Preview
Filing # 59620646 E-Filed 07/27/2017 04:13:40 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 ASSOC.,
INC.,
Plaintiff,
Vv.
ASPEN SPECIALTY INSURANCE
COMPANY,
Defendant. /
DEFENDANTS’ RESPONSES TO PLAINTIFF’S
FIRST REQUEST FOR PRODUCTION
Pursuant to Florida Rule of Civil Procedure 1.350, Defendants, ASPEN
SPECIALTY INSURANCE COMPANY (“ASPEN”), hereby files its Responses to
Plaintiff's First Request for Production served with the Complaint, as follows:
1. All policies of insurance to which the Plaintiff is a named insured or additional
payee, together with any declaration of coverage pages, and any additional addendums
thereto.
RESPONSE: Attached.
2. Any and all correspondence to or from any attorney representing the Plaintiff,
and any and all documents attached to said correspondence, pertaining to Plaintiff's
insurance claims with Defendant, including but not limited to Claim Number PB 15 7001
7884.
RESPONSE: None.
ERK. MERCHANT /& Sums
2 Alhambra Plaza, Suite 700 ¢ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 FAX: 786.338.2888Harbor 29 Condo. v. Aspen Specialty Ins.
Case No. CACE 17-08138 CA 01
Page 2 of 6
3. Any and all correspondence to or from any public adjuster representing the
Plaintiff, and any and all documents attached to said correspondence, pertaining to
Plaintiffs insurance claims with Defendant, including but not limited to Claim Number
PB1570017884.
RESPONSE: Attached.
4. Any and all correspondence to or from the Plaintiff, and any and all documents
attached to said correspondence, pertaining to Plaintiffs insurance claims with
Defendant, including but not limited to Claim Number PB1570017884.
RESPONSE: Attached.
5. Any and all documents of whatever nature and kind submitted by the Plaintiff
and/ or his/her agents, public adjusters and/ or attorneys, etc., to the Defendant, its
agents, servants and/ or employees in regard to the subject loss.
RESPONSE: Attached.
6. Any and all documents which Defendant considered or relied upon in determining
the benefits due or not due to Plaintiff in regards to the claims made.
RESPONSE: Attached.
7. Any and all photographs, recordings, charts, graphs, sketches and any other
tangible items or documentary evidence relating to the Plaintiffs’ insurance claims with
Defendant, including but not limited to Claim Number PB1570017884.
RESPONSE: Attached.
ERK. MERCHANT /& Sums
2 ALHAMBRA PLAZA, SUITE 700 # CORAL GABLES, FLORIDA 33134 ePHONE: 786.338.2900 FAX: 786.338.2888Harbor 29 Condo. v. Aspen Specialty Ins.
Case No. CACE 17-08138 CA 01
Page 3 of 6
8. Any and all photographs, recordings, charts, graphs, sketches and any other
tangible items or documentary evidence which Defendant intends to use during the trial
in this cause and which have not been produced in response to any of the preceding
paragraphs.
RESPONSE: Unknown at this time.
9. Copy of the Defendant's entire claim file, including front and back cover, for the
Plaintiff's claim number PB1570017884 as it is kept in the normal course of business,
excluding any documents to which Defendant claims a privilege. ALL DOCUMENTS
FOR WHICH DEFENDANT ALLEGES A PRIVILEGE SHALL BE LISTED IN THE
MANNER DESCRIBED IN F.R.C.P. 1.350.
RESPONSE: Defendant objects to this request to the extent that it seeks the
production of materials that are protected by the work-product doctrine. Defendant
further objects to this request to the extent that it seeks the production of materials that
are irrelevant to and not reasonably calculated to lead to the discovery of admissible
evidence in this first-party action for breach of contract. Under Florida law, Plaintiff is
not entitled to the discovery of Defendant’s claim file materials because an insurer’s
investigation of a claim, along with the claim file thereby created, are irrelevant and
protected from disclosure in a first-party action where the issue of coverage has yet to
be resolved and damages have yet to be determined. See United Auto. Ins. Co. v.
Riverside Med. Assocs., 159 So. 3d 285 (Fla. 4th DCA 2015); State Farm Mut. Auto.
Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010); Nationwide Ins. Co. v.
Demmo, 57 So. 3d 982 (Fla. 2d DCA 2011); See also State Farm Fire and Casualty Co.
v. Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995); General Star Indem. Co. v. Atl.
Hospitality of Fla, LLC, 93 So. 3d 501 (Fla. 3d DCA 2012): Castle Key Ins. Co. v.
Benitez, 124 So. 3d 379 (Fla. 3d DCA 2013); State Farm Fla. Ins. Co. v. Aloni, 101 So.
3d 412 (Fla. 4th DCA 2012); State Farm Fla. Ins. Co. v. Desai, 106 So. 3d 5, 6 (Fla. 3d
DCA 2013).
10. The Defendant's entire claim file up from the date of the initial notice of the loss
until the day before the Defendants knew that Defendant was going to deny or litigate
the claim.
RESPONSE: Defendant objects to this request to the extent that it seeks the
production of materials that are protected by the work-product doctrine. Defendant
further objects to this request to the extent that it seeks the production of materials that
are irrelevant to and not reasonably calculated to lead to the discovery of admissible
evidence in this first-party action for breach of contract. Under Florida law, Plaintiff is
not entitled to the discovery of Defendant’s claim file materials because an insurer’s
ERK. MERCHANT /& | Sums
2 ALHAMBRA PLAZA, SUITE 700 # CORAL GABLES, FLORIDA 33134 ePHONE: 786.338.2900 FAX: 786.338.2888Harbor 29 Condo. v. Aspen Specialty Ins.
Case No. CACE 17-08138 CA 01
Page 4 of 6
investigation of a claim, along with the claim file thereby created, are irrelevant and
protected from disclosure in a first-party action where the issue of coverage has yet to
be resolved and damages have yet to be determined. See United Auto. Ins. Co. v.
Riverside Med. Assocs., 159 So. 3d 285 (Fla. 4th DCA 2015); State Farm Mut. Auto.
Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010); Nationwide Ins. Co. v.
Demmo, 57 So. 3d 982 (Fla. 2d DCA 2011); See also State Farm Fire and Casualty Co.
v. Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995); General Star Indem. Co. v. Atl.
Hospitality of Fla., LLC, 93 So. 3d 501 (Fla. 3d DCA 2012); Castle Key Ins. Co. v.
Benitez, 124 So. 3d 379 (Fla. 3d DCA 2013); State Farm Fla. Ins. Co. v. Aloni, 101 So.
3d 412 (Fla. 4th DCA 2012); State Farm Fla. Ins. Co. v. Desai, 106 So. 3d 5, 6 (Fla. 3d
DCA 2013).
11. Any and all documents relating to or supporting Defendant's denial of any
allegation of Plaintiffs complaint, and relating to or supporting each affirmative or
general defense asserted by Defendant.
RESPONSE: Attached.
12. Any and all statements, whether written, oral or recorded in whatever fashion,
including transcripts thereof or electronic recordings of same, taken of any or all
witnesses or other persons by the Defendant or its agents, with regard to the subject
matter of this lawsuit.
RESPONSE: None.
13. A list and/ or documents showing the names, addresses and telephone numbers
of any and all witnesses whose statements have been taken, indicating their full legal
name, residential address, business address and telephone number, in regard to the
subject matter of this litigation.
RESPONSE: None.
14. Any and all documents by and between the Defendant and its investigators,
insurance adjusters and appraisers relating to the subject matter of the Complaint.
RESPONSE: Defendant objects to this request to the extent that it seeks the
production of materials that are protected by the work-product doctrine. Defendant
ERK. MERCHANT /& | Sums
2 ALHAMBRA PLAZA, SUITE 700 # CORAL GABLES, FLORIDA 33134 ePHONE: 786.338.2900 FAX: 786.338.2888Harbor 29 Condo. v. Aspen Specialty Ins.
Case No. CACE 17-08138 CA 01
Page 5 of 6
further objects to this request to the extent that it seeks the production of materials that
are irrelevant to and not reasonably calculated to lead to the discovery of admissible
evidence in this first-party action for breach of contract. Under Florida law, Plaintiff is
not entitled to the discovery of Defendant’s claim file materials because an insurer’s
investigation of a claim, along with the claim file thereby created, are irrelevant and
protected from disclosure in a first-party action where the issue of coverage has yet to
be resolved and damages have yet to be determined. See United Auto. Ins. Co. v.
Riverside Med. Assocs., 159 So. 3d 285 (Fla. 4th DCA 2015); State Farm Mut. Auto.
Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010); Nationwide Ins. Co. v.
Demmo, 57 So. 3d 982 (Fla. 2d DCA 2011); See also State Farm Fire and Casualty Co.
v. Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995); General Star Indem. Co. v. Atl.
Hospitality of Fla., LLC, 93 So. 3d 501 (Fla. 3d DCA 2012); Castle Key Ins. Co. v.
Benitez, 124 So. 3d 379 (Fla. 3d DCA 2013); State Farm Fla. Ins. Co. v. Aloni, 101 So.
3d 412 (Fla. 4th DCA 2012); State Farm Fla. Ins. Co. v. Desai, 106 So. 3d 5, 6 (Fla. 3d
DCA 2013).
15. — Any and all expert reports including but not limited to reports regarding cause
and origin, estimates for repair and/ or replacement, damage to the Plaintiff's property in
question, or any other subject matter concerning this litigation prepared by any experts
who may be, or will be, utilized at the time of trial on behalf of the Defendant.
RESPONSE: None.
16. Copies of any and all sworn Proofs of Loss submitted by or on behalf of the
Plaintiffs relative to the subject claim and documentation accepting and/ or rejecting
said Proofs of Loss and, any and all documentation of any kind or nature relied upon
relative to the Defendant's acceptance or rejection of said Proofs of Loss.
RESPONSE: Attached.
17. Any and all documentation or other tangible evidence which Defendant contends
supports its claim that all conditions precedent to bringing this action have not been met
(if applicable).
RESPONSE: None.
ERK. MERCHANT /& Sums
2 ALHAMBRA PLAZA, SUITE 700 # CORAL GABLES, FLORIDA 33134 ePHONE: 786.338.2900 FAX: 786.338.2888Harbor 29 Condo. v. Aspen Specialty Ins.
Case No. CACE 17-08138 CA 01
Page 6 of 6
18. A copy of any and all reports by any general contractor, roofer, electrician, or
other construction personnel hired by the Defendant to examine and/ or evaluate any of
the claims asserted by the Plaintiff.
RESPONSE: None.
Respectfully submitted,
BERK, MERCHANT & SIMS, PLC.
/s/ Steven J. Getman
William S. Berk
Florida Bar No.: 349828
wberk@berklawfirm.com
mioseph@berklawfirm.com
Steven J. Getman
Florida Bar No.: 67198
Sgetman@berkiawfirm.com
msoler-rodriguez@berklawfirm.com
2 Alhambra Plaza, Suite 700
Coral Gables, Florida 33134
Telephone: (786) 338-2900
Facsimile: (786) 338-2888
Counsel for Defendant
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing was served via
email on this 27" day of July, 2017, to:
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/ Steven J. Getman
STEVEN J. GETMAN
ERK. MERCHANT /& Sums
2 ALHAMBRA PLAZA, SUITE 700 # CORAL GABLES, FLORIDA 33134 ePHONE: 786.338.2900 FAX: 786.338.2888
Preview
Filing # 59620646 E-Filed 07/27/2017 04:13:40 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 ASSOC., INC., Plaintiff, Vv. ASPEN SPECIALTY INSURANCE COMPANY, Defendant. / DEFENDANTS’ RESPONSES TO PLAINTIFF’S FIRST REQUEST FOR PRODUCTION Pursuant to Florida Rule of Civil Procedure 1.350, Defendants, ASPEN SPECIALTY INSURANCE COMPANY (“ASPEN”), hereby files its Responses to Plaintiff's First Request for Production served with the Complaint, as follows: 1. All policies of insurance to which the Plaintiff is a named insured or additional payee, together with any declaration of coverage pages, and any additional addendums thereto. RESPONSE: Attached. 2. Any and all correspondence to or from any attorney representing the Plaintiff, and any and all documents attached to said correspondence, pertaining to Plaintiff's insurance claims with Defendant, including but not limited to Claim Number PB 15 7001 7884. RESPONSE: None. ERK. MERCHANT /& Sums 2 Alhambra Plaza, Suite 700 ¢ CORAL GABLES, FLORIDA 33134 @ PHONE: 786.338.2900 FAX: 786.338.2888Harbor 29 Condo. v. Aspen Specialty Ins. Case No. CACE 17-08138 CA 01 Page 2 of 6 3. Any and all correspondence to or from any public adjuster representing the Plaintiff, and any and all documents attached to said correspondence, pertaining to Plaintiffs insurance claims with Defendant, including but not limited to Claim Number PB1570017884. RESPONSE: Attached. 4. Any and all correspondence to or from the Plaintiff, and any and all documents attached to said correspondence, pertaining to Plaintiffs insurance claims with Defendant, including but not limited to Claim Number PB1570017884. RESPONSE: Attached. 5. Any and all documents of whatever nature and kind submitted by the Plaintiff and/ or his/her agents, public adjusters and/ or attorneys, etc., to the Defendant, its agents, servants and/ or employees in regard to the subject loss. RESPONSE: Attached. 6. Any and all documents which Defendant considered or relied upon in determining the benefits due or not due to Plaintiff in regards to the claims made. RESPONSE: Attached. 7. Any and all photographs, recordings, charts, graphs, sketches and any other tangible items or documentary evidence relating to the Plaintiffs’ insurance claims with Defendant, including but not limited to Claim Number PB1570017884. RESPONSE: Attached. ERK. MERCHANT /& Sums 2 ALHAMBRA PLAZA, SUITE 700 # CORAL GABLES, FLORIDA 33134 ePHONE: 786.338.2900 FAX: 786.338.2888Harbor 29 Condo. v. Aspen Specialty Ins. Case No. CACE 17-08138 CA 01 Page 3 of 6 8. Any and all photographs, recordings, charts, graphs, sketches and any other tangible items or documentary evidence which Defendant intends to use during the trial in this cause and which have not been produced in response to any of the preceding paragraphs. RESPONSE: Unknown at this time. 9. Copy of the Defendant's entire claim file, including front and back cover, for the Plaintiff's claim number PB1570017884 as it is kept in the normal course of business, excluding any documents to which Defendant claims a privilege. ALL DOCUMENTS FOR WHICH DEFENDANT ALLEGES A PRIVILEGE SHALL BE LISTED IN THE MANNER DESCRIBED IN F.R.C.P. 1.350. RESPONSE: Defendant objects to this request to the extent that it seeks the production of materials that are protected by the work-product doctrine. Defendant further objects to this request to the extent that it seeks the production of materials that are irrelevant to and not reasonably calculated to lead to the discovery of admissible evidence in this first-party action for breach of contract. Under Florida law, Plaintiff is not entitled to the discovery of Defendant’s claim file materials because an insurer’s investigation of a claim, along with the claim file thereby created, are irrelevant and protected from disclosure in a first-party action where the issue of coverage has yet to be resolved and damages have yet to be determined. See United Auto. Ins. Co. v. Riverside Med. Assocs., 159 So. 3d 285 (Fla. 4th DCA 2015); State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010); Nationwide Ins. Co. v. Demmo, 57 So. 3d 982 (Fla. 2d DCA 2011); See also State Farm Fire and Casualty Co. v. Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995); General Star Indem. Co. v. Atl. Hospitality of Fla, LLC, 93 So. 3d 501 (Fla. 3d DCA 2012): Castle Key Ins. Co. v. Benitez, 124 So. 3d 379 (Fla. 3d DCA 2013); State Farm Fla. Ins. Co. v. Aloni, 101 So. 3d 412 (Fla. 4th DCA 2012); State Farm Fla. Ins. Co. v. Desai, 106 So. 3d 5, 6 (Fla. 3d DCA 2013). 10. The Defendant's entire claim file up from the date of the initial notice of the loss until the day before the Defendants knew that Defendant was going to deny or litigate the claim. RESPONSE: Defendant objects to this request to the extent that it seeks the production of materials that are protected by the work-product doctrine. Defendant further objects to this request to the extent that it seeks the production of materials that are irrelevant to and not reasonably calculated to lead to the discovery of admissible evidence in this first-party action for breach of contract. Under Florida law, Plaintiff is not entitled to the discovery of Defendant’s claim file materials because an insurer’s ERK. MERCHANT /& | Sums 2 ALHAMBRA PLAZA, SUITE 700 # CORAL GABLES, FLORIDA 33134 ePHONE: 786.338.2900 FAX: 786.338.2888Harbor 29 Condo. v. Aspen Specialty Ins. Case No. CACE 17-08138 CA 01 Page 4 of 6 investigation of a claim, along with the claim file thereby created, are irrelevant and protected from disclosure in a first-party action where the issue of coverage has yet to be resolved and damages have yet to be determined. See United Auto. Ins. Co. v. Riverside Med. Assocs., 159 So. 3d 285 (Fla. 4th DCA 2015); State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010); Nationwide Ins. Co. v. Demmo, 57 So. 3d 982 (Fla. 2d DCA 2011); See also State Farm Fire and Casualty Co. v. Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995); General Star Indem. Co. v. Atl. Hospitality of Fla., LLC, 93 So. 3d 501 (Fla. 3d DCA 2012); Castle Key Ins. Co. v. Benitez, 124 So. 3d 379 (Fla. 3d DCA 2013); State Farm Fla. Ins. Co. v. Aloni, 101 So. 3d 412 (Fla. 4th DCA 2012); State Farm Fla. Ins. Co. v. Desai, 106 So. 3d 5, 6 (Fla. 3d DCA 2013). 11. Any and all documents relating to or supporting Defendant's denial of any allegation of Plaintiffs complaint, and relating to or supporting each affirmative or general defense asserted by Defendant. RESPONSE: Attached. 12. Any and all statements, whether written, oral or recorded in whatever fashion, including transcripts thereof or electronic recordings of same, taken of any or all witnesses or other persons by the Defendant or its agents, with regard to the subject matter of this lawsuit. RESPONSE: None. 13. A list and/ or documents showing the names, addresses and telephone numbers of any and all witnesses whose statements have been taken, indicating their full legal name, residential address, business address and telephone number, in regard to the subject matter of this litigation. RESPONSE: None. 14. Any and all documents by and between the Defendant and its investigators, insurance adjusters and appraisers relating to the subject matter of the Complaint. RESPONSE: Defendant objects to this request to the extent that it seeks the production of materials that are protected by the work-product doctrine. Defendant ERK. MERCHANT /& | Sums 2 ALHAMBRA PLAZA, SUITE 700 # CORAL GABLES, FLORIDA 33134 ePHONE: 786.338.2900 FAX: 786.338.2888Harbor 29 Condo. v. Aspen Specialty Ins. Case No. CACE 17-08138 CA 01 Page 5 of 6 further objects to this request to the extent that it seeks the production of materials that are irrelevant to and not reasonably calculated to lead to the discovery of admissible evidence in this first-party action for breach of contract. Under Florida law, Plaintiff is not entitled to the discovery of Defendant’s claim file materials because an insurer’s investigation of a claim, along with the claim file thereby created, are irrelevant and protected from disclosure in a first-party action where the issue of coverage has yet to be resolved and damages have yet to be determined. See United Auto. Ins. Co. v. Riverside Med. Assocs., 159 So. 3d 285 (Fla. 4th DCA 2015); State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th DCA 2010); Nationwide Ins. Co. v. Demmo, 57 So. 3d 982 (Fla. 2d DCA 2011); See also State Farm Fire and Casualty Co. v. Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995); General Star Indem. Co. v. Atl. Hospitality of Fla., LLC, 93 So. 3d 501 (Fla. 3d DCA 2012); Castle Key Ins. Co. v. Benitez, 124 So. 3d 379 (Fla. 3d DCA 2013); State Farm Fla. Ins. Co. v. Aloni, 101 So. 3d 412 (Fla. 4th DCA 2012); State Farm Fla. Ins. Co. v. Desai, 106 So. 3d 5, 6 (Fla. 3d DCA 2013). 15. — Any and all expert reports including but not limited to reports regarding cause and origin, estimates for repair and/ or replacement, damage to the Plaintiff's property in question, or any other subject matter concerning this litigation prepared by any experts who may be, or will be, utilized at the time of trial on behalf of the Defendant. RESPONSE: None. 16. Copies of any and all sworn Proofs of Loss submitted by or on behalf of the Plaintiffs relative to the subject claim and documentation accepting and/ or rejecting said Proofs of Loss and, any and all documentation of any kind or nature relied upon relative to the Defendant's acceptance or rejection of said Proofs of Loss. RESPONSE: Attached. 17. Any and all documentation or other tangible evidence which Defendant contends supports its claim that all conditions precedent to bringing this action have not been met (if applicable). RESPONSE: None. ERK. MERCHANT /& Sums 2 ALHAMBRA PLAZA, SUITE 700 # CORAL GABLES, FLORIDA 33134 ePHONE: 786.338.2900 FAX: 786.338.2888Harbor 29 Condo. v. Aspen Specialty Ins. Case No. CACE 17-08138 CA 01 Page 6 of 6 18. A copy of any and all reports by any general contractor, roofer, electrician, or other construction personnel hired by the Defendant to examine and/ or evaluate any of the claims asserted by the Plaintiff. RESPONSE: None. Respectfully submitted, BERK, MERCHANT & SIMS, PLC. /s/ Steven J. Getman William S. Berk Florida Bar No.: 349828 wberk@berklawfirm.com mioseph@berklawfirm.com Steven J. Getman Florida Bar No.: 67198 Sgetman@berkiawfirm.com msoler-rodriguez@berklawfirm.com 2 Alhambra Plaza, Suite 700 Coral Gables, Florida 33134 Telephone: (786) 338-2900 Facsimile: (786) 338-2888 Counsel for Defendant CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was served via email on this 27" day of July, 2017, to: 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/ Steven J. Getman STEVEN J. GETMAN ERK. MERCHANT /& Sums 2 ALHAMBRA PLAZA, SUITE 700 # CORAL GABLES, FLORIDA 33134 ePHONE: 786.338.2900 FAX: 786.338.2888