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Filing # 46641842 E-Filed 09/19/2016 07:15:30 PM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
ROBERTO and
MARLENE SOLANO,
Plaintiffs,
vs.
STATE FARM FLORIDA CASE NO: 10 40785 04
INSURANCE COMPANY,
Defendant.
/
RESPONSE TO “PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT PROHIBITING DEFENDANT FROM RAISING POLICY DEFENSES
DUE TO FAILURE TO COMPLY WITH FLA. STAT. § 627.421(1)”
Defendant, State Farm Florida Insurance Company (“State Farm’), files its written
response to “Plaintiffs Motion for Partial Summary Judgment Prohibiting Defendant from
Raising Policy Defenses Due to Failure to Comply with Fla. Stat. § 627.421(1)” (“Motion”),
Certificate of Service Date — July 29, 2016.
1 Introduction
Plaintiffs made a claim for a loss reportedly occurring on October 24, 2005. State
Farm immediately investigated, inspected the asserted damage, acknowledged that
they had sustained a covered loss, and paid the claim made. Plaintiffs appeared
satisfied with the amount paid. They appeared satisfied also with the handling of the claim.
State Farm heard nothing more and thought the matter resolved.
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/19/2016 7:15:30 PM.****Almost four years after the loss, Plaintiffs made a supplemental claim, by and
through a public adjuster whose sole compensation was a set percentage of any
further amount paid by State Farm. They demanded State Farm pay them hundreds of
thousands of dollars more.
But, the supplemental claim was “odd,” to say the least. Such as, the public adjuster
told State Farm it needed to pay a substantial sum for a new roof. But, Plaintiffs advised
that the roof long since had been replaced, and, at a mere fraction of the amount presented
by the public adjuster.
Nonetheless, State Farm agreed to investigate, subject to a full reservation of rights,
and, the protections of Florida Statutes.
Importantly, on March 30, 2010, pursuant to Plaintiffs’ public adjuster’s request,
State Farm supplied Plaintiffs with a certified copy of the policy. Further, State Farm wrote
Plaintiffs, quoted the policy, and, requested they comply with their post-loss obligations.
Plaintiffs did not comply. Instead, they sued State Farm without it having rendered a claim
decision.
Curiously, Plaintiffs contend that their lawyer filed the lawsuit “by mistake.” (See
copy of “responses” to requests for admission, attached as Exhibit “A”) All the same,
they never dismissed the lawsuit, or, offered to dismiss the lawsuit, and, have pursued the
lawsuit to this very day.
On July 29, 2016, over eleven years after the loss, Plaintiffs filed the Motion. Like
the lawsuit, the Motion is without merit, or, support.
Accordingly, the Motion must be denied.M. Argument
A. No Summary Judgment Evidence
The crux of the Motion is Paragraph Three — “Upon information and belief, the
Insurance Company did not provide a complete copy of the policy to Plaintiff as required by
Florida law at the time the policy went into effect on August 31, 2005, or within sixty (60)
days thereafter, or at any time prior to the October 25, 2005 loss in this matter.” But,
this allegation is not supported by “summary judgment evidence,” as is specifically required
by Florida Rule of Civil Procedure 1.510.
Indeed, Plaintiffs filed have no “summary judgment evidence,” whatsoever, to
support this allegation. The Florida Supreme Court, and each and every District Court of
Appeal, have all made clear that a party moving for summary judgment must present some
evidence to support the motion. It is not enough to simply make an allegation. See, e.g.,
The Florida Bar v. Mogil, 763 So. 2d 303, 397 (Fla. 2000) (“once the movant tenders
competent evidence to support his motion ... ,”); Woodruff v. Gov't Employees Ins. Co.,
669 So. 2d 1114, 1115 (Fla. 1st DCA 1996) (“[w]here a movant for summary judgment
offers sufficient evidence to support its claim of the nonexistence of material fact...”); First
North Am. Nat'l Bank v. Hummel, 825 So. 2d 502, 503 (Fla. 2d DCA 2002) (“Once the
moving party meets its burden...”) Williams v. Garden City Claims, Inc., of New York, 796
So. 2d 586, 588 (Fla. 3d DCA 2001) (“Once a movant tenders competent evidence to
support his motion...”); Glasspoole v. Konover Constr. Corp. South, 787 So. 2d 937, 938
(Fla. 4th DCA 2001) (“Once the movant for summary judgment tenders competent evidence
to support his motion...”); and, Dempsey v. Law Firm of Cathen & Odham, P.A., 781 So. 2d
1141, 1143 (Fla. 5th DCA 2001) (“once he tenders competent evidence to supporthis motion...”). Here, Plaintiffs have not presented any “summary judgment evidence” to
support their motion.
Accordingly, the Motion must be denied.
B. Section 627.421(1) Applies Only to Exclusions
Even if Plaintiffs had come forward with “summary judgment evidence,” which they
have not, the function of section 627.421(1) is to provide notice of any exclusions that
apply to the insurance policy. See, e.g., T.H.E. Ins. Co. v. Dollar Rent-A-Car Systems, Inc.,
900 So. 2d 694 (Fla. 5th DCA 2005) (“We view the statutory requirement as one
calculated to give notice of exclusions....”); see also, Aleman v. ACE American ins.
Co., 2013 WL 3884033 (S.D. Fla. July 19, 2013). Here, State Farm did not even have the
chance to make a claim decision, much less apply exclusions, if any applied.
As is stated above, State Farm requested that Plaintiffs comply with their post-loss
contractual obligations. These obligations are not exclusions, but rather, commitments
by Plaintiffs to do certain things in the event of a loss. “Conditions in policies of insurance
are part of the consideration for assuming the risk, and the insured, by accepting the policy,
becomes bound by these conditions.” Goldman v. State Farm Fire Gen. Ins. Co., 660 So.
2d 300, 304 (Fla. 4th DCA 1995). Regrettably, again, Plaintiffs did not comply. Instead,
they sued State Farm, somehow “by mistake,” while State Farm still was investigating the
claim.
Accordingly, the Motion must be denied.c. No Sanction in Section 627.421(1)
Even if Plaintiffs had presented “summary judgment evidence,” which they have
not; and, even if section 627.421(1), Florida Statutes, applied here, which it does not;
section 627.421(1), Florida Statutes, prescribes no penalty for a violation of its provisions.
Unquestionably, nowhere does section 627.421(1), Florida Statutes, prescribe any
penalty for an alleged violation of its recitations. And, even if a penalty was intended,
respectfully, the Court cannot “rewrite” the statute to include one, arbitrarily. See, e.g.,
Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla. 2016) (“...it is not the prerogative of
the courts to rewrite a statute to overcome its shortcomings.”) Plaintiffs cannot peruse
Florida Statutes, find a statute that State Farm allegedly did not satisfy, first raise such
some eleven years after the loss and a more than half a decade into the litigation,
manufacture a penalty that appears nowhere in the statute, and, have the Court impose
the concocted penalty at their behest. Such would be an undeniable violation of due
process, and, irrefutably, a penalty far too harsh. See, e.g., Dollar Rent-A-Car Systems,
Inc., 900 So. 2d 694.
Accordingly, the Motion must be denied.
D. No Prejudice Shown
Even if Plaintiffs had presented “summary judgment evidence,” which they have
not; even if section 627.421(1), Florida Statutes, applied here, which it does not; and,
even if there was a penalty for a supposed violation of section 627.421(1), Florida Statutes,
which there is not, Plaintiffs must present “summary judgment evidence” showing that
they were prejudiced in some way. In Dollar Rent-A-Car Systems, Inc., 900 So. 2d 694,
the Court considered an insurer's supposed failure to deliver a policy to a lessee whencontemplating the application of a policy exclusion. The Court found that “prejudice” to the
insured should be considered when imposing any sanction for failure to deliver a policy of
insurance as required by section 627.421, Florida Statutes. Here, Plaintiffs have not so
much as mentioned prejudice, let alone established prejudice by way of “summary judgment
evidence.”
Plus, the “summary judgment evidence” previously filed by State Farm specifically
refutes any suggestion of prejudice. Again, on March 30, 2010, during the course of
the supplemental claim, before any claim decision, and prior to the lawsuit, State Farm
delivered a copy of the policy to Plaintiffs. In addition, when requesting Plaintiffs’
compliance with their duties after loss, State Farm block quoted each and every provision of
the policy, without exception. See State Farm’s “Motion for Summary Judgment,”
Certificate of Service Date - May 11, 2011, and, State Farm’s “Notice of Filing,” Certificate
of Service Date — May 18, 2011. Plaintiffs have not attempted to prove prejudice, because,
they cannot.
Accordingly, the Motion must be denied.
Ill. Conclusion
For all the reasons above, and all those previously given, the Motion must be
denied.
WHEREFORE, State Farm respectfully requests the Court deny the Motion, and, all
such other relief deemed appropriate.BUTLER WEIHMULLER KATZ CRAIG LLP
CURT ALLEN, ESQUIRE
Florida Bar No.: 0008028
callen@butler.legal
BRIAN HOHMAN, ESQUIRE
Florida Bar No.: 0764671
bhohman@butler.legal
Secondary: eservice@butler.legal
400 N Ashley Drive, Suite 2300
Tampa, Florida 33602
Telephone: (813) 281-1900
Facsimile: (813) 281-0900
Counsel for Defendant
CERTIFICATE OF SERVICE
| certify that a copy hereof has been furnished to:
Adrian Neiman Arkin, Esquire
1700 Sans Souci Boulevard
North Miami, Florida 33181
adrian@mintztruppman.com
vanessan@mintztruppman.com
Justin Cernitz, Esquire
17100 Collins Avenue, Suite 217
Sunny Isles Beach, Florida 33160
jcernitz@cernitzlaw.com
by E-Portal and E-Mail on September 19, 2016.
CURT ALLEN, ESQUIREIN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 10-40785 CACE 02
Robert and Marlene Solano
Plaintiffs,
v.
State Farm Florida Insurance
Company,
Defendant.
/
PLAINTIFF'S RESPONSE TO
DEFENDANT'S REQUEST FOR ADMISSIONS
Pursuant to Rule 1.350, Florida Rules of Civil Procedure, Robert
Solano responds to Defendant’s Request for Admissions, as follows:
1. The policy requires you to provide documents requested by State Farm.
Denied as phrased. Denied that the policy or Florida law “requires”
anything that is not reasonable when making an insurance claim or that
failure to provide a document would allow State Farm to deny the loss.
Denied that the policy and Florida law allows State Farm to ask for
whatever it wants, whenever it wants. Denied that State Farm is entitled
to receive anything from the insured once it denied the loss. Denied that
failure to provide a single document (even if that occurred, which it did not)
would allow State Farm to deny the loss.
Admit that the policy states:
Exhibit "A"d. as often as we reasonably require:
(1) exhibit the damaged property;
(2) provide us with records and documents we
request and permit us to make copies;
Denied as to everything else.
2. State Farm requested you provide documents for the loss that is the
subject of the lawsuit.
Admitted State Farm requested documents and that it was provided all
documents it requested that Plaintiffs were able to obtain, and/or that were
reasonable as to the request. Admitted that State Farm was entitled to
documents after denial of the claim.
3. You did not provide State Farm with all of the documents it had requested
before bringing legal action against State Farm.
Denied.
4. The policy requires you to provide full, complete and meaningful
examinations under oath.
Denied.
5. You did not provide full, complete and meaningful examinations under
oath before bringing legal action against State Farm.
Denied.
6. At the February 23, 2010, examinations under oath, you deferred to your
public adjuster about each estimate and sworn proof of loss submitted to
State Farm.
Denied.
7. At the February 23, 2010, examinations under oath, your public adjuster
refused to testify under oath.Denied.
8. At the February 23, 2010, examinations under oath, Ms. Solano refused to
testify under oath.
Denied. State Farm expressly told Ms. Solano to leave without testifying
despite her being ready willing and able to do so.
9. On October 7, 2010, you brought legal action against State Farm.
Denied. No legal action had been served on State Farm, no summons had
been filed or submitted, and thus, no determative legal action commenced
against State Farm as a matter of law. In addition, the document that had
been filed had been filed by mistake, and State Farm was provided several
months to continue its investigation before a summons was issued. See
Adam Brewing Co. v. Bowman, 109 So. 583 (Fla. 1926) (No suit at law is
pending if it appears that no service of process has been had and it also
appears that no service of process can be had.)
10. On October 10, 2010, at the scheduled continuation of the examinations
under oath, your attorney denied, on the record, that a lawsuit had been
filed.
Admit that Ms. Arkin stated the truth to her knowledge at that time that
she was unaware any such papers had been filed, and that she explained
that it would have been a mistake since her assistant may have filed it
against the attorney’s express direction to wait until after the EUO before
filing suit. Denied that Ms. Arkin had any knowledge of a Complaint was
filed at the EUO.
11. You did not fully satisfy all of your post-loss obligations under the policy
before bringing legal action against State Farm.
Denied.
12. At the time you brought legal action against State Farm, there was no
payment due under the terms and conditions of the policy.Denied.
13. State Farm reserved all of its contractual rights to investigate the claim,
in writing.
Denied.
14. You never alleged that State Farm waived any policy defenses before
bringing legal action against State Farm.
Denied.
15. Actual cash value and replacement cost are two separate and distinct
types of recovery under the policy.
Denied as phrased, Pursuant to Florida law ACV is RCV minus
depreciation. Under the policy, and under Florida law, the insurance
company was required to pay the full replacement cost of the damaged
property without any depreciation or holdback whether or not the work was
performed.
16. You are not seeking the actual cash value of the purported loss.
Denied as phrased. ACV is just RCV minus applied depreciation (if
applicable). Accordingly, it is impossible to ask for damages without
making a determination of value. In addition, since State Farm breached
the policy, the actual measure of damages is actual damages, consequential
damages, and compensatory damages.
17. You are not seeking replacement cost benefits.
Denied as phrased. “Replacement cost benefits” is not a standard term, butassuming the question is about “Replacement cost value” of the items
damaged by the Hurricane which State Farm denied and/or failed to pay,
Florida law has determined that ACV is just RCV minus applied
depreciation (if applicable). Accordingly, it is impossible to ask for damages
in a suit for Breach of Contract without making a determination of RCV
and/or depreciation. In addition, since State Farm breached the policy, the
actual measure of damages is actual damages, consequential damages, and
compensatory damages as a result of the breach. The Plaintiff made
repairs that the insurance company failed to pay, and in addition, there are
repairs that still need to be made. Pursuant to Florida law, those damages
are sought in this case at the cost allowed by Florida law which is
replacement cost, without consideration of depreciation.
18. State Farm did not breach the policy.
Denied.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was
served via e-mail to Curt Allen, callen@butler.legal, eservice@butler.legal and
kwhite@butler.legal Butler Weihmuller Katz Craig LLP,400 North Ashley
Drive, Suite 2300, Tampa, FL 33602, on this 1° day of September, 2016.
Mintz Truppman, P.A.
Counsel for Plaintiffs
1700 Sans Souci Boulevard
North Miami, Florida 33181
Telephone: (305) 893-5506
Facsimile: (305) 893-5511
PE: adrian@mintztruppman.com
2E: vanessan@mintztruppman.com
in Neiman Arkin
i Floida Bar No. 0161209
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Filing # 46641842 E-Filed 09/19/2016 07:15:30 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA GENERAL JURISDICTION DIVISION ROBERTO and MARLENE SOLANO, Plaintiffs, vs. STATE FARM FLORIDA CASE NO: 10 40785 04 INSURANCE COMPANY, Defendant. / RESPONSE TO “PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT PROHIBITING DEFENDANT FROM RAISING POLICY DEFENSES DUE TO FAILURE TO COMPLY WITH FLA. STAT. § 627.421(1)” Defendant, State Farm Florida Insurance Company (“State Farm’), files its written response to “Plaintiffs Motion for Partial Summary Judgment Prohibiting Defendant from Raising Policy Defenses Due to Failure to Comply with Fla. Stat. § 627.421(1)” (“Motion”), Certificate of Service Date — July 29, 2016. 1 Introduction Plaintiffs made a claim for a loss reportedly occurring on October 24, 2005. State Farm immediately investigated, inspected the asserted damage, acknowledged that they had sustained a covered loss, and paid the claim made. Plaintiffs appeared satisfied with the amount paid. They appeared satisfied also with the handling of the claim. State Farm heard nothing more and thought the matter resolved. *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/19/2016 7:15:30 PM.****Almost four years after the loss, Plaintiffs made a supplemental claim, by and through a public adjuster whose sole compensation was a set percentage of any further amount paid by State Farm. They demanded State Farm pay them hundreds of thousands of dollars more. But, the supplemental claim was “odd,” to say the least. Such as, the public adjuster told State Farm it needed to pay a substantial sum for a new roof. But, Plaintiffs advised that the roof long since had been replaced, and, at a mere fraction of the amount presented by the public adjuster. Nonetheless, State Farm agreed to investigate, subject to a full reservation of rights, and, the protections of Florida Statutes. Importantly, on March 30, 2010, pursuant to Plaintiffs’ public adjuster’s request, State Farm supplied Plaintiffs with a certified copy of the policy. Further, State Farm wrote Plaintiffs, quoted the policy, and, requested they comply with their post-loss obligations. Plaintiffs did not comply. Instead, they sued State Farm without it having rendered a claim decision. Curiously, Plaintiffs contend that their lawyer filed the lawsuit “by mistake.” (See copy of “responses” to requests for admission, attached as Exhibit “A”) All the same, they never dismissed the lawsuit, or, offered to dismiss the lawsuit, and, have pursued the lawsuit to this very day. On July 29, 2016, over eleven years after the loss, Plaintiffs filed the Motion. Like the lawsuit, the Motion is without merit, or, support. Accordingly, the Motion must be denied.M. Argument A. No Summary Judgment Evidence The crux of the Motion is Paragraph Three — “Upon information and belief, the Insurance Company did not provide a complete copy of the policy to Plaintiff as required by Florida law at the time the policy went into effect on August 31, 2005, or within sixty (60) days thereafter, or at any time prior to the October 25, 2005 loss in this matter.” But, this allegation is not supported by “summary judgment evidence,” as is specifically required by Florida Rule of Civil Procedure 1.510. Indeed, Plaintiffs filed have no “summary judgment evidence,” whatsoever, to support this allegation. The Florida Supreme Court, and each and every District Court of Appeal, have all made clear that a party moving for summary judgment must present some evidence to support the motion. It is not enough to simply make an allegation. See, e.g., The Florida Bar v. Mogil, 763 So. 2d 303, 397 (Fla. 2000) (“once the movant tenders competent evidence to support his motion ... ,”); Woodruff v. Gov't Employees Ins. Co., 669 So. 2d 1114, 1115 (Fla. 1st DCA 1996) (“[w]here a movant for summary judgment offers sufficient evidence to support its claim of the nonexistence of material fact...”); First North Am. Nat'l Bank v. Hummel, 825 So. 2d 502, 503 (Fla. 2d DCA 2002) (“Once the moving party meets its burden...”) Williams v. Garden City Claims, Inc., of New York, 796 So. 2d 586, 588 (Fla. 3d DCA 2001) (“Once a movant tenders competent evidence to support his motion...”); Glasspoole v. Konover Constr. Corp. South, 787 So. 2d 937, 938 (Fla. 4th DCA 2001) (“Once the movant for summary judgment tenders competent evidence to support his motion...”); and, Dempsey v. Law Firm of Cathen & Odham, P.A., 781 So. 2d 1141, 1143 (Fla. 5th DCA 2001) (“once he tenders competent evidence to supporthis motion...”). Here, Plaintiffs have not presented any “summary judgment evidence” to support their motion. Accordingly, the Motion must be denied. B. Section 627.421(1) Applies Only to Exclusions Even if Plaintiffs had come forward with “summary judgment evidence,” which they have not, the function of section 627.421(1) is to provide notice of any exclusions that apply to the insurance policy. See, e.g., T.H.E. Ins. Co. v. Dollar Rent-A-Car Systems, Inc., 900 So. 2d 694 (Fla. 5th DCA 2005) (“We view the statutory requirement as one calculated to give notice of exclusions....”); see also, Aleman v. ACE American ins. Co., 2013 WL 3884033 (S.D. Fla. July 19, 2013). Here, State Farm did not even have the chance to make a claim decision, much less apply exclusions, if any applied. As is stated above, State Farm requested that Plaintiffs comply with their post-loss contractual obligations. These obligations are not exclusions, but rather, commitments by Plaintiffs to do certain things in the event of a loss. “Conditions in policies of insurance are part of the consideration for assuming the risk, and the insured, by accepting the policy, becomes bound by these conditions.” Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 304 (Fla. 4th DCA 1995). Regrettably, again, Plaintiffs did not comply. Instead, they sued State Farm, somehow “by mistake,” while State Farm still was investigating the claim. Accordingly, the Motion must be denied.c. No Sanction in Section 627.421(1) Even if Plaintiffs had presented “summary judgment evidence,” which they have not; and, even if section 627.421(1), Florida Statutes, applied here, which it does not; section 627.421(1), Florida Statutes, prescribes no penalty for a violation of its provisions. Unquestionably, nowhere does section 627.421(1), Florida Statutes, prescribe any penalty for an alleged violation of its recitations. And, even if a penalty was intended, respectfully, the Court cannot “rewrite” the statute to include one, arbitrarily. See, e.g., Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla. 2016) (“...it is not the prerogative of the courts to rewrite a statute to overcome its shortcomings.”) Plaintiffs cannot peruse Florida Statutes, find a statute that State Farm allegedly did not satisfy, first raise such some eleven years after the loss and a more than half a decade into the litigation, manufacture a penalty that appears nowhere in the statute, and, have the Court impose the concocted penalty at their behest. Such would be an undeniable violation of due process, and, irrefutably, a penalty far too harsh. See, e.g., Dollar Rent-A-Car Systems, Inc., 900 So. 2d 694. Accordingly, the Motion must be denied. D. No Prejudice Shown Even if Plaintiffs had presented “summary judgment evidence,” which they have not; even if section 627.421(1), Florida Statutes, applied here, which it does not; and, even if there was a penalty for a supposed violation of section 627.421(1), Florida Statutes, which there is not, Plaintiffs must present “summary judgment evidence” showing that they were prejudiced in some way. In Dollar Rent-A-Car Systems, Inc., 900 So. 2d 694, the Court considered an insurer's supposed failure to deliver a policy to a lessee whencontemplating the application of a policy exclusion. The Court found that “prejudice” to the insured should be considered when imposing any sanction for failure to deliver a policy of insurance as required by section 627.421, Florida Statutes. Here, Plaintiffs have not so much as mentioned prejudice, let alone established prejudice by way of “summary judgment evidence.” Plus, the “summary judgment evidence” previously filed by State Farm specifically refutes any suggestion of prejudice. Again, on March 30, 2010, during the course of the supplemental claim, before any claim decision, and prior to the lawsuit, State Farm delivered a copy of the policy to Plaintiffs. In addition, when requesting Plaintiffs’ compliance with their duties after loss, State Farm block quoted each and every provision of the policy, without exception. See State Farm’s “Motion for Summary Judgment,” Certificate of Service Date - May 11, 2011, and, State Farm’s “Notice of Filing,” Certificate of Service Date — May 18, 2011. Plaintiffs have not attempted to prove prejudice, because, they cannot. Accordingly, the Motion must be denied. Ill. Conclusion For all the reasons above, and all those previously given, the Motion must be denied. WHEREFORE, State Farm respectfully requests the Court deny the Motion, and, all such other relief deemed appropriate.BUTLER WEIHMULLER KATZ CRAIG LLP CURT ALLEN, ESQUIRE Florida Bar No.: 0008028 callen@butler.legal BRIAN HOHMAN, ESQUIRE Florida Bar No.: 0764671 bhohman@butler.legal Secondary: eservice@butler.legal 400 N Ashley Drive, Suite 2300 Tampa, Florida 33602 Telephone: (813) 281-1900 Facsimile: (813) 281-0900 Counsel for Defendant CERTIFICATE OF SERVICE | certify that a copy hereof has been furnished to: Adrian Neiman Arkin, Esquire 1700 Sans Souci Boulevard North Miami, Florida 33181 adrian@mintztruppman.com vanessan@mintztruppman.com Justin Cernitz, Esquire 17100 Collins Avenue, Suite 217 Sunny Isles Beach, Florida 33160 jcernitz@cernitzlaw.com by E-Portal and E-Mail on September 19, 2016. CURT ALLEN, ESQUIREIN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.: 10-40785 CACE 02 Robert and Marlene Solano Plaintiffs, v. State Farm Florida Insurance Company, Defendant. / PLAINTIFF'S RESPONSE TO DEFENDANT'S REQUEST FOR ADMISSIONS Pursuant to Rule 1.350, Florida Rules of Civil Procedure, Robert Solano responds to Defendant’s Request for Admissions, as follows: 1. The policy requires you to provide documents requested by State Farm. Denied as phrased. Denied that the policy or Florida law “requires” anything that is not reasonable when making an insurance claim or that failure to provide a document would allow State Farm to deny the loss. Denied that the policy and Florida law allows State Farm to ask for whatever it wants, whenever it wants. Denied that State Farm is entitled to receive anything from the insured once it denied the loss. Denied that failure to provide a single document (even if that occurred, which it did not) would allow State Farm to deny the loss. Admit that the policy states: Exhibit "A"d. as often as we reasonably require: (1) exhibit the damaged property; (2) provide us with records and documents we request and permit us to make copies; Denied as to everything else. 2. State Farm requested you provide documents for the loss that is the subject of the lawsuit. Admitted State Farm requested documents and that it was provided all documents it requested that Plaintiffs were able to obtain, and/or that were reasonable as to the request. Admitted that State Farm was entitled to documents after denial of the claim. 3. You did not provide State Farm with all of the documents it had requested before bringing legal action against State Farm. Denied. 4. The policy requires you to provide full, complete and meaningful examinations under oath. Denied. 5. You did not provide full, complete and meaningful examinations under oath before bringing legal action against State Farm. Denied. 6. At the February 23, 2010, examinations under oath, you deferred to your public adjuster about each estimate and sworn proof of loss submitted to State Farm. Denied. 7. At the February 23, 2010, examinations under oath, your public adjuster refused to testify under oath.Denied. 8. At the February 23, 2010, examinations under oath, Ms. Solano refused to testify under oath. Denied. State Farm expressly told Ms. Solano to leave without testifying despite her being ready willing and able to do so. 9. On October 7, 2010, you brought legal action against State Farm. Denied. No legal action had been served on State Farm, no summons had been filed or submitted, and thus, no determative legal action commenced against State Farm as a matter of law. In addition, the document that had been filed had been filed by mistake, and State Farm was provided several months to continue its investigation before a summons was issued. See Adam Brewing Co. v. Bowman, 109 So. 583 (Fla. 1926) (No suit at law is pending if it appears that no service of process has been had and it also appears that no service of process can be had.) 10. On October 10, 2010, at the scheduled continuation of the examinations under oath, your attorney denied, on the record, that a lawsuit had been filed. Admit that Ms. Arkin stated the truth to her knowledge at that time that she was unaware any such papers had been filed, and that she explained that it would have been a mistake since her assistant may have filed it against the attorney’s express direction to wait until after the EUO before filing suit. Denied that Ms. Arkin had any knowledge of a Complaint was filed at the EUO. 11. You did not fully satisfy all of your post-loss obligations under the policy before bringing legal action against State Farm. Denied. 12. At the time you brought legal action against State Farm, there was no payment due under the terms and conditions of the policy.Denied. 13. State Farm reserved all of its contractual rights to investigate the claim, in writing. Denied. 14. You never alleged that State Farm waived any policy defenses before bringing legal action against State Farm. Denied. 15. Actual cash value and replacement cost are two separate and distinct types of recovery under the policy. Denied as phrased, Pursuant to Florida law ACV is RCV minus depreciation. Under the policy, and under Florida law, the insurance company was required to pay the full replacement cost of the damaged property without any depreciation or holdback whether or not the work was performed. 16. You are not seeking the actual cash value of the purported loss. Denied as phrased. ACV is just RCV minus applied depreciation (if applicable). Accordingly, it is impossible to ask for damages without making a determination of value. In addition, since State Farm breached the policy, the actual measure of damages is actual damages, consequential damages, and compensatory damages. 17. You are not seeking replacement cost benefits. Denied as phrased. “Replacement cost benefits” is not a standard term, butassuming the question is about “Replacement cost value” of the items damaged by the Hurricane which State Farm denied and/or failed to pay, Florida law has determined that ACV is just RCV minus applied depreciation (if applicable). Accordingly, it is impossible to ask for damages in a suit for Breach of Contract without making a determination of RCV and/or depreciation. In addition, since State Farm breached the policy, the actual measure of damages is actual damages, consequential damages, and compensatory damages as a result of the breach. The Plaintiff made repairs that the insurance company failed to pay, and in addition, there are repairs that still need to be made. Pursuant to Florida law, those damages are sought in this case at the cost allowed by Florida law which is replacement cost, without consideration of depreciation. 18. State Farm did not breach the policy. Denied. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was served via e-mail to Curt Allen, callen@butler.legal, eservice@butler.legal and kwhite@butler.legal Butler Weihmuller Katz Craig LLP,400 North Ashley Drive, Suite 2300, Tampa, FL 33602, on this 1° day of September, 2016. Mintz Truppman, P.A. Counsel for Plaintiffs 1700 Sans Souci Boulevard North Miami, Florida 33181 Telephone: (305) 893-5506 Facsimile: (305) 893-5511 PE: adrian@mintztruppman.com 2E: vanessan@mintztruppman.com in Neiman Arkin i Floida Bar No. 0161209