Preview
Filing # 20913424 Electronically Filed 11/24/2014 01:45:52 PM
IN THE COUNTY COURT
IN AND FOR BROWARD COUNTY, FLORIDA
USA CHIROPRACTIC AND REHAB, INC., CASE NO: 12-22694 COCE 51
A/AJO WILL CHARLES,
Plaintiff,
vs.
WINDHAVEN INSURANCE COMPANY,
Defendant.
MOTION FOR LEAVE TO FILE AN AMENDED ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW the Defendant, WINDHAVEN INSURANCE COMPANY, by and through its
undersigned attorneys, and pursuant to Rule 1.190, Fla.R.Civ.P. files this Motion for Leave to File
Amended Affirmative Defenses stating:
1. On or about November 2, 2012, the Plaintiff, USA CHIROPRACTIC AND REHAB, INC.
a/alo NATIVIDA CHARLES (hereinafter "USA CHIRO") filed a Complaint against the
Defendant, WINDHAVEN INSURANCE COMPANY (hereinafter "WINDHAVEN").
2. On or about December 17, 2012, WINDHAVEN filed an Answer and Affirmative Defenses to
the Complaint.
3. During discovery, Defendant learned that it could assert additional defenses bearing on the
substantive merits of this litigation.
4. The new affirmative defenses are regarding Assignor's Material Misrepresentation for failure to
disclose his/her prior loses in the application for insurance and failure to list on the application
Rachel Charles a resident of the household who is 15 years or older.
5. WINDHAVEN is filing this Motion for Leave to Amend in good faith and not for purposes of
delay.
6. USA CHIRO would not be prejudiced in any way by this Court's granting of WINDHAVEN's
WINO1 120252 03 03
** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 11/24/2014 1:45:52 PM.****Motion for Leave to Amend and USA CHIRO shall have sufficient and ample opportunity to
address the additional Affirmative Defenses contemplated hereby.
7. Florida law favors litigation that includes the adjudication of any and all substantive issues that
the parties plead as relevant and material arguments, and therefore Florida law provides for the
liberal granting of Motions for Leave to Amend where no prejudice to a party can be shown.
"Leave shall be given freely when justice so requires." Rule 1.190(a), Fla.R.Civ.P.
8. WINDHAVEN's proposed amended pleading is attached hereto as required by Rule 1.190(a),
Fla.R.Civ.P. (Please see said proposed amended answer and affirmative defenses attached
hereto as Exhibit "1")
WHEREFORE the Defendant, WINDHAVEN INSURANCE COMPANY, respectfully
requests this Court to enter an Order granting its Motion For Leave to Amend, and for any further
relief that this Court deems just and proper.
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy hereof has been furnished on November 24, 2014
to: Fesner Petion, Esq., Law Offices of Fesner Petion, {petion(@petionlaw.com.
Windhaven Managers, Inc.
8550 NW 331 Street, Suite 400
Miami, FL 33122
Tel 786-709- 800
Email: fir windhaveninsurance.com
Michael Shifrin
FBN: 086818
WINO1120252 03 03EXHIBIT 1IN THE COUNTY COURT
IN AND FOR BROWARD COUNTY, FLORIDA
USA CHIROPRACTIC AND REHAB, INC., CASE NO: 12-22694 COCE 51
A/A/O WILL CHARLES,
Plaintiff,
WINDHAVEN INSURANCE COMPANY,
Defendant.
DEFENDA! SA ED ANSWERS, AND AFFIRMATIVE DEFENSE
COMES NOW the Defendant, WINDHAVEN INSURANCE COMPMANY, by and
through the undersigned counsel files its Answer, AND Affirmative Defenses:
1. Admitted for jurisdictional purposes only. Otherwise denied.
2. Without knowledge and therefore denied.
3. Admitted.
GENERAL ALLEGATIONS
COUNT I— BREACH OF CONTRACT FOR FAILURE TO PAY PIP BENEFITS
4, Admitted, however discovery is ongoing and Defendant reserves the right to amend.
5. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the averments contained therein and, therefore denies same.
6. Defendant affirmatively alleges that the policy issued by WINDHAVEN INSURANCE
COMPANY to NATIVIDA CHARLES under policy number WINO1120252 has been
rescinded due to misrepresentations made by him/her in the application for insurance
pursuant to Statute §627.409.
7. Defendant affirmatively alleges that the policy issued by WINDHAVEN INSURANCE
WINO1 120252 03 03COMPANY to NATIVIDA CHARLES under policy number W1N01120252 has been
rescinded due to misrepresentations made by him/her in the application for insurance
pursuant to Statute §627.409.
8. Denied.
9. Denied.
10. Admitted.
ll. Admitted.
12. Denied.
13. Denied.
14. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averments contained therein and, therefore denies same
15, Denied.
16. Denied.
17. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averments contained therein and, therefore denies same
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE - MATERIAL MISREPRESENTATION -
UNDISCLOSED PRIOR LOSES
Defendant affirmatively alleges that its liability, if any, is limited to the terms, conditions,
coverage, and exclusions of its policy.
Defendant affirmatively alleges that the policy issued by WINDHAVEN INSURANCE
COMPANY to NATIVIDA CHARLES under policy number WINO1 120252 has been rescinded due
to misrepresentations made by him/her in the application for insurance pursuant to Statute
WINO1 120252 03 03§627.409.
Defendant affirmatively alleges that NATIVIDA CHARLES failed to list on the application
her prior loses. Specifically, she failed to disclose prior accidents/losses which occurred on
01/15/2008, 01/2/2009, 08/29/2009, 03/07/2009, and 02/26/2011. Therefore, under the terms of the
insurance policy, no coverage is afforded to Plaintiff and the policy is null and void.
Defendant affirmatively alleges due to NATIVIDA CHARLES's material
misrepresentations, the Defendant rightfully denied NATIVIDA CHARLES's claim, rescinded
the policy, and refunded the premium to NATIVIDA CHARLES.
Defendant affirmatively alleges that if the true facts have been disclosed to the
Defendant, the Defendant would have not have issued the policy or contract, would not have
issued it at the same premium rate, and/or would have not provided coverage with respect to the
hazard resulting in the loss.
Plaintiff is barred by Florida Statute Section 627.409 from making any recovery under the
subject policy due to the misrepresentations he/she made in his/her application for the insurance
policy.
SECOND AFFIRMATIVE DEFENSE - MATERIAL MISREPRESENTATION -
UNDISCLOSED RESIDENT RELATIVE
Defendant affirmatively alleges that the policy issued by WINDHAVEN INSURANCE
COMPANY to NATIVIDA CHARLES under policy number WINO1120252 has been rescinded
due to misrepresentations made by him/her in the application for insurance pursuant to Statute
§627.409.
Defendant affirmatively alleges that NATITVIDA CHARLES failed to list on the application Rachel
Charles a resident of the household who is 15 years or older. Therefore, under the terms of the
‘WINO1120252 03 03insurance policy, no coverage is afforded to Plaintiff and the policy is null and void.
Defendant affirmatively alleges that NATIVIDA CHARLES intentionally or negligently induced
Defendant to issue the policy at the premium at which it was issued by failing to disclose all
residents of his/her household 15 years or older.
Defendant affirmatively alleges due to NATIVIDA CHARLES's material
misrepresentations of failing to list Rachel Charles as a resident of the household who is 15 years
of older, the Defendant rightfully denied NATIVIDA CHARLES's claim, rescinded the policy,
and refunded the premium to NATIVIDA CHARLES
Defendant affirmatively alleges that if the true facts have been disclosed to the Defendant,
the Defendant would not have provided coverage with respect to the hazard resulting in the loss.
Plaintiff is barred by Florida Statute Section 627.409 from making any recovery under the
subject policy due to the misrepresentations he/she made in his/her application for the insurance
policy.
WHEREFORE, the Defendant, WINDHAVEN INSURANCE COMPANY, respectfully
requests that the Court grant judgment in its favor, for the recovery of fees and costs expended in
its defense if authorized by law, and for any such further relief deemed just and appropriate under
the circumstances.
This space intentionally left blank.
W1N01120252 03 03CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy hereof has been furnished to Fesner Petion, Esq., at
Law Offices of Fesner Petion, via Primary Electronic Mail at fpetion _,petionlaw.com on
November 24, 2014.
Windhaven Managers
8550 NW 33r Street, Suite 400
Miami, FL 33122
Telephone: 305-265-3104
E-Service: filings(ibwindhaveninsurance.com
/s/ Michael Shifrin
Michael Shifrin, Esq.
FBN: 086818
WINO1120252 03 03
Preview
Filing # 20913424 Electronically Filed 11/24/2014 01:45:52 PM IN THE COUNTY COURT IN AND FOR BROWARD COUNTY, FLORIDA USA CHIROPRACTIC AND REHAB, INC., CASE NO: 12-22694 COCE 51 A/AJO WILL CHARLES, Plaintiff, vs. WINDHAVEN INSURANCE COMPANY, Defendant. MOTION FOR LEAVE TO FILE AN AMENDED ANSWER AND AFFIRMATIVE DEFENSES COMES NOW the Defendant, WINDHAVEN INSURANCE COMPANY, by and through its undersigned attorneys, and pursuant to Rule 1.190, Fla.R.Civ.P. files this Motion for Leave to File Amended Affirmative Defenses stating: 1. On or about November 2, 2012, the Plaintiff, USA CHIROPRACTIC AND REHAB, INC. a/alo NATIVIDA CHARLES (hereinafter "USA CHIRO") filed a Complaint against the Defendant, WINDHAVEN INSURANCE COMPANY (hereinafter "WINDHAVEN"). 2. On or about December 17, 2012, WINDHAVEN filed an Answer and Affirmative Defenses to the Complaint. 3. During discovery, Defendant learned that it could assert additional defenses bearing on the substantive merits of this litigation. 4. The new affirmative defenses are regarding Assignor's Material Misrepresentation for failure to disclose his/her prior loses in the application for insurance and failure to list on the application Rachel Charles a resident of the household who is 15 years or older. 5. WINDHAVEN is filing this Motion for Leave to Amend in good faith and not for purposes of delay. 6. USA CHIRO would not be prejudiced in any way by this Court's granting of WINDHAVEN's WINO1 120252 03 03 ** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 11/24/2014 1:45:52 PM.****Motion for Leave to Amend and USA CHIRO shall have sufficient and ample opportunity to address the additional Affirmative Defenses contemplated hereby. 7. Florida law favors litigation that includes the adjudication of any and all substantive issues that the parties plead as relevant and material arguments, and therefore Florida law provides for the liberal granting of Motions for Leave to Amend where no prejudice to a party can be shown. "Leave shall be given freely when justice so requires." Rule 1.190(a), Fla.R.Civ.P. 8. WINDHAVEN's proposed amended pleading is attached hereto as required by Rule 1.190(a), Fla.R.Civ.P. (Please see said proposed amended answer and affirmative defenses attached hereto as Exhibit "1") WHEREFORE the Defendant, WINDHAVEN INSURANCE COMPANY, respectfully requests this Court to enter an Order granting its Motion For Leave to Amend, and for any further relief that this Court deems just and proper. CERTIFICATE OF SERVICE Thereby certify that a true and correct copy hereof has been furnished on November 24, 2014 to: Fesner Petion, Esq., Law Offices of Fesner Petion, {petion(@petionlaw.com. Windhaven Managers, Inc. 8550 NW 331 Street, Suite 400 Miami, FL 33122 Tel 786-709- 800 Email: fir windhaveninsurance.com Michael Shifrin FBN: 086818 WINO1120252 03 03EXHIBIT 1IN THE COUNTY COURT IN AND FOR BROWARD COUNTY, FLORIDA USA CHIROPRACTIC AND REHAB, INC., CASE NO: 12-22694 COCE 51 A/A/O WILL CHARLES, Plaintiff, WINDHAVEN INSURANCE COMPANY, Defendant. DEFENDA! SA ED ANSWERS, AND AFFIRMATIVE DEFENSE COMES NOW the Defendant, WINDHAVEN INSURANCE COMPMANY, by and through the undersigned counsel files its Answer, AND Affirmative Defenses: 1. Admitted for jurisdictional purposes only. Otherwise denied. 2. Without knowledge and therefore denied. 3. Admitted. GENERAL ALLEGATIONS COUNT I— BREACH OF CONTRACT FOR FAILURE TO PAY PIP BENEFITS 4, Admitted, however discovery is ongoing and Defendant reserves the right to amend. 5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein and, therefore denies same. 6. Defendant affirmatively alleges that the policy issued by WINDHAVEN INSURANCE COMPANY to NATIVIDA CHARLES under policy number WINO1120252 has been rescinded due to misrepresentations made by him/her in the application for insurance pursuant to Statute §627.409. 7. Defendant affirmatively alleges that the policy issued by WINDHAVEN INSURANCE WINO1 120252 03 03COMPANY to NATIVIDA CHARLES under policy number W1N01120252 has been rescinded due to misrepresentations made by him/her in the application for insurance pursuant to Statute §627.409. 8. Denied. 9. Denied. 10. Admitted. ll. Admitted. 12. Denied. 13. Denied. 14. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein and, therefore denies same 15, Denied. 16. Denied. 17. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein and, therefore denies same AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE - MATERIAL MISREPRESENTATION - UNDISCLOSED PRIOR LOSES Defendant affirmatively alleges that its liability, if any, is limited to the terms, conditions, coverage, and exclusions of its policy. Defendant affirmatively alleges that the policy issued by WINDHAVEN INSURANCE COMPANY to NATIVIDA CHARLES under policy number WINO1 120252 has been rescinded due to misrepresentations made by him/her in the application for insurance pursuant to Statute WINO1 120252 03 03§627.409. Defendant affirmatively alleges that NATIVIDA CHARLES failed to list on the application her prior loses. Specifically, she failed to disclose prior accidents/losses which occurred on 01/15/2008, 01/2/2009, 08/29/2009, 03/07/2009, and 02/26/2011. Therefore, under the terms of the insurance policy, no coverage is afforded to Plaintiff and the policy is null and void. Defendant affirmatively alleges due to NATIVIDA CHARLES's material misrepresentations, the Defendant rightfully denied NATIVIDA CHARLES's claim, rescinded the policy, and refunded the premium to NATIVIDA CHARLES. Defendant affirmatively alleges that if the true facts have been disclosed to the Defendant, the Defendant would have not have issued the policy or contract, would not have issued it at the same premium rate, and/or would have not provided coverage with respect to the hazard resulting in the loss. Plaintiff is barred by Florida Statute Section 627.409 from making any recovery under the subject policy due to the misrepresentations he/she made in his/her application for the insurance policy. SECOND AFFIRMATIVE DEFENSE - MATERIAL MISREPRESENTATION - UNDISCLOSED RESIDENT RELATIVE Defendant affirmatively alleges that the policy issued by WINDHAVEN INSURANCE COMPANY to NATIVIDA CHARLES under policy number WINO1120252 has been rescinded due to misrepresentations made by him/her in the application for insurance pursuant to Statute §627.409. Defendant affirmatively alleges that NATITVIDA CHARLES failed to list on the application Rachel Charles a resident of the household who is 15 years or older. Therefore, under the terms of the ‘WINO1120252 03 03insurance policy, no coverage is afforded to Plaintiff and the policy is null and void. Defendant affirmatively alleges that NATIVIDA CHARLES intentionally or negligently induced Defendant to issue the policy at the premium at which it was issued by failing to disclose all residents of his/her household 15 years or older. Defendant affirmatively alleges due to NATIVIDA CHARLES's material misrepresentations of failing to list Rachel Charles as a resident of the household who is 15 years of older, the Defendant rightfully denied NATIVIDA CHARLES's claim, rescinded the policy, and refunded the premium to NATIVIDA CHARLES Defendant affirmatively alleges that if the true facts have been disclosed to the Defendant, the Defendant would not have provided coverage with respect to the hazard resulting in the loss. Plaintiff is barred by Florida Statute Section 627.409 from making any recovery under the subject policy due to the misrepresentations he/she made in his/her application for the insurance policy. WHEREFORE, the Defendant, WINDHAVEN INSURANCE COMPANY, respectfully requests that the Court grant judgment in its favor, for the recovery of fees and costs expended in its defense if authorized by law, and for any such further relief deemed just and appropriate under the circumstances. This space intentionally left blank. W1N01120252 03 03CERTIFICATE OF SERVICE Thereby certify that a true and correct copy hereof has been furnished to Fesner Petion, Esq., at Law Offices of Fesner Petion, via Primary Electronic Mail at fpetion _,petionlaw.com on November 24, 2014. Windhaven Managers 8550 NW 33r Street, Suite 400 Miami, FL 33122 Telephone: 305-265-3104 E-Service: filings(ibwindhaveninsurance.com /s/ Michael Shifrin Michael Shifrin, Esq. FBN: 086818 WINO1120252 03 03