Preview
Filing # 66533474 E-Filed 01/15/2018 01:37:08 PM 1016
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
Epwarpo RoJas~ A/A/o. HARBOR 29
CONDOMINIUM ASSOC., INC., CASE NO.: 2017-010921-CA-01
consolidated w/ 2017-008138 CA 01
Plaintiff,
VS.
ASPEN SPECIALTY INSURANCE COMPANY,
Defendant.
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO
DISMISS COUNT I OF PLAINTIFFS’ COMPLAINT
The Plaintiff(s), EDWARDO ROJAS A/A/O HARBOR 29 CONDOMINIUM ASSOC.,
INC. (hereinafter “Rojas”), by and through their undersigned counsel, hereby files its Response
in Opposition to Defendant’s Motion to Dismiss Count I of Plaintiff's Complaint (the “Motion”)
filed by Defendant, Aspen Specialty Insurance Company, (hereinafter “Carrier”), and states as
follows
SUMMARY OF ARGUMENT
Since at least 2004, the Florida Supreme Court decided that declaratory actions are
appropriate vehicles for resolving first party homeowner’s insurance coverage disputes, even
when the court is required to make factual determinations to resolve the dispute. See Higgins v.
State Farm, 894 So.2d 5, 15 (Fla. 2004) (finding in first-party homeowner’s insurance dispute
“that the declaratory judgment statutes authorize declaratory judgments in respect to insurance
policy indemnity coverage” even when “it is necessary to resolve issues of fact in order to decide
the declaratory judgment action.”) Does Carrier’s Motion present any valid reason for this Court
to ignore established, binding, precedent which has been in place for at least a decade?! No, and
LITIGATION & RECOVERY LAW CENTER, PL
16375 NE 18" Avenue « Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)1016
Carrier’s Motion should be denied accordingly.
FACTS
1, Carrier issued Rojas a homeowners’ insurance policy bearing number PB7480915
(the “Policy”) which provides insurance coverage for real property located at 710 Northeast 29th
Street, Miami, FL, 33137 (the “Property”).
2. On or about March 14, 2016, Rojas suffered what Rojas believes to be covered
losses caused at least in part by water as set forth in the materials previously provided to Carrier.
3 After suffering the covered losses to the Property, Rojas made a claim against the
Policy, which was assigned claim number PB1570017884 by the Defendant (the “Claim’”)
4 Carrier denied the Claim contrary to what Rojas believes to be the Policy’s terms.
5. As such, an actual bona-fide controversy exists between the parties, based upon
Carrier’s denial of the Claim, which requires judicial interpretations of the Policy to establish the
existence and extent of Rojas’s right to coverage for the losses forming the subject of this action.
LEGAL ARGUMENT
“A motion to dismiss is designed to test the legal sufficiency of a complaint, not to
determine fact issues.” Davidson v. lona-McGregor Fire Protection and Rescue Dist., 674 So. 2d
858, 860 (Fla. 2d DCA 1996). “[O]n a motion to dismiss, the trial court is limited to
consideration of the allegations contained within the four corners of the complaint.” Reyes ex rel.
Barcenas vy. Roush, 99 So. 3d 586, 587 (Fla. 2d DCA 2012) (internal citations omitted). “The
facts alleged in the complaint must be accepted as true and all reasonable inferences are drawn in
favor of the pleaders.” Mitleider v. Brier Grieves Agency, Inc., 53 So. 3d 410, 412 (Fla. 4th
1 Carrier's Motion fails to adequately accounts for Higgins. See Fla. Bar. R. 4-3.3 Candor Toward the Tribunal
(forbidding attorneys from failing to adequately disclose contrary authority or knowingly make misleading
statements of law).
Page 2 of 4
LITIGATION & RECOVERY LAW CENTER, PL
16375 NE 18" Avenue « Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)1016
DCA 2011). “At the motion to dismiss stage, the court is limited to determining whether the
complaint on its face contains allegations that are legally sufficient to state a cause of action.”
Gallon v. Geico General Ins. Co., 150 So0.3d 252, 254 (Fla. 2d DCA 2014).
Carrier’s Motion should be denied because Rojas has stated a legally sufficient,
recognized, cause of action. See Higgins, 894 So.2d 5. For at least a decade, the Florida
Supreme Court has permitted first-party property insurance coverage disputes to be determined
through a declaratory action because “it is illogical and unfair to not allow insureds and insurers
to have a determination as to whether coverage exists on the basis of the facts underlying a claim
against an insurance policy.” /d. at 15. Counsel is unaware, nor does Carrier cite, any authority
post-Higgins which states otherwise. See, e.g., Regency of Palm Beach, Inc. v. QBE Ins. Corp.,
Case No. 08-81442-CIV-Marra/Johnson, 2009 WL 2729954 (S.D. Fla. Aug. 25, 2009)
(recognizing that Florida’s declaratory judgment statute permits declaratory actions in first-party
property insurance coverage disputes and denying Carrier’s motion to dismiss properly pleaded
claims for declaratory relief.). Accordingly, Carrier’s Motion should be denied.
WHEREFORE, Rojas respectfully requests this Court enter an order denying Carrier’s
Motion, along with any other relief this Court deems just, necessary, and proper.
Page 3 of 4
LITIGATION & RECOVERY LAW CENTER, PL
16375 NE 18" Avenue « Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)1016
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the foregoing was provided by e-mail
to: Steven Getman, Esq. of Berk, Merchant & Sims, PLC (sgetman@berklawfirm.com; msoler-
rodriguez@berklawfirm.com; wberk@berklawfirm.com; mjoseph@berklawfirm.com) this
January 15, 2018
LITIGATION & RECOVERY LAW CENTER, PL
16375 NE 18th Avenue, Suite 321
North Miami Beach, Florida 33162
Phone: (305) 760-2314
Fax (305) 760-2498
Direct email: alex@losslitigators.com
Pleading email: service@losslitigators.com
By: __/s/ Alex Stern
Alex Stern, Esquire
Fla. Bar No: 19592
Page 4 of 4
LITIGATION & RECOVERY LAW CENTER, PL
16375 NE 18" Avenue « Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)
Preview
Filing # 66533474 E-Filed 01/15/2018 01:37:08 PM 1016 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA Epwarpo RoJas~ A/A/o. HARBOR 29 CONDOMINIUM ASSOC., INC., CASE NO.: 2017-010921-CA-01 consolidated w/ 2017-008138 CA 01 Plaintiff, VS. ASPEN SPECIALTY INSURANCE COMPANY, Defendant. PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS COUNT I OF PLAINTIFFS’ COMPLAINT The Plaintiff(s), EDWARDO ROJAS A/A/O HARBOR 29 CONDOMINIUM ASSOC., INC. (hereinafter “Rojas”), by and through their undersigned counsel, hereby files its Response in Opposition to Defendant’s Motion to Dismiss Count I of Plaintiff's Complaint (the “Motion”) filed by Defendant, Aspen Specialty Insurance Company, (hereinafter “Carrier”), and states as follows SUMMARY OF ARGUMENT Since at least 2004, the Florida Supreme Court decided that declaratory actions are appropriate vehicles for resolving first party homeowner’s insurance coverage disputes, even when the court is required to make factual determinations to resolve the dispute. See Higgins v. State Farm, 894 So.2d 5, 15 (Fla. 2004) (finding in first-party homeowner’s insurance dispute “that the declaratory judgment statutes authorize declaratory judgments in respect to insurance policy indemnity coverage” even when “it is necessary to resolve issues of fact in order to decide the declaratory judgment action.”) Does Carrier’s Motion present any valid reason for this Court to ignore established, binding, precedent which has been in place for at least a decade?! No, and LITIGATION & RECOVERY LAW CENTER, PL 16375 NE 18" Avenue « Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)1016 Carrier’s Motion should be denied accordingly. FACTS 1, Carrier issued Rojas a homeowners’ insurance policy bearing number PB7480915 (the “Policy”) which provides insurance coverage for real property located at 710 Northeast 29th Street, Miami, FL, 33137 (the “Property”). 2. On or about March 14, 2016, Rojas suffered what Rojas believes to be covered losses caused at least in part by water as set forth in the materials previously provided to Carrier. 3 After suffering the covered losses to the Property, Rojas made a claim against the Policy, which was assigned claim number PB1570017884 by the Defendant (the “Claim’”) 4 Carrier denied the Claim contrary to what Rojas believes to be the Policy’s terms. 5. As such, an actual bona-fide controversy exists between the parties, based upon Carrier’s denial of the Claim, which requires judicial interpretations of the Policy to establish the existence and extent of Rojas’s right to coverage for the losses forming the subject of this action. LEGAL ARGUMENT “A motion to dismiss is designed to test the legal sufficiency of a complaint, not to determine fact issues.” Davidson v. lona-McGregor Fire Protection and Rescue Dist., 674 So. 2d 858, 860 (Fla. 2d DCA 1996). “[O]n a motion to dismiss, the trial court is limited to consideration of the allegations contained within the four corners of the complaint.” Reyes ex rel. Barcenas vy. Roush, 99 So. 3d 586, 587 (Fla. 2d DCA 2012) (internal citations omitted). “The facts alleged in the complaint must be accepted as true and all reasonable inferences are drawn in favor of the pleaders.” Mitleider v. Brier Grieves Agency, Inc., 53 So. 3d 410, 412 (Fla. 4th 1 Carrier's Motion fails to adequately accounts for Higgins. See Fla. Bar. R. 4-3.3 Candor Toward the Tribunal (forbidding attorneys from failing to adequately disclose contrary authority or knowingly make misleading statements of law). Page 2 of 4 LITIGATION & RECOVERY LAW CENTER, PL 16375 NE 18" Avenue « Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)1016 DCA 2011). “At the motion to dismiss stage, the court is limited to determining whether the complaint on its face contains allegations that are legally sufficient to state a cause of action.” Gallon v. Geico General Ins. Co., 150 So0.3d 252, 254 (Fla. 2d DCA 2014). Carrier’s Motion should be denied because Rojas has stated a legally sufficient, recognized, cause of action. See Higgins, 894 So.2d 5. For at least a decade, the Florida Supreme Court has permitted first-party property insurance coverage disputes to be determined through a declaratory action because “it is illogical and unfair to not allow insureds and insurers to have a determination as to whether coverage exists on the basis of the facts underlying a claim against an insurance policy.” /d. at 15. Counsel is unaware, nor does Carrier cite, any authority post-Higgins which states otherwise. See, e.g., Regency of Palm Beach, Inc. v. QBE Ins. Corp., Case No. 08-81442-CIV-Marra/Johnson, 2009 WL 2729954 (S.D. Fla. Aug. 25, 2009) (recognizing that Florida’s declaratory judgment statute permits declaratory actions in first-party property insurance coverage disputes and denying Carrier’s motion to dismiss properly pleaded claims for declaratory relief.). Accordingly, Carrier’s Motion should be denied. WHEREFORE, Rojas respectfully requests this Court enter an order denying Carrier’s Motion, along with any other relief this Court deems just, necessary, and proper. Page 3 of 4 LITIGATION & RECOVERY LAW CENTER, PL 16375 NE 18" Avenue « Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)1016 CERTIFICATE OF SERVICE I HEREBY CERTIFY, that a true and correct copy of the foregoing was provided by e-mail to: Steven Getman, Esq. of Berk, Merchant & Sims, PLC (sgetman@berklawfirm.com; msoler- rodriguez@berklawfirm.com; wberk@berklawfirm.com; mjoseph@berklawfirm.com) this January 15, 2018 LITIGATION & RECOVERY LAW CENTER, PL 16375 NE 18th Avenue, Suite 321 North Miami Beach, Florida 33162 Phone: (305) 760-2314 Fax (305) 760-2498 Direct email: alex@losslitigators.com Pleading email: service@losslitigators.com By: __/s/ Alex Stern Alex Stern, Esquire Fla. Bar No: 19592 Page 4 of 4 LITIGATION & RECOVERY LAW CENTER, PL 16375 NE 18" Avenue « Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)