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Filing # 119013060 E-Filed 01/04/2021 03:45:07 PM
IN THE CIRCUIT COURT FOR THE 17"
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA.
CASE NO.: CACE-20-017607
JEAN HEDGE AND
ROBERT HEDGE,
Plaintiffs,
vs.
OMEGA INSURANCE COMPANY,
Defendant.
DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR
DECLARATORY RELIEF (COUNT I)
Defendant, OMEGA INSURANCE COMPANY (hereinafter “OMEGA”), by and through
its undersigned counsel, moves this Court for an Order dismissing Count II of Plaintiff's Complaint
for Declaratory Relief, and as grounds therefore, states as follows:
1. Plaintiffs filed his two-count Complaint on or about October 22, 2020. OMEGA
was served on November 13, 2020.
2. According to the Plaintiffs’ Complaint, the instant lawsuit arises from a claim for
insurance proceeds alleged by the Plaintiff to be due as a result of alleged damage to the property
located at 2920 SW 174" Way, Miramar, Florida 33029.
3. Count I alleges OMEGA breached the contract of insurance. OMEGA has filed its
Answer and Affirmative Defenses in response to Count I contemporaneously herewith.
4. Count II involves the same exact claim as Count I, but seeks a declaratory relief to
be issued by this Court.
Page 1 of 8
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/04/2021 03:45:07 PM.****5. In Count II of the Complaint, Plaintiffs asserts "Defendant refused and continues
to refuse to pay the full amount of Plaintiffs’ claims". See Complaint, 415-17, attached hereto as
Exhibit "A."
6. Plaintiffs, in actuality, specifies no facts and/or policy provisions which may raise
this doubt it has that would necessitate an actual, practical and present need for a declaration by
the court.
7. Furthermore, there is no doubt this case stems from an alleged breach of insurance
contract, instead of one that seeks declaratory relief, evidenced by Plaintiff including a breach of
insurance contract count in its pleading.
8. In order to maintain a cause of action for declaratory relief, Plaintiffs must show he
is in doubt or uncertain as to the existence or non-existence of some right, status, immunity, power
or privilege and has an actual, practical and present need for a declaration.
9. The Plaintiffs do not allege any ambiguity in the policy language nor does he allege
he is in doubt or uncertain as to the existence or non-existence of some right, status, immunity,
power or privilege and have an actual, practical and present need for a declaration.
10. The Plaintiffs have failed to plead a valid cause of action upon which relief can be
granted by failing to identify the insurance policy provisions Plaintiff seek this Court to interpret.
Therefore, Count II of Plaintiffs’ Complaint must be dismissed.
MEMORANDUM OF LAW AND ARGUMENT
I. Motion to Dismiss Standard
The purpose of a Florida Rule of Civil Procedure 1.140(b)(6), Motion to Dismiss is to test
the legal sufficiency of the statement or claim for relief. Pacific Ins. Co., Ltd. v. Botelho, D.C., 891
So. 2d 587, 590 (Fla. 3d DCA 2005). Pursuant to Florida Rule of Civil Procedure 1.140(b)(6), a
Page 2 of 8Complaint is subject to dismissal if it fails to state a cause of action. Plaintiffs are required to plead
facts in its Complaint which, if supported, will permit the Plaintiffs to obtain the relief sought. See
Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 1990); Horowitz v. Laske, 855 So. 2d 169, 172
(Fla. 5th DCA 2003). However, unlike other actions, a motion to dismiss a count for declaratory
relief does not go to the merits but only goes to the question of whether or not the Plaintiffs are
entitled to a declaration of rights. See Gov’t Employees Ins. Co. v. Anta, 379 So. 2d 1038, 1039-
40 (Fla. 3d DCA 1980). For the reasons stated below, the Plaintiff's Complaint fails to establish
the Plaintiff is entitled to a declaration of rights under the insurance policy.
I. Plaintiffs Have Not Identified Any Ambiguity in The Policy Which Requires
the Court’s Interpretation.
As discussed above, Plaintiffs fails to properly identify any provision of the subject
insurance policy about which he is in doubt. In Count II of the Plaintiff's Complaint, the Plaintiff
alleges to be in doubt as to the terms of the Policy. Beyond alleging, in conclusory fashion, that he
is in doubt as to its rights under the Policy, the Plaintiffs have provided no explanation behind this
alleged doubt and insecurity. The Plaintiffs have failed to reference a single policy provision,
creating doubt, which would necessitate judicial interpretation beyond the introductory provisions.
As such, the Plaintiffs have failed to state a cause of action for declaratory relief.
In Florida, the right to declaratory judgment for a party in doubt of its contractual rights
was statutorily created by Section 86.021 of the Florida Statutes, which states, in pertinent part:
Any person claiming to be interested or who may be in doubt about
his or her rights under a deed, will, contract, or other article,
memorandum, or instrument in writing or whose rights, status, or
other equitable or legal relation are affected by a statute, or any
regulation made under statutory authority, or by municipal
ordinance, contract, deed, will, franchise, or any article,
memorandum in writing may have determined any question of
construction or validity arising under such statute, regulation,
municipal ordinance, contract, deed, will, franchise, or other article
Page 3 of 8memorandum, or instrument in writing, or any part thereof, and
obtain a declaration of rights, status, or other equitable or legal
relations thereunder.
Fla. Stat. § 86.021 (emphasis added).
Count II of the Plaintiffs’ Complaint, as it stands, has not presented any question of construction
or validity. There is simply a bare, conclusory assertion of doubt.
Pursuant to Swain v. Reliable Insurance Co., 200 So. 2d 862 (Fla. 3d DCA 1967),
conclusory allegations of doubt are insufficient to establish a cause of action for declaratory relief.
In the case of Martinez v. Scalan, 582 So. 2d 1167, 1170 (Fla. 1991), the court held that to request
declaratory relief “there must be a bona fide need for such a declaration based on present
ascertainable facts or the courts lacks jurisdiction to render declaratory relief.” (emphasis added).
Additionally, “{i]n order to invoke jurisdiction under the provisions of the Declaratory Decree
Statute for the purpose of having the court construe any instrument, it is essential that the movant
allege facts which show that he is in doubt concerning his rights under said instrument...” Bowden
v. Seaboard AirLine R.R. Co., 47 So. 2d 786 (Fla. 1950) (emphasis added).
Count II of the Plaintiffs’ Complaint presents a conclusory allegation of doubt, without
present ascertainable facts supporting the need for the court’s interpretation, and there have been
no facts alleged which show the Plaintiffs are in doubt as to her rights under the Policy. Pursuant
to the Florida case law and statute cited above, such a bare assertion of doubt is insufficient to
withstand a Motion to Dismiss. The Plaintiffs do not allege any ambiguity in the policy or question
the construction of the policy or the validity of the contract. The purpose of an action for
declaratory relief on an insurance contract is for interpretation of an ambiguity in a policy; in other
words, a question of construction or validity of a contract. See Martinez, 582 So. 2d at 1170 and
Johnson, 155 So. 2d at 886, discussed supra. Here, the Plaintiffs fails to set forth any question of
construction or validity arising under the contract. The Plaintiffs do not challenge the construction
Page 4 of 8of the policy or the validity of the policy. As such, the Plaintiffs have failed to state a cause of
action for declaratory relief. The Plaintiffs’ Complaint fails to clearly identify the provisions for
which the Plaintiffs now seeks interpretation by the Court. For the aforementioned reasons, Count
II of the Plaintiffs’ Complaint should be dismissed.
Ill. Plaintiffs Did Not Raise an Issue of Fact for the Court to Interpret.
The case of Higgins v. State Farm Fire and Casualty Co., 894 So. 2d 5, 12 (Fla. 2004)
expanded to reach the Declaratory Decree statute in holding that, “courts have the general power
to issue declaratory judgments not only in suits seeking a determination of the existence or non
existence of any ‘immunity, power, privilege, or right’ but also in suits so/ely seeking a
determination of any fact affecting the applicability for an ‘immunity, power, privilege, or right.”
(emphasis added). The Higgins decision makes it possible for the Courts to issue declaratory
judgments concerning issues of fact, even if the subject instrument is unambiguous on its face. Id.
at 9. In Count II of the Plaintiff's Complaint, the Plaintiff has not presented an issue of fact.
By conclusively alleging that he is in doubt as to her rights under the subject Policy, the
Plaintiff has failed to raise an issue of fact for the Court on which to rule. In Higgins, there was an
issue of fact as to whether the conduct of the insured constituted an “occurrence” within the
meaning of the policy. /d. at 7. The insurer’s Complaint for Declaratory Relief specifically raised
this factual issue by alleging that “despite the negligence label placed on Higgins’ alleged conduct
in the Second Amended Complaint in the underlying action, Higgins’ alleged conduct was still of
an intentional, willful, and malicious nature.” /d. at 8.
In the instant Complaint, the Plaintiffs have failed to sufficiently raise an issue of fact for
the Court. Plaintiffs merely alleges he is entitled to a declaratory relief due to “Defendant
Page 5 of 8improperly refusing to acknowledge coverage for the above scope under the Policy to avoid
potentially paying for the claim” and offers no further reasoning to support this contention.
Plaintiffs contends OMEGA breached the Policy by "refusing to pay the full amount of the
Plaintiffs claim" resulting from a Hurricane Irma claim. Plaintiffs seek a declaration by the Court
that this alleged nonpayment constitutes a breach of the Policy. Additionally, Plaintiffs wrongfully
asserts an action for declaratory relief, which, in reality, should be a case solely related to an
alleged breach of an insurance contract. Due to the Complaint lacking an issue of fact for the Court
to rule on, Count II of the Plaintiffs’ Complaint must be dismissed.
IV. Plaintiffs’ Claim for Declaratory Relief Should be Dismissed Because it is
Subsumed Within Plaintiff's Claim for Breach of Contract.
Count II of Plaintiffs’ Complaint fails to meet the essential provisions of Florida’s
Declaratory Relief Act. “A trial court should not entertain an action for declaratory judgment on
issues which are properly raised in other counts of the pleadings and already before the court,
through which the plaintiff will be able to secure full, adequate and complete relief.” McIntosh v.
Harbour Club Villas Condo. Ass’n., 468 So. 2d 1075, 1081 (Fla. 3d DCA 1985); see also Fernando
Grinberg Trust Success Int. Properties LLC v. Scottsdale Ins. Co., 10-20448-CIV, 2010 WL
2510662 (S.D. Fla. 2010).
In Count I, Plaintiffs seeks damages for this alleged breach of contract. Plaintiffs fail to
allege any specific right, obligation, or provision of the Policy he contends is ambiguous and would
necessitate the Court’s interpretation. Instead, Plaintiffs merely states he is entitled to payment for
the reported loss. This is the exact relief sought in Count I for breach of contract. Thus, Plaintiffs’
action for declaratory relief should be dismissed because it is subsumed within Plaintiffs’ claim
for breach of contract. The breach of contract claim and the declaratory judgment action are based
on the same operative facts. Plaintiffs request a declaration that he is entitled to coverage and/or
Page 6 of 8additional benefits for the claimed losses as alleged in the breach of contract count and he is
entitled to damages based on OMEGA’s alleged failure to pay benefits under the Policy. If
Plaintiffs successfully prosecute his breach of contract action, Plaintiffs will obtain full, adequate
and complete relief for the losses. Thus, Count II should be dismissed.
WHEREFORE, Defendant, OMEGA INSURANCE COMPANY, respectfully requests
this Honorable Court grant its Motion to Dismiss Count II for Declaratory Relief, and grant such
other relief it deems just and fair.
By
Primary
Primary
Primary
Secondary
Attorneys for
Page 7 of 8
Respectfully Submitted,
MARSHALL DENNEHEY
WARNER COLEMAN & GOGGIN
/s/Isabel Andreacchi
Michael A. Packer
Florida Bar No.: 121479
mapacker@mdweg.com
Danielle N. Robinson
Florida Bar Number: 13921
dnrobinson@mdweg.com
Isabel Andreacchi
Florida Bar Number: 92906
iiandreacchi@mdweg.com
2400 E. Commercial Blvd.,
Suite 1100
Fort Lauderdale, FL 33308
Phone: (954) 847-4920
mjgagliardo@mdweg.com
trvalentin@mdweg.com
pleadingsft|@mdweg.com
OMEGA INSURANCE COMPANYCERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true copy of the foregoing Defendant’s Motion to
Dismiss was sent by electronic mail this 4" day of January 2020, to Peter Mineo, Jr., Esq., The
Mineo Salcedo Law Firm, P.A., 5600 Davie Road, Davie, Fl. 33314, service@mineolaw.com;
s/ Isabel Andreacchi
Isabel Andreacchi, Esq.
Page 8 of 8IN THE CIRCUIT COURT OF THE
17™ JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY,
FLORIDA
JEAN HEDGE and ROBERT HEDGE,
CASE NO:
Plaintiffs,
vs.
OMEGA INSURANCE COMPANY,
Defendant.
/
COMPLAINT
COMES NOW the Plaintiffs, JEAN HEDGE and ROBERT HEDGE, by and
through the undersigned counsel and hereby file this Complaint against the Defendant,
OMEGA INSURANCE COMPANY, and as grounds therefore state as follows:
1. That this is an action for damages in excess of THIRTY THOUSAND
DOLLARS ($30,000.00), exclusive of interest, attorney fees and costs, and is otherwise
within the jurisdictional limits of this Court.
2. That at all times material hereto the Defendant was an insurance company
authorized to do business in the State of Florida and doing business in Broward County,
Florida.
3. That at all times material hereto the Plaintiffs were and are residents of
Broward County, Florida, and are otherwise sui juris.
4, That at all times material hereto, Plaintiffs and Defendant had a policy of
insurance, Policy No. 8001562974, on Plaintiffs’ residence located at 2920 SW 174"
Way, Miramar, FL 33029-5552, which afforded various types of coverages including
coverage for damage to dwelling, other structures, personal property, and for loss of use.
Exhibit APlaintiffs are not in possession of a copy of the policy but believe one to be in possession
of Defendant.
5. During the policy period, the above described property was damaged.
6. As a result of this incident, the Plaintiff has suffered damage to the
building on the subject property, damage to contents, and loss of use of the property and
possessions therein.
7. Plaintiffs have complied with all conditions precedent and/or statutory
requirements in order to recover under the policy of insurance and applicable Florida
Statutes, or, in the alternative, those conditions precedent and/or statutory requirements
that have not been complied with have been waived by the Defendant. The Defendant
assigned the loss claim number 3300341865, but the Defendant has refused and
continues to refuse to pay either part or all of the Plaintiffs’ claims.
COUNT I- BREACH OF CONTRACT
Plaintiffs readopt and reallege Paragraphs 1 through 7 above as if fully stated
herein, and further alleges as follows:
8. That the Defendant’s denial of coverage and refusal to pay the full amount
of the claim or in the alternative, a reasonable amount was contrary to the terms of the
policy and/or Florida law and was a breach of said contract of insurance. In the
alternative the Defendant has or refused to pay a reasonable amount of the Plaintiffs
claim. This is contrary to the terms of the policy and/or Florida law and was a breach of
said insurance contract.
9. The Plaintiffs have been damaged by the Defendant’s breach of said
contract of insurance by having not been compensated for the damage sustained to the
2building on the subject property, damage to contents, and loss of use of the property and
possessions taken from therein.
10. That as a direct and proximate result of the Defendant’s refusal to pay the
Plaintiffs’ claims, the Plaintiffs have been required to retain the services of the
undersigned attorneys to represent and protect the Plaintiffs’ interests and Plaintiffs have
become obliged to pay them a reasonable fee for their services in bringing this action.
11. In the event that the Plaintiffs prevail in this action, Plaintiffs are entitled
to an award of attorney fees and costs pursuant to Florida Statute Section 627.428 or
other Florida law.
WHEREFORE, the Plaintiffs, JEAN HEDGE and ROBERT HEDGE, demand
judgment against the Defendant, OMEGA INSURANCE COMPANY, for damages
including but not limited to damage to the building, contents, loss of use, interest allowed
by law, and reasonable attorney fees and costs pursuant to Florida Statute Section
627.428 or other Florida law, and the Plaintiffs’ demand trial by jury of all issues triable
as a matter of right by jury.
COUNT II
PETITION FOR DECLARATORY RELIEF
Plaintiffs reallege and readopt Paragraphs | through 7 as if fully set forth herein
and sues the Defendant for declaratory relief pursuant to Chapter 86 of the Florida
Statutes and further states as follows:
12. The above insurance policy between Plaintiffs and Defendant provides
comprehensive coverage for damages as a result of losses to property.13. Pursuant to Chapter 86 of Florida Statutes, the Plaintiffs request this Court
to take jurisdiction over this action and determine the Plaintiffs’ rights under said policy.
14. The Plaintiffs furnished timely notice of a covered loss and otherwise
performed all conditions precedent to recover under the policy and under the applicable
Florida Statutes.
15. Defendant refused and continues to refuse to pay the full amount of
Plaintiffs’ claims.
16. The Plaintiffs believe, but are in doubt, that the Plaintiffs are entitled to
full coverage under said policy, including but not limited to, coverage for damage to the
building on the subject property, its contents, and its loss of use.
17. That as a direct and proximate result of the Defendant’s refusal to pay the
Plaintiffs’ claims, the Plaintiffs have been required to retain the services of the
undersigned attorneys to represent and protect the Plaintiffs’ interests and Plaintiffs have
become obligated to pay them a reasonable fee for their services in bringing this action.
18. In the event that the Plaintiffs prevail in this action, Plaintiffs are entitled
to an award of attorney fees and costs pursuant to Florida Statute Section 627.428 or
other Florida law.
WHEREFORE, Plaintiffs hereby demand judgment against Defendant and the
following:
a. that the Court take jurisdiction over the parties and the subject matter of
this action;b. that the Court determine the rights and duties of the parties under said
insurance policy;
c. that this Court enter an Order determining that the subject policy was in
full force and effect at the time of the loss;
d. that the Court enter an Order determining that the damages suffered by
Plaintiffs are not excluded under the policy insurance.
e. that the Court enter an Order determining that the Plaintiffs complied with
all requirements under the policy and are entitled to full coverage for their damages
under said policy, including but not limited to coverage for the full amount of loss
including damage to the building on the subject property, contents, and loss of use;
f. that the Court award the Plaintiffs attorney fees pursuant to Florida Statute
Section 627.428 or other Florida law, prejudgment interest, and costs; and
2. that the Court enter any other relief that it deems just and proper.
DEMAND FOR JURY TRIAL
The Plaintiffs further demand a trial by jury of all issues so triable as a matter of
right.
Dated this 22"! day of October, 2020
By:
PETER MINEO JR.
Florida Bar No: 328928
THE MINEO SALCEDO LAW FIRM, P.A.
Attorneys for Plaintiff
5600 Davie Road
Davie, FL 33314
T: (954) 463-8100
F: (954) 463-8106
Service@mineolaw.com
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Filing # 119013060 E-Filed 01/04/2021 03:45:07 PM IN THE CIRCUIT COURT FOR THE 17" JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA. CASE NO.: CACE-20-017607 JEAN HEDGE AND ROBERT HEDGE, Plaintiffs, vs. OMEGA INSURANCE COMPANY, Defendant. DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR DECLARATORY RELIEF (COUNT I) Defendant, OMEGA INSURANCE COMPANY (hereinafter “OMEGA”), by and through its undersigned counsel, moves this Court for an Order dismissing Count II of Plaintiff's Complaint for Declaratory Relief, and as grounds therefore, states as follows: 1. Plaintiffs filed his two-count Complaint on or about October 22, 2020. OMEGA was served on November 13, 2020. 2. According to the Plaintiffs’ Complaint, the instant lawsuit arises from a claim for insurance proceeds alleged by the Plaintiff to be due as a result of alleged damage to the property located at 2920 SW 174" Way, Miramar, Florida 33029. 3. Count I alleges OMEGA breached the contract of insurance. OMEGA has filed its Answer and Affirmative Defenses in response to Count I contemporaneously herewith. 4. Count II involves the same exact claim as Count I, but seeks a declaratory relief to be issued by this Court. Page 1 of 8 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/04/2021 03:45:07 PM.****5. In Count II of the Complaint, Plaintiffs asserts "Defendant refused and continues to refuse to pay the full amount of Plaintiffs’ claims". See Complaint, 415-17, attached hereto as Exhibit "A." 6. Plaintiffs, in actuality, specifies no facts and/or policy provisions which may raise this doubt it has that would necessitate an actual, practical and present need for a declaration by the court. 7. Furthermore, there is no doubt this case stems from an alleged breach of insurance contract, instead of one that seeks declaratory relief, evidenced by Plaintiff including a breach of insurance contract count in its pleading. 8. In order to maintain a cause of action for declaratory relief, Plaintiffs must show he is in doubt or uncertain as to the existence or non-existence of some right, status, immunity, power or privilege and has an actual, practical and present need for a declaration. 9. The Plaintiffs do not allege any ambiguity in the policy language nor does he allege he is in doubt or uncertain as to the existence or non-existence of some right, status, immunity, power or privilege and have an actual, practical and present need for a declaration. 10. The Plaintiffs have failed to plead a valid cause of action upon which relief can be granted by failing to identify the insurance policy provisions Plaintiff seek this Court to interpret. Therefore, Count II of Plaintiffs’ Complaint must be dismissed. MEMORANDUM OF LAW AND ARGUMENT I. Motion to Dismiss Standard The purpose of a Florida Rule of Civil Procedure 1.140(b)(6), Motion to Dismiss is to test the legal sufficiency of the statement or claim for relief. Pacific Ins. Co., Ltd. v. Botelho, D.C., 891 So. 2d 587, 590 (Fla. 3d DCA 2005). Pursuant to Florida Rule of Civil Procedure 1.140(b)(6), a Page 2 of 8Complaint is subject to dismissal if it fails to state a cause of action. Plaintiffs are required to plead facts in its Complaint which, if supported, will permit the Plaintiffs to obtain the relief sought. See Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 1990); Horowitz v. Laske, 855 So. 2d 169, 172 (Fla. 5th DCA 2003). However, unlike other actions, a motion to dismiss a count for declaratory relief does not go to the merits but only goes to the question of whether or not the Plaintiffs are entitled to a declaration of rights. See Gov’t Employees Ins. Co. v. Anta, 379 So. 2d 1038, 1039- 40 (Fla. 3d DCA 1980). For the reasons stated below, the Plaintiff's Complaint fails to establish the Plaintiff is entitled to a declaration of rights under the insurance policy. I. Plaintiffs Have Not Identified Any Ambiguity in The Policy Which Requires the Court’s Interpretation. As discussed above, Plaintiffs fails to properly identify any provision of the subject insurance policy about which he is in doubt. In Count II of the Plaintiff's Complaint, the Plaintiff alleges to be in doubt as to the terms of the Policy. Beyond alleging, in conclusory fashion, that he is in doubt as to its rights under the Policy, the Plaintiffs have provided no explanation behind this alleged doubt and insecurity. The Plaintiffs have failed to reference a single policy provision, creating doubt, which would necessitate judicial interpretation beyond the introductory provisions. As such, the Plaintiffs have failed to state a cause of action for declaratory relief. In Florida, the right to declaratory judgment for a party in doubt of its contractual rights was statutorily created by Section 86.021 of the Florida Statutes, which states, in pertinent part: Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relation are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or any article, memorandum in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article Page 3 of 8memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder. Fla. Stat. § 86.021 (emphasis added). Count II of the Plaintiffs’ Complaint, as it stands, has not presented any question of construction or validity. There is simply a bare, conclusory assertion of doubt. Pursuant to Swain v. Reliable Insurance Co., 200 So. 2d 862 (Fla. 3d DCA 1967), conclusory allegations of doubt are insufficient to establish a cause of action for declaratory relief. In the case of Martinez v. Scalan, 582 So. 2d 1167, 1170 (Fla. 1991), the court held that to request declaratory relief “there must be a bona fide need for such a declaration based on present ascertainable facts or the courts lacks jurisdiction to render declaratory relief.” (emphasis added). Additionally, “{i]n order to invoke jurisdiction under the provisions of the Declaratory Decree Statute for the purpose of having the court construe any instrument, it is essential that the movant allege facts which show that he is in doubt concerning his rights under said instrument...” Bowden v. Seaboard AirLine R.R. Co., 47 So. 2d 786 (Fla. 1950) (emphasis added). Count II of the Plaintiffs’ Complaint presents a conclusory allegation of doubt, without present ascertainable facts supporting the need for the court’s interpretation, and there have been no facts alleged which show the Plaintiffs are in doubt as to her rights under the Policy. Pursuant to the Florida case law and statute cited above, such a bare assertion of doubt is insufficient to withstand a Motion to Dismiss. The Plaintiffs do not allege any ambiguity in the policy or question the construction of the policy or the validity of the contract. The purpose of an action for declaratory relief on an insurance contract is for interpretation of an ambiguity in a policy; in other words, a question of construction or validity of a contract. See Martinez, 582 So. 2d at 1170 and Johnson, 155 So. 2d at 886, discussed supra. Here, the Plaintiffs fails to set forth any question of construction or validity arising under the contract. The Plaintiffs do not challenge the construction Page 4 of 8of the policy or the validity of the policy. As such, the Plaintiffs have failed to state a cause of action for declaratory relief. The Plaintiffs’ Complaint fails to clearly identify the provisions for which the Plaintiffs now seeks interpretation by the Court. For the aforementioned reasons, Count II of the Plaintiffs’ Complaint should be dismissed. Ill. Plaintiffs Did Not Raise an Issue of Fact for the Court to Interpret. The case of Higgins v. State Farm Fire and Casualty Co., 894 So. 2d 5, 12 (Fla. 2004) expanded to reach the Declaratory Decree statute in holding that, “courts have the general power to issue declaratory judgments not only in suits seeking a determination of the existence or non existence of any ‘immunity, power, privilege, or right’ but also in suits so/ely seeking a determination of any fact affecting the applicability for an ‘immunity, power, privilege, or right.” (emphasis added). The Higgins decision makes it possible for the Courts to issue declaratory judgments concerning issues of fact, even if the subject instrument is unambiguous on its face. Id. at 9. In Count II of the Plaintiff's Complaint, the Plaintiff has not presented an issue of fact. By conclusively alleging that he is in doubt as to her rights under the subject Policy, the Plaintiff has failed to raise an issue of fact for the Court on which to rule. In Higgins, there was an issue of fact as to whether the conduct of the insured constituted an “occurrence” within the meaning of the policy. /d. at 7. The insurer’s Complaint for Declaratory Relief specifically raised this factual issue by alleging that “despite the negligence label placed on Higgins’ alleged conduct in the Second Amended Complaint in the underlying action, Higgins’ alleged conduct was still of an intentional, willful, and malicious nature.” /d. at 8. In the instant Complaint, the Plaintiffs have failed to sufficiently raise an issue of fact for the Court. Plaintiffs merely alleges he is entitled to a declaratory relief due to “Defendant Page 5 of 8improperly refusing to acknowledge coverage for the above scope under the Policy to avoid potentially paying for the claim” and offers no further reasoning to support this contention. Plaintiffs contends OMEGA breached the Policy by "refusing to pay the full amount of the Plaintiffs claim" resulting from a Hurricane Irma claim. Plaintiffs seek a declaration by the Court that this alleged nonpayment constitutes a breach of the Policy. Additionally, Plaintiffs wrongfully asserts an action for declaratory relief, which, in reality, should be a case solely related to an alleged breach of an insurance contract. Due to the Complaint lacking an issue of fact for the Court to rule on, Count II of the Plaintiffs’ Complaint must be dismissed. IV. Plaintiffs’ Claim for Declaratory Relief Should be Dismissed Because it is Subsumed Within Plaintiff's Claim for Breach of Contract. Count II of Plaintiffs’ Complaint fails to meet the essential provisions of Florida’s Declaratory Relief Act. “A trial court should not entertain an action for declaratory judgment on issues which are properly raised in other counts of the pleadings and already before the court, through which the plaintiff will be able to secure full, adequate and complete relief.” McIntosh v. Harbour Club Villas Condo. Ass’n., 468 So. 2d 1075, 1081 (Fla. 3d DCA 1985); see also Fernando Grinberg Trust Success Int. Properties LLC v. Scottsdale Ins. Co., 10-20448-CIV, 2010 WL 2510662 (S.D. Fla. 2010). In Count I, Plaintiffs seeks damages for this alleged breach of contract. Plaintiffs fail to allege any specific right, obligation, or provision of the Policy he contends is ambiguous and would necessitate the Court’s interpretation. Instead, Plaintiffs merely states he is entitled to payment for the reported loss. This is the exact relief sought in Count I for breach of contract. Thus, Plaintiffs’ action for declaratory relief should be dismissed because it is subsumed within Plaintiffs’ claim for breach of contract. The breach of contract claim and the declaratory judgment action are based on the same operative facts. Plaintiffs request a declaration that he is entitled to coverage and/or Page 6 of 8additional benefits for the claimed losses as alleged in the breach of contract count and he is entitled to damages based on OMEGA’s alleged failure to pay benefits under the Policy. If Plaintiffs successfully prosecute his breach of contract action, Plaintiffs will obtain full, adequate and complete relief for the losses. Thus, Count II should be dismissed. WHEREFORE, Defendant, OMEGA INSURANCE COMPANY, respectfully requests this Honorable Court grant its Motion to Dismiss Count II for Declaratory Relief, and grant such other relief it deems just and fair. By Primary Primary Primary Secondary Attorneys for Page 7 of 8 Respectfully Submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN /s/Isabel Andreacchi Michael A. Packer Florida Bar No.: 121479 mapacker@mdweg.com Danielle N. Robinson Florida Bar Number: 13921 dnrobinson@mdweg.com Isabel Andreacchi Florida Bar Number: 92906 iiandreacchi@mdweg.com 2400 E. Commercial Blvd., Suite 1100 Fort Lauderdale, FL 33308 Phone: (954) 847-4920 mjgagliardo@mdweg.com trvalentin@mdweg.com pleadingsft|@mdweg.com OMEGA INSURANCE COMPANYCERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true copy of the foregoing Defendant’s Motion to Dismiss was sent by electronic mail this 4" day of January 2020, to Peter Mineo, Jr., Esq., The Mineo Salcedo Law Firm, P.A., 5600 Davie Road, Davie, Fl. 33314, service@mineolaw.com; s/ Isabel Andreacchi Isabel Andreacchi, Esq. Page 8 of 8IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA JEAN HEDGE and ROBERT HEDGE, CASE NO: Plaintiffs, vs. OMEGA INSURANCE COMPANY, Defendant. / COMPLAINT COMES NOW the Plaintiffs, JEAN HEDGE and ROBERT HEDGE, by and through the undersigned counsel and hereby file this Complaint against the Defendant, OMEGA INSURANCE COMPANY, and as grounds therefore state as follows: 1. That this is an action for damages in excess of THIRTY THOUSAND DOLLARS ($30,000.00), exclusive of interest, attorney fees and costs, and is otherwise within the jurisdictional limits of this Court. 2. That at all times material hereto the Defendant was an insurance company authorized to do business in the State of Florida and doing business in Broward County, Florida. 3. That at all times material hereto the Plaintiffs were and are residents of Broward County, Florida, and are otherwise sui juris. 4, That at all times material hereto, Plaintiffs and Defendant had a policy of insurance, Policy No. 8001562974, on Plaintiffs’ residence located at 2920 SW 174" Way, Miramar, FL 33029-5552, which afforded various types of coverages including coverage for damage to dwelling, other structures, personal property, and for loss of use. Exhibit APlaintiffs are not in possession of a copy of the policy but believe one to be in possession of Defendant. 5. During the policy period, the above described property was damaged. 6. As a result of this incident, the Plaintiff has suffered damage to the building on the subject property, damage to contents, and loss of use of the property and possessions therein. 7. Plaintiffs have complied with all conditions precedent and/or statutory requirements in order to recover under the policy of insurance and applicable Florida Statutes, or, in the alternative, those conditions precedent and/or statutory requirements that have not been complied with have been waived by the Defendant. The Defendant assigned the loss claim number 3300341865, but the Defendant has refused and continues to refuse to pay either part or all of the Plaintiffs’ claims. COUNT I- BREACH OF CONTRACT Plaintiffs readopt and reallege Paragraphs 1 through 7 above as if fully stated herein, and further alleges as follows: 8. That the Defendant’s denial of coverage and refusal to pay the full amount of the claim or in the alternative, a reasonable amount was contrary to the terms of the policy and/or Florida law and was a breach of said contract of insurance. In the alternative the Defendant has or refused to pay a reasonable amount of the Plaintiffs claim. This is contrary to the terms of the policy and/or Florida law and was a breach of said insurance contract. 9. The Plaintiffs have been damaged by the Defendant’s breach of said contract of insurance by having not been compensated for the damage sustained to the 2building on the subject property, damage to contents, and loss of use of the property and possessions taken from therein. 10. That as a direct and proximate result of the Defendant’s refusal to pay the Plaintiffs’ claims, the Plaintiffs have been required to retain the services of the undersigned attorneys to represent and protect the Plaintiffs’ interests and Plaintiffs have become obliged to pay them a reasonable fee for their services in bringing this action. 11. In the event that the Plaintiffs prevail in this action, Plaintiffs are entitled to an award of attorney fees and costs pursuant to Florida Statute Section 627.428 or other Florida law. WHEREFORE, the Plaintiffs, JEAN HEDGE and ROBERT HEDGE, demand judgment against the Defendant, OMEGA INSURANCE COMPANY, for damages including but not limited to damage to the building, contents, loss of use, interest allowed by law, and reasonable attorney fees and costs pursuant to Florida Statute Section 627.428 or other Florida law, and the Plaintiffs’ demand trial by jury of all issues triable as a matter of right by jury. COUNT II PETITION FOR DECLARATORY RELIEF Plaintiffs reallege and readopt Paragraphs | through 7 as if fully set forth herein and sues the Defendant for declaratory relief pursuant to Chapter 86 of the Florida Statutes and further states as follows: 12. The above insurance policy between Plaintiffs and Defendant provides comprehensive coverage for damages as a result of losses to property.13. Pursuant to Chapter 86 of Florida Statutes, the Plaintiffs request this Court to take jurisdiction over this action and determine the Plaintiffs’ rights under said policy. 14. The Plaintiffs furnished timely notice of a covered loss and otherwise performed all conditions precedent to recover under the policy and under the applicable Florida Statutes. 15. Defendant refused and continues to refuse to pay the full amount of Plaintiffs’ claims. 16. The Plaintiffs believe, but are in doubt, that the Plaintiffs are entitled to full coverage under said policy, including but not limited to, coverage for damage to the building on the subject property, its contents, and its loss of use. 17. That as a direct and proximate result of the Defendant’s refusal to pay the Plaintiffs’ claims, the Plaintiffs have been required to retain the services of the undersigned attorneys to represent and protect the Plaintiffs’ interests and Plaintiffs have become obligated to pay them a reasonable fee for their services in bringing this action. 18. In the event that the Plaintiffs prevail in this action, Plaintiffs are entitled to an award of attorney fees and costs pursuant to Florida Statute Section 627.428 or other Florida law. WHEREFORE, Plaintiffs hereby demand judgment against Defendant and the following: a. that the Court take jurisdiction over the parties and the subject matter of this action;b. that the Court determine the rights and duties of the parties under said insurance policy; c. that this Court enter an Order determining that the subject policy was in full force and effect at the time of the loss; d. that the Court enter an Order determining that the damages suffered by Plaintiffs are not excluded under the policy insurance. e. that the Court enter an Order determining that the Plaintiffs complied with all requirements under the policy and are entitled to full coverage for their damages under said policy, including but not limited to coverage for the full amount of loss including damage to the building on the subject property, contents, and loss of use; f. that the Court award the Plaintiffs attorney fees pursuant to Florida Statute Section 627.428 or other Florida law, prejudgment interest, and costs; and 2. that the Court enter any other relief that it deems just and proper. DEMAND FOR JURY TRIAL The Plaintiffs further demand a trial by jury of all issues so triable as a matter of right. Dated this 22"! day of October, 2020 By: PETER MINEO JR. Florida Bar No: 328928 THE MINEO SALCEDO LAW FIRM, P.A. Attorneys for Plaintiff 5600 Davie Road Davie, FL 33314 T: (954) 463-8100 F: (954) 463-8106 Service@mineolaw.com