Preview
Filing # 60504954 E-Filed 08/16/2017 04:04:18 PM
0092808 IN THE CIRCUIT COURT OF THE 11™
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
LISE BAPTISTE, CASE NO.: 2017-14299 CA 01
Plaintiff,
Vs.
CITIZENS PROPERTY
INSURANCE CORPORATION,
Defendant.
/
DEFENDANT CITIZENS PROPERTY INSURANCE CORPORATION’S
MOTION TO DISMISS COUNTS I OF PLAINTIFF’S COMPLAINT
Defendant, Citizens Property Insurance Corporation, a State of Florida governmental
entity (hereinafter “Citizens”), by and through its undersigned attorney, files its Motion to
Dismiss Counts II of Plaintiff's Complaint and as grounds states:
1 Plaintiff, Lisa Baptiste hereinafter (“Plaintiff”), filed a two count Complaint
against Citizens.
2. The basis for the lawsuit that has been filed by Plaintiff is the contention that
“during the policy period, the above described property was damaged as a result of water loss.”
See paragraph 5 of the claim.
3 In this matter, the claim was paid by Citizens. [See Exhibit “A” — Citizens’
payment letter. ]
4 Plaintiff asserted two counts against Citizens: Breach of Insurance Contract
(Count I); and Declaratory Judgment (Count II) in the Complaint seeking compensation for this
loss.
5. In Count II for Declaratory Relief, Plaintiffs allege they are in “doubt” about thePolicy. There is no need for a declaration in this case because the only issue for determination
is whether additional money is owed to Plaintiff, a breach of contract issue.
LAW AND ANALYSIS
L Standard of Law
“A motion to dismiss tests the legal sufficiency of the complaint, “ Barbado v.
Green & Murphy, P.A., 758 So. 2d 1173, 1174 (Fla. 4°" DCA 2000), meaning that, in part, “[a]
motion to dismiss tests whether the plaintiff has stated a cause of action,” Regis Insurance Co. v.
Miami Mgmt., Inc., 902 So. 2d 966, 968 (Fla. 4" DCA 2005). “In order to state a cause of
action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to
relief.” Kohl v. Blue Cross & Blue Shield of Fla., Inc., 988 So. 2d 654, 658 (Fla 4" DCA 2008).
"[T]he function of a motion to dismiss a complaint is to raise a question of law as to the
sufficiency of the facts alleged to state a cause of action. The motion admits as true all well
pleaded facts as well as all reasonable inferences arising from those facts. The allegations must
be construed in the light most favorable to Petitioner and the trial court must not speculate what
the true facts may be or what will be proved ultimately in trial of the cause. Further, the trial
court's gaze is limited to the four corners of the complaint. Finally, the motion must be decided
on questions of law, only, and matters not shown on the face of the complaint cannot properly be
raised on a motion to dismiss." Poulos v. Vordermeier, 327 So. 2d 245, 246 (Fla. 4th DCA 1976)
(citing 25 Fla. Jur., Pleadings § 127). See also Hitt v. N. Nroward Hosp. Dist., 387 So. 2d 482,
483 (Fla. 4th DCA 1980). However, unlike other actions, a motion to dismiss a count of
declaratory relief does not go to the merits, but goes only to the question of whether or not the
Petitioner is entitled to a declaration of rights. See Gov 't Employees Ins. Co. v. Anta, 379 So. 2d
1039-40 (Fla. 3d DCA 1980); Effort Enterprises of Fla., Inc. v. Lexington Ins. Co., 666 So. 2d
930 (Fla. 4th DCA 1995)IL. Count II Fails to State a Valid Cause of Action Upon Which Relief May be
Granted _asPlaintiff has _not sufficiently Identified any Ambiguity in the Policy Requiring
the__Court's Interpretation
Under Florida law, an individual seeking declaratory relief must show: (1) there is a bona
fide, actual, present, practical need for the declaration; (2) that the declaration deals with a
present, ascertained or ascertainable state of facts or present controversy; (3) that some right or
privilege of the complaining party is dependent upon the facts or the law applicable to the facts;
(4) there is some person who has an actual, present, adverse interest in the subject matter; (5) all
adverse parties are presently before the court; and (6) the relief sought is not merely seeking an
advisory opinion. Trianon Condominium Ass'n, Inc. v. OBE Ins. Corp., 741 F.Supp.2d 1327
(S.D. Fla. 2010). These elements are necessary in order to maintain the status of the proceeding
as being judicial in nature and therefore within the constitutional powers of the court. Reinish v.
Clark, 765 So. 2d 197 (Fla. 1st DCA 2000)
The Declaratory Judgment Act is "substantive and remedial," with a purpose "to settle
and to afford relief from insecurity and uncertainty with respect to rights, status, and other
equitable or legal relations." /d. "The test recognized in [Florida] of whether or not a complaint
will give rise to a proceeding under the Declaratory Judgment Act inquires whether or not the
party seeking a declaration shows that he is in doubt or is 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. There must be a bona fide controversy, justiciable in the sense
that it flows out of some definite and concrete assertion of right, and there should be
involved the legal or equitable relations of parties having adverse interests with respect to
which the declaration is sought." Lutz v. Protective Life Ins. Co., 951 So. 2d 884, 889 (Fla. 4th
DCA 2007) (emphasis added).In the case at bar, Plaintiff is unable to allege a bona fide, actual, present, practical need
for a declaration. Plaintiff's Complaint alleges that he is unsure of his rights and obligations
under the Policy; however, Plaintiff has failed to identify any specific right or obligation that is
ambiguous under the Policy that would necessitate this Court's interpretation, as required under
the Florida Statutes to plead a valid cause of action for declaratory relief. In Florida, the right to a
declaratory judgment for a party in doubt of its contractual rights was statutorily created by Fla.
Sta. § 86.021, 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 relations are affected by a statute, or any
regulation made under statutory authority, or by municipal
ordinance, contract, deed, will, franchise, or other 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, memorandum, 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; see Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla.1991); see also
Johnson y. Alt. Nat'l. Ins. Co., 155 So. 2d 886 (Fla. 3d DCA 1963) (An action for declaratory
relief will not lie where the insurance contract is clear and unambiguous and presents no need
for construction).
Plaintiff is essentially asking the Court to issue an advisory opinion to clear up his
alleged doubt as to the existence of coverage under the insurance Policy; and to determine that any
damages, if any, sustained to the residence premises insured under the subject Policy are covered
under the Policy. However, it is well settled that mere doubt, due to disputed questions of
fact, is not sufficient to make declaratory judgment available to litigants. Barrett v. Pickard, 85
So. 2d 630 (Fla. 1956); Perez v. State Auto. Ins. Ass'n, 270 So. 2d 377 (Fla. 3d DCA 1972);
Santa Rosa County vy. Admin. Comm 'n, 661 So. 2d 1190 (Fla. 1995).! In Florida,declaratory judgment actions are not advisory opinions. Moreover, a declaratory judgment is not
to be used as a tool to advise attorneys as to the proper path to pursue. See Kelner v. Woody, 399
So. 2d 35, 38 (Fla, 3d DCA 1981); May v. Holley, 59 So. 2d 636 (Fla. 1952); Deen v. Weaver, 47
So. 2d 539 (Fla. 1950). Thus, since Plaintiff is merely seeking an advisory opinion from the
Court in the form of declaratory relief, Count II of Plaintiff's Complaint seeking declaratory relief
should be dismissed
WHEREFORE, for the grounds set forth, Citizens respectfully requests that this Court
dismiss Counts II of Plaintiffs Complaint.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was submitted via
eService this 16" day of August, 2017 to Peter Mineo, Esq., at Service@MineoLaw.com.
Kubicki Draper
25 West Flagler Street, Penthouse
Miami, Florida 33130
Direct Line: (305) 982-6735
CW-KD@KubickiDraper.com
(for pleadings only)
SRG@KubickiDraper.com
(for all other correspondence)
BY: /s/ Sarah Goldberg
SARAH R. GOLDBERG
Florida Bar No. 92085Exhibit "A"
CITIZENS PROPERTY INSURANCE CORPORATION
wT, : PO Box 19700
Jacksonville, FL 32245-9700
-CITIZENS
PROPERTY INSURANCE CORPHRATION. TELEPHONE: (866) 411-2742 Fax: (888)392-6739
March 1, 2017
Lise Baptiste
1331 NW 133rd St
Miami, FL 33167
RE: — Citizens Claim Number: 001-00-084680
Citizens Policy Number: 01294309
Date of Loss: 1/5/2017
Cause of Loss: Water-Non Weather Related
Insured Location: 1331 NW 133rd St
Miami, FL. 33167
Dear Lise Baptiste:
Citizens Property Insurance Corporation (Citizens) has completed its investigation of
your plumbing/water claim. This letter is a follow-up to our conversation with your
representative on March 1, 2017 where we discussed the claim referenced above.
Attached is our estimate and statement of loss which outline the basis for payment.
If your mortgage holder has been shown as a payee on your draft, please understand we
are obligated to do so under the terms of your policy. Please contact your mortgage
holder for their procedures for endorsing payments.
During our conversation, we also discussed your concern for the damage to the plumbing
system. Citizens is unable to provide coverage for your plumbing as we do not cover the
loss to the system or appliance from which this water or steam escaped.
Please refer to your CIT HO-3 10 16, CITIZENS HOMEOWNERS 3 -— SPECIAL
FORM, SECTION I - PERILS INSURED AGAINST, beginning on page 12 of 34 and
provision A. 2. b. (6)., under “We do not cover loss:” letter (a), which outlines the
applicable policy language noted above.
Page 1 of 2By stating the above reason for denial, Citizens Property Insurance Corporation does not
intend to waive any policy defenses in addition to those stated above, but specifically
reserves its right to assert such policy defenses at any time.
When a dispute exists regarding your claim, or when we have denied payment of your
claim, Florida Law requires we notify you of your right to participate in the Property
Insurance Mediation Program established by the Department of Financial Services.
Enclosed is an insert with detailed instructions on how you may request mediation.
If you should have any additional questions, or have any other information you would
like us to consider in regards to this claim, documentation may be mailed or faxed to us
using the information found in the letterhead, or you may send it by email to
Claims.Communications @citizensfla.ccom. Please be sure to include your claim number
on all correspondence.
Sincerely,
Mark Grau
Property Claims Adjuster
Citizens Property Insurance Corporation
866-411-2742 ext. 20265
Enclosure: Estimate, Statement of Loss, Mediation Notice
cc: Platinum Public Adjusters
18425 NW 2nd Ave Ph 3
Miami, FL 33169
If this document contains an excerpt from a Citizens Property Insurance Policy (“the Policy”) it is
provided here for informational purposes only. This excerpt is not the official version of the Policy. The
official version of the Policy is the policy issued to the insured on the policy effective date. In the event
there is inconsistency between this document and the Policy, the Policy shall serve as the official version.
Any person who knowingly and with intent to injure, defraud, or deceive any insurer files a statement of
claim or an application containing any false, incomplete, or misleading information is guilty of a felony of
the third degree. F.S. 817.234
Page 2 of 2
Preview
Filing # 60504954 E-Filed 08/16/2017 04:04:18 PM 0092808 IN THE CIRCUIT COURT OF THE 11™ JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA LISE BAPTISTE, CASE NO.: 2017-14299 CA 01 Plaintiff, Vs. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. / DEFENDANT CITIZENS PROPERTY INSURANCE CORPORATION’S MOTION TO DISMISS COUNTS I OF PLAINTIFF’S COMPLAINT Defendant, Citizens Property Insurance Corporation, a State of Florida governmental entity (hereinafter “Citizens”), by and through its undersigned attorney, files its Motion to Dismiss Counts II of Plaintiff's Complaint and as grounds states: 1 Plaintiff, Lisa Baptiste hereinafter (“Plaintiff”), filed a two count Complaint against Citizens. 2. The basis for the lawsuit that has been filed by Plaintiff is the contention that “during the policy period, the above described property was damaged as a result of water loss.” See paragraph 5 of the claim. 3 In this matter, the claim was paid by Citizens. [See Exhibit “A” — Citizens’ payment letter. ] 4 Plaintiff asserted two counts against Citizens: Breach of Insurance Contract (Count I); and Declaratory Judgment (Count II) in the Complaint seeking compensation for this loss. 5. In Count II for Declaratory Relief, Plaintiffs allege they are in “doubt” about thePolicy. There is no need for a declaration in this case because the only issue for determination is whether additional money is owed to Plaintiff, a breach of contract issue. LAW AND ANALYSIS L Standard of Law “A motion to dismiss tests the legal sufficiency of the complaint, “ Barbado v. Green & Murphy, P.A., 758 So. 2d 1173, 1174 (Fla. 4°" DCA 2000), meaning that, in part, “[a] motion to dismiss tests whether the plaintiff has stated a cause of action,” Regis Insurance Co. v. Miami Mgmt., Inc., 902 So. 2d 966, 968 (Fla. 4" DCA 2005). “In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.” Kohl v. Blue Cross & Blue Shield of Fla., Inc., 988 So. 2d 654, 658 (Fla 4" DCA 2008). "[T]he function of a motion to dismiss a complaint is to raise a question of law as to the sufficiency of the facts alleged to state a cause of action. The motion admits as true all well pleaded facts as well as all reasonable inferences arising from those facts. The allegations must be construed in the light most favorable to Petitioner and the trial court must not speculate what the true facts may be or what will be proved ultimately in trial of the cause. Further, the trial court's gaze is limited to the four corners of the complaint. Finally, the motion must be decided on questions of law, only, and matters not shown on the face of the complaint cannot properly be raised on a motion to dismiss." Poulos v. Vordermeier, 327 So. 2d 245, 246 (Fla. 4th DCA 1976) (citing 25 Fla. Jur., Pleadings § 127). See also Hitt v. N. Nroward Hosp. Dist., 387 So. 2d 482, 483 (Fla. 4th DCA 1980). However, unlike other actions, a motion to dismiss a count of declaratory relief does not go to the merits, but goes only to the question of whether or not the Petitioner is entitled to a declaration of rights. See Gov 't Employees Ins. Co. v. Anta, 379 So. 2d 1039-40 (Fla. 3d DCA 1980); Effort Enterprises of Fla., Inc. v. Lexington Ins. Co., 666 So. 2d 930 (Fla. 4th DCA 1995)IL. Count II Fails to State a Valid Cause of Action Upon Which Relief May be Granted _asPlaintiff has _not sufficiently Identified any Ambiguity in the Policy Requiring the__Court's Interpretation Under Florida law, an individual seeking declaratory relief must show: (1) there is a bona fide, actual, present, practical need for the declaration; (2) that the declaration deals with a present, ascertained or ascertainable state of facts or present controversy; (3) that some right or privilege of the complaining party is dependent upon the facts or the law applicable to the facts; (4) there is some person who has an actual, present, adverse interest in the subject matter; (5) all adverse parties are presently before the court; and (6) the relief sought is not merely seeking an advisory opinion. Trianon Condominium Ass'n, Inc. v. OBE Ins. Corp., 741 F.Supp.2d 1327 (S.D. Fla. 2010). These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the court. Reinish v. Clark, 765 So. 2d 197 (Fla. 1st DCA 2000) The Declaratory Judgment Act is "substantive and remedial," with a purpose "to settle and to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations." /d. "The test recognized in [Florida] of whether or not a complaint will give rise to a proceeding under the Declaratory Judgment Act inquires whether or not the party seeking a declaration shows that he is in doubt or is 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. There must be a bona fide controversy, justiciable in the sense that it flows out of some definite and concrete assertion of right, and there should be involved the legal or equitable relations of parties having adverse interests with respect to which the declaration is sought." Lutz v. Protective Life Ins. Co., 951 So. 2d 884, 889 (Fla. 4th DCA 2007) (emphasis added).In the case at bar, Plaintiff is unable to allege a bona fide, actual, present, practical need for a declaration. Plaintiff's Complaint alleges that he is unsure of his rights and obligations under the Policy; however, Plaintiff has failed to identify any specific right or obligation that is ambiguous under the Policy that would necessitate this Court's interpretation, as required under the Florida Statutes to plead a valid cause of action for declaratory relief. In Florida, the right to a declaratory judgment for a party in doubt of its contractual rights was statutorily created by Fla. Sta. § 86.021, 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 relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other 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, memorandum, 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; see Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla.1991); see also Johnson y. Alt. Nat'l. Ins. Co., 155 So. 2d 886 (Fla. 3d DCA 1963) (An action for declaratory relief will not lie where the insurance contract is clear and unambiguous and presents no need for construction). Plaintiff is essentially asking the Court to issue an advisory opinion to clear up his alleged doubt as to the existence of coverage under the insurance Policy; and to determine that any damages, if any, sustained to the residence premises insured under the subject Policy are covered under the Policy. However, it is well settled that mere doubt, due to disputed questions of fact, is not sufficient to make declaratory judgment available to litigants. Barrett v. Pickard, 85 So. 2d 630 (Fla. 1956); Perez v. State Auto. Ins. Ass'n, 270 So. 2d 377 (Fla. 3d DCA 1972); Santa Rosa County vy. Admin. Comm 'n, 661 So. 2d 1190 (Fla. 1995).! In Florida,declaratory judgment actions are not advisory opinions. Moreover, a declaratory judgment is not to be used as a tool to advise attorneys as to the proper path to pursue. See Kelner v. Woody, 399 So. 2d 35, 38 (Fla, 3d DCA 1981); May v. Holley, 59 So. 2d 636 (Fla. 1952); Deen v. Weaver, 47 So. 2d 539 (Fla. 1950). Thus, since Plaintiff is merely seeking an advisory opinion from the Court in the form of declaratory relief, Count II of Plaintiff's Complaint seeking declaratory relief should be dismissed WHEREFORE, for the grounds set forth, Citizens respectfully requests that this Court dismiss Counts II of Plaintiffs Complaint. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was submitted via eService this 16" day of August, 2017 to Peter Mineo, Esq., at Service@MineoLaw.com. Kubicki Draper 25 West Flagler Street, Penthouse Miami, Florida 33130 Direct Line: (305) 982-6735 CW-KD@KubickiDraper.com (for pleadings only) SRG@KubickiDraper.com (for all other correspondence) BY: /s/ Sarah Goldberg SARAH R. GOLDBERG Florida Bar No. 92085Exhibit "A" CITIZENS PROPERTY INSURANCE CORPORATION wT, : PO Box 19700 Jacksonville, FL 32245-9700 -CITIZENS PROPERTY INSURANCE CORPHRATION. TELEPHONE: (866) 411-2742 Fax: (888)392-6739 March 1, 2017 Lise Baptiste 1331 NW 133rd St Miami, FL 33167 RE: — Citizens Claim Number: 001-00-084680 Citizens Policy Number: 01294309 Date of Loss: 1/5/2017 Cause of Loss: Water-Non Weather Related Insured Location: 1331 NW 133rd St Miami, FL. 33167 Dear Lise Baptiste: Citizens Property Insurance Corporation (Citizens) has completed its investigation of your plumbing/water claim. This letter is a follow-up to our conversation with your representative on March 1, 2017 where we discussed the claim referenced above. Attached is our estimate and statement of loss which outline the basis for payment. If your mortgage holder has been shown as a payee on your draft, please understand we are obligated to do so under the terms of your policy. Please contact your mortgage holder for their procedures for endorsing payments. During our conversation, we also discussed your concern for the damage to the plumbing system. Citizens is unable to provide coverage for your plumbing as we do not cover the loss to the system or appliance from which this water or steam escaped. Please refer to your CIT HO-3 10 16, CITIZENS HOMEOWNERS 3 -— SPECIAL FORM, SECTION I - PERILS INSURED AGAINST, beginning on page 12 of 34 and provision A. 2. b. (6)., under “We do not cover loss:” letter (a), which outlines the applicable policy language noted above. Page 1 of 2By stating the above reason for denial, Citizens Property Insurance Corporation does not intend to waive any policy defenses in addition to those stated above, but specifically reserves its right to assert such policy defenses at any time. When a dispute exists regarding your claim, or when we have denied payment of your claim, Florida Law requires we notify you of your right to participate in the Property Insurance Mediation Program established by the Department of Financial Services. Enclosed is an insert with detailed instructions on how you may request mediation. If you should have any additional questions, or have any other information you would like us to consider in regards to this claim, documentation may be mailed or faxed to us using the information found in the letterhead, or you may send it by email to Claims.Communications @citizensfla.ccom. Please be sure to include your claim number on all correspondence. Sincerely, Mark Grau Property Claims Adjuster Citizens Property Insurance Corporation 866-411-2742 ext. 20265 Enclosure: Estimate, Statement of Loss, Mediation Notice cc: Platinum Public Adjusters 18425 NW 2nd Ave Ph 3 Miami, FL 33169 If this document contains an excerpt from a Citizens Property Insurance Policy (“the Policy”) it is provided here for informational purposes only. This excerpt is not the official version of the Policy. The official version of the Policy is the policy issued to the insured on the policy effective date. In the event there is inconsistency between this document and the Policy, the Policy shall serve as the official version. Any person who knowingly and with intent to injure, defraud, or deceive any insurer files a statement of claim or an application containing any false, incomplete, or misleading information is guilty of a felony of the third degree. F.S. 817.234 Page 2 of 2