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Filing # 102373637 E-Filed 01/28/2020 04:44:39 PM
IN THE CIRCUIT COURT IN AND FOR BROWARD COUNTY, FLORIDA
ADRIANA GONZALEZ and PEDRO CASE NO. CACE-19-020995
GONZALEZ,
Petitioners,
vs.
HERITAGE PROPERTY & CASUALTY
INSURANCE COMPANY,
Respondent.
PETITIONERS’ MEMORANDUM IN RESPONSE TO
RESPONDENT’S MOTION TO DISMISS
Florida Bar #68274
COMES NOW Petitioners, by and through the undersigned attorneys, and hereby files this
Response to Respondent’s Motion to Dismiss Petition for Declaratory Relief, and as ground
therefore would state:
a The Court May Not Go Outside the Four Corners of the Petition
As the Third District held in Minor v. Brunetti 43 So. 3d 178 (Fla 3d DCA 2010) "[A]
motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine
factual issues." Thus, a motion to dismiss for failure to state of cause of action admits all well
pleaded facts as true, as well as all reasonable inferences that may arise from those facts, and
the trial court may not rely on any other facts that may be offered in depositions, affidavits
or other proofs in determining a motion to dismiss.
b. Underlying Facts Alleged in the Petition
The petition alleges that Petitioner, as the insured under the subject insurance policy, has a
right to insurance benefits for a covered loss under the policy; that Petitioner made a claim
for a loss to the insured property which occurred during the policy period; that there exists
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/28/2020 04:44:39 PM.****d.
a present dispute between the parties regarding whether the loss is covered under the policy;
that Petitioner seek a declaration of Petitioner’ rights and obligations under the policy; that
there is a bona fide, actual, present practical need for a declaration of Petitioner’ rights and
obligations; that the declaration sought deals with a present, ascertained or ascertainable state
of facts or present controversy as to a state of facts; that Petitioner’ rights under the policy
is dependent upon the facts or the law applicable to the facts; the parties have an actual,
present, adverse and antagonistic interest in the subject matter.
The Cause of Action Pled
Petitioner seek a declaratory judgment determining Petitioner’ rights and obligations under
the policy with respect to coverage for the loss. All of the elements to state a cause of action
have been properly pled, as follows:
L There is a bona fide, actual, present practical need for the declaration;
ii. The declaration sought deals with a present, ascertained or ascertainable state
of facts or present controversy as to a state of facts;
iii, That Petitioner’ rights under the policy is dependent upon the facts or the law
applicable to the facts;
iv. The parties have an actual, present, adverse and antagonistic interest in the
subject matter, either in fact or law;
v. That the antagonistic and adverse interests are before the Court.
vi. The relief sought is not merely giving of legal advice by the Court or the
answer to questions propounded from curiosity.
Declaratory Judgment Statutes authorizes actions to establish the existence of rights
and obligations under a contract where there is an actual dispute concerning those
rights and obligations.The relief sought by Petitioner is consistent with the requisites under Chapter 86 for a
declaration by the court. §86.011 Fla. Stat., authorizes actions seeking declarations regarding
the existence or non-existence of contractual rights (i.e. including, but not limited to, a right
to coverage under an insurance policy), and in considering those rights, it allows courts to
determine and resolve "any fact upon which the existence or nonexistence of such ... right
does or may depend, and whether such ... right.. now exists or will arise in the future."
86.011 Jurisdiction of trial court.--The circuit ...
courts have jurisdiction ... to declare rights ... and
other equitable or legal relations whether or not
further relief is or could be claimed .... The court may
render declaratory judgments on the existence, or
nonexistence:
(J) Of any ... right; or
(2) Of any fact upon which the existence or
nonexistence of such . .. right does or: may
depend, whether such ... right now exists or
will arise in the future. Any person seeking
a declaratory judgment may also demand
additional, alternative, coercive, subsequent,
or supplemental relief in the same action.
The Fourth District Court of Appeals has made it very clear in_Lutz. v. Protective Life
Insurance Company. 951 So. 2d 884 (Fla. 4th DCA 2007), that Petitioner’ cause of action for
declaratory relief is well-pied. In Lutz, Mr. Lutz (as a first party litigant) brought an action for
declaratory relief against his insurer regarding his claimed entitlement to rights under the policy. The
lower court held that Lutz could not bring such a cause of action. However, the Fourth District Court
of Appeals reversed, noting that:
"In the instant case, it is enough that Lutz has set forth an uncertainty
as to the existence of some rights under the insurance contract and an
actual dispute with the insurer concerning those rights and
obligations. See §86.101, Fla. Stat. 2005) (stating the purpose of the
Declaratory Judgment Act is to ‘settle and to afford relief from
insecurity and uncertainty with respect to rights, status, and othere
equitable or legal relations and is to be liberally administered and
construed.'); see also Higgins v. State Farm Fire & Cas. Co., 894 So.
2d 5 (Fla. 2004) (holding that a claim may lie for declaratory
judgment to determine the existence or non-existence of obligations
and rights under an insurance policy even where it is necessary for the
court to determine factual issues upon which the obligations and
rights depend)." Lutz, 951 So. 2d at 889
There is no requirement that there by an Ambiguity for declaratory relief
As clearly set forth under §86.011 Fla., Stat., and explained fully by the Supreme Court's
decision in Higgins v. State Farm Fire & Cas. Co, 894 So. 2d 5 (Fla. 2004), there is no
requirement for an "ambiguity" in order to state a valid cause of action for declaratory relief.
In essence, the right to use section 86.011, Florida Statutes, depends upon whether Petitioner
can show that Petitioner is in doubt as to the existence or nonexistence of a right under the
policy and that Petitioner is entitled to have such doubt removed. See, Caidin v. Lakow, 546
So.2d 788 (Fla 3d DCA 1989). "The mere fact that the contract is clear and unambiguous on
its face does not prevent one from seeking a declaration of his rights under such contract
where there exist extrinsic facts which would affect the clear and unambiguous language of
the written agreement." Caidin at 789.
In Qcean's 11 Bar & Grill, Inc. v. Indemnity Insurance Corp. Of DC, No. 11-61577 Civ
(S.D. Fla. 2011) the court, in referencing Higgins, made clear: /1/t is illogical and unfair to
not allow insureds and insurers to have a determination as to whether coverage exists on the
basis of the facts underlying a claim against an insurance policy.." Thus, although there is
a myriad of Florida case law with respect to ambiguity, the Supreme Court's opinion in
Higgins clarified the differences between the declaratory relief sought under §86.021 "Power
to Construe," upon which Columbia Casualty and its progeny exclusively rely, and §86.011
which permits declaratory relief involving unambiguous contracts when there are disputed
facts upon which a party's rights or obligations depend. Specifically, Higgins states:"... sections 86.011(2), 86.051, 86.071, and 86.101 support the
conclusion that... a declaratory action which requires a determination
of the existence or nonexistence of a fact upon which ... obligations
under an insurance policy depend. First, the use of the word "or"
between subsections 86.011(1) and (2) clearly indicates that the
courts have the general power to issue declaratory judgments not only
in suits seeking a determination of the existence or nonexistence of
any" ... right" but also in suits solely seeking a determination of any
fact affecting the applicability of an" ... right." Second, although
section 86.021, upon which Columbia Casualty exclusively relies,
grants to the courts the power to determine any question of
"construction or validity" arising under a contract, section 86.051
states that the enumeration of powers in section 86.021 "does not
limit or restrict the exercise of the general powers conferred in section
86.011." Therefore, we now conclude that the Columbia Casualty
decision was too limiting of the scope of section 86.021 when read
with this other section of the statutes. Third, the Legislature clearly
contemplated fact-finding in declaratory actions. Section 86.071
expressly provides a mechanism for jury trials when an action under
the Act concerns the determination of an issue of fact. Fourth and
finally, section 86.101 clearly provides that chapter 86 is to be
"liberally administered and construed." . . . "This supports the
conclusion that chapter 86 is not read as narrowly in recent decisions
as it was in Columbia Casualty." emphasis added
and
“We conclude that in this decision we should give effect, for use in
insurance coverage disputes, to all of the sections of Florida's
declaratory judgments statutes and not limit the application of those
statutes in these disputes to only the one section relied upon in
Columbia Casualty. We believe that declaratory judgments are and
can increasingly be a valuable procedure for the resolution of
insurance coverage disputes to the benefit of insurers, insureds, and
claimants.” 895 So.2d 5 at page 5.
It is Immaterial that there may be another Adequate Remedy
The legislature in enacting the Declaratory Relief statutes specifically provided that the
existence of another adequate remedy (i.e., claim for breach of contract) does not preclude
this action for declaratory relief. § 86.111, Fla. Stat. See also, Transportation Casualty Ins.
Co. v. Soil Tech Distribution, Inc., 966 So. 2d 8 (Fla. 4th DCA 2007).
Moreover, in that Respondent is not legally bound and limited to the reason or reasonsRespondent may have expressed pre-suit in denying the claim, until Respondent files any
affirmative defenses in this action, Petitioner are unaware, and can only guess at, all of the
reasons why Respondent has denied the claim.
WHEREFORE, Petitioners respectfully move this Court to deny Respondent’s Motion to
Dismiss.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this _ 28" day of January _, 2020, a true and correct copy
of the foregoing was emailed electronically filed and served through the Florida Court’s E-Filing
Portal to: Richard Chackman, Esq. of Heritage Property & Casualty Insurance Company, 1571
Sawgrass Corporate Parkway, Suite 400, Sunrise, Florida 33323 at rchackman@heritagepci.com,
VYACHESLAV BORSHCHUKOV, P.A.
ATTORNEY FOR PETITIONER
514 SE 11™ COURT
FORT LAUDERDALE, FLORIDA 33316
TELEPHONE (305) 503-5985
FAX NO. (305) 503-5986
SERVICE@VB.LEGAL
BY: /S/ SLAVA BORSHCHUKOV.
“VYACHESLAV BORSHCHUKOV
Fla. Bar #68274
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Filing # 102373637 E-Filed 01/28/2020 04:44:39 PM IN THE CIRCUIT COURT IN AND FOR BROWARD COUNTY, FLORIDA ADRIANA GONZALEZ and PEDRO CASE NO. CACE-19-020995 GONZALEZ, Petitioners, vs. HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, Respondent. PETITIONERS’ MEMORANDUM IN RESPONSE TO RESPONDENT’S MOTION TO DISMISS Florida Bar #68274 COMES NOW Petitioners, by and through the undersigned attorneys, and hereby files this Response to Respondent’s Motion to Dismiss Petition for Declaratory Relief, and as ground therefore would state: a The Court May Not Go Outside the Four Corners of the Petition As the Third District held in Minor v. Brunetti 43 So. 3d 178 (Fla 3d DCA 2010) "[A] motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues." Thus, a motion to dismiss for failure to state of cause of action admits all well pleaded facts as true, as well as all reasonable inferences that may arise from those facts, and the trial court may not rely on any other facts that may be offered in depositions, affidavits or other proofs in determining a motion to dismiss. b. Underlying Facts Alleged in the Petition The petition alleges that Petitioner, as the insured under the subject insurance policy, has a right to insurance benefits for a covered loss under the policy; that Petitioner made a claim for a loss to the insured property which occurred during the policy period; that there exists *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/28/2020 04:44:39 PM.****d. a present dispute between the parties regarding whether the loss is covered under the policy; that Petitioner seek a declaration of Petitioner’ rights and obligations under the policy; that there is a bona fide, actual, present practical need for a declaration of Petitioner’ rights and obligations; that the declaration sought deals with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that Petitioner’ rights under the policy is dependent upon the facts or the law applicable to the facts; the parties have an actual, present, adverse and antagonistic interest in the subject matter. The Cause of Action Pled Petitioner seek a declaratory judgment determining Petitioner’ rights and obligations under the policy with respect to coverage for the loss. All of the elements to state a cause of action have been properly pled, as follows: L There is a bona fide, actual, present practical need for the declaration; ii. The declaration sought deals with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; iii, That Petitioner’ rights under the policy is dependent upon the facts or the law applicable to the facts; iv. The parties have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; v. That the antagonistic and adverse interests are before the Court. vi. The relief sought is not merely giving of legal advice by the Court or the answer to questions propounded from curiosity. Declaratory Judgment Statutes authorizes actions to establish the existence of rights and obligations under a contract where there is an actual dispute concerning those rights and obligations.The relief sought by Petitioner is consistent with the requisites under Chapter 86 for a declaration by the court. §86.011 Fla. Stat., authorizes actions seeking declarations regarding the existence or non-existence of contractual rights (i.e. including, but not limited to, a right to coverage under an insurance policy), and in considering those rights, it allows courts to determine and resolve "any fact upon which the existence or nonexistence of such ... right does or may depend, and whether such ... right.. now exists or will arise in the future." 86.011 Jurisdiction of trial court.--The circuit ... courts have jurisdiction ... to declare rights ... and other equitable or legal relations whether or not further relief is or could be claimed .... The court may render declaratory judgments on the existence, or nonexistence: (J) Of any ... right; or (2) Of any fact upon which the existence or nonexistence of such . .. right does or: may depend, whether such ... right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action. The Fourth District Court of Appeals has made it very clear in_Lutz. v. Protective Life Insurance Company. 951 So. 2d 884 (Fla. 4th DCA 2007), that Petitioner’ cause of action for declaratory relief is well-pied. In Lutz, Mr. Lutz (as a first party litigant) brought an action for declaratory relief against his insurer regarding his claimed entitlement to rights under the policy. The lower court held that Lutz could not bring such a cause of action. However, the Fourth District Court of Appeals reversed, noting that: "In the instant case, it is enough that Lutz has set forth an uncertainty as to the existence of some rights under the insurance contract and an actual dispute with the insurer concerning those rights and obligations. See §86.101, Fla. Stat. 2005) (stating the purpose of the Declaratory Judgment Act is to ‘settle and to afford relief from insecurity and uncertainty with respect to rights, status, and othere equitable or legal relations and is to be liberally administered and construed.'); see also Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004) (holding that a claim may lie for declaratory judgment to determine the existence or non-existence of obligations and rights under an insurance policy even where it is necessary for the court to determine factual issues upon which the obligations and rights depend)." Lutz, 951 So. 2d at 889 There is no requirement that there by an Ambiguity for declaratory relief As clearly set forth under §86.011 Fla., Stat., and explained fully by the Supreme Court's decision in Higgins v. State Farm Fire & Cas. Co, 894 So. 2d 5 (Fla. 2004), there is no requirement for an "ambiguity" in order to state a valid cause of action for declaratory relief. In essence, the right to use section 86.011, Florida Statutes, depends upon whether Petitioner can show that Petitioner is in doubt as to the existence or nonexistence of a right under the policy and that Petitioner is entitled to have such doubt removed. See, Caidin v. Lakow, 546 So.2d 788 (Fla 3d DCA 1989). "The mere fact that the contract is clear and unambiguous on its face does not prevent one from seeking a declaration of his rights under such contract where there exist extrinsic facts which would affect the clear and unambiguous language of the written agreement." Caidin at 789. In Qcean's 11 Bar & Grill, Inc. v. Indemnity Insurance Corp. Of DC, No. 11-61577 Civ (S.D. Fla. 2011) the court, in referencing Higgins, made clear: /1/t is illogical and unfair to not allow insureds and insurers to have a determination as to whether coverage exists on the basis of the facts underlying a claim against an insurance policy.." Thus, although there is a myriad of Florida case law with respect to ambiguity, the Supreme Court's opinion in Higgins clarified the differences between the declaratory relief sought under §86.021 "Power to Construe," upon which Columbia Casualty and its progeny exclusively rely, and §86.011 which permits declaratory relief involving unambiguous contracts when there are disputed facts upon which a party's rights or obligations depend. Specifically, Higgins states:"... sections 86.011(2), 86.051, 86.071, and 86.101 support the conclusion that... a declaratory action which requires a determination of the existence or nonexistence of a fact upon which ... obligations under an insurance policy depend. First, the use of the word "or" between subsections 86.011(1) and (2) clearly indicates that the courts have the general power to issue declaratory judgments not only in suits seeking a determination of the existence or nonexistence of any" ... right" but also in suits solely seeking a determination of any fact affecting the applicability of an" ... right." Second, although section 86.021, upon which Columbia Casualty exclusively relies, grants to the courts the power to determine any question of "construction or validity" arising under a contract, section 86.051 states that the enumeration of powers in section 86.021 "does not limit or restrict the exercise of the general powers conferred in section 86.011." Therefore, we now conclude that the Columbia Casualty decision was too limiting of the scope of section 86.021 when read with this other section of the statutes. Third, the Legislature clearly contemplated fact-finding in declaratory actions. Section 86.071 expressly provides a mechanism for jury trials when an action under the Act concerns the determination of an issue of fact. Fourth and finally, section 86.101 clearly provides that chapter 86 is to be "liberally administered and construed." . . . "This supports the conclusion that chapter 86 is not read as narrowly in recent decisions as it was in Columbia Casualty." emphasis added and “We conclude that in this decision we should give effect, for use in insurance coverage disputes, to all of the sections of Florida's declaratory judgments statutes and not limit the application of those statutes in these disputes to only the one section relied upon in Columbia Casualty. We believe that declaratory judgments are and can increasingly be a valuable procedure for the resolution of insurance coverage disputes to the benefit of insurers, insureds, and claimants.” 895 So.2d 5 at page 5. It is Immaterial that there may be another Adequate Remedy The legislature in enacting the Declaratory Relief statutes specifically provided that the existence of another adequate remedy (i.e., claim for breach of contract) does not preclude this action for declaratory relief. § 86.111, Fla. Stat. See also, Transportation Casualty Ins. Co. v. Soil Tech Distribution, Inc., 966 So. 2d 8 (Fla. 4th DCA 2007). Moreover, in that Respondent is not legally bound and limited to the reason or reasonsRespondent may have expressed pre-suit in denying the claim, until Respondent files any affirmative defenses in this action, Petitioner are unaware, and can only guess at, all of the reasons why Respondent has denied the claim. WHEREFORE, Petitioners respectfully move this Court to deny Respondent’s Motion to Dismiss. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this _ 28" day of January _, 2020, a true and correct copy of the foregoing was emailed electronically filed and served through the Florida Court’s E-Filing Portal to: Richard Chackman, Esq. of Heritage Property & Casualty Insurance Company, 1571 Sawgrass Corporate Parkway, Suite 400, Sunrise, Florida 33323 at rchackman@heritagepci.com, VYACHESLAV BORSHCHUKOV, P.A. ATTORNEY FOR PETITIONER 514 SE 11™ COURT FORT LAUDERDALE, FLORIDA 33316 TELEPHONE (305) 503-5985 FAX NO. (305) 503-5986 SERVICE@VB.LEGAL BY: /S/ SLAVA BORSHCHUKOV. “VYACHESLAV BORSHCHUKOV Fla. Bar #68274