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Filing # 62565820 E-Filed 10/09/2017 12:22:01 PM
IN THE CIRCUIT COURT OF THE 11"
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2017-008138 CA 01
HARBOR 29 CONDOMINIUM
ASSOCIATION, INC.,
Plaintiff,
vs.
ASPEN SPECIALTY INSURANCE
COMPANY,
Defendant.
/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINITFF’S
COMPLAINT
Defendant, ASPEN SPECIALITY INSURANCE COMPANY (hereinafter
“Defendant” or “ASPEN’”), hereby files its Answer and Affirmative Defenses in response
to Count II of Plaintiff, HARBOR 29 CONDOMINIUM ASSOCIATION, INC.’s, Complaint,
and states as follows:
1. Defendant admits the allegations in Paragraph 1 to the extent it invokes
the jurisdiction of this Court only.
2. Defendant is without knowledge of the allegations contained within
Paragraph 2, and therefore denies the same.
3. Defendant denies the allegations contained within Paragraph 3.
FACTS MATERIAL TO ALL COUNTS
4. Defendant admits the allegations contained within Paragraph 4.
BERK, MERCHANT [&| SIMS
2 Alhambra Plaza, Suite 700 ¢ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 2 of 13
5. Regarding the allegations contained within Paragraph 5 of the Complaint,
Defendant admits only that the Policy provides insurance coverage for damage to the
Property caused by a covered loss. The remainder of the allegations are denied.
6. Defendant admits the allegations contained within Paragraph 6.
7. Defendant admits the allegations contained within Paragraph 7.
8. Defendant denies the allegations contained within Paragraph 8.
9. Regarding the allegations contained within Paragraph 9 of the Complaint,
Defendant denies that the Property sustained a covered loss, but admits that the claim
Plaintiff reported to Defendant was assigned claim number PB1570017844.
10. Defendant admits the allegations contained within Paragraph 10.
11. Defendant denies the allegations contained within Paragraph 11, and
states that Plaintiff failed to provide prompt notice of the claim, prejudicing Defendant's
ability to investigate the loss.
12. Defendant denies the allegations contained within Paragraph 12.
13. Defendant denies the allegations contained within Paragraph 13.
COUNT I - DECLARATORY RELIEF
14. Defendant hereby re-adopts and re-states its responses to the allegations
contained in Paragraph one (1) through thirteen (13) above as if fully set forth herein.
15. Regarding the allegations set forth in Paragraph 15 of the Complaint,
Defendant admits that Count | purports to be an alternative theory of law to Count II of
Plaintiffs Complaint, but denies that it has been sufficiently pled.
16. Regarding the allegations set forth in Paragraph 16 of the Complaint,
Defendant is without knowledge of the Plaintiff's beliefs, and therefore denies the same.
BERK, MERCHANT [& | SLMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 3 of 13
17. Defendant denies the allegations set forth in Paragraph 17 of the
Complaint.
18. Defendant denies the allegations set forth in Paragraph 18 of the
Complaint.
19. Defendant denies the allegations set forth in Paragraph 19 of the
Complaint.
20. The allegations set forth in Paragraph 20 of the Complaint are denied.
21. Defendant denies the allegations set forth in Paragraph 21 of the
Complaint.
COUNT Il - BREACH OF CONTRACT
22. Defendant hereby re-adopts and re-states its responses to the allegations
contained in Paragraph one (1) through thirteen (13) above as if fully set forth herein.
23. Regarding the allegations contained within Paragraph 23 of the Complaint,
Defendant admits that Plaintiffs Complaint purports to bring this Count as an alternative
theory of law to the claim set forth in Count I.
24. Defendant denies the allegations contained within Paragraph 24 of the
Complaint.
25. Regarding the allegations contained within Paragraph 25 of the Complaint,
Defendant admits the claim was denied pursuant to the Policy.
26. Defendant denies the allegations contained within Paragraph 26 of the
Complaint.
27. Defendant denies the allegations contained within Paragraph 27 of the
Complaint.
BERK, MERCHANT [&| SIMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 4 of 13
28. Defendant denies the allegations contained within Paragraph 28 of the
Complaint.
29. Defendant denies the allegations contained within Paragraph 29 of the
Complaint.
30. Any allegations of the Complaint not specifically admitted, are denied
AFFIRMATIVE DEFENSES
First Affirmative Defense
As its First Affirmative Defense, Defendant asserts that Plaintiff's claim is barred
by the following Policy provision:
BUILDING AND PERSONAL PROPERTY COVERAGE FORM
Various provisions in this policy restrict coverage. Read the entire policy
carefully to determine rights, duties and what is and is not covered.
Throughout this policy, the words “you” and “your” refer to the Named
Insured shown in the Declarations. The words “we”, “us” and “our” refer to
the company providing this insurance.
E. Loss Conditions
The following conditions apply in addition to the Common Policy
Conditions and the Commercial Property Conditions:
3. Duties In The Event Of Loss Or Damage
a. You must see that the following are done in the event of loss or damage
to Covered Property:
(2) Give us prompt notice of the loss or damage. Include a description of
the property involved.
Plaintiff failed to provide prompt notice of the claim, which was reported on or
about May 20, 2016, with a reported date of loss of March 14, 2016. The delay in
reporting the claim prejudiced Defendant’s ability to investigate the loss.
BERK, MERCHANT [& | SLMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 5 of 13
Second Affirmative Defense
For its Second Affirmative Defense, Defendant asserts that Plaintiff cannot bring
the claim within the grant of coverage provided by the following provision:
BUILDING AND PERSONAL PROPERTY COVERAGE FORM
A. Coverage
We will pay for direct physical loss of or damage to Covered Property at
the premises described in the Declarations caused by or resulting from
any Covered Cause of Loss.
Based on its investigation of the claim, there was no direct physical loss to
Covered Property caused by or resulting from a Covered Cause of Loss.
Third Affirmative Defense
For its Third Affirmative Defense, Defendant asserts that Plaintiff cannot bring the
claim within the grant of coverage provided by the following provision:
BUILDING AND PERSONAL PROPERTY COVERAGE FORM
A. Coverage
We will pay for direct physical loss of or damage to Covered Property at
the premises described in the Declarations caused by or resulting from
any Covered Cause of Loss.
2. Property Not Covered
Covered Property does not include:
d. Bridges, roadways, walks, patios or other paved surfaces;
Some or all of Plaintiff's claim seeks payment for damage to walks, patios or
other paved surfaces. As a result, there is no coverage for the claimed damage.
BERK, MERCHANT [&| SIMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 6 of 13
Fourth Affirmative Defense
For its Fourth Affirmative Defense, Defendant asserts that Plaintiff cannot bring
the claim within the grant of coverage provided by the following provision:
BUILDING AND PERSONAL PROPERTY COVERAGE FORM
A. Coverage
We will pay for direct physical loss of or damage to Covered Property at
the premises described in the Declarations caused by or resulting from
any Covered Cause of Loss.
2. Property Not Covered
Covered Property does not include:
f. The cost of excavations, grading, backfilling or filling;
Some or all of Plaintiff's claim seeks payment for the cost of excavations,
grading, backfilling or filling. As a result, there is no coverage for the claimed damage.
Fifth Affirmative Defense
For its Fifth Affirmative Defense, Defendant asserts that Plaintiff cannot bring the
claim within the grant of coverage provided by the following provision:
BUILDING AND PERSONAL PROPERTY COVERAGE FORM
A. Coverage
We will pay for direct physical loss of or damage to Covered Property at
the premises described in the Declarations caused by or resulting from
any Covered Cause of Loss.
2. Property Not Covered
Covered Property does not include:
BERK, MERCHANT [&| SIMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 7 of 13
g. Foundations of buildings, structures, machinery or boilers if their
foundations are below:
(1) The lowest basement floor; or
(2) The surface of the ground, if there is no basement;
Some or all of Plaintiffs claim seeks payment for damage to the foundation of the
building. As a result, there is no coverage for the claimed damage.
Sixth Affirmative Defense
For its Sixth Affirmative Defense, Defendant asserts that Plaintiff cannot bring the
claim within the grant of coverage provided by the following provision:
BUILDING AND PERSONAL PROPERTY COVERAGE FORM
A. Coverage
We will pay for direct physical loss of or damage to Covered Property at
the premises described in the Declarations caused by or resulting from
any Covered Cause of Loss.
2. Property Not Covered
Covered Property does not include:
h. Land (including land on which the property is located), water, growing
crops or lawns (other than lawns that are part of a vegetated roof);
To the extent that some or all of Plaintiffs claim seeks payment for damage to
the land on which the property is located, there is no coverage for the claimed damage.
Seventh Affirmative Defense
For its Seventh Affirmative Defense, Defendant asserts that Plaintiff cannot bring
the claim within the grant of coverage provided by the following provision:
BUILDING AND PERSONAL PROPERTY COVERAGE FORM
A. Coverage
BERK, MERCHANT [&| SIMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 8 of 13
We will pay for direct physical loss of or damage to Covered Property at
the premises described in the Declarations caused by or resulting from
any Covered Cause of Loss.
2. Property Not Covered
Covered Property does not include:
m. Underground pipes, flues or drains;
To the extent that some or all of Plaintiff's claim seeks payment for damage to
underground pipes, there is no coverage for the claimed damage.
Eighth Affirmative Defense
For its Eighth Affirmative Defense, Defendant asserts that some or all of the
Plaintiff's claimed damages are excluded by the following policy provision:
CAUSES OF LOSS - SPECIAL FORM
B. Exclusions
1. We will not pay for loss or damage caused directly or indirectly by any
of the following. Such loss or damage is excluded regardless of any other
cause or event that contributes concurrently or in any sequence to the
loss.
g. Water
(4) Water under the ground surface pressing on, or flowing or seeping
through:
(a) Foundations, walls, floors or paved surfaces;
Exclusions B.1.a. through B.1.h. apply whether or not the loss event
results in widespread damage or affects a substantial area.
BERK, MERCHANT [&| SIMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 9 of 13
To the extent that some or all of Plaintiffs claim seeks payment for damages
caused by water flowing or seeping through foundations, walls, floors or other paved
surfaces, they are excluded.
Ninth Affirmative Defense
For its Ninth Affirmative Defense, Defendant asserts that some or all of the
Plaintiff's claimed damages are excluded by the following policy provision:
CAUSES OF LOSS - SPECIAL FORM
B. Exclusions
2. We will not pay for loss or damage caused by or resulting from any of
the following:
d. (1) Wear and tear;
To the extent that some or all of Plaintiffs claim seeks payment for damages
caused by wear and tear, they are excluded.
Tenth Affirmative Defense
For its Tenth Affirmative Defense, Defendant asserts that some or all of the
Plaintiff's claimed damages are excluded by the following policy provision:
CAUSES OF LOSS - SPECIAL FORM
B. Exclusions
2. We will not pay for loss or damage caused by or resulting from any of
the following:
BERK, MERCHANT [&| SIMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 10 of 13
(2) Rust or other corrosion, decay, deterioration, hidden or latent defect or
any quality in property that causes it to damage or destroy itself;
Some or all of Plaintiffs claim seeks payment for damages caused by rust or
other corrosion, decay, or deterioration, and is excluded.
Eleventh Affirmative Defense
For its Eleventh Affirmative Defense, Defendant asserts that some or all of the
Plaintiff's claimed damages are excluded by the following policy provision:
CAUSES OF LOSS - SPECIAL FORM
B. Exclusions
2. We will not pay for loss or damage caused by or resulting from any of
the following:
(4) Settling, cracking, shrinking or expansion;
To the extent that some or all of Plaintiff's claim seeks payment for damages
caused by settling, cracking, shrinking or expansion, they are excluded.
Twelfth Affirmative Defense
For its Twelfth Affirmative Defense, Defendant asserts that some or all of the
Plaintiff's claimed damages are excluded by the following policy provision:
CAUSES OF LOSS - SPECIAL FORM
B. Exclusions
BERK, MERCHANT [&| SIMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 11 of 13
2. We will not pay for loss or damage caused by or resulting from any of
the following:
f. Continuous or repeated seepage or leakage of water, or the presence or
condensation of humidity, moisture or vapor, that occurs over a period of
14 days or more.
Some or all of Plaintiff's claim seeks payment for damages caused by continuous
or repeated seepage or leakage of water that occurred over a period of 14 or more
days, and are excluded.
Thirteenth Affirmative Defense
For its Thirteenth Affirmative Defense, Defendant asserts that some or all of the
Plaintiff's claimed damages are excluded by the following policy provision:
CAUSES OF LOSS - SPECIAL FORM
B. Exclusions
2. We will not pay for loss or damage caused by or resulting from any of
the following:
m. Neglect of an insured to use all reasonable means to save and
preserve property from further damage at and after the time of loss.
Some or all of Plaintiff's claim seeks payment for damages caused by Plaintiff's
neglect to use all reasonable means to save and preserve property from further damage
at and after the time of loss, and are excluded.
Fourteenth Affirmative Defense
For its Fourteenth Affirmative Defense, Defendant asserts that some or all of the
Plaintiff's claimed damages are excluded by the following policy provision:
BERK, MERCHANT [& | SLMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 12 of 13
CAUSES OF LOSS - SPECIAL FORM
B. Exclusions
3. We will not pay for loss or damage caused by or resulting from any of
the following, 3.a. through 3.c. But if an excluded cause of loss that is
listed in 3.a. through 3.c. results in a Covered Cause of Loss, we will pay
for the loss or damage caused by that Covered Cause of Loss.
c. Faulty, inadequate or defective:
(2) Design, specifications, workmanship, repair, construction, renovation,
remodeling, grading, compaction;
(3) Materials used in repair, construction, renovation or remodeling; or
(4) Maintenance;
of part or all of any property on or off the described premises.
To the extent that some or all of Plaintiff's claim seeks payment for damages
caused by faulty, inadequate or defective design, specification, workmanship, repair,
construction, renovation, remodeling, grading, compaction; materials used in repair,
construction, renovation or remodeling; or maintenance, they are excluded.
Fifteenth Affirmative Defense
For its Fifteenth Affirmative Defense, Defendant asserts that Plaintiff cannot bring
the claim within the grant of coverage provided by the following provision:
CAUSES OF LOSS - SPECIAL FORM
F. Additional Coverage Extensions
2. Water Damage, Other Liquids, Powder Or Molten Material Damage
If loss or damage caused by or resulting from covered water or other
liquid, powder or molten material damage loss occurs, we will also pay the
cost to tear out and replace any part of the building or structure to repair
BERK, MERCHANT [& | SLMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 13 of 13
damage to the system or appliance from which the water or other
substance escapes. This Coverage Extension does not increase the Limit
of Insurance.
Plaintiff is unable to establish that the loss or damage it is claiming was caused
by covered water. As a result, there is no coverage for the claimed damage.
Respectfully Submitted,
BERK, MERCHANT & Sims, PLC
/s/ William S. Berk
William S. Berk, Esq.
Florida Bar No.: 349828
Wherk@berklawfirm.com
Micseph@berklawfirm.com
Steven J. Getman, Esq.
Florida Bar No.: 67198
Sgetman@berklawfirm.com
Msoler-rodriquez@berklawfirm.com
2 Alhambra Plaza, Suite 700
Coral Gables, Florida 33134
T:(786)338-2900/ F:(786)2338-2888
Counsel for Defendant
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by and to the email(s) listed below, on this 9" day of October, 2017, upon:
RICHARD LITOFSKY, ESQ.
LITIGATION & RECOVERY LAW CENTER, PL
16375 NE 18" Avenue, Suite 321
North Miami Beach, Florida 33162
Tel: 305-7602314
Fax: 305-760-2498
Service: _service@losslitigators.com
Dustin@losslitigators.com
Richard@losslitigators.com
Counsel for Plaintiff
/s/ William S. Berk
William S. Berk
BERK, MERCHANT [& | SLMS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888
Preview
Filing # 62565820 E-Filed 10/09/2017 12:22:01 PM IN THE CIRCUIT COURT OF THE 11" JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: 2017-008138 CA 01 HARBOR 29 CONDOMINIUM ASSOCIATION, INC., Plaintiff, vs. ASPEN SPECIALTY INSURANCE COMPANY, Defendant. / DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINITFF’S COMPLAINT Defendant, ASPEN SPECIALITY INSURANCE COMPANY (hereinafter “Defendant” or “ASPEN’”), hereby files its Answer and Affirmative Defenses in response to Count II of Plaintiff, HARBOR 29 CONDOMINIUM ASSOCIATION, INC.’s, Complaint, and states as follows: 1. Defendant admits the allegations in Paragraph 1 to the extent it invokes the jurisdiction of this Court only. 2. Defendant is without knowledge of the allegations contained within Paragraph 2, and therefore denies the same. 3. Defendant denies the allegations contained within Paragraph 3. FACTS MATERIAL TO ALL COUNTS 4. Defendant admits the allegations contained within Paragraph 4. BERK, MERCHANT [&| SIMS 2 Alhambra Plaza, Suite 700 ¢ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 2 of 13 5. Regarding the allegations contained within Paragraph 5 of the Complaint, Defendant admits only that the Policy provides insurance coverage for damage to the Property caused by a covered loss. The remainder of the allegations are denied. 6. Defendant admits the allegations contained within Paragraph 6. 7. Defendant admits the allegations contained within Paragraph 7. 8. Defendant denies the allegations contained within Paragraph 8. 9. Regarding the allegations contained within Paragraph 9 of the Complaint, Defendant denies that the Property sustained a covered loss, but admits that the claim Plaintiff reported to Defendant was assigned claim number PB1570017844. 10. Defendant admits the allegations contained within Paragraph 10. 11. Defendant denies the allegations contained within Paragraph 11, and states that Plaintiff failed to provide prompt notice of the claim, prejudicing Defendant's ability to investigate the loss. 12. Defendant denies the allegations contained within Paragraph 12. 13. Defendant denies the allegations contained within Paragraph 13. COUNT I - DECLARATORY RELIEF 14. Defendant hereby re-adopts and re-states its responses to the allegations contained in Paragraph one (1) through thirteen (13) above as if fully set forth herein. 15. Regarding the allegations set forth in Paragraph 15 of the Complaint, Defendant admits that Count | purports to be an alternative theory of law to Count II of Plaintiffs Complaint, but denies that it has been sufficiently pled. 16. Regarding the allegations set forth in Paragraph 16 of the Complaint, Defendant is without knowledge of the Plaintiff's beliefs, and therefore denies the same. BERK, MERCHANT [& | SLMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 3 of 13 17. Defendant denies the allegations set forth in Paragraph 17 of the Complaint. 18. Defendant denies the allegations set forth in Paragraph 18 of the Complaint. 19. Defendant denies the allegations set forth in Paragraph 19 of the Complaint. 20. The allegations set forth in Paragraph 20 of the Complaint are denied. 21. Defendant denies the allegations set forth in Paragraph 21 of the Complaint. COUNT Il - BREACH OF CONTRACT 22. Defendant hereby re-adopts and re-states its responses to the allegations contained in Paragraph one (1) through thirteen (13) above as if fully set forth herein. 23. Regarding the allegations contained within Paragraph 23 of the Complaint, Defendant admits that Plaintiffs Complaint purports to bring this Count as an alternative theory of law to the claim set forth in Count I. 24. Defendant denies the allegations contained within Paragraph 24 of the Complaint. 25. Regarding the allegations contained within Paragraph 25 of the Complaint, Defendant admits the claim was denied pursuant to the Policy. 26. Defendant denies the allegations contained within Paragraph 26 of the Complaint. 27. Defendant denies the allegations contained within Paragraph 27 of the Complaint. BERK, MERCHANT [&| SIMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 4 of 13 28. Defendant denies the allegations contained within Paragraph 28 of the Complaint. 29. Defendant denies the allegations contained within Paragraph 29 of the Complaint. 30. Any allegations of the Complaint not specifically admitted, are denied AFFIRMATIVE DEFENSES First Affirmative Defense As its First Affirmative Defense, Defendant asserts that Plaintiff's claim is barred by the following Policy provision: BUILDING AND PERSONAL PROPERTY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy, the words “you” and “your” refer to the Named Insured shown in the Declarations. The words “we”, “us” and “our” refer to the company providing this insurance. E. Loss Conditions The following conditions apply in addition to the Common Policy Conditions and the Commercial Property Conditions: 3. Duties In The Event Of Loss Or Damage a. You must see that the following are done in the event of loss or damage to Covered Property: (2) Give us prompt notice of the loss or damage. Include a description of the property involved. Plaintiff failed to provide prompt notice of the claim, which was reported on or about May 20, 2016, with a reported date of loss of March 14, 2016. The delay in reporting the claim prejudiced Defendant’s ability to investigate the loss. BERK, MERCHANT [& | SLMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 5 of 13 Second Affirmative Defense For its Second Affirmative Defense, Defendant asserts that Plaintiff cannot bring the claim within the grant of coverage provided by the following provision: BUILDING AND PERSONAL PROPERTY COVERAGE FORM A. Coverage We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss. Based on its investigation of the claim, there was no direct physical loss to Covered Property caused by or resulting from a Covered Cause of Loss. Third Affirmative Defense For its Third Affirmative Defense, Defendant asserts that Plaintiff cannot bring the claim within the grant of coverage provided by the following provision: BUILDING AND PERSONAL PROPERTY COVERAGE FORM A. Coverage We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss. 2. Property Not Covered Covered Property does not include: d. Bridges, roadways, walks, patios or other paved surfaces; Some or all of Plaintiff's claim seeks payment for damage to walks, patios or other paved surfaces. As a result, there is no coverage for the claimed damage. BERK, MERCHANT [&| SIMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 6 of 13 Fourth Affirmative Defense For its Fourth Affirmative Defense, Defendant asserts that Plaintiff cannot bring the claim within the grant of coverage provided by the following provision: BUILDING AND PERSONAL PROPERTY COVERAGE FORM A. Coverage We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss. 2. Property Not Covered Covered Property does not include: f. The cost of excavations, grading, backfilling or filling; Some or all of Plaintiff's claim seeks payment for the cost of excavations, grading, backfilling or filling. As a result, there is no coverage for the claimed damage. Fifth Affirmative Defense For its Fifth Affirmative Defense, Defendant asserts that Plaintiff cannot bring the claim within the grant of coverage provided by the following provision: BUILDING AND PERSONAL PROPERTY COVERAGE FORM A. Coverage We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss. 2. Property Not Covered Covered Property does not include: BERK, MERCHANT [&| SIMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 7 of 13 g. Foundations of buildings, structures, machinery or boilers if their foundations are below: (1) The lowest basement floor; or (2) The surface of the ground, if there is no basement; Some or all of Plaintiffs claim seeks payment for damage to the foundation of the building. As a result, there is no coverage for the claimed damage. Sixth Affirmative Defense For its Sixth Affirmative Defense, Defendant asserts that Plaintiff cannot bring the claim within the grant of coverage provided by the following provision: BUILDING AND PERSONAL PROPERTY COVERAGE FORM A. Coverage We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss. 2. Property Not Covered Covered Property does not include: h. Land (including land on which the property is located), water, growing crops or lawns (other than lawns that are part of a vegetated roof); To the extent that some or all of Plaintiffs claim seeks payment for damage to the land on which the property is located, there is no coverage for the claimed damage. Seventh Affirmative Defense For its Seventh Affirmative Defense, Defendant asserts that Plaintiff cannot bring the claim within the grant of coverage provided by the following provision: BUILDING AND PERSONAL PROPERTY COVERAGE FORM A. Coverage BERK, MERCHANT [&| SIMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 8 of 13 We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss. 2. Property Not Covered Covered Property does not include: m. Underground pipes, flues or drains; To the extent that some or all of Plaintiff's claim seeks payment for damage to underground pipes, there is no coverage for the claimed damage. Eighth Affirmative Defense For its Eighth Affirmative Defense, Defendant asserts that some or all of the Plaintiff's claimed damages are excluded by the following policy provision: CAUSES OF LOSS - SPECIAL FORM B. Exclusions 1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. g. Water (4) Water under the ground surface pressing on, or flowing or seeping through: (a) Foundations, walls, floors or paved surfaces; Exclusions B.1.a. through B.1.h. apply whether or not the loss event results in widespread damage or affects a substantial area. BERK, MERCHANT [&| SIMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 9 of 13 To the extent that some or all of Plaintiffs claim seeks payment for damages caused by water flowing or seeping through foundations, walls, floors or other paved surfaces, they are excluded. Ninth Affirmative Defense For its Ninth Affirmative Defense, Defendant asserts that some or all of the Plaintiff's claimed damages are excluded by the following policy provision: CAUSES OF LOSS - SPECIAL FORM B. Exclusions 2. We will not pay for loss or damage caused by or resulting from any of the following: d. (1) Wear and tear; To the extent that some or all of Plaintiffs claim seeks payment for damages caused by wear and tear, they are excluded. Tenth Affirmative Defense For its Tenth Affirmative Defense, Defendant asserts that some or all of the Plaintiff's claimed damages are excluded by the following policy provision: CAUSES OF LOSS - SPECIAL FORM B. Exclusions 2. We will not pay for loss or damage caused by or resulting from any of the following: BERK, MERCHANT [&| SIMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 10 of 13 (2) Rust or other corrosion, decay, deterioration, hidden or latent defect or any quality in property that causes it to damage or destroy itself; Some or all of Plaintiffs claim seeks payment for damages caused by rust or other corrosion, decay, or deterioration, and is excluded. Eleventh Affirmative Defense For its Eleventh Affirmative Defense, Defendant asserts that some or all of the Plaintiff's claimed damages are excluded by the following policy provision: CAUSES OF LOSS - SPECIAL FORM B. Exclusions 2. We will not pay for loss or damage caused by or resulting from any of the following: (4) Settling, cracking, shrinking or expansion; To the extent that some or all of Plaintiff's claim seeks payment for damages caused by settling, cracking, shrinking or expansion, they are excluded. Twelfth Affirmative Defense For its Twelfth Affirmative Defense, Defendant asserts that some or all of the Plaintiff's claimed damages are excluded by the following policy provision: CAUSES OF LOSS - SPECIAL FORM B. Exclusions BERK, MERCHANT [&| SIMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 11 of 13 2. We will not pay for loss or damage caused by or resulting from any of the following: f. Continuous or repeated seepage or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more. Some or all of Plaintiff's claim seeks payment for damages caused by continuous or repeated seepage or leakage of water that occurred over a period of 14 or more days, and are excluded. Thirteenth Affirmative Defense For its Thirteenth Affirmative Defense, Defendant asserts that some or all of the Plaintiff's claimed damages are excluded by the following policy provision: CAUSES OF LOSS - SPECIAL FORM B. Exclusions 2. We will not pay for loss or damage caused by or resulting from any of the following: m. Neglect of an insured to use all reasonable means to save and preserve property from further damage at and after the time of loss. Some or all of Plaintiff's claim seeks payment for damages caused by Plaintiff's neglect to use all reasonable means to save and preserve property from further damage at and after the time of loss, and are excluded. Fourteenth Affirmative Defense For its Fourteenth Affirmative Defense, Defendant asserts that some or all of the Plaintiff's claimed damages are excluded by the following policy provision: BERK, MERCHANT [& | SLMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 12 of 13 CAUSES OF LOSS - SPECIAL FORM B. Exclusions 3. We will not pay for loss or damage caused by or resulting from any of the following, 3.a. through 3.c. But if an excluded cause of loss that is listed in 3.a. through 3.c. results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss. c. Faulty, inadequate or defective: (2) Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; (3) Materials used in repair, construction, renovation or remodeling; or (4) Maintenance; of part or all of any property on or off the described premises. To the extent that some or all of Plaintiff's claim seeks payment for damages caused by faulty, inadequate or defective design, specification, workmanship, repair, construction, renovation, remodeling, grading, compaction; materials used in repair, construction, renovation or remodeling; or maintenance, they are excluded. Fifteenth Affirmative Defense For its Fifteenth Affirmative Defense, Defendant asserts that Plaintiff cannot bring the claim within the grant of coverage provided by the following provision: CAUSES OF LOSS - SPECIAL FORM F. Additional Coverage Extensions 2. Water Damage, Other Liquids, Powder Or Molten Material Damage If loss or damage caused by or resulting from covered water or other liquid, powder or molten material damage loss occurs, we will also pay the cost to tear out and replace any part of the building or structure to repair BERK, MERCHANT [& | SLMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 13 of 13 damage to the system or appliance from which the water or other substance escapes. This Coverage Extension does not increase the Limit of Insurance. Plaintiff is unable to establish that the loss or damage it is claiming was caused by covered water. As a result, there is no coverage for the claimed damage. Respectfully Submitted, BERK, MERCHANT & Sims, PLC /s/ William S. Berk William S. Berk, Esq. Florida Bar No.: 349828 Wherk@berklawfirm.com Micseph@berklawfirm.com Steven J. Getman, Esq. Florida Bar No.: 67198 Sgetman@berklawfirm.com Msoler-rodriquez@berklawfirm.com 2 Alhambra Plaza, Suite 700 Coral Gables, Florida 33134 T:(786)338-2900/ F:(786)2338-2888 Counsel for Defendant CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by and to the email(s) listed below, on this 9" day of October, 2017, upon: RICHARD LITOFSKY, ESQ. LITIGATION & RECOVERY LAW CENTER, PL 16375 NE 18" Avenue, Suite 321 North Miami Beach, Florida 33162 Tel: 305-7602314 Fax: 305-760-2498 Service: _service@losslitigators.com Dustin@losslitigators.com Richard@losslitigators.com Counsel for Plaintiff /s/ William S. Berk William S. Berk BERK, MERCHANT [& | SLMS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 @ FAX: 786.338.2888