENT DETERMINING WHETHER THE “WEAR AND TEAR, MARRING, DETERIORATION” EXCEPTION RENDERS THE POLICY ILLUSORY OR WHETHER THE PROVISION IS VOID 12. Defendant incorporates its responses to paragraphs 1-11. 13. Denied." 14. Admitted that policy number SPIH0256678-02 was in effect from December 28, 2014 to December 28, 2015 for the property located at 521 SW 70 Terrace, Pembroke Pines, Florida; otherwise, denied. 15. Defendant is without knowledge; therefore, denied. 16. Admitted that policy number SPIH0256678-02 was in effect from December 28, 2014 to December 28, 2015 for the property located at 521 SW 70" Terrace, Pembroke Pines, Florida and that said policy speaks for itself; otherwise, denied. 17. Denied as phrased. 18. Denied. 19. Denied. ' Defendant denies any and all allegations stating that the insurance policy is void or illusory. The policy language referenced in Paragraph 13 of Plaintiffs Complaint was approved by the Florida Office of Insurance Regulation ("OIR”). Defendant denies that this language results in a void or illusory contract, as the language was approved by the OIR, which is charged by statute not to approve any insurance policy which contains “inconsistent, ambiguous, or misleading clauses, or exceptions and conditions which deceptively affect the risk purported to be assumed in the general coverage of the contract.” Fla. Stat. § 627.411.20. 21. 22. 23. 24, 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. Denied. Denied. Denied. Denied. Denied as phrased. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied.COUNT 2 COMMON LAW NEGLIGENT MISREPRESENTATION, Alternatively; in the event that there is no contract 42. Defendant incorporates its responses to paragraphs 1-41. 43. Defendant is without knowledge; therefore, denied. 44. Denied. 45. Denied. 46. Denied. 47. Denied as phrased. 48. Denied. 49. Denied. 50. Denied. 51. Denied. 52. Denied. 53. Denied. COMMON LAW FRAUDULENT INDUGEMENT ALTERNATIVELY: in the event that there is no contract 54. Defendant incorporates its responses to paragraphs 1-53. 55. Admitted that policy number SPIHO256678-02 was in effect from December 28, 2014 to December 28, 2015 for the property located at 521 SW 70" Terrace, Pembroke Pines, Florida and that said policy speaks for itself; otherwise, denied. 56. Denied. 57. Denied. 58. Denied.59. 60. 61. 62. 63. Denied as phrased. Denied. Denied. Denied. Denied. COUNT 4 COMMON LAW FRAUD ALTERNATIVELY: in the event that there is no contract 64. 65. Defendant incorporates its responses to paragraphs 1-63. Admitted that policy number SPIHO256678-02 was in effect from December 28, 2014 to December 28, 2015 for the property located at 521 SW 70" Terrace, Pembroke Pines, Florida and that said policy speaks for itself; otherwise, denied. 66. 67. 68. 69. 70. 71. 72. 73. 74, 75. 76. 77. Denied. Denied. Denied. Denied. Denied as phrased. Denied. Denied. Denied. Denied. COUNT 5 - CONSTRUCTIVE FRAUD Defendant incorporates its responses to paragraphs 1-74. Denied as phrased. Denied.78. Denied. 79. Denied. 80. Denied. 81. Denied as phrased. 82. Denied. 83. Denied. 84. Denied. 85. Denied. COUNT 6 Common Law Estoppel Alternatively: in the event that there is no contract 86. Defendant incorporates its responses to paragraphs 1-85. 87. Denied as phrased. 88. Denied as phrased. 89. Denied. 90. Denied. 91. Denied. 92. Denied. 93. Denied. 94. Denied. 95. Denied. 96. Denied. COUNT 7 DECLARATORY JUDGMENT ACTION SEEKING A DECLARATION THAT THE LOSS PAYMENT CONDITION CONTAINING THE DUTY TO ADJUST IS A CONDITION PRECEDENT TO ANY OTHER DUTY UNDER ANY OTHER CONDITION IN THE CONTRACT97. Defendant incorporates its responses to paragraphs 1-96. 98. Denied. 99. Admitted that policy number SPIHO256678-02 was in effect from December 28, 2014 to December 28, 2015 for the property located at 521 SW 70 Terrace, Pembroke Pines, Florida and that said policy speaks for itself; otherwise, denied. 100. Denied. 101. Defendant is without knowledge; therefore, denied. 102. Defendant is without knowledge; therefore, denied. 103. Denied. 104, Denied. 105. Denied. 106. Denied. 107. Denied as phrased. 108. Denied. 109. Denied. 110. Denied. 111. Denied as phrased. 112. Denied. 113. Denied. COUNT 8 — BREACH OF CONTRACT [if there is a contract] 114. Defendant incorporates its responses to paragraphs 1-113.115. Admitted that policy number SPIHO256678-02 was in effect from December 28, 2014 to December 28, 2015 for the property located at 521 SW 70" Terrace, Pembroke Pines, Florida and that said policy speaks for itself; otherwise, denied. 116. Denied. 117. Denied. DEMAND FOR JURY TRIAL Defendant demands a jury trial on all issues so triable. AFFIRMATIVE DEFENSES 1. There is no coverage for damage to the roof pursuant to the following policy provisions: 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. We do not insure, however, for loss: 2. Caused by: i. Any of the following: (1) Wear and tear, marring, deterioration; (2) Inherent vice, latent defect, defect or mechanical breakdown; (3) Smog, rust, decay or other corrosion; (6) Settling, shrinking, bulging or expansion, including resultant cracking of pavements, patios, foundations, walls, floors, roofs or ceilings; or * * * SECTION | - EXCLUSIONS 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: a. Planning, zoning, development, surveying, siting; b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; c. Materials used in repair, construction, renovation or remodeling; or d. Maintenance; of part or ail of any property whether on or off the “residence premises.” Specifically, GHD Engineering concluded that the damage to the roof was caused by long-term wear. 2. There is no coverage for the ensuing loss pursuant to the following policy provisions: 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. We do not insure, however, for loss: 2. Caused by: h. Rain, snow, sleet, sand or dust to the interior of a building unless a covered peril first damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening. Specifically, GHD observed some interior water damage caused by moisture that did not enter through an opening in the roof caused by a covered peril. 3. There is no coverage for Plaintiffs claim to the extent Plaintiff failed to comply with the following policy conditions: SECTION | - CONDITIONS 2. 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; d. Protect the property from further damage. | f repairs to the property are required, you must:(1) Make reasonable and necessary temporary repairs to protect the property; and (2) Keep an accurate record of repair expenses; e. Cooperate with us in the investigation of a claim; 9. As often as we reasonably require: (1) Show the damaged property; (2) Provide us with records and documents we request and permit us to make copies; Specifically, Plaintiff failed to provide prompt notice of the loss by waiting seven days to report the claim. In addition, Plaintiff failed to make reasonable and necessary repairs to the roof to protect the property from further damage. Plaintiff's failure to comply with policy conditions prejudiced Defendant's investigation. 4. Plaintiff's entire Complaint should be stricken as it is replete with immaterial, irrelevant and redundant allegations in violation of Florida Rule of Civil Procedure 1.100. 5. Plaintiff's claim is barred, in whole or in part, under the doctrine of primary jurisdiction. 6. Plaintiff's claim is barred by Plaintiff's failure to timely pursue and/or exhaust all required administrative remedies and/or to satisfy all necessary jurisdictional prerequisites to the filing of this suit. 7. In the event of a loss for which a dwelling is insured, Defendant is required to issue benefits as prescribed by the subject policy and Florida law on the basis of replacement costs. Pursuant to the policy, Defendant is only responsible for the actual cost to repair the loss less any applicable deductible. Defendant is not required to issue additional funds until work is performed and additional expenses are incurred. See Slayton v. Universal Property and Casualty Ins. Co., 103 So. 3d 934 (Fla. 5" DCA 2012).CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this say of February, 2016, a true and correct copy of the foregoing was filed with the Clerk of Broward County by using the Florida Courts e-Filing Portal, which will send an automatic email message to the following parties registered with the e-Filing Portal system: abarnard@barnardlawlp.com; dbarnard@barnardlawlp.com; office@barnardlawip.com; Andrew C. Barnard, Esq., Barnard Law Offices LP, 9655 S. Dixie Hwy., Suite 200, Miami, FL 33156, Attorney for Plaintiff. By: /si Andrew L. Bickford ANDREW L. BICKFORD, ESQ. FBN: 092262 Attorney for Defendant SafePoint Insurance Company 12640 Telecom Drive Tampa, Florida 33637 E-Mail: abickford@safepointins.com 2"¢ E-Mail: apowers@safepointins.com Telephone: (813) 575-1128 Facsimile: (813) 534-5108