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**** FILED: BROWARD COUNTY, FL Howard C. Forman, CLERK 8/11/2016 10:27:06 AM.****
CASE NO.: 12-35355-03
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
HUBERT NOCENTO CASE NO.: 12-35355-03
DIVISION: CIVIL
Plaintiff,
vs. JURY TRIAL DEMANDED
ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY
Defendant(s).
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FILED ON JULY 18, 2016
AND PROPOSED ORDER DATED JULY 29, 2016, AND TO DENY DEFENDANT’S
PORPOSED ORDER BASED ON OBJECTION BY DEFENDANT NOT ANSWERING
AMENDED COMPLAINT.
COMES NOW, Plaintiff, HUBERT NOCENTO, Pro Se, the undersigned, in the above-styled
captioned cause and moves this Honorable Court Pursuant to Florida Rules of Civil Procedures, Rule 1,500.
DEFAULT ENTRY RULE 12 (c)
(ONE) On or about September 08, 2015, Defendant answered the original complaint filed by Plaintiff
for Breach of Contract filed on December 21, 2012.
Page 1of8, CASE NO.: 12-35355-03
(TWO) On December 08, 2015, Plaintiff filed first Amended Complaint with Leave of the Court to
Amend the attached included first Amended Complaint.
(THREE) On January 14, 2016, the court granted Plaintiff's Motion to Amend the Complaint. Said
complaint was never addressed or answers filed in response to defense or defended by the Defendant.
(FOUR) Defendant had knowledge that the Amended Complaint was attached with Leave to Amend, the
Amended Complaint, granted by the court on January 14, 2016.
(FIVE) On January 14, 2016, Plaintiff filed for Entry of Default since Defendant did not respond to the
Amended Complaint. ( F.R.C.P. Rule 55 (a) Last Amended Complaint was filed on May 05, 2016.
(SIX) On February 17,2016, Defendant filed to strike Plaintiff's Motion for Default.
(SEVEN) On April 12, 2016, the court held hearing and order of April 29, 2016 specifically stated.
DISCUSSION
After the court entered its order denying Defendant’s Motion to Strike and denying Entry of Default, Plaintiff
filed once more the fourth (4"") Amended Complaint. Defendant failed to answer and respond, and instead
moved to dismiss.
DILATORY TACTICS
Plaintiff filed its Amended Complaint again as instructed by the court’s order and filed on May 05, 2016.
Defendant failed to file answers to the allegations and all counts in the Amended Complaint. Defendant is
engaged in Dilatory Tactics and should be found in Contempt of Court, Section 57.105. Defendant’s Motion to
Dismiss is not a responsive pleading or defense. Exhibit A.
Defendant intentionally filed for clarification and objection, despite the orders of the Court. Defendant should
Page 2 of 8; CASE NO.: 12-35355-03
i
be held in contempt of the orders of the court because of Defendant’s refusal and failure to answer the
Amended Complaint. Exhibit B
Defendant failed to file and answer the Amended Complaint. Defendant’s conduct is lackadaisical.
DUPONT DE NEMOURS AND COMP, 918F SUPP1524 363 11™ CIRCUIT, 1996).
Plaintiff, in light of Defendant’s objection. Defendant’s Motion to Dismiss Plaintiff moves this court Pursuant
to Rule 1,140 (c ) Motion for judgment on the pleading. Florida Rules of Civil Procedure and Applicable
Laws. Plaintiff's Motion to Enter Default Entry should be reconsidered and granted. Rule 12(f) of the Federal
Rules of Civil Procedures permit the court to strike any insufficient defense.
SECOND OBJECTION
Defendant’s Motion to Defend is merely objections to the order of the court. Exhibit C
FIRST OBJECTION
Defendant first filed its Motion for Clarification of the court’s order dated .
INSUFFICIENT DEFENSE
Defendant’s violation in Contempt of the Order of the Court should be disfavored by the Court. On January 25,
2016, Plaintiff filed Plaintiff's Revised Established Amended Complaint and added allegation common to all
counts. Plaintiff's Motion under the circumstances to enter Default were sought under Rule 12 (b), Rule 56,
E. CARLUCCI V. PIPER AIRCRAFT CORP., 775F 2d 1440 (11" CIRCUIT, 1985).
Plaintiff's Motion filed on July 18, 2016 should be granted and default entered against Allstate Property and
Page 3 of 8CASENO.: 12-35355-03
Casualty Insurance Company.
FABRICA ITALIANA LAVORAZIONE
Materic Organiche S,A,S. Vs. KAISER ALUMINUM AND CHEMICAL CORP, 684 F2d.776 (11" CIRCUIT,
1982). THOMPSON VS. KINDRED NURSING CENTERS EAST, LLC 211 F. SUPP. 2D 1345 (MD FLA
2002).
DEFENDANT’S FAILURE TO APPEAR OR DEFEND
Defendant’s Motion are delays and done intentionally. The court is seeing a lot of Defendant’s failure to
appear, Motions to Stay, to Strike, to Dismiss, to Seek Clarification unavailable, and Objections, all without
merits.
RULE 12 (f) STANDARDS
Applying this standard to this case, should lead the court to grant Plaintiff's order and to deny by striking
Defendant’s Motion to Dismiss Plaintiff's Amended Complaint. F. MALAUTEA VS. SUZUKI MOTOR
COMPANY, 987F 2d 1536 (11™" CIRCUIT, 1993).
Defendant failed to file answers to Plaintiff's Amended Complaint filed on December 08, 2015 and the Ordered
Amended Complaint filed on may 5, 2016 as per ordered by the court.
ARGUMENTS
Recognizing that motions to strike and defaults are disfavored. Florida court regularly accepts untimely
answers. Yet, despite the order of the court Defendant failed to file or respond to the Amended Complaint filed
by Plaintiff.
Page 4of 8CASE NO.: 12-35355-03
Plaintiff is seeking entry of default for Defendant’s failure to answer the Amended Complaint filed and
Defendant subsequently objecting to filed answers. It should be noted for the record that Entry of Default was
entered for Failure to Obey the Ruling of the Court: not Untimely Filing of Answers.
Florida Physicians, Inc. CO V. Ehlers, 8,3d 780, 783, (11 CIRCUIT, 1993)
Defendant had several opportunities to answer and or defend but chose not to. Plaintiff experienced prejudice
and obstruction of justice by Defendant’s Dilatory Tactic preventing the case to be tried on the merits.
Subsequently, the stay being lifted and granted by the court on February 24, 2015.
PRECEDENT
Plaintiff did not need Leave to Amend the first Amended Complaint filed on December 08, 2015. Neither did
Defendant have to wait to file answers to the Amended Complaint since the Defendant did answer the original
complaint on September 08, 2015, and Plaintiff responded. Plaintiff, in response to the untimely pleading,
amended the Complaint and did not need leave of the court to plead to the untimely filing and did answered
and responded with the Amended Complaint as required to close the pleading , which Defendant failed to file
answers in objection to. Rule 1.140.
Plaintiff, however, did file the attached motion together with leave of the court which was granted on January
14, 2016. To date, Allstate has failed to File answers and have Defaulted. B.C. Builders Supply Co., Inc. V.
Maldonado, 405, So, 2d 1345.1347 (Fla 3d 1981). Defendant’s delay created unnecessary burden on Plaintiff
and the Court. Rule 15 (a) (1) of the Federal Rules of Civil Procedures. After entry of a court order, Defendant
was required to file answers to all counts as required by FRCP. The Entry Order allowed Defendant to file
Page 5 of 8CASE NO.: 12-35355-03
o
answers to the Amended Complaint in as much, not to dismiss or object. The court’s ruling precisely made and
ordered. SAUC V. BAE, 399, So.2d 130 (FlaDCA 1981).
DAMAGES
WHEREAS, the court must accept all allegation in Plaintiff's Motion and counts as true and
Defendant’s Motion to Dismiss AB INITIO.
WHEREAS, Plaintiff's Amended Complaint must be granted. Schever V. Rhodes 416 u.s. 232, 236, 94,
S, Ct, 1683m (1974).
WHEREAS, Plaintiff's vehicle was used to go to work to earn a living. Plaintiff suffered losses from
not being able to arrive to work in a timely manner and became unproductive on the job and was terminated
since 2010. Plaintiff is a Mobile Paint Tech and was deprived by Allstate Property and Casualty Insurance
Company of the vehicle.
- WHEREAS, Defendant did not object to Plaintiff's motion filed on July 18, 2016. Notice for Jury
Trial Demanded, and to compel answers to the Amended Complaint in the alternative asking the court to
deny, by striking Defendant’s motion to dismiss Plaintiff’s Amended Complaint and reconsideration of
Order, and to enter default judgment entry in favor of Plaintiff. Rule 1,140. Garcia Ins. Agency V. Diaz,
351 So. 2d 1137, 1138, 39 (Fla 2d DCA 1977).
WHEREAS, neither did Defendant file a response within the time allowed inasmuch as Defendant
agreed that the court [sic]
“WHEREFORE, the Defendant Allstate Property and Casualty Insurance Company respectfully request
that this Honorable Court deny the requested relief in Plaintiff’s July 29 letter and proposed Order, and grant it
Page 6 of 8| CASE NO.: 12-35355-03
any other relief this court deems just and proper.” Pursuant to Rule 1,500 (b) Plaintiff did properly file and
serve the Amended Complaint upon the Defendant.
WHEREAS, Defendant is in contempt and should be sanctioned. Defendant is in agreement
with Plaintiff's motion filed on July 18, 2016. Defendant never opposed Plaintiff's motion, Notice for Jury trial
Demanded. Carver V. Jenkins, 209 So 2d 882 883 (Florida 3d DCA, 1968).
WHEREAS, Defendant never objected to Plaintiff's motion and failed to respond to same. Therefore,
Plaintiff's motion and order attached should be granted by the court. Defendant intends to file or reply to
Plaintiff's motion — Plaintiff's Notice for Jury Trial. However, did not respond and filed as ordered.
WHEREFORE, it is for all of the foregoing reasons set forth. Plaintiff respectfully requests that this
Honorable Court enter an order granting Plaintiff's Motion: Notice for Jury Trial Demanded, and to Compel
Answers to the Amended Complaint in the Alternative asking the court to deny, by striking Defendant’s Motion
to Dismiss Plaintiff's Amended Complaint and reconsideration of order and to enter default judgment entry in
favor of Plaintiff.
Respectfully Submitted on this 10" Day of August, 2016.
N
215 NW 60! Avenue
Margate, Florida 33063-5170
Page 7 of 8CASE NO.: 12-35355-03
CERTIFICATE E
I HEREBY CERTIFY that a true copy of the foregoing MEMORANDUM IN SUPPORT OF
PLAINTIFF’S MOTION FILED ON JULY 18, 2016 AND PROPOSED ORDER DATED JULY 29, 2016,
AND TO DENY DEFENDANT’S PORPOSED ORDER BASED ON OBJECTION BY DEFENDANT NOT
ANSWERING AMENDED COMPLAINT has been submitted via US Certified Mail: #
Exssseo (foil Beque skeol (Returned Receipt Requested) to Allstate
Property and Casualty Insurance Company, or to Attorneys for Defendant(s), Kubicki
Draper, C/O: Attorney Laurie Adams, 515 N. Flagler Drive, Suite 1800, West Palm Beach,
Florida 33401 on this 10% Day of August, 2016.
By:
Eo
ert Nocento, Plaintiff, Pro Se
215 NW 60% Avenue
Margate, Florida 33063-5170
Phone: (954) 260-7062
Page 8 of 8LAW OFFICES
Founded 1963 7 5,
Direct Line: (561)615-4315
August 4, 2016
Jil. Aberbach 7 7 Michelle Krone
lavieJ.acoms Via Hand Delivery Gene Kubicki
Angela C. Agostino 2 ‘ Heather M. Lang
tretionC Aivecs’ 1 He Honorable Mily Rodriguez Powell Sah nahi
Micah A. andrews Broward County Courthouse Pedto A. Lopez
Anthony 6. Atala Robyn E.Lustgarten
MichaelBeiiuee, ~~ 201 S.E. 6th Street poaee ride
Peters. 8aumberger Chambers 998, Courtroom 770 Brad J McCormick
Caryn Bellus Hannah —. MeCullin
peborch! Bern Ft. Lauderdale, FL 33301 Bae eee
.Wilam Basel J Scott McMahon
Carey N. Bos 7 Sebastian C Meya
Maeganr.eiawen Re: Nocento v. Allstate nannoes
Metonie Bueno Case No.: CACE12035355 03 Daniel A. Miller
Stefanie D. Capps "] . Douglas F. Miller
Idabel Coley Our File No.: 0085400 delgtH tbe
Michael J. Carney Sia Nejad
Kata M. Corper ; Kenneth M, Olver
ence 4 Dear Honorable Judge Powell: — 7
YWette M. Pace
A Alexandre Paez
’ Enclosed please find: Lucos G. Parsons
Michael C. Clorke
Steven W. Comman, Jr
Karo K. Cosse Karina . Perez
Earieen H. Cote : Stuart C. Poage
‘Stephen M Cont 1 Defendant’s Objection to Plaintiff's Letter and Proposed Order dated July sosnuat. Polsky
jeresa F. Cummings
Shoron C. Degnan 29, 2015 [sic]; and Gregory J. Prusak
Jane C. Rankin
Jarred $. Dichek Jennifer Remy-Estorino
Valerie A. Dondero: . sous 2 : i
Dawid M. Drahos 2. Defendant’s Proposed Order Denying Plaintiff's Requested Relief in otessiaicboata
Pee eesti Plaintiff's July 29, 2015 [sic] Letter and Proposed Order. : Chistin 4, Russel
Nicole M Ells Wiliam A. Sabinson
Brad Eubanks Jorge Sentero, st.
'scael Foyarco Horold A. Saut
Jennifer LeVine Fold : 7 . . : Scott M. Si
‘eangelac.tlowes — Should you require any additional information, please do hesitate to contact my office. Pe ope
ne A. Flunarty
Jason §. Stewart
Medal Vaal / chee shee
Adam M.fredman — Re tfully gubfnitted, ‘Scott Tanke!
neocons ° each rel
Sauk. eaceng : Coen
Tendo beni SIGNED IN THE ABSENCE Toa Tacey
waies commen earie y Wiabae
Kenneth J. Idle Beran pee TO Cisopner M-utere
ogni Melonie Bueno : Saal Charles H. Watkins
Rebecea Cooperman kay LJ A/MEB/apl Cheseo 8 we
Somantha M. Ketant nF Mood
sree onte ce: ~—- Hubert Nocento (Via U.S. Mail and Email) Sean-Kelly Xenaks
515 North Flagler Drive, Suite 1800, West Palm Beach, Florida 33401 « T: (561) 640-0303 « F: (561) 640-0524
FLORIDA: Fort Lauderdale Fort Myers/N Jgeysonville Key West Miami Ocala Orlando
- Pensacola Tallahassee Tam West Palm Beach ALABAMA: Mobile
www.kubickidraper.com- le
Filing #44790201 E-Filed 08/03/2016 03:50:55 PM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY,
FLORIDA
HUBERT NOCENTO,
PLAINTIFF,
v CASE NO.: CACE12035355 03
VS. ‘e : :
ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY, . .
DEFENDANT. oe
/
DEFENDANT’S OBJECTION TO PLAINTIFF’S LETTER AND PROPOSED ORDER
ATED 29, 2015 [sic]
*
COMES Now, the Defendant, ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY, by and through the undersigned counsel, files this Objection to
Plaintiff, HUBERT NOCENTO’s Letter and Proposed Order, dated July 29, 2015 [sic]
(hereinafter referréd to as “Plaintiff's July 29" Letter and Proposed Order.”). Plaintiff's July.29"
Letter and Proposed Order purports to seek entry of an order denying Defendant’s Motion to
Dismiss, which is set for hearing on September 12, 2016. Defendant respectfully requests that
the Court deny entry of this Proposed Order and as good grounds thereof states as follows:
1. On August 2, 2016, undersigned counsel received, via U.S. mail, a courtesy copy
of Plaintiff's July 29" Letter and Proposed Order, which seeks entry of an order granting
Plaintiff's Notice for Jury Trial Demand and denying Defendant’s Motion to Dismiss. (See
“Exhibit A”).
2. Defendant objects to the relief sought in Plaintiff's July 29" Letter and Proposed
Order.
Es (A)CASE NO.: CACE12035355 03
3. For a brief recitation of the facts, Plaintiff filed an Amended Complaint on May 5,
2016, In response, on May 16, 2016, Defendant filed a Motion to Dismiss. Since June 20, 2016,
the Motion to Dismiss has been specially noticed for hearing on September 12, 2016 at 9:30
AM.
4, Thereafter, on July 18, 2016, the Plaintiff filed his “Notice for Jury Trial
Demanded, and to Compel Answers to the Amended Complaint in the Alternative Asking the
Court to Deny, by Striking Defendant(s) Motion to Dismiss Plaintiff's Amended Complaint and
Reconsideration of Order, and to Enter Default Judgment Entry in Favor of Plaintiff(s).”
(hereinafter referred to as “Notice for Jury Trial Demanded”) (See “Exhibit B”). This document
appears to be a response to Defendant’s Motion to Dismiss.
5. Defendant intends to file a reply to Plaintiff's Notice for Jury Trial Demanded in
advance of the September 12, 2016 hearing.
6. On July 29, 2016, Plaintiff served the July 29" Letter and Proposed Order.
7. Plaintiff did not confer with Defendant regarding the Plaintiff's July 29" Letter
and Proposed Order and Defendant objects to the relief sought in Plaintiff's July 29" Letter and
Proposed Order as improper and premature, especially given the hearing set for September 12,
2016 on Defendant’s Motion to Dismiss,
8. Defendant also notes that this case is not at issue, as the pleadings are not yet
closed. See Fla, R. Civ. P. 1.440(a). Accordingly, Plaintiff's request to set this case for trial is
premature.
9. Accordingly, Defendant respectfully requests that this Court deny the requested
relief in Plaintiff's July 29" Letter and Proposed Order and address any requests for relief by any
Party at the September 12, 2016 hearing.
Page 2 of 3CASE NO.: CACE12035355 03
WHEREFORE, the Defendant, ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY, respectfully requests that this Honorable Court deny the requested
relief in Plaintiff's July 29" Letter and Proposed Order, and grant it any other relief this Court
deems just and proper.
CERTIFICATE OF SERVICE
J HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
E-service and mail to: HUBERT NOCENTO, Pro Se, 215 NW 60" Ave., Margate, FL 33063-
5170, bobolitu@hotmail.com, this are day of AUGUST, 2016.
KUBICKI DRAPER
Attorneys for Defendant Allstate
515 N, Flagler Drive, Suite 1800
West Palm Beach, Florida 33401
Telephone: (561) 615-4315
LA-KD@kubickidraper.com
BY: /s/ Laurie J, Adams
Laurie J. Adams
Florida Bar No.: 37613
Melonie Bueno
Florida Bar No.: 43423
Page 3 of 3IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY,
FLORIDA
HUBERT NOCENTO,
PLAINTIFF(S) CASE NO.: CACE12035355 03
JURY TRIAL DEMANDED
VS,
ALLSTATE PROPERTY AND CASUALTY A TRUE GOPY
PANY,
INSURANCE COM: JUL 1g 2016
DEFENDANT(S), HOWARD C. FORMAN
CLEAR OE CUT URT
. / BROWARD COUNTY, FL
NOTICE FOR JURY TRIAL DEMANDED, AND TO COMPEL ANSWERS
TO THE AMENDED COMPLAINT IN THE ALTERNATIVE ASKING
THE COURT TO DENY, BY STRIKING DEFENDANT(S) MOTION TO
DISMISS PLAINTIFF’S AMENDED COMPLAINT AND
RECONSIDERATION OF ORDER, AND TO ENTER DEFAULT
JUDGMENT ENTRY IN FAVOR OF PLAINTIFF(S)
COMES NOW, the Plaintiff, Hubert Nocento, Pro se, in the above captioned styled
cause, and the undersigned, pursuant to Florida Constitution, Article 1, Declaration
of Rights, Section 22, “Trial By Jury” demanding a “Voir Dire” process, trial, on
all issues filed in the amended complaint according to law as stated.
Page 1 of 9FACTUAL FINDINGS OF CASE
On or about December 21, 2012, Plaintiff filed suit against
Defendant(s), Allstate Property, and Casualty Insurance Company. Plaintiff,
Hubert Nocento, Amended the complaint on December 8, 2015, Revised
Amended complaint on January 25, 2016, re-filed said amended complaint
on February 22, 2016, and on May 05, 2016 as Ordered.
Defendant(s):
(a) Is in Breach of Contract, Florida Statute 624.155,
(b) Is in Violation of Florida Statute 319.30,
(c) Did Actin Bad Faith, and
(d) Actions constituted Fraud upon the Court.
Destafano y. State Farm Mutual Automotive Insurance Co., 28,
Fla.1*, DCA 2003, Long vy. Swofford, 85, So. 2d 882, (Fla. 3d, DCA
2003).
Defendant(s) commercial claimed and stated, “You are in good
hands” which caused Plaintiff emotional inflictions.
Defendant(s) violated Plaintiff’s emotions as set forth in §540, 08,
Florida Statutes (2007), Tyne v. Time Warner Entmt Company, 901 So, 2d
Page 2 of 9802 (Fla. 2005) Allstate Ins. Co. v. Ginsberg, 863, So. 2d 156, 160-61 (Fla.
2003).
5. Defendant(s) issued a check in Plaintiff’s name for Thirteen
Thousand, Eight Hundred Seventy Eight Dollars and Twenty-five
Cents, ($13, 878.25; Plaintiff returned said check. Plaintiff was emotionally
upset with all communication.
6. Defamation, by implication was caused by Defendant(s), which
prejudiced Plaintiff(S) Restatement (Second) of Torts, § 559. (1972).
7. Defendant(s) misrepresented the Court by misleading the Court to
dismiss and/or compel appraisal provision; plaintiff complied with the Court
Order.
8. It is further determined, by the Court, that a cause of action was
established, by Plaintiff, for Breach of Contract and bad faith under statutory
bad faith causes of action, (Florida Statute 624, 155 (1) Opperman v.
Nationwide Mnt. Fire Ins, Co. 5 15, So. 2d 263 (Fla. 5'" DCA, 1987).
9. This Court finds Defendant(s) to be negligent and liable to Plaintiff in
violation of Florida Statute 319.30 as established by Plaintiff for a cause of
action on the basis that Defendant(s) and Plaintiff agreed that the vehicle
Page 3 of 9was a total loss; Brewer v. Clerk of Circuit Court, Gadsden County, 720, So.
2d, 602, 603, (Fla.1* DCA 1998); See Exhibit (A) attached.
10. Defendant(s) failed to pay Plaintiff the agreed total loss and did; in
fact, withheld money, Brumer v, HCA Health Services of Florida Ins., 662
So, 2d 1385, 1386-87 (Fla.4" DCA 1995); See Exhibit (B) attached.
11. Defendant(s) expressly declared the vehicle a total loss under Florida
Statute 319.30 (a):
“When an Insurance company pays the vehicle owner to
replace the wrecked or damaged vehicle with one like kind and quality” |
12. Defendant(s) the maker of misrepresentation, See Exhibit (C)
attached,
1. WHEREAS, Plaintiff originally filed suit against Defendant(s), for
breach of contract and damages, on or about December 21, 2012 and
amended, as ordered, filed amended complaint on May 05, 2016.
2. Plaintiff filed for default entry and subsequent To the Orders of the
Court And years of motions to dismiss, by Defendant(s) motions to strike,
motions to stay, motions to compel appraiser, motion for clarification of
Courts Order, Evidently, and made to cause delays and intentional
Page 4 of 9dilatory tactics; strategies, in violation Fla. Stat. §57.105. All claims
and defenses were loss and “sanctions” Bridgestone/Firestone, Inc., v.
Herron, 828, So. 2d 414 (Fla. 1 DCA 2002) “prevailing party” a party
who defeats “any claim or defense”. This Court shall strike
Defendant(s) motion to dismiss Plaintiff’s Amended Complaint filed on
May 05, 2016.
3. WHEREAS, Defendant(s) violation of Florida Rules of Professional
Conduct 4-3.2, despite the fact that this case is not a criminal case and a
reminder to the Defendant(s) defense, is a breach of contract; and should be
tried on the merits not strategy and should not be indulged, Wood-Cohan v.
The Prudential Insurance Co, of America, 715 So. 2d 999 (Fla, 4" DCA
1998),
4, WHERAS, Defendant(s) have breached the policy contract
Defendant(s) have acted in bad faith; see Plaintiff’s motion filed on October
28, 2014, filed as Plaintiff's Exhibit (D).
5. WHEREAS, Defendant(s) delays and motions are to deliberately cost
Plaintiff and the Court time and money while saving and earning interest on
monies not being paid for years of delay to cause harm, see Plaintiffs
Page 5 of 9Exhibit(E) filed on August 07, 2015; Plaintiff's Exhibit(F) Emerson Realty
Group, Inc. v. Schanze, 572 So. 2d 942 (Fla. 5" DCA 1990).
MEDIATION DAMAGES SOUGHT AND FAILED
6. WHEREAS, this cause was sent by the Court to be resolved; and said
mediation resulted fruitless despite the ripeness and merits of the case; See
Exhibit (G).
7. WHEREAS, partial summary judgment should have been granted
previously whereby Defendant(s) moved to strike and demand a jury trial on
all issues by the Court; See attached Exhibit (H).
8. WHEREAS, no genuine issue remains other than the amount of
damages claimed by Plaintiff.
9. WHEREAS, Defendant(s) delays and intentional dilatory means
prevents the Court to dispose of this case despite mediation talks.
SUMMARY JUDGMENT STANDERS
10. WHEREAS, Defendant(s) failed to comply with Florida Statute
319.30 when the record reflects no genuine issue of material fact, a Court
Page 6 of 9may enter judgment for the moving party as a matter of law; See Moore vs.
Morns, 475, So. 2d 666 (Fla. 1986) Defendant(s) agreed to pay and failed to
pay Plaintiff(s).
i. WHEREAS, there can be no dispute that Florida Statute 319.30
applies to this action and this case cannot be dismissed. Importantly,
damages are bound by the laws of the State of Florida.
12. WHEREAS, Defendant(s) refusal to honor its policy and Florida
Statutes has caused substantial injury to the insured Plaintiff, Hubert
Nocento,
13. WHEREAS, Defendant(s) motion to dismiss case was previously
heard by this Court in the original complaint filed December 21, 2012 and
the Amended complaint filed on May 05, 2016 is not a new complaint.
14, WHEREAS, Defendant(s) were asked by the Court to answer the
amended complaint, instead Defendant(s) moved to dismiss on the grounds
of criminal defenses law and not merits in the case,
COURT TRANSCRIPT
15, WHEREAS, Page 18 line 6 thru 13, the Court in part [[sic]] “just
clean it up by filing a document that says amended complaint and then
Page 7 of 9have a hearing on it”.
|
we go forward from there okay? Then it gets set for hearing and we |
i
16. WHEREAS, Defendant(s) failed to answer the amended complaint
and move to dismiss which motion was denied previously by the Court.
17. WHEREAS, Defendant(s) took over two years, (2), to answer the
original complaint and, did, had years of motion practice known as wasting
the Courts resources and valuable time causing harm to Plaintiff; see Exhibit
©. 1
WHEREFORE, Plaintiff(s) demands a jury trial, and, for all the foregoing reasons,
Plaintiff, Hubert Nocento, Pro Se, respectfully request this Court to enter partial
summary judgment in favor, and against Allstate Property And Casualty Insurance
Company by entering default judgment for failing to answer the amended
complaint filed on May 05, 2016 as expected by the law and time allowed by the
Fla. R. Civ. P. and applicable laws, denying and striking Defendant(s) motion to
dismiss amended complaint filed by Plaintiff(s) and together with any and all relief
the Court deems just and equitable.
Respectfully Submitted,
On This 18Day of July, 2016 by the Undersigned
Page 8 of 9BY:
¢
/s/
Hubert Nocento, Pro Se
215 NW 60" Ave.,
Margate, FL 33063-5170
CERTIFICATE OF SERVICE
THEREBY CERTIFY that a true and correct copy of the foregoing
NOTICE FOR JURY TRIAL DEMANDED, AND TO COMPEL ANSWERS TO THE
AMENDED COMPLAINT IN THE ALTERNATIVE ASKING THE COURT TO DENY,
BY STRIKING DEFENDANT(S) MOTION TO DISMISS PLAINTIFF’S AMENDED
COMPLAINT AND RECONSIDERATION OF ORDER, AND TO ENTER DEFAULT
JUDGMENT ENTRY IN FAVOR OF PLAINTIFE(S)
has been furnished by mail to: KUBICKI DRAPER, Attorneys for
Allstate Property and Casualty Insurance Company, 515 N. Flagler
Drive, Suite 1800, West Palm Beach, FL 33401, Telephone: (516)
615-4315, this 18day of July 2016.
BY: wile oc
ubert Nocento, Pro Se
215 NW 60" Avenue
Margate, FL 33063-5170
Page 9 of 9es 7 CASE NO.: 12-35355-03
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
HUBERT NOCENTO ) CASE NO.: 12-35355-03
) DIVISION: CIVIL
uf Plaintiff, ) JURY TRIAL DEMANDED
“vs. ) AMENDED COMPLAINT
)
ALLSTATE PROPERTY AND )
CASUALTY INSURANCE COMPANY)
)
- COPY
oi Defendant(s). ) ATRUE
} MAY 05 2016
AMENDED COMPLAINT
(UMC Hearing Held April 12, 2016)
cal
COMES NOW, Plaintiff, HUBERT NOCENTO, Pro Se, the undersigned, in the above styled
captioned cause and Amends Complaint and Sues Defendant Allstate Property and Casualty Insurance
Company (Pursuant to Florida Statute 624-155) and alleges in Count 1 thru 7.
ACTION FOR DAMAGES — JURY TRIAL DEMANDED
Original complaint filed December 21, 2012 (See Exhibit A).
(1) Count one (1) thru seven (7) is in excess of $15,000.
(2) Plaintiff is a resident of Broward County, Florida and all events materials herein stated occurred
Exar sry (Cy \ 1 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03
in Broward County, Florida.
(3) Allstate is the Defendant and the Seller of Insurance licensed in the State of Florida.
(4) On or about June 30, 2009, Plaintiff was forced off the road by a Phantom Vehicle during which
coverage was a Comprehensive Collision Policy with the Defendant Policy Number 961533920 07/02.
(5) Plaintiff's Policy Contract with Defendant provided for that in the event of loss Defendant
would pay Plaintiff the cost to repair the vehicle, or if the cost to repair was 80% or higher than the value of
the vehicle, Defendant could either repair the vehicle or pay the actual cash value of the vehicle.
Subsequently, Defendant on August 07, 2009 declared Plaintiff's vehicle a total loss. Pursuant to Florida
Statute, Applicable Law Statute 319.30, which replaces the vehicle with “One Like Kind and Quality
Replacement Vehicle” or cost to replace with replacement value of money.
(6) On or about July 31, 2009, Defendant chose to offer Plaintiff as a full and final settlement for
the claim, the sum of $21,496.08. Defendant sent a check for $13,878.25. (See Exhibit B) attached. Said
check was refused by Plaintiff; (Statute 86.011 Allstate Insurance Company Vs. Conde 595 So. 2d 1005, 1006
(Fla. 5 DCA 1992).
(7) Despite repeated demands by Plaintiff for payment from Defendant, Defendant refused to
make full payment. Plaintiff did return the check for $13,878.25 and Demanded One Like Kind and Quality
Vehicle under Florida Statute 319.30. Both parties agreed the vehicle was a total loss as stipulated.
(8) As a result of Defendant's refusal to pay Plaintiff the full $21,496.08, Plaintiff has suffered.
Defendant is in Breach of the Insurance Contract between Plaintiff and Defendant.
(9) Plaintiff, in order to be restored under Statute 319.30, seeks a replacement vehicle which said
2 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03
vehicle manufacturer stopped making the vehicle at their factory and is no longer available to the public for
purchase, “ One Like Kind and Quality” Replacement Vehicle $656,781.64 cost and interested included.
10) Plaintiff Demands a Trial By Jury of all issues so triable by law as expressed by Plaintiff and
Defendant, as agreed by Motions filed on all counts. (See Exhibit C).
WHEREFORE, Plaintiff seeks declaratory judgment in the amount of $656,781.64 against
Defendant. Additionally, damages to be proven an all counts at trial, prejudgment interest, cost and fees
pursuant to Florida Statute 627-428 and all issues triable by Jury.
COUNT ONE (1)
CLAIM FOR BREACH OF CONTRACT
11. This is an action for Breach of Contract in excess of fifteen thousand dollars and 00/100
($15,000.00).
12. Plaintiff realleges paragraph 1 through 10 as set forth above and incorporates the same herein
by reference and the submitted attached insurance policy. Exhibit (B)
13. Defendant agreed to pay Plaintiff under the Florida State Applicable Law Statute 319.30
together with the issued policy terms of Florida and not Texas. Exhibit ( C)
3 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03
14. Plaintiff filed the present action on December 21, 2012 for Breach of Contract.
15. Defendant filed their answers to Plaintiff's Complaint two years and ten months subsequently
to being properly served and did file other Motions to Dismiss and defend all Issues.
16. Surprisingly, on September 09, 2015, Defendant filed an untimely motion.
17. Plaintiff request a scheduling order for Jury Trial to be entered in this case and Plaintiff moves
for declaratory judgment .
18. Plaintiff in the attached amended complaint seeks relief on all issues triable by Jury Trial.
19. On April 29, 2016 Plaintiff amended Complaint was ordered by the Court and the amended
complaint would not prejudice the opposing party and/or the privilege to amend has not been abused
ot ~~ or the amendment would be futile.
20. Example: Bill Williams. Air Conditioning and Heating V. Haymarket. Coop. Bank,
2.S0,2d,302,305,(Fla 1 DCA.1992, rev. Dismissed 598,S0,2d.76.(Fla 1992). See Exhibit CD. (Court Docket).
COUNT TWO (1!)
CLAIM FOR BREACH OF CONTRACT AGAINST ALLSTATE
21. This is a claim for Breach of Contract in excess of fifteen thousand dollars and 00/100
($15,000.00).
22. Plaintiff readopts and realleges in all paragraphs and counts 1 through 10 as set forth above
and incorporates the same, herein by reference.
23. Avalid and legal contract was formed between Plaintiff, Hubert Nocento and Allstate Property
and Casualty Insurance Company.
4 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03
24. Defendant failed to pay the full settlement amount as agreed.
25. Atrue and correct copy of the agreement is attached, described as Exhibit D.
26. Allstate owed a duty to Nocento to properly perform and Allstate failed to perform its duty and
obligations as contracted and agreed upon.
27. It was reasonable for Nocento to believe that Allstate was dealing in good faith and did rely on
the contract and agreement terms.
28. Nocento did rely on Allstate contracts agreement statement and actions.
29. Nocento performed all duties under the contract, rightfully expecting reciprocal performance.
30. Defendant misrepresented the court with a false policy dated March 05, 2013. See Affidavit,
Exhibit E.
31. Allstate materially breached the contract issued on January 2, 2009 through July, 2009. See
Exhibit F attached.
32. Defendant’s March 05, 2013 policy was after the accident and claim, and knew the foresaid
representation was false.
33. The contract clearly list the limits of liability on page 18, part V of Allstate Automobile Policy of
Florida (AU 109-1) as indicated by the contract and terms together with statute 319.30 of Florida Statute and
Law “Like kind and Quality (Policy) and Statute “One Like Kind and Quality”. See Florida Issued Booklet,
Exhibit G.
34. Allstate knew or should have known that Nocento was entitled to full benefit of the bargain
5 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03
made and any failure by Allstate would cause Nocento to suffer damages.
35. Asadirect and proximate cause of the Breach of Contract by Allstate, Nocento has suffered
substantial direct and consequential damages.
36. Plaintiff further places Defendant on notice that Plaintiff seeks to add Punitive damages after
appropriate discovery has occurred.
WHEREFORE, Plaintiff, NOCENTO, Plaintiff demands Judgment against Allstate for Direct and
Consequential Damages suffered, Pre-Judgment Interest, Post Judgment Interests, Court Cost Pursuant to
Florida Statute 319.30 Applicable Law, the contract and any such other relief that this court deems necessary
and proper.
COUNT THREE (III)
FLORIDA NO FAULT BENEFITS AND WAGES/MEDICAL (AGAINST ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY)
37. This is an action for Breach of Contract in excess of fifteen thousand and 00/000 dollars
($15,000.00).
38. Plaintiff readopts and alleges in paragraph 1 thru 10 as set forth above and incorporates the
same herein by reference.
39. Avalid and legal contract was formed between Plaintiff and Defendant. A true and correct
copy of contract to the agreement has been attached as Exhibit H.
40. Plaintiff, Nocento’s policy includes the following medical expenses, benefits which pays 80%
6 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03
together-with income loss which pays 60% of lost wages.
41. Defendant violated the Florida Automobile Reparations Reform Act, under the PIP Laws
Benefits by failing to pay Plaintiff lost wages.
42. Dunmore Vs. Interstate Fire Insurance Company 301, So. 2d 502 (FI. App. 1974).
43. Defendant continues to avoid paying the owed monies.
44, Plaintiff has a right to and is entitled to payment.
45. Plaintiff reserves the right to demand and request damages Pursuant to the applicable
Statutory Law.
46. In the alternative, places Defendant on notice that Plaintiff will seek amendment to this
complaint in order to add Punitive Damages after the appropriate discovery has occurred.
WHEREFORE, Plaintiff, NOCENTO demands judgments against Allstate Property and Casualty
Insurance Company for Compensatory Damages, Costs of this Action, Fees Pursuant to the prevailing party's
contract and Applicable Florida Statutes, together with interests and such other relief as the court deems
appropriate.
COUNT FOUR (IV)
FRAUD IN THE INDUCEMENT (AGAINST ALLSTATE INSURANCE, DEFENDANT)
47. This is an action for Fraud in the Inducement in excess of fifteen thousand dollars and 00/100
$15,000.00).
7 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03
48. Plaintiff readopts and re-alleges paragraph 1 through 10 as set forth above and incorporates
the same, herein by this reference.
49. Defendant made misrepresentation to Plaintiff regarding the agreement and settlement offer
and the amount of settlement made in the amount of $21,496.08 as agreed by both Nocento and Allstate.
See attached Exhibit (I).
50. _Inrreliance upon the aforesaid representation by Allstate, intentionally and willfully
misrepresentation was false.
51. Asa result, Plaintiff suffered damages when Defendant failed to pay the correct amount of
settlement offered to Plaintiff. Subsequently issuing a check in the amount of $13,878.25. See Exhibit J
attached.
52. Defendant created and formed vicariously wrongdoing and is liable to Plaintiff.
53. Defendant hyperbolically used the Insurance Policy of March 05, 2013 to misrepresent and
mislead the court in believing that said policy was the authentic policy issued to Plaintiff on January 02, 2009
through July, 2009.
54. Defendant made the aforesaid representation to Plaintiff regarding the filed copy of Insurance
Policy to be a true and exact copy of Plaintiffs Insurance Coverage of Liability and Limits.
55. Defendant’s intentions of filing said policy on December 05, 2013 “Defendant, Allstate
Insurance Property and Casualty Insurance Company” was made under aforesaid representation and knew it
was false.
8 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03
56. Defendant's affidavit submitted by a sworn statement on September 03, 2015 by Sandra
Saunders was a confirmed Policy issued subsequently to the time of filed claim.
57. Terms of Policy and Limits of Liability was falsely submitted on March 05, 2013 and “One Like
Kind and Quality” was eliminated and no mention of January 02, 2009 through July 2009 policy mentioned.
58. Plaintiff, in reliance upon aforesaid policy issued by Defendant on January 02, 2009 through July
2009 was a Breached of Contract.
59. Defendant caused injuries as suffered by Plaintiff when discovered that Allstate’s submitted
policy was false and the aforesaid representation caused harm to Plaintiff.
60. Plaintiff, Nocento hereby reserves the right to request exemplary damages pursuant to
applicable Statutory Law.
61. Defendant moves to Strike from the record and docket the false policy filed by Defendant on
December 05, 2013 as a fabricated copy not registered in the State of Florida.
62. Plaintiff submits a true and correct copy of January, 2009 through July, 2009 Insurance policy.
63. Plaintiff further places Defendant on notice that Plaintiff will seek amendment to this-complaint
in order to add Punitive Damages after appropriate discovery has occurred.
WHEREFORE, Plaintiff, NOCENTO demands Judgment against Allstate Property and Casualty
Insurance for Compensatory Damages, Cost of this Action and Fees Pursuant to the Contract and Agreement
of Settlement as agreed with Plaintiff as warranted by the applicable Florida Statute, Interest and such other
relief as this court deems appropriate.
Q (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03
COUNT FIVE (V)
CLAIM FOR CIVIL CONSPIRACY AS TO CONVERSION AND REPLEVIN OF (2003 HUMMER H2) AGAINST
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY / MEGA AUTO REPAIR
64. This action for Civil Conspiracy as to Conversion and replevin of 2003 Hummer H2 is in excess of
fifteen thousand dollars and 00/100 ($15,000.00).
65. Keefe V. City of Hollywood, 487, So,2d 311 (Fla 4%" DCA 1986) Wisniewski V. Historical
Association of Southern Florida, Inc. 408, So 2d, 246 (Fla. 3d DCA 1982).
66. Plaintiff readopts and realleges paragraphs 1 thru 10 as set forth above and incorporates the
same, herein by this reference.
67. Upon information and belief, Allstate and Mega Auto Body knowingly and intentionally agreed,
conspired, and combined with each other and others to convert to use and personal gain Plaintiffs 2003
Hummer H2.
68. in furtherance of their unlawful objective, one or more of these employees of Defendant and or
repair facility refused to repair, replace, give One Like Kind and Quality Replacement of Vehicle to Plaintiff.
69. Further, by not repairing the vehicle but charged storage charges for each day said vehicle was
in the repair shop. See Exhibit K.
70. Defendant, by not repairing the vehicle according to the Contract and Policy Terms totaled the
Hummer and subsequently, said vehicle was sold for storage charges by Mega Auto Repair.
71. Asadirect refusal to pay Plaintiff in a timely manner, Plaintiffs Hummer was auctioned off by
10 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03
the repair facility.
72. Defendant was well aware that the vehicle would be subject to be sold after declaring the
vehicle a total loss.
73. Both parties subsequently agreed that the vehicle would be a total loss. See Exhibit L.
74. Defendant wrongfully allowed the repair facility to auction the Hummer. Had Defendant
repaired the vehicle or pay the claim, said vehicle would have never been auctioned.
75. Plaintiff could not take possession of said property; thereby, Defendant deprived Plaintiff of the
value and use of said Hummer.
76. Plaintiff is entitled to One Like Kind and Quality Vehicle.
77. Defendant wrongfully asserted dominion over Plaintiff's property in violation of Plaintiff's right
over same, with the intent to temporarily and permanently deprive Plaintiff of his property by not paying the
claim and or agreed Contract.
78. Plaintiff's rights of possession were violated. Defendant and repair shop took dominion and
control of the property as described above.
79. Both repair facility and Defendant conspired to cause injury to Plaintiff.
80. Defendant acted knowingly and with the intention of depriving Plaintiff of the property rights
therein and value, with wanton and wreckless disregard for the rights of Plaintiff.
81. | The Defendant’s and Mega Auto Repair Shop’s wrongful actions and conduct clearly
demonstrate malice, wantonness, willfulness, evil motive and reckless or callous indifference for Plaintiff's
11 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03
rights.
82. Defendant is severally liable for compensatory damages.
83. Plaintiff was left without a vehicle and neither did the Defendant satisfy the claim to date,
which is a material breach of contract.
84. If Defendant’s misconduct were permitted without rebuke, it would encourage others to
engage in such reprehensible conduct.
85. Asa direct and proximate result, Defendant's conspiracy against Plaintiff caused Plaintiff to
suffered substantial direct and consequential damages.
WHEREFORE, Plaintiff, NOCENTO demands judgment against Defendant for direct and
Consequential damages as suffered, with Pre-judgment Interest, Post-judgment Interest, Court Costs, and
Fees.
COUNT SIX (VI)
CLAIM FOR BAD FAITH
86. This is an action for Bad Faith in excess of fifteen thousand and 00/100 dollars ($15,000.00).
87. Plaintiff readopts and realleges paragraph 1 through 10 as set forth above and incorporates the
same therein, by this reference.
88. Avalid and legal contract was formed between Nocento and Allstate. A true and correct copy
12 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03
of contract has been attached hereto, and previously described as Exhibit D.
89. Allstate owed a duty to Nocento to properly perform and Allstate by and through its employees
failed to perform its duties and obligations in accordance with the expressed Insurance Policy Contract.
90. It was reasonable for Plaintiff to believe that Allstate was dealing in good faith and to rely on
the contract and Florida Applicable Law.
91. Nocento did rely on Allstate and detriment was a result of its adjusters, statements, settlement
offer and action.
92. Plaintiff did perform all duties under the contract, rightfully expecting reciprocal performance.
93. Allstate materially breached the contract.
94. Plaintiff seeks lost wages and economic damages.
95. Allstate knew or should have known that Plaintiff was entitled to the benefit of the bargain
made.
96. _ Allstate failed to perform under the contract, knowingly Plaintiff would suffer damages.
97. Defendant is vicariously liable for wrongdoing and illegal acts caused by adjusters, employees,
repair facility, representatives and officers.
98. ; Asa direct and proximate cause of the Breach of Contract by Defendant, Plaintiff has suffered
substantial direct and consequential damages.
99. The Defendant’s malice, wantonness, willfulness, evil motive, and reckless or callous
indifference for Plaintiff's rights, will make them severally liable for Compensatory Damages.
13 (Exhibits Flled In Previous Amended Complaints)CASE NO.: 12-35355-03
100. If Defendant’s misconduct were permitted without rebuke, it would encourage others to
engage in such reprehensible conduct.
101. Asadirect and proximate result of Defendant’s Bad Faith against Plaintiff, Plaintiff has suffered
reasonably foreseeable damages.
COUNT SEVEN (VII)
NEGLEGENCE
102. This is an action for Neglegence in excess of fifteen thousand dollars and 00/100 ($15,000.00).
103. Plaintiff readopts and realleges Paragraph 1 through 10 as set forth above and incorporates the
same herein, by reference.
104, Defendant is negligent to Plaintiff.
105. Defendant’s refusal to pay Plaintiff and or settle claim within a reasonable time has caused
injuries to Plaintiff.
106. Defendant wrongfully exercised a willful and wrongful control, dominion and ownership over
Plaintiff's monies.
107. Plaintiff filed this action for Breach of Contract on December 21, 2012. Defendant is in Default.
108. Defendant failed to answer the complaint and was Ordered by the Court to do so on June 13,
2013.
109. The Docket Records will reveal that Defendant on September 09, 2015 answered the complaint,
14 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03
to which answer was untimely filed
110. The Court inadvertently denied Partial Summary Judgment on September 09, 2015 instead of
entering Default for Partial Summary Judgment. See Exhibit M (Evidence).
111. Defendant is negligent and willfully and eat deprived Plaintiff the use of Plaintiff's vehicle
by not paying Plaintiff.
112. Despite multiple attempts to obtain the check made in agreement of contract settlement,
Defendant failed to pay Plaintiff.
113. Defendant applied the applicable law in accordance with Plaintiff policy issued on January 02,
2009 through July, 2009.
114. Plaintiff's vehicle was damaged on June 30, 2009. As of December 07, 2015, Defendant still had
not paid Plaintiff.
115. Defendant agreed to pay the claim and failed to pay the settlement offered amount.
116. Florida Statute 319.30 allows Plaintiff Replacement Value One Like Kind and Quality.
117. Defendant's Florida issued policy booklet captioned at page 18: “However, our liability will not
exceed what it would cost to repair or replace the property or part with other of “One Like Kind and Quality”.
See Exhibit N (Evidence).
118. Florida Statute 319.30 (3) (a) “When an Insurance Company pays the vehicle owner to replace
the wrecked or damaged vehicle with “One Like Kind and Quality” (Title XXIII).
119. Defendant declared the vehicle a total loss, agreed to pay the claim, but refused to pay ina
15 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03
timely manner according to law.
120. Defendant, in violation of Florida Statute failed Plaintiff despite several attempts and demands.
121. Defendant, Allstate acted knowingly with the intention of depriving Plaintiff of its property
rights therein and value, with wanton and reckless disregard for the right of Plaintiff.
122. Defendant instigated the appraisal provision, knowingly the vehicle was a total loss.
123. The court subsequently denied Defendants to compel appraisal process and lifted the stay on
February 24, 2015.
124. If Defendant misconduct were permitted without rebuke, it would encourage others to engage
in such reprehensible conduct.
125. Allstate’s actions and conduct clearly demonstrate malice, wantonness, willfulness, evil motive,
and reckless or callous indifference for Plaintiff's rights.
PARTIAL SUMMARY JUDGMENT
126. Plaintiff demands Partial Summary Judgment in the amount of $656,781.64 together with
interest and cost, effective as of December 07, 2015.
127. Asa direct and proximate result of Defendant’s applying the Florida Statute Applicable Law and
knowingly that Defendant failed to pay as prescribed by Statute 319.30 as expressed.
128. When the insurance company pays the owner as defined in Statute 319.30.
129. Defendant failed to pay for the damaged vehicle with “One Like Kind and Quality”.
16 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03
PLAINTIFF’S ALLSTATE INSURANCE POLICY
130, Both Statute 319.30 and the issued Insurance Policy states: “One Like Kind and Quality”.
Plaintiffs policy issued on January 02, 2009 through July, 2009 together with the Declaration confirms
“One Like Kind and Quality Replacement Vehicle”. See attached Exhibit O.
131. Due to Defendant not paying Plaintiff in a timely manner, Plaintiffs vehicle was sold by the
repair facility pursuant to Chapter 713.585.(6) of the Florida Statutes.
132. Defendant totaled the vehicle and asserted dominion over the vehicle instructing Mega Auto
Body to dispose by recovering storage charges on and for the vehicle which wa
Preview
**** FILED: BROWARD COUNTY, FL Howard C. Forman, CLERK 8/11/2016 10:27:06 AM.**** CASE NO.: 12-35355-03 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA HUBERT NOCENTO CASE NO.: 12-35355-03 DIVISION: CIVIL Plaintiff, vs. JURY TRIAL DEMANDED ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY Defendant(s). MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FILED ON JULY 18, 2016 AND PROPOSED ORDER DATED JULY 29, 2016, AND TO DENY DEFENDANT’S PORPOSED ORDER BASED ON OBJECTION BY DEFENDANT NOT ANSWERING AMENDED COMPLAINT. COMES NOW, Plaintiff, HUBERT NOCENTO, Pro Se, the undersigned, in the above-styled captioned cause and moves this Honorable Court Pursuant to Florida Rules of Civil Procedures, Rule 1,500. DEFAULT ENTRY RULE 12 (c) (ONE) On or about September 08, 2015, Defendant answered the original complaint filed by Plaintiff for Breach of Contract filed on December 21, 2012. Page 1of8, CASE NO.: 12-35355-03 (TWO) On December 08, 2015, Plaintiff filed first Amended Complaint with Leave of the Court to Amend the attached included first Amended Complaint. (THREE) On January 14, 2016, the court granted Plaintiff's Motion to Amend the Complaint. Said complaint was never addressed or answers filed in response to defense or defended by the Defendant. (FOUR) Defendant had knowledge that the Amended Complaint was attached with Leave to Amend, the Amended Complaint, granted by the court on January 14, 2016. (FIVE) On January 14, 2016, Plaintiff filed for Entry of Default since Defendant did not respond to the Amended Complaint. ( F.R.C.P. Rule 55 (a) Last Amended Complaint was filed on May 05, 2016. (SIX) On February 17,2016, Defendant filed to strike Plaintiff's Motion for Default. (SEVEN) On April 12, 2016, the court held hearing and order of April 29, 2016 specifically stated. DISCUSSION After the court entered its order denying Defendant’s Motion to Strike and denying Entry of Default, Plaintiff filed once more the fourth (4"") Amended Complaint. Defendant failed to answer and respond, and instead moved to dismiss. DILATORY TACTICS Plaintiff filed its Amended Complaint again as instructed by the court’s order and filed on May 05, 2016. Defendant failed to file answers to the allegations and all counts in the Amended Complaint. Defendant is engaged in Dilatory Tactics and should be found in Contempt of Court, Section 57.105. Defendant’s Motion to Dismiss is not a responsive pleading or defense. Exhibit A. Defendant intentionally filed for clarification and objection, despite the orders of the Court. Defendant should Page 2 of 8; CASE NO.: 12-35355-03 i be held in contempt of the orders of the court because of Defendant’s refusal and failure to answer the Amended Complaint. Exhibit B Defendant failed to file and answer the Amended Complaint. Defendant’s conduct is lackadaisical. DUPONT DE NEMOURS AND COMP, 918F SUPP1524 363 11™ CIRCUIT, 1996). Plaintiff, in light of Defendant’s objection. Defendant’s Motion to Dismiss Plaintiff moves this court Pursuant to Rule 1,140 (c ) Motion for judgment on the pleading. Florida Rules of Civil Procedure and Applicable Laws. Plaintiff's Motion to Enter Default Entry should be reconsidered and granted. Rule 12(f) of the Federal Rules of Civil Procedures permit the court to strike any insufficient defense. SECOND OBJECTION Defendant’s Motion to Defend is merely objections to the order of the court. Exhibit C FIRST OBJECTION Defendant first filed its Motion for Clarification of the court’s order dated . INSUFFICIENT DEFENSE Defendant’s violation in Contempt of the Order of the Court should be disfavored by the Court. On January 25, 2016, Plaintiff filed Plaintiff's Revised Established Amended Complaint and added allegation common to all counts. Plaintiff's Motion under the circumstances to enter Default were sought under Rule 12 (b), Rule 56, E. CARLUCCI V. PIPER AIRCRAFT CORP., 775F 2d 1440 (11" CIRCUIT, 1985). Plaintiff's Motion filed on July 18, 2016 should be granted and default entered against Allstate Property and Page 3 of 8CASENO.: 12-35355-03 Casualty Insurance Company. FABRICA ITALIANA LAVORAZIONE Materic Organiche S,A,S. Vs. KAISER ALUMINUM AND CHEMICAL CORP, 684 F2d.776 (11" CIRCUIT, 1982). THOMPSON VS. KINDRED NURSING CENTERS EAST, LLC 211 F. SUPP. 2D 1345 (MD FLA 2002). DEFENDANT’S FAILURE TO APPEAR OR DEFEND Defendant’s Motion are delays and done intentionally. The court is seeing a lot of Defendant’s failure to appear, Motions to Stay, to Strike, to Dismiss, to Seek Clarification unavailable, and Objections, all without merits. RULE 12 (f) STANDARDS Applying this standard to this case, should lead the court to grant Plaintiff's order and to deny by striking Defendant’s Motion to Dismiss Plaintiff's Amended Complaint. F. MALAUTEA VS. SUZUKI MOTOR COMPANY, 987F 2d 1536 (11™" CIRCUIT, 1993). Defendant failed to file answers to Plaintiff's Amended Complaint filed on December 08, 2015 and the Ordered Amended Complaint filed on may 5, 2016 as per ordered by the court. ARGUMENTS Recognizing that motions to strike and defaults are disfavored. Florida court regularly accepts untimely answers. Yet, despite the order of the court Defendant failed to file or respond to the Amended Complaint filed by Plaintiff. Page 4of 8CASE NO.: 12-35355-03 Plaintiff is seeking entry of default for Defendant’s failure to answer the Amended Complaint filed and Defendant subsequently objecting to filed answers. It should be noted for the record that Entry of Default was entered for Failure to Obey the Ruling of the Court: not Untimely Filing of Answers. Florida Physicians, Inc. CO V. Ehlers, 8,3d 780, 783, (11 CIRCUIT, 1993) Defendant had several opportunities to answer and or defend but chose not to. Plaintiff experienced prejudice and obstruction of justice by Defendant’s Dilatory Tactic preventing the case to be tried on the merits. Subsequently, the stay being lifted and granted by the court on February 24, 2015. PRECEDENT Plaintiff did not need Leave to Amend the first Amended Complaint filed on December 08, 2015. Neither did Defendant have to wait to file answers to the Amended Complaint since the Defendant did answer the original complaint on September 08, 2015, and Plaintiff responded. Plaintiff, in response to the untimely pleading, amended the Complaint and did not need leave of the court to plead to the untimely filing and did answered and responded with the Amended Complaint as required to close the pleading , which Defendant failed to file answers in objection to. Rule 1.140. Plaintiff, however, did file the attached motion together with leave of the court which was granted on January 14, 2016. To date, Allstate has failed to File answers and have Defaulted. B.C. Builders Supply Co., Inc. V. Maldonado, 405, So, 2d 1345.1347 (Fla 3d 1981). Defendant’s delay created unnecessary burden on Plaintiff and the Court. Rule 15 (a) (1) of the Federal Rules of Civil Procedures. After entry of a court order, Defendant was required to file answers to all counts as required by FRCP. The Entry Order allowed Defendant to file Page 5 of 8CASE NO.: 12-35355-03 o answers to the Amended Complaint in as much, not to dismiss or object. The court’s ruling precisely made and ordered. SAUC V. BAE, 399, So.2d 130 (FlaDCA 1981). DAMAGES WHEREAS, the court must accept all allegation in Plaintiff's Motion and counts as true and Defendant’s Motion to Dismiss AB INITIO. WHEREAS, Plaintiff's Amended Complaint must be granted. Schever V. Rhodes 416 u.s. 232, 236, 94, S, Ct, 1683m (1974). WHEREAS, Plaintiff's vehicle was used to go to work to earn a living. Plaintiff suffered losses from not being able to arrive to work in a timely manner and became unproductive on the job and was terminated since 2010. Plaintiff is a Mobile Paint Tech and was deprived by Allstate Property and Casualty Insurance Company of the vehicle. - WHEREAS, Defendant did not object to Plaintiff's motion filed on July 18, 2016. Notice for Jury Trial Demanded, and to compel answers to the Amended Complaint in the alternative asking the court to deny, by striking Defendant’s motion to dismiss Plaintiff’s Amended Complaint and reconsideration of Order, and to enter default judgment entry in favor of Plaintiff. Rule 1,140. Garcia Ins. Agency V. Diaz, 351 So. 2d 1137, 1138, 39 (Fla 2d DCA 1977). WHEREAS, neither did Defendant file a response within the time allowed inasmuch as Defendant agreed that the court [sic] “WHEREFORE, the Defendant Allstate Property and Casualty Insurance Company respectfully request that this Honorable Court deny the requested relief in Plaintiff’s July 29 letter and proposed Order, and grant it Page 6 of 8| CASE NO.: 12-35355-03 any other relief this court deems just and proper.” Pursuant to Rule 1,500 (b) Plaintiff did properly file and serve the Amended Complaint upon the Defendant. WHEREAS, Defendant is in contempt and should be sanctioned. Defendant is in agreement with Plaintiff's motion filed on July 18, 2016. Defendant never opposed Plaintiff's motion, Notice for Jury trial Demanded. Carver V. Jenkins, 209 So 2d 882 883 (Florida 3d DCA, 1968). WHEREAS, Defendant never objected to Plaintiff's motion and failed to respond to same. Therefore, Plaintiff's motion and order attached should be granted by the court. Defendant intends to file or reply to Plaintiff's motion — Plaintiff's Notice for Jury Trial. However, did not respond and filed as ordered. WHEREFORE, it is for all of the foregoing reasons set forth. Plaintiff respectfully requests that this Honorable Court enter an order granting Plaintiff's Motion: Notice for Jury Trial Demanded, and to Compel Answers to the Amended Complaint in the Alternative asking the court to deny, by striking Defendant’s Motion to Dismiss Plaintiff's Amended Complaint and reconsideration of order and to enter default judgment entry in favor of Plaintiff. Respectfully Submitted on this 10" Day of August, 2016. N 215 NW 60! Avenue Margate, Florida 33063-5170 Page 7 of 8CASE NO.: 12-35355-03 CERTIFICATE E I HEREBY CERTIFY that a true copy of the foregoing MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FILED ON JULY 18, 2016 AND PROPOSED ORDER DATED JULY 29, 2016, AND TO DENY DEFENDANT’S PORPOSED ORDER BASED ON OBJECTION BY DEFENDANT NOT ANSWERING AMENDED COMPLAINT has been submitted via US Certified Mail: # Exssseo (foil Beque skeol (Returned Receipt Requested) to Allstate Property and Casualty Insurance Company, or to Attorneys for Defendant(s), Kubicki Draper, C/O: Attorney Laurie Adams, 515 N. Flagler Drive, Suite 1800, West Palm Beach, Florida 33401 on this 10% Day of August, 2016. By: Eo ert Nocento, Plaintiff, Pro Se 215 NW 60% Avenue Margate, Florida 33063-5170 Phone: (954) 260-7062 Page 8 of 8LAW OFFICES Founded 1963 7 5, Direct Line: (561)615-4315 August 4, 2016 Jil. Aberbach 7 7 Michelle Krone lavieJ.acoms Via Hand Delivery Gene Kubicki Angela C. Agostino 2 ‘ Heather M. Lang tretionC Aivecs’ 1 He Honorable Mily Rodriguez Powell Sah nahi Micah A. andrews Broward County Courthouse Pedto A. Lopez Anthony 6. Atala Robyn E.Lustgarten MichaelBeiiuee, ~~ 201 S.E. 6th Street poaee ride Peters. 8aumberger Chambers 998, Courtroom 770 Brad J McCormick Caryn Bellus Hannah —. MeCullin peborch! Bern Ft. Lauderdale, FL 33301 Bae eee .Wilam Basel J Scott McMahon Carey N. Bos 7 Sebastian C Meya Maeganr.eiawen Re: Nocento v. Allstate nannoes Metonie Bueno Case No.: CACE12035355 03 Daniel A. Miller Stefanie D. Capps "] . Douglas F. Miller Idabel Coley Our File No.: 0085400 delgtH tbe Michael J. Carney Sia Nejad Kata M. Corper ; Kenneth M, Olver ence 4 Dear Honorable Judge Powell: — 7 YWette M. Pace A Alexandre Paez ’ Enclosed please find: Lucos G. Parsons Michael C. Clorke Steven W. Comman, Jr Karo K. Cosse Karina . Perez Earieen H. Cote : Stuart C. Poage ‘Stephen M Cont 1 Defendant’s Objection to Plaintiff's Letter and Proposed Order dated July sosnuat. Polsky jeresa F. Cummings Shoron C. Degnan 29, 2015 [sic]; and Gregory J. Prusak Jane C. Rankin Jarred $. Dichek Jennifer Remy-Estorino Valerie A. Dondero: . sous 2 : i Dawid M. Drahos 2. Defendant’s Proposed Order Denying Plaintiff's Requested Relief in otessiaicboata Pee eesti Plaintiff's July 29, 2015 [sic] Letter and Proposed Order. : Chistin 4, Russel Nicole M Ells Wiliam A. Sabinson Brad Eubanks Jorge Sentero, st. 'scael Foyarco Horold A. Saut Jennifer LeVine Fold : 7 . . : Scott M. Si ‘eangelac.tlowes — Should you require any additional information, please do hesitate to contact my office. Pe ope ne A. Flunarty Jason §. Stewart Medal Vaal / chee shee Adam M.fredman — Re tfully gubfnitted, ‘Scott Tanke! neocons ° each rel Sauk. eaceng : Coen Tendo beni SIGNED IN THE ABSENCE Toa Tacey waies commen earie y Wiabae Kenneth J. Idle Beran pee TO Cisopner M-utere ogni Melonie Bueno : Saal Charles H. Watkins Rebecea Cooperman kay LJ A/MEB/apl Cheseo 8 we Somantha M. Ketant nF Mood sree onte ce: ~—- Hubert Nocento (Via U.S. Mail and Email) Sean-Kelly Xenaks 515 North Flagler Drive, Suite 1800, West Palm Beach, Florida 33401 « T: (561) 640-0303 « F: (561) 640-0524 FLORIDA: Fort Lauderdale Fort Myers/N Jgeysonville Key West Miami Ocala Orlando - Pensacola Tallahassee Tam West Palm Beach ALABAMA: Mobile www.kubickidraper.com- le Filing #44790201 E-Filed 08/03/2016 03:50:55 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA HUBERT NOCENTO, PLAINTIFF, v CASE NO.: CACE12035355 03 VS. ‘e : : ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, . . DEFENDANT. oe / DEFENDANT’S OBJECTION TO PLAINTIFF’S LETTER AND PROPOSED ORDER ATED 29, 2015 [sic] * COMES Now, the Defendant, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, by and through the undersigned counsel, files this Objection to Plaintiff, HUBERT NOCENTO’s Letter and Proposed Order, dated July 29, 2015 [sic] (hereinafter referréd to as “Plaintiff's July 29" Letter and Proposed Order.”). Plaintiff's July.29" Letter and Proposed Order purports to seek entry of an order denying Defendant’s Motion to Dismiss, which is set for hearing on September 12, 2016. Defendant respectfully requests that the Court deny entry of this Proposed Order and as good grounds thereof states as follows: 1. On August 2, 2016, undersigned counsel received, via U.S. mail, a courtesy copy of Plaintiff's July 29" Letter and Proposed Order, which seeks entry of an order granting Plaintiff's Notice for Jury Trial Demand and denying Defendant’s Motion to Dismiss. (See “Exhibit A”). 2. Defendant objects to the relief sought in Plaintiff's July 29" Letter and Proposed Order. Es (A)CASE NO.: CACE12035355 03 3. For a brief recitation of the facts, Plaintiff filed an Amended Complaint on May 5, 2016, In response, on May 16, 2016, Defendant filed a Motion to Dismiss. Since June 20, 2016, the Motion to Dismiss has been specially noticed for hearing on September 12, 2016 at 9:30 AM. 4, Thereafter, on July 18, 2016, the Plaintiff filed his “Notice for Jury Trial Demanded, and to Compel Answers to the Amended Complaint in the Alternative Asking the Court to Deny, by Striking Defendant(s) Motion to Dismiss Plaintiff's Amended Complaint and Reconsideration of Order, and to Enter Default Judgment Entry in Favor of Plaintiff(s).” (hereinafter referred to as “Notice for Jury Trial Demanded”) (See “Exhibit B”). This document appears to be a response to Defendant’s Motion to Dismiss. 5. Defendant intends to file a reply to Plaintiff's Notice for Jury Trial Demanded in advance of the September 12, 2016 hearing. 6. On July 29, 2016, Plaintiff served the July 29" Letter and Proposed Order. 7. Plaintiff did not confer with Defendant regarding the Plaintiff's July 29" Letter and Proposed Order and Defendant objects to the relief sought in Plaintiff's July 29" Letter and Proposed Order as improper and premature, especially given the hearing set for September 12, 2016 on Defendant’s Motion to Dismiss, 8. Defendant also notes that this case is not at issue, as the pleadings are not yet closed. See Fla, R. Civ. P. 1.440(a). Accordingly, Plaintiff's request to set this case for trial is premature. 9. Accordingly, Defendant respectfully requests that this Court deny the requested relief in Plaintiff's July 29" Letter and Proposed Order and address any requests for relief by any Party at the September 12, 2016 hearing. Page 2 of 3CASE NO.: CACE12035355 03 WHEREFORE, the Defendant, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, respectfully requests that this Honorable Court deny the requested relief in Plaintiff's July 29" Letter and Proposed Order, and grant it any other relief this Court deems just and proper. CERTIFICATE OF SERVICE J HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by E-service and mail to: HUBERT NOCENTO, Pro Se, 215 NW 60" Ave., Margate, FL 33063- 5170, bobolitu@hotmail.com, this are day of AUGUST, 2016. KUBICKI DRAPER Attorneys for Defendant Allstate 515 N, Flagler Drive, Suite 1800 West Palm Beach, Florida 33401 Telephone: (561) 615-4315 LA-KD@kubickidraper.com BY: /s/ Laurie J, Adams Laurie J. Adams Florida Bar No.: 37613 Melonie Bueno Florida Bar No.: 43423 Page 3 of 3IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA HUBERT NOCENTO, PLAINTIFF(S) CASE NO.: CACE12035355 03 JURY TRIAL DEMANDED VS, ALLSTATE PROPERTY AND CASUALTY A TRUE GOPY PANY, INSURANCE COM: JUL 1g 2016 DEFENDANT(S), HOWARD C. FORMAN CLEAR OE CUT URT . / BROWARD COUNTY, FL NOTICE FOR JURY TRIAL DEMANDED, AND TO COMPEL ANSWERS TO THE AMENDED COMPLAINT IN THE ALTERNATIVE ASKING THE COURT TO DENY, BY STRIKING DEFENDANT(S) MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT AND RECONSIDERATION OF ORDER, AND TO ENTER DEFAULT JUDGMENT ENTRY IN FAVOR OF PLAINTIFF(S) COMES NOW, the Plaintiff, Hubert Nocento, Pro se, in the above captioned styled cause, and the undersigned, pursuant to Florida Constitution, Article 1, Declaration of Rights, Section 22, “Trial By Jury” demanding a “Voir Dire” process, trial, on all issues filed in the amended complaint according to law as stated. Page 1 of 9FACTUAL FINDINGS OF CASE On or about December 21, 2012, Plaintiff filed suit against Defendant(s), Allstate Property, and Casualty Insurance Company. Plaintiff, Hubert Nocento, Amended the complaint on December 8, 2015, Revised Amended complaint on January 25, 2016, re-filed said amended complaint on February 22, 2016, and on May 05, 2016 as Ordered. Defendant(s): (a) Is in Breach of Contract, Florida Statute 624.155, (b) Is in Violation of Florida Statute 319.30, (c) Did Actin Bad Faith, and (d) Actions constituted Fraud upon the Court. Destafano y. State Farm Mutual Automotive Insurance Co., 28, Fla.1*, DCA 2003, Long vy. Swofford, 85, So. 2d 882, (Fla. 3d, DCA 2003). Defendant(s) commercial claimed and stated, “You are in good hands” which caused Plaintiff emotional inflictions. Defendant(s) violated Plaintiff’s emotions as set forth in §540, 08, Florida Statutes (2007), Tyne v. Time Warner Entmt Company, 901 So, 2d Page 2 of 9802 (Fla. 2005) Allstate Ins. Co. v. Ginsberg, 863, So. 2d 156, 160-61 (Fla. 2003). 5. Defendant(s) issued a check in Plaintiff’s name for Thirteen Thousand, Eight Hundred Seventy Eight Dollars and Twenty-five Cents, ($13, 878.25; Plaintiff returned said check. Plaintiff was emotionally upset with all communication. 6. Defamation, by implication was caused by Defendant(s), which prejudiced Plaintiff(S) Restatement (Second) of Torts, § 559. (1972). 7. Defendant(s) misrepresented the Court by misleading the Court to dismiss and/or compel appraisal provision; plaintiff complied with the Court Order. 8. It is further determined, by the Court, that a cause of action was established, by Plaintiff, for Breach of Contract and bad faith under statutory bad faith causes of action, (Florida Statute 624, 155 (1) Opperman v. Nationwide Mnt. Fire Ins, Co. 5 15, So. 2d 263 (Fla. 5'" DCA, 1987). 9. This Court finds Defendant(s) to be negligent and liable to Plaintiff in violation of Florida Statute 319.30 as established by Plaintiff for a cause of action on the basis that Defendant(s) and Plaintiff agreed that the vehicle Page 3 of 9was a total loss; Brewer v. Clerk of Circuit Court, Gadsden County, 720, So. 2d, 602, 603, (Fla.1* DCA 1998); See Exhibit (A) attached. 10. Defendant(s) failed to pay Plaintiff the agreed total loss and did; in fact, withheld money, Brumer v, HCA Health Services of Florida Ins., 662 So, 2d 1385, 1386-87 (Fla.4" DCA 1995); See Exhibit (B) attached. 11. Defendant(s) expressly declared the vehicle a total loss under Florida Statute 319.30 (a): “When an Insurance company pays the vehicle owner to replace the wrecked or damaged vehicle with one like kind and quality” | 12. Defendant(s) the maker of misrepresentation, See Exhibit (C) attached, 1. WHEREAS, Plaintiff originally filed suit against Defendant(s), for breach of contract and damages, on or about December 21, 2012 and amended, as ordered, filed amended complaint on May 05, 2016. 2. Plaintiff filed for default entry and subsequent To the Orders of the Court And years of motions to dismiss, by Defendant(s) motions to strike, motions to stay, motions to compel appraiser, motion for clarification of Courts Order, Evidently, and made to cause delays and intentional Page 4 of 9dilatory tactics; strategies, in violation Fla. Stat. §57.105. All claims and defenses were loss and “sanctions” Bridgestone/Firestone, Inc., v. Herron, 828, So. 2d 414 (Fla. 1 DCA 2002) “prevailing party” a party who defeats “any claim or defense”. This Court shall strike Defendant(s) motion to dismiss Plaintiff’s Amended Complaint filed on May 05, 2016. 3. WHEREAS, Defendant(s) violation of Florida Rules of Professional Conduct 4-3.2, despite the fact that this case is not a criminal case and a reminder to the Defendant(s) defense, is a breach of contract; and should be tried on the merits not strategy and should not be indulged, Wood-Cohan v. The Prudential Insurance Co, of America, 715 So. 2d 999 (Fla, 4" DCA 1998), 4, WHERAS, Defendant(s) have breached the policy contract Defendant(s) have acted in bad faith; see Plaintiff’s motion filed on October 28, 2014, filed as Plaintiff's Exhibit (D). 5. WHEREAS, Defendant(s) delays and motions are to deliberately cost Plaintiff and the Court time and money while saving and earning interest on monies not being paid for years of delay to cause harm, see Plaintiffs Page 5 of 9Exhibit(E) filed on August 07, 2015; Plaintiff's Exhibit(F) Emerson Realty Group, Inc. v. Schanze, 572 So. 2d 942 (Fla. 5" DCA 1990). MEDIATION DAMAGES SOUGHT AND FAILED 6. WHEREAS, this cause was sent by the Court to be resolved; and said mediation resulted fruitless despite the ripeness and merits of the case; See Exhibit (G). 7. WHEREAS, partial summary judgment should have been granted previously whereby Defendant(s) moved to strike and demand a jury trial on all issues by the Court; See attached Exhibit (H). 8. WHEREAS, no genuine issue remains other than the amount of damages claimed by Plaintiff. 9. WHEREAS, Defendant(s) delays and intentional dilatory means prevents the Court to dispose of this case despite mediation talks. SUMMARY JUDGMENT STANDERS 10. WHEREAS, Defendant(s) failed to comply with Florida Statute 319.30 when the record reflects no genuine issue of material fact, a Court Page 6 of 9may enter judgment for the moving party as a matter of law; See Moore vs. Morns, 475, So. 2d 666 (Fla. 1986) Defendant(s) agreed to pay and failed to pay Plaintiff(s). i. WHEREAS, there can be no dispute that Florida Statute 319.30 applies to this action and this case cannot be dismissed. Importantly, damages are bound by the laws of the State of Florida. 12. WHEREAS, Defendant(s) refusal to honor its policy and Florida Statutes has caused substantial injury to the insured Plaintiff, Hubert Nocento, 13. WHEREAS, Defendant(s) motion to dismiss case was previously heard by this Court in the original complaint filed December 21, 2012 and the Amended complaint filed on May 05, 2016 is not a new complaint. 14, WHEREAS, Defendant(s) were asked by the Court to answer the amended complaint, instead Defendant(s) moved to dismiss on the grounds of criminal defenses law and not merits in the case, COURT TRANSCRIPT 15, WHEREAS, Page 18 line 6 thru 13, the Court in part [[sic]] “just clean it up by filing a document that says amended complaint and then Page 7 of 9have a hearing on it”. | we go forward from there okay? Then it gets set for hearing and we | i 16. WHEREAS, Defendant(s) failed to answer the amended complaint and move to dismiss which motion was denied previously by the Court. 17. WHEREAS, Defendant(s) took over two years, (2), to answer the original complaint and, did, had years of motion practice known as wasting the Courts resources and valuable time causing harm to Plaintiff; see Exhibit ©. 1 WHEREFORE, Plaintiff(s) demands a jury trial, and, for all the foregoing reasons, Plaintiff, Hubert Nocento, Pro Se, respectfully request this Court to enter partial summary judgment in favor, and against Allstate Property And Casualty Insurance Company by entering default judgment for failing to answer the amended complaint filed on May 05, 2016 as expected by the law and time allowed by the Fla. R. Civ. P. and applicable laws, denying and striking Defendant(s) motion to dismiss amended complaint filed by Plaintiff(s) and together with any and all relief the Court deems just and equitable. Respectfully Submitted, On This 18Day of July, 2016 by the Undersigned Page 8 of 9BY: ¢ /s/ Hubert Nocento, Pro Se 215 NW 60" Ave., Margate, FL 33063-5170 CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing NOTICE FOR JURY TRIAL DEMANDED, AND TO COMPEL ANSWERS TO THE AMENDED COMPLAINT IN THE ALTERNATIVE ASKING THE COURT TO DENY, BY STRIKING DEFENDANT(S) MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT AND RECONSIDERATION OF ORDER, AND TO ENTER DEFAULT JUDGMENT ENTRY IN FAVOR OF PLAINTIFE(S) has been furnished by mail to: KUBICKI DRAPER, Attorneys for Allstate Property and Casualty Insurance Company, 515 N. Flagler Drive, Suite 1800, West Palm Beach, FL 33401, Telephone: (516) 615-4315, this 18day of July 2016. BY: wile oc ubert Nocento, Pro Se 215 NW 60" Avenue Margate, FL 33063-5170 Page 9 of 9es 7 CASE NO.: 12-35355-03 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA HUBERT NOCENTO ) CASE NO.: 12-35355-03 ) DIVISION: CIVIL uf Plaintiff, ) JURY TRIAL DEMANDED “vs. ) AMENDED COMPLAINT ) ALLSTATE PROPERTY AND ) CASUALTY INSURANCE COMPANY) ) - COPY oi Defendant(s). ) ATRUE } MAY 05 2016 AMENDED COMPLAINT (UMC Hearing Held April 12, 2016) cal COMES NOW, Plaintiff, HUBERT NOCENTO, Pro Se, the undersigned, in the above styled captioned cause and Amends Complaint and Sues Defendant Allstate Property and Casualty Insurance Company (Pursuant to Florida Statute 624-155) and alleges in Count 1 thru 7. ACTION FOR DAMAGES — JURY TRIAL DEMANDED Original complaint filed December 21, 2012 (See Exhibit A). (1) Count one (1) thru seven (7) is in excess of $15,000. (2) Plaintiff is a resident of Broward County, Florida and all events materials herein stated occurred Exar sry (Cy \ 1 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03 in Broward County, Florida. (3) Allstate is the Defendant and the Seller of Insurance licensed in the State of Florida. (4) On or about June 30, 2009, Plaintiff was forced off the road by a Phantom Vehicle during which coverage was a Comprehensive Collision Policy with the Defendant Policy Number 961533920 07/02. (5) Plaintiff's Policy Contract with Defendant provided for that in the event of loss Defendant would pay Plaintiff the cost to repair the vehicle, or if the cost to repair was 80% or higher than the value of the vehicle, Defendant could either repair the vehicle or pay the actual cash value of the vehicle. Subsequently, Defendant on August 07, 2009 declared Plaintiff's vehicle a total loss. Pursuant to Florida Statute, Applicable Law Statute 319.30, which replaces the vehicle with “One Like Kind and Quality Replacement Vehicle” or cost to replace with replacement value of money. (6) On or about July 31, 2009, Defendant chose to offer Plaintiff as a full and final settlement for the claim, the sum of $21,496.08. Defendant sent a check for $13,878.25. (See Exhibit B) attached. Said check was refused by Plaintiff; (Statute 86.011 Allstate Insurance Company Vs. Conde 595 So. 2d 1005, 1006 (Fla. 5 DCA 1992). (7) Despite repeated demands by Plaintiff for payment from Defendant, Defendant refused to make full payment. Plaintiff did return the check for $13,878.25 and Demanded One Like Kind and Quality Vehicle under Florida Statute 319.30. Both parties agreed the vehicle was a total loss as stipulated. (8) As a result of Defendant's refusal to pay Plaintiff the full $21,496.08, Plaintiff has suffered. Defendant is in Breach of the Insurance Contract between Plaintiff and Defendant. (9) Plaintiff, in order to be restored under Statute 319.30, seeks a replacement vehicle which said 2 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03 vehicle manufacturer stopped making the vehicle at their factory and is no longer available to the public for purchase, “ One Like Kind and Quality” Replacement Vehicle $656,781.64 cost and interested included. 10) Plaintiff Demands a Trial By Jury of all issues so triable by law as expressed by Plaintiff and Defendant, as agreed by Motions filed on all counts. (See Exhibit C). WHEREFORE, Plaintiff seeks declaratory judgment in the amount of $656,781.64 against Defendant. Additionally, damages to be proven an all counts at trial, prejudgment interest, cost and fees pursuant to Florida Statute 627-428 and all issues triable by Jury. COUNT ONE (1) CLAIM FOR BREACH OF CONTRACT 11. This is an action for Breach of Contract in excess of fifteen thousand dollars and 00/100 ($15,000.00). 12. Plaintiff realleges paragraph 1 through 10 as set forth above and incorporates the same herein by reference and the submitted attached insurance policy. Exhibit (B) 13. Defendant agreed to pay Plaintiff under the Florida State Applicable Law Statute 319.30 together with the issued policy terms of Florida and not Texas. Exhibit ( C) 3 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03 14. Plaintiff filed the present action on December 21, 2012 for Breach of Contract. 15. Defendant filed their answers to Plaintiff's Complaint two years and ten months subsequently to being properly served and did file other Motions to Dismiss and defend all Issues. 16. Surprisingly, on September 09, 2015, Defendant filed an untimely motion. 17. Plaintiff request a scheduling order for Jury Trial to be entered in this case and Plaintiff moves for declaratory judgment . 18. Plaintiff in the attached amended complaint seeks relief on all issues triable by Jury Trial. 19. On April 29, 2016 Plaintiff amended Complaint was ordered by the Court and the amended complaint would not prejudice the opposing party and/or the privilege to amend has not been abused ot ~~ or the amendment would be futile. 20. Example: Bill Williams. Air Conditioning and Heating V. Haymarket. Coop. Bank, 2.S0,2d,302,305,(Fla 1 DCA.1992, rev. Dismissed 598,S0,2d.76.(Fla 1992). See Exhibit CD. (Court Docket). COUNT TWO (1!) CLAIM FOR BREACH OF CONTRACT AGAINST ALLSTATE 21. This is a claim for Breach of Contract in excess of fifteen thousand dollars and 00/100 ($15,000.00). 22. Plaintiff readopts and realleges in all paragraphs and counts 1 through 10 as set forth above and incorporates the same, herein by reference. 23. Avalid and legal contract was formed between Plaintiff, Hubert Nocento and Allstate Property and Casualty Insurance Company. 4 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03 24. Defendant failed to pay the full settlement amount as agreed. 25. Atrue and correct copy of the agreement is attached, described as Exhibit D. 26. Allstate owed a duty to Nocento to properly perform and Allstate failed to perform its duty and obligations as contracted and agreed upon. 27. It was reasonable for Nocento to believe that Allstate was dealing in good faith and did rely on the contract and agreement terms. 28. Nocento did rely on Allstate contracts agreement statement and actions. 29. Nocento performed all duties under the contract, rightfully expecting reciprocal performance. 30. Defendant misrepresented the court with a false policy dated March 05, 2013. See Affidavit, Exhibit E. 31. Allstate materially breached the contract issued on January 2, 2009 through July, 2009. See Exhibit F attached. 32. Defendant’s March 05, 2013 policy was after the accident and claim, and knew the foresaid representation was false. 33. The contract clearly list the limits of liability on page 18, part V of Allstate Automobile Policy of Florida (AU 109-1) as indicated by the contract and terms together with statute 319.30 of Florida Statute and Law “Like kind and Quality (Policy) and Statute “One Like Kind and Quality”. See Florida Issued Booklet, Exhibit G. 34. Allstate knew or should have known that Nocento was entitled to full benefit of the bargain 5 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03 made and any failure by Allstate would cause Nocento to suffer damages. 35. Asadirect and proximate cause of the Breach of Contract by Allstate, Nocento has suffered substantial direct and consequential damages. 36. Plaintiff further places Defendant on notice that Plaintiff seeks to add Punitive damages after appropriate discovery has occurred. WHEREFORE, Plaintiff, NOCENTO, Plaintiff demands Judgment against Allstate for Direct and Consequential Damages suffered, Pre-Judgment Interest, Post Judgment Interests, Court Cost Pursuant to Florida Statute 319.30 Applicable Law, the contract and any such other relief that this court deems necessary and proper. COUNT THREE (III) FLORIDA NO FAULT BENEFITS AND WAGES/MEDICAL (AGAINST ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY) 37. This is an action for Breach of Contract in excess of fifteen thousand and 00/000 dollars ($15,000.00). 38. Plaintiff readopts and alleges in paragraph 1 thru 10 as set forth above and incorporates the same herein by reference. 39. Avalid and legal contract was formed between Plaintiff and Defendant. A true and correct copy of contract to the agreement has been attached as Exhibit H. 40. Plaintiff, Nocento’s policy includes the following medical expenses, benefits which pays 80% 6 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03 together-with income loss which pays 60% of lost wages. 41. Defendant violated the Florida Automobile Reparations Reform Act, under the PIP Laws Benefits by failing to pay Plaintiff lost wages. 42. Dunmore Vs. Interstate Fire Insurance Company 301, So. 2d 502 (FI. App. 1974). 43. Defendant continues to avoid paying the owed monies. 44, Plaintiff has a right to and is entitled to payment. 45. Plaintiff reserves the right to demand and request damages Pursuant to the applicable Statutory Law. 46. In the alternative, places Defendant on notice that Plaintiff will seek amendment to this complaint in order to add Punitive Damages after the appropriate discovery has occurred. WHEREFORE, Plaintiff, NOCENTO demands judgments against Allstate Property and Casualty Insurance Company for Compensatory Damages, Costs of this Action, Fees Pursuant to the prevailing party's contract and Applicable Florida Statutes, together with interests and such other relief as the court deems appropriate. COUNT FOUR (IV) FRAUD IN THE INDUCEMENT (AGAINST ALLSTATE INSURANCE, DEFENDANT) 47. This is an action for Fraud in the Inducement in excess of fifteen thousand dollars and 00/100 $15,000.00). 7 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03 48. Plaintiff readopts and re-alleges paragraph 1 through 10 as set forth above and incorporates the same, herein by this reference. 49. Defendant made misrepresentation to Plaintiff regarding the agreement and settlement offer and the amount of settlement made in the amount of $21,496.08 as agreed by both Nocento and Allstate. See attached Exhibit (I). 50. _Inrreliance upon the aforesaid representation by Allstate, intentionally and willfully misrepresentation was false. 51. Asa result, Plaintiff suffered damages when Defendant failed to pay the correct amount of settlement offered to Plaintiff. Subsequently issuing a check in the amount of $13,878.25. See Exhibit J attached. 52. Defendant created and formed vicariously wrongdoing and is liable to Plaintiff. 53. Defendant hyperbolically used the Insurance Policy of March 05, 2013 to misrepresent and mislead the court in believing that said policy was the authentic policy issued to Plaintiff on January 02, 2009 through July, 2009. 54. Defendant made the aforesaid representation to Plaintiff regarding the filed copy of Insurance Policy to be a true and exact copy of Plaintiffs Insurance Coverage of Liability and Limits. 55. Defendant’s intentions of filing said policy on December 05, 2013 “Defendant, Allstate Insurance Property and Casualty Insurance Company” was made under aforesaid representation and knew it was false. 8 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03 56. Defendant's affidavit submitted by a sworn statement on September 03, 2015 by Sandra Saunders was a confirmed Policy issued subsequently to the time of filed claim. 57. Terms of Policy and Limits of Liability was falsely submitted on March 05, 2013 and “One Like Kind and Quality” was eliminated and no mention of January 02, 2009 through July 2009 policy mentioned. 58. Plaintiff, in reliance upon aforesaid policy issued by Defendant on January 02, 2009 through July 2009 was a Breached of Contract. 59. Defendant caused injuries as suffered by Plaintiff when discovered that Allstate’s submitted policy was false and the aforesaid representation caused harm to Plaintiff. 60. Plaintiff, Nocento hereby reserves the right to request exemplary damages pursuant to applicable Statutory Law. 61. Defendant moves to Strike from the record and docket the false policy filed by Defendant on December 05, 2013 as a fabricated copy not registered in the State of Florida. 62. Plaintiff submits a true and correct copy of January, 2009 through July, 2009 Insurance policy. 63. Plaintiff further places Defendant on notice that Plaintiff will seek amendment to this-complaint in order to add Punitive Damages after appropriate discovery has occurred. WHEREFORE, Plaintiff, NOCENTO demands Judgment against Allstate Property and Casualty Insurance for Compensatory Damages, Cost of this Action and Fees Pursuant to the Contract and Agreement of Settlement as agreed with Plaintiff as warranted by the applicable Florida Statute, Interest and such other relief as this court deems appropriate. Q (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03 COUNT FIVE (V) CLAIM FOR CIVIL CONSPIRACY AS TO CONVERSION AND REPLEVIN OF (2003 HUMMER H2) AGAINST ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY / MEGA AUTO REPAIR 64. This action for Civil Conspiracy as to Conversion and replevin of 2003 Hummer H2 is in excess of fifteen thousand dollars and 00/100 ($15,000.00). 65. Keefe V. City of Hollywood, 487, So,2d 311 (Fla 4%" DCA 1986) Wisniewski V. Historical Association of Southern Florida, Inc. 408, So 2d, 246 (Fla. 3d DCA 1982). 66. Plaintiff readopts and realleges paragraphs 1 thru 10 as set forth above and incorporates the same, herein by this reference. 67. Upon information and belief, Allstate and Mega Auto Body knowingly and intentionally agreed, conspired, and combined with each other and others to convert to use and personal gain Plaintiffs 2003 Hummer H2. 68. in furtherance of their unlawful objective, one or more of these employees of Defendant and or repair facility refused to repair, replace, give One Like Kind and Quality Replacement of Vehicle to Plaintiff. 69. Further, by not repairing the vehicle but charged storage charges for each day said vehicle was in the repair shop. See Exhibit K. 70. Defendant, by not repairing the vehicle according to the Contract and Policy Terms totaled the Hummer and subsequently, said vehicle was sold for storage charges by Mega Auto Repair. 71. Asadirect refusal to pay Plaintiff in a timely manner, Plaintiffs Hummer was auctioned off by 10 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03 the repair facility. 72. Defendant was well aware that the vehicle would be subject to be sold after declaring the vehicle a total loss. 73. Both parties subsequently agreed that the vehicle would be a total loss. See Exhibit L. 74. Defendant wrongfully allowed the repair facility to auction the Hummer. Had Defendant repaired the vehicle or pay the claim, said vehicle would have never been auctioned. 75. Plaintiff could not take possession of said property; thereby, Defendant deprived Plaintiff of the value and use of said Hummer. 76. Plaintiff is entitled to One Like Kind and Quality Vehicle. 77. Defendant wrongfully asserted dominion over Plaintiff's property in violation of Plaintiff's right over same, with the intent to temporarily and permanently deprive Plaintiff of his property by not paying the claim and or agreed Contract. 78. Plaintiff's rights of possession were violated. Defendant and repair shop took dominion and control of the property as described above. 79. Both repair facility and Defendant conspired to cause injury to Plaintiff. 80. Defendant acted knowingly and with the intention of depriving Plaintiff of the property rights therein and value, with wanton and wreckless disregard for the rights of Plaintiff. 81. | The Defendant’s and Mega Auto Repair Shop’s wrongful actions and conduct clearly demonstrate malice, wantonness, willfulness, evil motive and reckless or callous indifference for Plaintiff's 11 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03 rights. 82. Defendant is severally liable for compensatory damages. 83. Plaintiff was left without a vehicle and neither did the Defendant satisfy the claim to date, which is a material breach of contract. 84. If Defendant’s misconduct were permitted without rebuke, it would encourage others to engage in such reprehensible conduct. 85. Asa direct and proximate result, Defendant's conspiracy against Plaintiff caused Plaintiff to suffered substantial direct and consequential damages. WHEREFORE, Plaintiff, NOCENTO demands judgment against Defendant for direct and Consequential damages as suffered, with Pre-judgment Interest, Post-judgment Interest, Court Costs, and Fees. COUNT SIX (VI) CLAIM FOR BAD FAITH 86. This is an action for Bad Faith in excess of fifteen thousand and 00/100 dollars ($15,000.00). 87. Plaintiff readopts and realleges paragraph 1 through 10 as set forth above and incorporates the same therein, by this reference. 88. Avalid and legal contract was formed between Nocento and Allstate. A true and correct copy 12 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03 of contract has been attached hereto, and previously described as Exhibit D. 89. Allstate owed a duty to Nocento to properly perform and Allstate by and through its employees failed to perform its duties and obligations in accordance with the expressed Insurance Policy Contract. 90. It was reasonable for Plaintiff to believe that Allstate was dealing in good faith and to rely on the contract and Florida Applicable Law. 91. Nocento did rely on Allstate and detriment was a result of its adjusters, statements, settlement offer and action. 92. Plaintiff did perform all duties under the contract, rightfully expecting reciprocal performance. 93. Allstate materially breached the contract. 94. Plaintiff seeks lost wages and economic damages. 95. Allstate knew or should have known that Plaintiff was entitled to the benefit of the bargain made. 96. _ Allstate failed to perform under the contract, knowingly Plaintiff would suffer damages. 97. Defendant is vicariously liable for wrongdoing and illegal acts caused by adjusters, employees, repair facility, representatives and officers. 98. ; Asa direct and proximate cause of the Breach of Contract by Defendant, Plaintiff has suffered substantial direct and consequential damages. 99. The Defendant’s malice, wantonness, willfulness, evil motive, and reckless or callous indifference for Plaintiff's rights, will make them severally liable for Compensatory Damages. 13 (Exhibits Flled In Previous Amended Complaints)CASE NO.: 12-35355-03 100. If Defendant’s misconduct were permitted without rebuke, it would encourage others to engage in such reprehensible conduct. 101. Asadirect and proximate result of Defendant’s Bad Faith against Plaintiff, Plaintiff has suffered reasonably foreseeable damages. COUNT SEVEN (VII) NEGLEGENCE 102. This is an action for Neglegence in excess of fifteen thousand dollars and 00/100 ($15,000.00). 103. Plaintiff readopts and realleges Paragraph 1 through 10 as set forth above and incorporates the same herein, by reference. 104, Defendant is negligent to Plaintiff. 105. Defendant’s refusal to pay Plaintiff and or settle claim within a reasonable time has caused injuries to Plaintiff. 106. Defendant wrongfully exercised a willful and wrongful control, dominion and ownership over Plaintiff's monies. 107. Plaintiff filed this action for Breach of Contract on December 21, 2012. Defendant is in Default. 108. Defendant failed to answer the complaint and was Ordered by the Court to do so on June 13, 2013. 109. The Docket Records will reveal that Defendant on September 09, 2015 answered the complaint, 14 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03 to which answer was untimely filed 110. The Court inadvertently denied Partial Summary Judgment on September 09, 2015 instead of entering Default for Partial Summary Judgment. See Exhibit M (Evidence). 111. Defendant is negligent and willfully and eat deprived Plaintiff the use of Plaintiff's vehicle by not paying Plaintiff. 112. Despite multiple attempts to obtain the check made in agreement of contract settlement, Defendant failed to pay Plaintiff. 113. Defendant applied the applicable law in accordance with Plaintiff policy issued on January 02, 2009 through July, 2009. 114. Plaintiff's vehicle was damaged on June 30, 2009. As of December 07, 2015, Defendant still had not paid Plaintiff. 115. Defendant agreed to pay the claim and failed to pay the settlement offered amount. 116. Florida Statute 319.30 allows Plaintiff Replacement Value One Like Kind and Quality. 117. Defendant's Florida issued policy booklet captioned at page 18: “However, our liability will not exceed what it would cost to repair or replace the property or part with other of “One Like Kind and Quality”. See Exhibit N (Evidence). 118. Florida Statute 319.30 (3) (a) “When an Insurance Company pays the vehicle owner to replace the wrecked or damaged vehicle with “One Like Kind and Quality” (Title XXIII). 119. Defendant declared the vehicle a total loss, agreed to pay the claim, but refused to pay ina 15 (Exhibits Filed in Previous Amended Complaints)CASE NO.: 12-35355-03 timely manner according to law. 120. Defendant, in violation of Florida Statute failed Plaintiff despite several attempts and demands. 121. Defendant, Allstate acted knowingly with the intention of depriving Plaintiff of its property rights therein and value, with wanton and reckless disregard for the right of Plaintiff. 122. Defendant instigated the appraisal provision, knowingly the vehicle was a total loss. 123. The court subsequently denied Defendants to compel appraisal process and lifted the stay on February 24, 2015. 124. If Defendant misconduct were permitted without rebuke, it would encourage others to engage in such reprehensible conduct. 125. Allstate’s actions and conduct clearly demonstrate malice, wantonness, willfulness, evil motive, and reckless or callous indifference for Plaintiff's rights. PARTIAL SUMMARY JUDGMENT 126. Plaintiff demands Partial Summary Judgment in the amount of $656,781.64 together with interest and cost, effective as of December 07, 2015. 127. Asa direct and proximate result of Defendant’s applying the Florida Statute Applicable Law and knowingly that Defendant failed to pay as prescribed by Statute 319.30 as expressed. 128. When the insurance company pays the owner as defined in Statute 319.30. 129. Defendant failed to pay for the damaged vehicle with “One Like Kind and Quality”. 16 (Exhibits Filed In Previous Amended Complaints)CASE NO.: 12-35355-03 PLAINTIFF’S ALLSTATE INSURANCE POLICY 130, Both Statute 319.30 and the issued Insurance Policy states: “One Like Kind and Quality”. Plaintiffs policy issued on January 02, 2009 through July, 2009 together with the Declaration confirms “One Like Kind and Quality Replacement Vehicle”. See attached Exhibit O. 131. Due to Defendant not paying Plaintiff in a timely manner, Plaintiffs vehicle was sold by the repair facility pursuant to Chapter 713.585.(6) of the Florida Statutes. 132. Defendant totaled the vehicle and asserted dominion over the vehicle instructing Mega Auto Body to dispose by recovering storage charges on and for the vehicle which wa