Preview
Filing # 59111575 E-Filed 07/17/2017 03:28:49 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 MOTION TO DISMISS COUNT | OF PLAINTIFF’S COMPLAINT
Defendant, ASPEN SPECIALITY INSURANCE COMPANY ("ASPEN"), hereby
files its Motion to Dismiss Count | of Plaintiff's Complaint. In support of this Motion,
ASPEN states:
INTRODUCTION
1. This first-party action stems from Plaintiff's claim for damage reportedly
sustained to the insured property located at 710 NE 29th Street, Miami, FL 33137
(hereinafter “Property”) on March 14, 2016 (hereinafter the, “Loss”) from a reported
burst pipe located under the slab. (A copy of the Complaint is attached hereto as
Exhibit “A”).
2. Plaintiff's Complaint sets forth two separate counts: 1) Count | purports to
seek declaratory relief; and 2) Count II alleges breach of contract against ASPEN. (See
Exhibit “A”).
Berk, MERCHANT [8 SEMs
2 Aihambra 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
3. Plaintiff and ASPEN entered into a commercial property insurance
contract, policy number PB7480915, with effective dates of coverage from May 2, 2015
to May 2, 2016 (hereinafter “Policy’), for the residential condominium located at the
Property. (See the Policy Declarations page, attached hereto as Exhibit “B”).
4. Count | of the Complaint seeks declaratory relief, which purportedly seeks
this Honorable Court’s determination “to establish the existence and extent of the
Plaintiff's right to coverage for the losses forming the subject of this action.” (See
Exhibit “A,” at Paragraph 18).
5. The purported action for declaratory relief alleged in Count | should be
dismissed it they provides no form of relief that is not available to Plaintiff through the
parties’ litigation of Count Il, which seeks Breach of Contract.
6. As described in the Complaint, Defendant adjusted this claim prior to
Plaintiff's initiation of litigation and determined the Policy does not provide coverage for
the alleged loss. See the Petition, attached hereto as Exhibit “A,” at Paragraph 10.
7. Accordingly, Plaintiff has brought this lawsuit not because it is in doubt of
its rights, but because it disagrees with ASPEN’s coverage determination.
8. Further, the Complaint actually seeks a determination of damages
allegedly sustained.
9. Accordingly, the ultimate relief sought by Plaintiff is monetary damages
and, therefore, Plaintiffs claim would be more appropriately and efficiently litigated as a
breach of contract action, which could resolve both issues in dispute (e.g. coverage and
damages). In contrast, even if Plaintiff prevailed in this action for declaratory relief,
further litigation would be required to resolve the remaining issue of damages.
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
een PATE 3.OF 13
10. Additionally, Plaintiff fails to plead a proper cause of action for declaratory
relief because Count | of the Complaint neither questions the validity of the Policy as a
whole, nor identifies any ambiguity in the Policy requiring this Honorable Court's
interpretation. Rather, the Complaint merely alleges that Plaintiff disagrees with
ASPEN’s coverage position and requests this Honorable Court enter a declaratory
judgment to determine the Plaintiff's right to coverage, that without such a decree,
Plaintiff is unable to obtain insurance benefits under the Policy (i.e. money), and
whether the Policy language cited in the Denial is ambiguous. See Exhibit “A” at
Paragraph 19 and the “Wherefore” clause.
11. Plaintiff's lack of actual doubt/uncertainty regarding its rights under the
Policy demonstrates that Count | of the Complaint is merely a disguised action for
breach of contract, which fails to provide Plaintiff any avenues of relief not available
through an action at law for breach of contract. Accordingly, an action for breach of
contract would be the most appropriate manner and Count | of the Complaint should be
dismissed, so the issues of coverage and damages can be simultaneously resolved via
an action for breach of contract, as set forth under Count Il.
12. Further, Defendant contends that Plaintiff only included Count | in the
Complaint in order to potentially complicate Defendant's ability to serve proposals for
settlement under Florida Rule of Civil Procedure 1.442. Thus, Counts | should not be
permitted to stand when it is only pled in order to potentially hinder Defendant's rights
and do not provide Plaintiff with any rights or relief that are not already available under
Counts II.
BERK, MERCHANT Jae] 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
43. In sum, Count | of Plaintiff's Complaint should be dismissed, so the Parties
can efficiently litigate all issues in dispute (ie. coverage and damages) simultaneously
in Count II without prejudice to either of their respective rights.
MEMORANDUM OF LAW
L MORE APPROPRIATE AND EFFICIENT REDRESS IS AVAILABLE UNDER
AN ACTION FOR BREACH OF CONTRACT.
Plaintiff has pled an action for breach of contract in Count II of the Complaint. As
explained by Florida’s Third District Court of Appeal:
[A]lthough the existence of other remedies does not preclude
declaratory judgment, section 86.111, Florida Statutes
(1979), it does bear on the proper exercise of the court's
discretion in granting such relief, and the court may decline
to grant a declaratory decree where more appropriate
redress is available.
Kelner v. Woody, 399 So. 2d 35, 38 (Fla. 3d DCA 1981); citing Stark v. Marshall, 67
So.2d 235 (Fla. 1953); Bowden v. Seaboard Air Line R. R. Co., 47 So.2d 786 (Fla.
1950); Lyons v. Capi, 188 So.2d 909 (Fla. 4th DCA 1966); Jacksonville Roofing Ass'n v.
Local Union No. 435, 156 So.2d 416 (Fla. 1st DCA 1963), cert. denied, 162 So.2d 667
(Fla. 1964); Garner v. De Soto Ranch, Inc., 150 So.2d 493 (Fla. 2d DCA), cert. denied,
156 So.2d 860 (Fla. 1963). In Kelner, the plaintiffs sought a declaration of their rights
under two leases. The trial court dismissed the plaintiffs’ third amended complaint for
declaratory decree and plaintiffs appealed. After noting that the appellants could bring
an action for breach of the lease agreements at issue, Florida’s Third District Court of
Appeal found the trial court did not err in dismissing the complaint for failure to state a
cause of action for declaratory judgment.
Florida’s Third District Court of Appeal later echoed the rationale it expressed in
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 5 of 13
Kelner when deciding Macintosh v. Harbour Club Villas Condo. Ass’n., 468 So.2d 1075
(Fla. 3d DCA 1985). In Macintosh the Third District held that the availability of another
adequate remedy bears on its discretion to grant declaratory relief and that, “the court
may decline to grant a declaratory decree where more appropriate redress is available.”
Macintosh, 468 So. 2d at 1080 (Affirming the trial court's denial of request for
declaratory relief, and citing Kelner, 399 So. 2d at 38).
In this case, Plaintiff has pled an action for breach of contract in Count II of the
Complaint. The Parties’ litigation of Count II can resolve the issue of coverage, as well
as that of damages. Conversely, however, the parties’ litigation of Count | can only
resolve the issue of coverage; thus, even if Plaintiff prevails, further litigation would be
required to resolve the issue of damages. Plainly stated, Count | provides neither party
with an avenue of relief that is not available in an action at law, for breach of contract.
On the other hand, however, by alleging a claim for declaratory relief in Count |
Plaintiff has sought to impede Defendant’s ability to serve a proposal for settlement.
This blatant attempt to impede Defendant's right to serve a proposal for settlement
should not be allowed to stand as, “there is a logical basis for the court's determination
that a declaratory judgment action would not serve any useful purpose under the
circumstances of this case and might impair or defeat rights of the parties.” Legion Ins.
Co. v. Moore, 846 So 2d. 1183, 1187 (Fla. 4th DCA 2003). (Upholding trial court’s
dismissal of a declaratory action concerning the availability of coverage in a, “mine-run,
disputed UM claim”). Based on the foregoing, along with the grounds expressed infra,
Count | of the Complaint should be dismissed as more appropriate and efficient redress
of the matters at issue is available through the action for breach of contract alleged in
BERK, MERCHANT |ee| 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
nnninennnncnsstnsnnannenmmemmeenenn LILES IS
Count Il.
I. HIGGINS IS NOT ANALAGOUS TO THE CASE AT BAR AND, MOREOVER,
FLORIDA LITIGANTS ARE NOT ENTITLED TO A DECLARATION OF
RIGHTS, REGARDING PURELY FACTUAL QUESTIONS, WHERE THE
LANGUAGE OF THE WRITTEN INSTRUMENT AT ISSUE IS CLEAR AND
UNDISPUTED.
ASPEN anticipates Plaintiff will argue that Higgins v. State Farm Fire & Cas. Co.,
894 So. 2d 5 (Fla. 2004) authorizes it to bring the action for declaratory judgment
alleged in Count |; however, this is not the case. In addition to the grounds set forth
supra, the Count | should also be dismissed because it does not allege that any
provisions of the Policy contradict one another, are ambiguous, or present questions of
construction or validity for this Honorable Court to consider.
An action for declaratory relief will not lie where the contract is clear and
unambiguous and presents no need for construction. See Bergh v. Canadian Universal
Insurance Company, 216 So.2d 436 (Fla.1969); Johnson v. Atlantic National Insurance
Company, 155 So.2d 886 (Fla. 3d DCA 1963).! Further, mere doubt, resulting from
disputed questions of fact, as opposed to a contractual ambiguity, is not sufficient to
make available to litigants the provisions of the Declaratory Judgment Act. Barrett v.
Pickard, 85 So.2d 630 (Fla. 1956).
As stated by Florida’s Third District Court of Appeal:
The declaratory judgment act is not to be used as a tool to
advise attorneys as to the proper path to pursue. Nor is the
act to be employed for the determination of purely factual
issues under an instrument that is clear and unambiguous
and presents no need for construction.
’ An insurance provision only will become illusory and called into question when terms or exclusions
contradict one another. Purrelli v. State Farm Fire & Cas. Co., 698 So.2d 618, 620 (Fla. 2d DCA 1997).
Further, Florida courts recognize that, "if a policy provision is clear and unambiguous, it should be
enforced according to its terms whether it is a basic policy provision or an exclusionary provision.” Taurus
Holdings, Inc. v. United States Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005).
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
Kelner, 399 So. 2d at 38, Citing May v. Holley, 59 So.2d 636 (Fla. 1952); Deen v.
Weaver, 47 So.2d 539 (Fla. 1950); Barrett v. Pickard, 85 So.2d 630 (Fla. 1956); Perez
v. State Automobile Insurance Ass'n, 270 So.2d 377 (Fla. 3d DCA 1972); Burns v.
Hartford Accident & Indemnity Co., 157 So.2d 84 (Fla. 3d DCA 1963). In Kelner,
Florida’s Third District Court of Appeal explained:
[Wie find that appellants are not really in doubt as to their
rights under the leases; rather, appellants claim a default in
said leases by the acts enumerated in the complaint and are
simply uncertain as to what course of action they should
employ to enforce their rights. Since the lease agreement is
clear and unambiguous, leaving only factual issues to be
resolved, declaratory relief is not available to appellants. We
conclude, therefore, that the trial court did not err in
dismissing appellants’ complaint for failure to state a cause
of action for declaratory judgment.
Kelner, 399 So. 2d at 38. As noted above, Defendant anticipates that Plaintiff will argue
it is entitled to pursue an action for declaratory judgment based on the decision reached
in Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004). Higgins, however,
was a third-party action that addressed an insurer’s duty to defend and, therefore, is
completely distinguishable from the instant, first-party action.
In Higgins, Florida’s Fourth District Court of Appeal and, ultimately, Florida’s
Supreme Court, allowed an insurer to pursue an action for declaratory relief in order to
verify whether a third-party action against its insured triggered its duty to defend.
Contrary to this matter, however, the Higgins case did not present any other issues to
resolve after the insurer was found to have a duty to defend. Further, the case at bar is
not one in which some third-party has initiated an action against the Plaintiff; rather,
Plaintiff initiated this first-party action in order to dispute the coverage position ASPEN
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
asserted in response to Plaintiff's claim. Accordingly, Higgins is not an analogous case
that would support Plaintiff's entitlement to a declaratory judgment. Moreover, the
foregoing rationale distinguishing Higgins from first-party disputes, such as the case at
bar, along with Florida’s preference for efficient litigation, is precisely what Florida’s
Fourth District Court of Appeal focused upon when deciding Legion Ins. Co. v. Moore,
846 So 2d. 1183 (Fla. 4th DCA 2003).
In Legion Ins. Co. v. Moore, the Fourth District was presented with a first-party
action for declaratory relief, which sought to determine the existence of coverage under
an uninsured motorist insurance policy. In its decision, the Fourth District described the
important difference between first and third-party claims in the context of actions for
declaratory relief. Specifically, when affirming the trial court's dismissal of the action for
declaratory relief, the Fourth District explained,
Unlike the circumstances arising with third party claims in
which the issue of a defense of a suit against the insured is
at stake, here we face nothing more than a mine-run,
disputed UM claim as to which the issue is whether the
nature of the accident places the claim within such coverage.
In this sense the claim in suit is not functionally different from
those cases in which the carrier disputes the UM claim by
contending that its insured (rather than a third party) was the
cause of the accident, or that the claimant's injuries were not
caused by the accident. In these circumstances, the carrier
cannot avoid a jury trial by simply filing a declaratory
judgment action first in which the judge alone is to determine
the disputed fact.
In short, there is a logical basis for the court's determination
that a declaratory judgment action would not serve any
useful purpose under the circumstances of this case and
might impair or defeat rights of the parties.
? Defendant emphasizes that Florida’s Fourth District Court of Appeal decided Legion Ins. Co. v. Moore
not long after issuing its Higgins decision, which was later approved by Florida’s Supreme Court.
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
Legion Ins. Co. v. Moore, 846 So 2d. 1183, 1187 (Fla. 4th DCA 2003).
The situation presented in the case at bar is analogous to the circumstances
presented in Kelner v. Woody and Legion Ins. Co. v. Moore. Count | of the Complaint
does not provide either party with any rights or remedies that are not available in an
action at law, for breach of contract, as set forth in Count II of the Complaint. In fact,
Count | only serves to impair or defeat Defendant's right to serve a proposal for
settlement under Florida Rule of Civil Procedure 1.442 and Florida Statute § 768.79.
This is particularly unacceptable in light of the fact that the clear, ultimate purpose of
Plaintiff's action is to recover monetary damages. Accordingly, as in Kelner v. Woody
and Legion Ins. Co. v. Moore, Petitioner’s action for a declaratory judgment should be
dismissed.
ll. PLAINTIFF HAS NOT ALLEGED A PROPER CAUSE OF ACTION FOR
DECLARATORY RELIEF.
As stated in South Riverwalk Invs., LLC v. City of Fort Lauderdale, 934 So.2d
620, 622 (Fla. 4th DCA 2006):
The test for the sufficiency of a complaint in a declaratory
judgment proceeding is not whether the complaint shows that
the Plaintiff will succeed in getting a declaration of rights in
accordance with his theory and contention, but whether he is
entitled to a declaration of rights at all.
The Plaintiff has not pled a valid cause of action for declaratory relief under Florida
Statute § 86.021, which provides as follows:
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
BERK, MERCHANT [&| Sims
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @PHONE: 786.338.2900 ® PAX: 786.338.2888Harbor 29 Condo. Ass'n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
nh AGE10,0F 13
article, memorandum, or instrument 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.>
[Emphasis added]
The Florida Supreme Court has consistently held that a party seeking declaratory
relief must show:
[T]here is a bona fide, actual, present practical need for
declaration; that the declaration deals with a_ present,
ascertained or ascertainable state of facts or present
controversy as to a state of facts; that some immunity, power,
privilege or right of the complaining party is dependent upon the
facts or the law applicable to the facts; that there is some
person or persons who have, or reasonably may have an actual,
present, adverse and antagonistic interest in the subject matter,
either in fact or law; that the antagonistic and adverse interest[s]
are all before the Court by proper process or class
representation; and that the relief sought is not merely giving of
legal advice by the courts or the answer to questions
propounded from curiosity.
Coalition for Adequacy and Fairness in School Funding, Inc. v Chiles, 680 So. 2d 400,
404 (Fla. 1996). See also Johnson v. Atl. 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; a question must be raised
either of construction of the insurance policy or the validity of the policy). Accordingly, a
proper action for declaratory relief must raise a question as to either the construction or
validity of the contract at issue. See Johnson citing Ready v. Safeway Rock Co., 24
So.2d 808, 809 (Fla. 1946).
5 Emphasis added.
BERK, MERCHANT jax! St MS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @PHONE: 786.338.2900 # PAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
Page 11 of 13
In this case, however, Plaintiff does not question the construction or validity of
any specific portion of the Policy. Moreover, the Plaintiff has not included any question
regarding the interpretation of the Policy and has not identified any Policy provision over
which the parties disagree as to its interpretation. Furthermore, the Plaintiff has not
alleged any facts to establish the existence of an actual controversy regarding the
construction or the validity of the insurance contract and has failed to plead an action for
declaratory relief.
In the instant matter, a review of the sparse allegations in Count | show that
Plaintiff is not entitled to a declaration of its rights, because it has not identified any
tights under the Policy that are actually in doubt, other than the vague assertion that
there is doubt concerning the existence of coverage under the Policy.
Plaintiff has not even alleged any factual question it needs to have determined by
the Court. Further, even if Plaintiff was to assert a question of fact to be determined,
which it has failed to do, it would still need to allege some doubt as to how the Policy
would apply to such a factual question. The determination of a purely factual question
standing alone is not appropriately resolved through a declaratory action. In this case
any doubt regarding coverage would be the result of a basic factual dispute better
suited for resolution through a determination of the breach of contract action alleged in
Count Il.
CONCLUSION
In the case at bar, more appropriate and efficient redress of the issues in dispute
(e.g. coverage and damages) is available to Plaintiff by way of the action at law, for
breach of contract, set forth in Count Il of the Complaint. Moreover, 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 Speciaity Ins. Co.
Case No.: 2017-008138-CA-01
Page 12 of 13
neither alleges an ambiguity in any provision(s) of the Policy, nor presents a question of
construction or validity for this Honorable Court to consider. Rather, Count | merely
alleges Plaintiff's disagreement with ASPEN’s coverage position and seeks relief
duplicative of that already available to Plaintiff under Count Il. Accordingly, based on
the foregoing facts and authority set forth herein, Count | of the Complaint should be
dismissed.
WHEREFORE, Defendant, ASPEN SPECIALITY INSURANCE COMPANY,
respectfully requests that this Honorable Court enter an Order dismissing Count | of the
Complaint, and granting Defendant such further relief deemed just and proper.
Respectfully Submitted,
BERK, MERCHANT & Sims, PLC
/s/ William S. Berk
William S. Berk, Esq.
Florida Bar No.: 349828
Wherk@berklawfinn.com
Mioseph@berklawfirm.com
Steven J. Getman, Esq.
Florida Bar No.: 67198
Sgetman@berklawfirm.com
Msoler-rodriquez@berklawfirm.cam
2 Alhambra Plaza, Suite 700
Coral Gables, Florida 33134
T:(786)338-2900/ F:(786)2338-2888
Counsel for Defendant
BERK, MERCHANT |&/ Sims
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 *PHONE: 786.338.2900 © PAX: 786.338, 2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co.
Case No.: 2017-008138-CA-01
saennnennnnnninmnnnnh AIC13 OF 13
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 47" day of July, 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@lossiitigatars.com
Dustin@losslitiqators. com
Richard@losslitigators.com
Counsel for Plaintiff
/s/ William S. Berk
William S. Berk
BerK, MERCHANT [a | Se MS
2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 PHONE: 786,338,2900 © Pax: 786.338, 2888Filing # 54650554 E-Filed 04/05/2017 09:18:34 AM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
Hargor 29 CONDOMINIUM ASSOC., INC.,
Case No.:
Plaintiff,
vs.
ASPEN SPECIALTY INSURANCE COMPANY,
Defendant.
COMPLAINT
‘The Plaintiff, HARBOR 29 CONDOMINIUM ASSOC., INC. (hereinafter “Plaintiff’), by
and through undersigned counsel, hereby sues the defendant, ASPEN SPECIALTY INSURANCE
COMPANY (hereinafter “Defendant”), and in so doing, alleges the following:
1. This Honorable Court has jurisdiction pursuant to §§ 86.01 and 26.012 Fla. Stat., as
the amount in controversy exceeds $15,000.00, and venue is proper as all acts material hereto took
place in Miami-Dade County, Florida.
2. The Plaintiff is a resident of the State of Florida, who is over the age of eighteen (18)
and is otherwise sui juris.
3. ‘The Defendant is a corporation that conducts business in Miami-Dade County,
Florida with offices in Miami-Dade County
FACTS MATERIAL TO ALL COUNTS
4. The Defendant issued insurance policy number PB7480915 to the Plaintiff (the
“Policy”). The Policy provides insurance coverage for real property owned by the Plaintiff, which is
located at 710 NE 29th Street, Miami, FL 33137 (the “Property”). A copy of the Policy is attached
hereto as Exhibit “A.”
LITIGATION & RECOVERY LAW CENTER, PL
16375 NE 18% Avenue - Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305."5. ‘The Policy provides insurance coverage for damage to the Property and also provides
coverage for replacement of personal property destroyed and/or damaged by a covered loss, and
alternative living arrangement expense eimbursement if and when the Property
becomes uninhabitable.
6. At all times material hereto, the Policy was in full force and effect.
7. At all times material hereto, the Plaintiff was a party to the Policy and an insured of
the Defendant.
8. On or about March 14, 2016, the Plaintiff suffered covered losses as set forth in the
materials previously provided to the Defendant.
9. After suffering the covered losses to the Property, the Plaintiff made a claim against
the Policy, which was assigned claim number PB1570017884 by the Defendant (the “Claim”).
10. In correspondence dated September 1, 2016, Defendant informed Plaintiff that
Defendant would be denying coverage for the claim (the “Denial”). The Denial quotes certain
language from the Policy which Defendant believes justifies their denial of coverage. A copy of the
Denial is attached hereto as Exhibit “B.”
11. All conditions precedent to the filing and maintenance of this action have been
performed, occurred or were otherwise waived.
12. ‘The Plaintiff has been forced to retain the undersigned counsel and ate obligated to
pay a reasonable fee thereto.
13. Pursuant to the Policy and § 627.428 Fla. Stat., the Plaintiff is entitled to recover the
reasonable attomeys’ fees and costs incurred in this regard from the Defendant.
CouNrT I —- DECLARATORY RELIEF
14. The Plaintiff hereby te-alleges and re-avers the allegations contained in numbered
paragraphs one (1) through thirteen (13) hereinabove as if fully set forth herein.
Page 2 of 5
LITIGATION & RECOVERY LAW CENTER, PL
16375 NE 18" Avenue - Suite 321 - North Miami Beach, Florida 33162 305-760-2314 - 305-760-2498 (fax)15. This cause of action is being brought as an alternative theory of law to the claim set
forth in Count II herein below.
16. Although the Plaintiff believes that covered losses have been sustained, Defendant’s
Denial of the Claim causes Plaintiff to doubt or be uncertain as to the existence or non-existence of
Plaintiff's right to coverage, and the extent of that right, under the Policy generally and the Policy
language cited in the Denial specifically. As such, the Plaintiff has an actual, practical and present
need for a declaration from this Honorable Court regarding the existence and extent of Plaintiff rights
to coverage under the Policy for the Claim.
17. The declaratory relief sought in this action is consistent with that which was set forth
by the Supreme Court of Florida in HHiggias ». State Farm Ins. Co., 894 So.2d 5 (2004), where the Court
held that in conformance with the recent trend of the law, declaratory judgment statutes have now
been construed to authorize an action to declare the existence or nonexistence of any tight.
18. There exists an actual bona-fide controversy between the parties, based upon the
Defendant’s Denial of the Claim, which requires judicial interpretations of the Policy generally and
the Policy language cited in the Denial specifically to establish the existence and extent of the Plaintiff's
tight to coverage for the losses forming the subject of this action.
19. ‘The purpose of this declaratory judgment action is to obtain a judicial interpretation
of the Policy, as it relates to the facts involved herein, that determines the Plaintiff's right to coverage
under the Policy for the Claim. Without such declaratory decree, Plaintiff is unable to obtain insurance
benefits under the Policy.
20. ‘The adverse and antagonistic interests of the parties hereto ate all before this
Honorable Court by proper process.
21. The relief sought by the Plaintiff is not merely the giving of legal advice by this
Honorable Court or the answer to questions propounded by mere cutiosity.
Page 3 of 5
LITIGATION & RECOVERY Law CENTER, PL.
16375 NE 18% Avenue - Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)WHEREFORE, the Plaintiff respectfully requests that this Honorable Court answer the
following declarations:
1) Does Plaintiff have a right to coverage for the Claim under the Policy?
2) Is the Policy language cited in the Denial ambiguous under the facts giving rise to the
Claim
In so doing, Plaintiff request this Court enter judgment against the Defendant and issue a declaratory
judgment establishing the existence and extent of the Plaintiff right to coverage under the Policy for
the subject losses, and award the Plaintiff the reasonable attorneys’ fees and costs incurred in this
regard, together with such other and further relief deemed just and fit.
COUNT II — BREACH OF CONTRACT
22, The Plaintiff hereby re-alleges and re-avers the allegations contained in numbered
paragraphs one (1) through thirteen (13) hereinabove as if fully set forth herein.
23. This cause of action is being brought as an alternative theory of law to the claim set
forth in Count I hereinabove.
24, The Plaintiff provided the Defendant with timely notice of the Claim, and complied
with all conditions and obligations imposed by the Policy. Nevet-the-less, the Defendant breached the
Policy by failing to provide necessary reimbursement for covered losses in accordance with the Policy.
25. The Plaintiff received correspondence from the Defendant advising that the claim
would be denied due to a purported exclusion in the Policy.
26. The Defendant failed to make a full payment for Plaintiffs losses, which are covered
by the Policy.
27, The Defendant has failed to timely evaluate and pay the benefits owed to the Plaintiff
under the Policy.
Page 4 of 5
LITIGATION & RECOVERY Law CENTER, PL
16375 NE 18% Avenue - Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (Fax)28, As set forth in § 627.70131(5)(a) Fla. Stat., the Defendant was required to pay or deny
the Claim within 90 days of same being reported by the Plaintiff, which the Defendant has failed or
otherwise refused to do.
29. As a direct result of the Defendant’s breaches of the Policy, the Plaintiff has been
damaged.
‘WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter judgment
in their favor and against the Defendant and in so doing, award the Plaintiff the actual damages
incurred in this regard, along with pre-judgment and post-judgment interest and the reasonable
attorneys’ fees and costs incurred in this regard, together with such other and further relief deemed
just and fit.
The Plaintiff demand a trial by jury on all issues so triable.
Respectfully submitted April 5, 2017.
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: Richard@losslitigators.com
Pleading email: service@losslitigators.com
By: __/s/ Richard Litofsky.
Richard Litofsky, Esquire
Fla, Bar No: 822965
Page 5 of 5
LITIGATION & RECOVERY LAW CENTER, PL
16375 NE 18t* Avenue - Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)Common Policy Declarations
Aspen Specially Insurance Company ASPPRO11 09/09
Name & Malling Address: Broker Name & Mailing Address
Harbor 29 Condominium Assoc Inc Hult & Company, Inc
710 NE 29th Street, Unit #4C 1815 Griffin Road
Miami, FL 33137 Dania Beach, FL 33004
Policy Number Effective Date: 05/02/15 12:01A.M
PB7480915 Expiration Date:05/02/16 12:01AM
Business Description: Condo Assoc
FLAT CANCELLATION MINIMUM EARNED
NOT PERMITTED PREMIUM APPLIES
In retum for the payment of the premium indicated below, and subject to all the terms of this policy, we agree to pravide the
insurance as stated in this Policy
Premium and Fee Summary
Coverage Premium Fees
Commercial Property $3,370.00
Terrorism $
Inspection Fee $ 0.00
Policy Fee $ 35.00
Surplus Lines Tax 5% $ 170.25
FSLSO Service Fee 0.175% $ 5.96
CPIC Fee 1% $ 34.05
EMPA Fee $ 4.00
Total Premium Due $3,619.26
Minirum Retained Premium $ 842.50
Coverage Forms Applicable goverage fort schedule as more specifically outlined in Aspen
Form ASPPROOG Schedule of Applicable Forms
Surplus Lines Agent Name: — James Gallaudet
Surplus Lines Agent Address: 1815 Griffin Road, Dania Beach, FL 33004
‘Surplus Lines Agent License #: A092313
Surplus Lines Slate Taxes Were Filed: FL.
Insured Producer
Chiqui Cordero
DISCOVERY ENTERPRISES INS AGCY
10733 N.W. 58TH ST.
DORAL, FL 33178 COfim 6/2/2015
THIS INSURANCE IS ISSUED PURSUANT TO THE FLORIDA SURPLUS LINES LAW. PERSONS INSURED BY SURPLUS LINES CARRIERS DO
NOT HAVE THE PROTECTION OF THE FLORIDA INSURANCE GUARANTY ACT TO THE EXTENT OF ANY RIGHT OF RECOVERY FOR THE
OBLIGATION OF AN INSOLVENT UNLICENSED INSURER.
SURPLUS LINES INSURERS' POLICY RATES AND FORMS ARE NOT APPROVED
BY ANY FLORIDA REGULATORY AGENCY
EXHIBIT
1 8
mentee
— 800 Atlantic Avarue 21" Fl | Boston | Massachusetts | 02210 | Phone 617-532:7300 | Fax 817-832-734.insured’s Name Harbor 29 Condominium Ass. Inc, Policy # PB7480915
UMR #
~"itiayare Policies Only
[Policy Dates From [05/02/2015 To [05/02/2016 ]
Surplus Lines Agents Name James Gallaudet
Surplus Lines Agents Address 1815 Griffin Rd, Suite 300 Dania Beach FL 39004
Surplus Lines Agents License # A092313
Producing Agent's Name DISCOVERY ENTERPRISES INS AGCY - MARIA DIAZ
Producing Agent's Physical Address 10733 N.W. 58TH ST. , DORAL, FL 33178
“THIS INSURANCE IS ISSUED PURSUANT TO THE FLORIDA SURPLUS LINES LAW.
PERSONS INSURED BY SURPLUS LINES CARRIERS DO NOT HAVE THE PROTECTION OF THE
FLORIDA INSURANCE GUARANTY ACT TO THE EXTENT OF ANY RIGHT OF RECOVERY
FOR THE OBLIGATION OF AN INSOLVENT UNLICENSED INSURER.”
“SURPLUS LINES INSURERS’ POLICY RATES AND FORMS ARE NOT
APPROVED BY ANY FLORIDA REGULATORY AGENCY.”
PolicyPremium $3,370.00 Policy Fee $35.00,
Inspection Fee $0.00 Provider Fee 0.00
Tax $170.25 Service Fee $5.96
FHCF Assessment $0.00 Citizen's Assessment $34.05
EMPA Surcharge $4.00
Surplus Lines Agent’s Countersignature domes Gallaudet A0G2313
Cr] “THIS POLICY CONTAINS A SEPARATE DEDUCTIBLE FOR HURRICANE OR
WIND LOSSES, WHICH MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES
TO YOU.”
DI “THIS POLICY CONTAINS A CO-PAY PROVISION THAT MAY RESULT IN
HIGH OUT-OF-POCKET EXPENSES TO YOU.”vy
ASPEN
ASPEN SPECIALTY
Commercial Property Coverage Part Declaratlons
ASPPROG7 08/07
POLICY NUMBER: PB7480915 EFFECTIVE DATE: 05/02/15
NAMED INSURED: Harbor 29 Condominium Assos Inc
RENEWAL OF:
DESCRIPTION OF PREMISES
Prem.No. Sidg.No, |. Location Addrans cee . a
to. 4 TIO NE 29" 8 Mam, FL 30197 ~ Regitentisl Conds ~ FR Consinmtion
COVERAGES PROVIDED (insurance at the described premises applies only for coverages for which e limit insurance is shown)
“Coins
Prom. No. Bldg.No, Coverage . Limit of Insurance. Cavacod Causes of Loss % —_Retes
1 1 Buiing 4.872.000 * Special Exe Fid, 2G 80 inc.
ats toe.”
on inet
ek,
*H Extra Expense Coverage, Limits on Loss Payment
OPTIONAL COVERAGES (Applicable orily when entries are made in the schedule below)
Aatteed Vatuo Replscoment Gast (X}
Prem.No. Bldg. No. “Exp sie” Gaverage Anant Balding Barsonat Inckislag
Property. “Stock”
“Monthly Limit “Max, Period “Ext. Period
indemnity (Fraction) OF indemnity (X)_—_tademnily (Days)
nftation Guard Percen
~ Personal Proper
~ *Appiies to Business income Only
MORTGAGE HOLDER(S)
Prem.No. Bldg. No. Morlgage Holder Namo Malling Address
DEDUCTIBLE: $ 5,000 AOP Deductible Excluding Wind or Hall Per Form CP1054
FORMS AND ENDORSEMENTS
Forms and Endorsements applying to this Coverage Part and made pant of this policy at time of issue: Refer to ASPPRO06 07/07
SCHEDULE OF FORMS AND ENDORSEMENTS:
THESE DECLARATIONS ARE PART OF THE POLICY DECLARATIONS CONTAINING THE NAME OF THE INSURED AND THE POLICY PERIOD.
includes copynghted matenal of Insurance Services Ollice, Inc., with Ns permission
600 Atlantic Avenue 21” F] | Boston | Massachusetts | 02210 | Phone 617-532-7300 | Fax 617-532-7314
Preview
Filing # 59111575 E-Filed 07/17/2017 03:28:49 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 MOTION TO DISMISS COUNT | OF PLAINTIFF’S COMPLAINT Defendant, ASPEN SPECIALITY INSURANCE COMPANY ("ASPEN"), hereby files its Motion to Dismiss Count | of Plaintiff's Complaint. In support of this Motion, ASPEN states: INTRODUCTION 1. This first-party action stems from Plaintiff's claim for damage reportedly sustained to the insured property located at 710 NE 29th Street, Miami, FL 33137 (hereinafter “Property”) on March 14, 2016 (hereinafter the, “Loss”) from a reported burst pipe located under the slab. (A copy of the Complaint is attached hereto as Exhibit “A”). 2. Plaintiff's Complaint sets forth two separate counts: 1) Count | purports to seek declaratory relief; and 2) Count II alleges breach of contract against ASPEN. (See Exhibit “A”). Berk, MERCHANT [8 SEMs 2 Aihambra 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 3. Plaintiff and ASPEN entered into a commercial property insurance contract, policy number PB7480915, with effective dates of coverage from May 2, 2015 to May 2, 2016 (hereinafter “Policy’), for the residential condominium located at the Property. (See the Policy Declarations page, attached hereto as Exhibit “B”). 4. Count | of the Complaint seeks declaratory relief, which purportedly seeks this Honorable Court’s determination “to establish the existence and extent of the Plaintiff's right to coverage for the losses forming the subject of this action.” (See Exhibit “A,” at Paragraph 18). 5. The purported action for declaratory relief alleged in Count | should be dismissed it they provides no form of relief that is not available to Plaintiff through the parties’ litigation of Count Il, which seeks Breach of Contract. 6. As described in the Complaint, Defendant adjusted this claim prior to Plaintiff's initiation of litigation and determined the Policy does not provide coverage for the alleged loss. See the Petition, attached hereto as Exhibit “A,” at Paragraph 10. 7. Accordingly, Plaintiff has brought this lawsuit not because it is in doubt of its rights, but because it disagrees with ASPEN’s coverage determination. 8. Further, the Complaint actually seeks a determination of damages allegedly sustained. 9. Accordingly, the ultimate relief sought by Plaintiff is monetary damages and, therefore, Plaintiffs claim would be more appropriately and efficiently litigated as a breach of contract action, which could resolve both issues in dispute (e.g. coverage and damages). In contrast, even if Plaintiff prevailed in this action for declaratory relief, further litigation would be required to resolve the remaining issue of damages. 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 een PATE 3.OF 13 10. Additionally, Plaintiff fails to plead a proper cause of action for declaratory relief because Count | of the Complaint neither questions the validity of the Policy as a whole, nor identifies any ambiguity in the Policy requiring this Honorable Court's interpretation. Rather, the Complaint merely alleges that Plaintiff disagrees with ASPEN’s coverage position and requests this Honorable Court enter a declaratory judgment to determine the Plaintiff's right to coverage, that without such a decree, Plaintiff is unable to obtain insurance benefits under the Policy (i.e. money), and whether the Policy language cited in the Denial is ambiguous. See Exhibit “A” at Paragraph 19 and the “Wherefore” clause. 11. Plaintiff's lack of actual doubt/uncertainty regarding its rights under the Policy demonstrates that Count | of the Complaint is merely a disguised action for breach of contract, which fails to provide Plaintiff any avenues of relief not available through an action at law for breach of contract. Accordingly, an action for breach of contract would be the most appropriate manner and Count | of the Complaint should be dismissed, so the issues of coverage and damages can be simultaneously resolved via an action for breach of contract, as set forth under Count Il. 12. Further, Defendant contends that Plaintiff only included Count | in the Complaint in order to potentially complicate Defendant's ability to serve proposals for settlement under Florida Rule of Civil Procedure 1.442. Thus, Counts | should not be permitted to stand when it is only pled in order to potentially hinder Defendant's rights and do not provide Plaintiff with any rights or relief that are not already available under Counts II. BERK, MERCHANT Jae] 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 43. In sum, Count | of Plaintiff's Complaint should be dismissed, so the Parties can efficiently litigate all issues in dispute (ie. coverage and damages) simultaneously in Count II without prejudice to either of their respective rights. MEMORANDUM OF LAW L MORE APPROPRIATE AND EFFICIENT REDRESS IS AVAILABLE UNDER AN ACTION FOR BREACH OF CONTRACT. Plaintiff has pled an action for breach of contract in Count II of the Complaint. As explained by Florida’s Third District Court of Appeal: [A]lthough the existence of other remedies does not preclude declaratory judgment, section 86.111, Florida Statutes (1979), it does bear on the proper exercise of the court's discretion in granting such relief, and the court may decline to grant a declaratory decree where more appropriate redress is available. Kelner v. Woody, 399 So. 2d 35, 38 (Fla. 3d DCA 1981); citing Stark v. Marshall, 67 So.2d 235 (Fla. 1953); Bowden v. Seaboard Air Line R. R. Co., 47 So.2d 786 (Fla. 1950); Lyons v. Capi, 188 So.2d 909 (Fla. 4th DCA 1966); Jacksonville Roofing Ass'n v. Local Union No. 435, 156 So.2d 416 (Fla. 1st DCA 1963), cert. denied, 162 So.2d 667 (Fla. 1964); Garner v. De Soto Ranch, Inc., 150 So.2d 493 (Fla. 2d DCA), cert. denied, 156 So.2d 860 (Fla. 1963). In Kelner, the plaintiffs sought a declaration of their rights under two leases. The trial court dismissed the plaintiffs’ third amended complaint for declaratory decree and plaintiffs appealed. After noting that the appellants could bring an action for breach of the lease agreements at issue, Florida’s Third District Court of Appeal found the trial court did not err in dismissing the complaint for failure to state a cause of action for declaratory judgment. Florida’s Third District Court of Appeal later echoed the rationale it expressed in 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 5 of 13 Kelner when deciding Macintosh v. Harbour Club Villas Condo. Ass’n., 468 So.2d 1075 (Fla. 3d DCA 1985). In Macintosh the Third District held that the availability of another adequate remedy bears on its discretion to grant declaratory relief and that, “the court may decline to grant a declaratory decree where more appropriate redress is available.” Macintosh, 468 So. 2d at 1080 (Affirming the trial court's denial of request for declaratory relief, and citing Kelner, 399 So. 2d at 38). In this case, Plaintiff has pled an action for breach of contract in Count II of the Complaint. The Parties’ litigation of Count II can resolve the issue of coverage, as well as that of damages. Conversely, however, the parties’ litigation of Count | can only resolve the issue of coverage; thus, even if Plaintiff prevails, further litigation would be required to resolve the issue of damages. Plainly stated, Count | provides neither party with an avenue of relief that is not available in an action at law, for breach of contract. On the other hand, however, by alleging a claim for declaratory relief in Count | Plaintiff has sought to impede Defendant’s ability to serve a proposal for settlement. This blatant attempt to impede Defendant's right to serve a proposal for settlement should not be allowed to stand as, “there is a logical basis for the court's determination that a declaratory judgment action would not serve any useful purpose under the circumstances of this case and might impair or defeat rights of the parties.” Legion Ins. Co. v. Moore, 846 So 2d. 1183, 1187 (Fla. 4th DCA 2003). (Upholding trial court’s dismissal of a declaratory action concerning the availability of coverage in a, “mine-run, disputed UM claim”). Based on the foregoing, along with the grounds expressed infra, Count | of the Complaint should be dismissed as more appropriate and efficient redress of the matters at issue is available through the action for breach of contract alleged in BERK, MERCHANT |ee| 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 nnninennnncnsstnsnnannenmmemmeenenn LILES IS Count Il. I. HIGGINS IS NOT ANALAGOUS TO THE CASE AT BAR AND, MOREOVER, FLORIDA LITIGANTS ARE NOT ENTITLED TO A DECLARATION OF RIGHTS, REGARDING PURELY FACTUAL QUESTIONS, WHERE THE LANGUAGE OF THE WRITTEN INSTRUMENT AT ISSUE IS CLEAR AND UNDISPUTED. ASPEN anticipates Plaintiff will argue that Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004) authorizes it to bring the action for declaratory judgment alleged in Count |; however, this is not the case. In addition to the grounds set forth supra, the Count | should also be dismissed because it does not allege that any provisions of the Policy contradict one another, are ambiguous, or present questions of construction or validity for this Honorable Court to consider. An action for declaratory relief will not lie where the contract is clear and unambiguous and presents no need for construction. See Bergh v. Canadian Universal Insurance Company, 216 So.2d 436 (Fla.1969); Johnson v. Atlantic National Insurance Company, 155 So.2d 886 (Fla. 3d DCA 1963).! Further, mere doubt, resulting from disputed questions of fact, as opposed to a contractual ambiguity, is not sufficient to make available to litigants the provisions of the Declaratory Judgment Act. Barrett v. Pickard, 85 So.2d 630 (Fla. 1956). As stated by Florida’s Third District Court of Appeal: The declaratory judgment act is not to be used as a tool to advise attorneys as to the proper path to pursue. Nor is the act to be employed for the determination of purely factual issues under an instrument that is clear and unambiguous and presents no need for construction. ’ An insurance provision only will become illusory and called into question when terms or exclusions contradict one another. Purrelli v. State Farm Fire & Cas. Co., 698 So.2d 618, 620 (Fla. 2d DCA 1997). Further, Florida courts recognize that, "if a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision.” Taurus Holdings, Inc. v. United States Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005). 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 Kelner, 399 So. 2d at 38, Citing May v. Holley, 59 So.2d 636 (Fla. 1952); Deen v. Weaver, 47 So.2d 539 (Fla. 1950); Barrett v. Pickard, 85 So.2d 630 (Fla. 1956); Perez v. State Automobile Insurance Ass'n, 270 So.2d 377 (Fla. 3d DCA 1972); Burns v. Hartford Accident & Indemnity Co., 157 So.2d 84 (Fla. 3d DCA 1963). In Kelner, Florida’s Third District Court of Appeal explained: [Wie find that appellants are not really in doubt as to their rights under the leases; rather, appellants claim a default in said leases by the acts enumerated in the complaint and are simply uncertain as to what course of action they should employ to enforce their rights. Since the lease agreement is clear and unambiguous, leaving only factual issues to be resolved, declaratory relief is not available to appellants. We conclude, therefore, that the trial court did not err in dismissing appellants’ complaint for failure to state a cause of action for declaratory judgment. Kelner, 399 So. 2d at 38. As noted above, Defendant anticipates that Plaintiff will argue it is entitled to pursue an action for declaratory judgment based on the decision reached in Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004). Higgins, however, was a third-party action that addressed an insurer’s duty to defend and, therefore, is completely distinguishable from the instant, first-party action. In Higgins, Florida’s Fourth District Court of Appeal and, ultimately, Florida’s Supreme Court, allowed an insurer to pursue an action for declaratory relief in order to verify whether a third-party action against its insured triggered its duty to defend. Contrary to this matter, however, the Higgins case did not present any other issues to resolve after the insurer was found to have a duty to defend. Further, the case at bar is not one in which some third-party has initiated an action against the Plaintiff; rather, Plaintiff initiated this first-party action in order to dispute the coverage position ASPEN 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 asserted in response to Plaintiff's claim. Accordingly, Higgins is not an analogous case that would support Plaintiff's entitlement to a declaratory judgment. Moreover, the foregoing rationale distinguishing Higgins from first-party disputes, such as the case at bar, along with Florida’s preference for efficient litigation, is precisely what Florida’s Fourth District Court of Appeal focused upon when deciding Legion Ins. Co. v. Moore, 846 So 2d. 1183 (Fla. 4th DCA 2003). In Legion Ins. Co. v. Moore, the Fourth District was presented with a first-party action for declaratory relief, which sought to determine the existence of coverage under an uninsured motorist insurance policy. In its decision, the Fourth District described the important difference between first and third-party claims in the context of actions for declaratory relief. Specifically, when affirming the trial court's dismissal of the action for declaratory relief, the Fourth District explained, Unlike the circumstances arising with third party claims in which the issue of a defense of a suit against the insured is at stake, here we face nothing more than a mine-run, disputed UM claim as to which the issue is whether the nature of the accident places the claim within such coverage. In this sense the claim in suit is not functionally different from those cases in which the carrier disputes the UM claim by contending that its insured (rather than a third party) was the cause of the accident, or that the claimant's injuries were not caused by the accident. In these circumstances, the carrier cannot avoid a jury trial by simply filing a declaratory judgment action first in which the judge alone is to determine the disputed fact. In short, there is a logical basis for the court's determination that a declaratory judgment action would not serve any useful purpose under the circumstances of this case and might impair or defeat rights of the parties. ? Defendant emphasizes that Florida’s Fourth District Court of Appeal decided Legion Ins. Co. v. Moore not long after issuing its Higgins decision, which was later approved by Florida’s Supreme Court. 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 Legion Ins. Co. v. Moore, 846 So 2d. 1183, 1187 (Fla. 4th DCA 2003). The situation presented in the case at bar is analogous to the circumstances presented in Kelner v. Woody and Legion Ins. Co. v. Moore. Count | of the Complaint does not provide either party with any rights or remedies that are not available in an action at law, for breach of contract, as set forth in Count II of the Complaint. In fact, Count | only serves to impair or defeat Defendant's right to serve a proposal for settlement under Florida Rule of Civil Procedure 1.442 and Florida Statute § 768.79. This is particularly unacceptable in light of the fact that the clear, ultimate purpose of Plaintiff's action is to recover monetary damages. Accordingly, as in Kelner v. Woody and Legion Ins. Co. v. Moore, Petitioner’s action for a declaratory judgment should be dismissed. ll. PLAINTIFF HAS NOT ALLEGED A PROPER CAUSE OF ACTION FOR DECLARATORY RELIEF. As stated in South Riverwalk Invs., LLC v. City of Fort Lauderdale, 934 So.2d 620, 622 (Fla. 4th DCA 2006): The test for the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the Plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. The Plaintiff has not pled a valid cause of action for declaratory relief under Florida Statute § 86.021, which provides as follows: 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 BERK, MERCHANT [&| Sims 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @PHONE: 786.338.2900 ® PAX: 786.338.2888Harbor 29 Condo. Ass'n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 nh AGE10,0F 13 article, memorandum, or instrument 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.> [Emphasis added] The Florida Supreme Court has consistently held that a party seeking declaratory relief must show: [T]here is a bona fide, actual, present practical need for declaration; that the declaration deals with a_ present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest[s] are all before the Court by proper process or class representation; and that the relief sought is not merely giving of legal advice by the courts or the answer to questions propounded from curiosity. Coalition for Adequacy and Fairness in School Funding, Inc. v Chiles, 680 So. 2d 400, 404 (Fla. 1996). See also Johnson v. Atl. 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; a question must be raised either of construction of the insurance policy or the validity of the policy). Accordingly, a proper action for declaratory relief must raise a question as to either the construction or validity of the contract at issue. See Johnson citing Ready v. Safeway Rock Co., 24 So.2d 808, 809 (Fla. 1946). 5 Emphasis added. BERK, MERCHANT jax! St MS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 @PHONE: 786.338.2900 # PAX: 786.338.2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 Page 11 of 13 In this case, however, Plaintiff does not question the construction or validity of any specific portion of the Policy. Moreover, the Plaintiff has not included any question regarding the interpretation of the Policy and has not identified any Policy provision over which the parties disagree as to its interpretation. Furthermore, the Plaintiff has not alleged any facts to establish the existence of an actual controversy regarding the construction or the validity of the insurance contract and has failed to plead an action for declaratory relief. In the instant matter, a review of the sparse allegations in Count | show that Plaintiff is not entitled to a declaration of its rights, because it has not identified any tights under the Policy that are actually in doubt, other than the vague assertion that there is doubt concerning the existence of coverage under the Policy. Plaintiff has not even alleged any factual question it needs to have determined by the Court. Further, even if Plaintiff was to assert a question of fact to be determined, which it has failed to do, it would still need to allege some doubt as to how the Policy would apply to such a factual question. The determination of a purely factual question standing alone is not appropriately resolved through a declaratory action. In this case any doubt regarding coverage would be the result of a basic factual dispute better suited for resolution through a determination of the breach of contract action alleged in Count Il. CONCLUSION In the case at bar, more appropriate and efficient redress of the issues in dispute (e.g. coverage and damages) is available to Plaintiff by way of the action at law, for breach of contract, set forth in Count Il of the Complaint. Moreover, 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 Speciaity Ins. Co. Case No.: 2017-008138-CA-01 Page 12 of 13 neither alleges an ambiguity in any provision(s) of the Policy, nor presents a question of construction or validity for this Honorable Court to consider. Rather, Count | merely alleges Plaintiff's disagreement with ASPEN’s coverage position and seeks relief duplicative of that already available to Plaintiff under Count Il. Accordingly, based on the foregoing facts and authority set forth herein, Count | of the Complaint should be dismissed. WHEREFORE, Defendant, ASPEN SPECIALITY INSURANCE COMPANY, respectfully requests that this Honorable Court enter an Order dismissing Count | of the Complaint, and granting Defendant such further relief deemed just and proper. Respectfully Submitted, BERK, MERCHANT & Sims, PLC /s/ William S. Berk William S. Berk, Esq. Florida Bar No.: 349828 Wherk@berklawfinn.com Mioseph@berklawfirm.com Steven J. Getman, Esq. Florida Bar No.: 67198 Sgetman@berklawfirm.com Msoler-rodriquez@berklawfirm.cam 2 Alhambra Plaza, Suite 700 Coral Gables, Florida 33134 T:(786)338-2900/ F:(786)2338-2888 Counsel for Defendant BERK, MERCHANT |&/ Sims 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 *PHONE: 786.338.2900 © PAX: 786.338, 2888Harbor 29 Condo. Ass’n, Inc. v. Aspen Specialty Ins. Co. Case No.: 2017-008138-CA-01 saennnennnnnninmnnnnh AIC13 OF 13 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 47" day of July, 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@lossiitigatars.com Dustin@losslitiqators. com Richard@losslitigators.com Counsel for Plaintiff /s/ William S. Berk William S. Berk BerK, MERCHANT [a | Se MS 2 ALHAMBRA PLAZA, SUITE 700 @ CORAL GABLES, FLORIDA 33134 PHONE: 786,338,2900 © Pax: 786.338, 2888Filing # 54650554 E-Filed 04/05/2017 09:18:34 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA Hargor 29 CONDOMINIUM ASSOC., INC., Case No.: Plaintiff, vs. ASPEN SPECIALTY INSURANCE COMPANY, Defendant. COMPLAINT ‘The Plaintiff, HARBOR 29 CONDOMINIUM ASSOC., INC. (hereinafter “Plaintiff’), by and through undersigned counsel, hereby sues the defendant, ASPEN SPECIALTY INSURANCE COMPANY (hereinafter “Defendant”), and in so doing, alleges the following: 1. This Honorable Court has jurisdiction pursuant to §§ 86.01 and 26.012 Fla. Stat., as the amount in controversy exceeds $15,000.00, and venue is proper as all acts material hereto took place in Miami-Dade County, Florida. 2. The Plaintiff is a resident of the State of Florida, who is over the age of eighteen (18) and is otherwise sui juris. 3. ‘The Defendant is a corporation that conducts business in Miami-Dade County, Florida with offices in Miami-Dade County FACTS MATERIAL TO ALL COUNTS 4. The Defendant issued insurance policy number PB7480915 to the Plaintiff (the “Policy”). The Policy provides insurance coverage for real property owned by the Plaintiff, which is located at 710 NE 29th Street, Miami, FL 33137 (the “Property”). A copy of the Policy is attached hereto as Exhibit “A.” LITIGATION & RECOVERY LAW CENTER, PL 16375 NE 18% Avenue - Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305."5. ‘The Policy provides insurance coverage for damage to the Property and also provides coverage for replacement of personal property destroyed and/or damaged by a covered loss, and alternative living arrangement expense eimbursement if and when the Property becomes uninhabitable. 6. At all times material hereto, the Policy was in full force and effect. 7. At all times material hereto, the Plaintiff was a party to the Policy and an insured of the Defendant. 8. On or about March 14, 2016, the Plaintiff suffered covered losses as set forth in the materials previously provided to the Defendant. 9. After suffering the covered losses to the Property, the Plaintiff made a claim against the Policy, which was assigned claim number PB1570017884 by the Defendant (the “Claim”). 10. In correspondence dated September 1, 2016, Defendant informed Plaintiff that Defendant would be denying coverage for the claim (the “Denial”). The Denial quotes certain language from the Policy which Defendant believes justifies their denial of coverage. A copy of the Denial is attached hereto as Exhibit “B.” 11. All conditions precedent to the filing and maintenance of this action have been performed, occurred or were otherwise waived. 12. ‘The Plaintiff has been forced to retain the undersigned counsel and ate obligated to pay a reasonable fee thereto. 13. Pursuant to the Policy and § 627.428 Fla. Stat., the Plaintiff is entitled to recover the reasonable attomeys’ fees and costs incurred in this regard from the Defendant. CouNrT I —- DECLARATORY RELIEF 14. The Plaintiff hereby te-alleges and re-avers the allegations contained in numbered paragraphs one (1) through thirteen (13) hereinabove as if fully set forth herein. Page 2 of 5 LITIGATION & RECOVERY LAW CENTER, PL 16375 NE 18" Avenue - Suite 321 - North Miami Beach, Florida 33162 305-760-2314 - 305-760-2498 (fax)15. This cause of action is being brought as an alternative theory of law to the claim set forth in Count II herein below. 16. Although the Plaintiff believes that covered losses have been sustained, Defendant’s Denial of the Claim causes Plaintiff to doubt or be uncertain as to the existence or non-existence of Plaintiff's right to coverage, and the extent of that right, under the Policy generally and the Policy language cited in the Denial specifically. As such, the Plaintiff has an actual, practical and present need for a declaration from this Honorable Court regarding the existence and extent of Plaintiff rights to coverage under the Policy for the Claim. 17. The declaratory relief sought in this action is consistent with that which was set forth by the Supreme Court of Florida in HHiggias ». State Farm Ins. Co., 894 So.2d 5 (2004), where the Court held that in conformance with the recent trend of the law, declaratory judgment statutes have now been construed to authorize an action to declare the existence or nonexistence of any tight. 18. There exists an actual bona-fide controversy between the parties, based upon the Defendant’s Denial of the Claim, which requires judicial interpretations of the Policy generally and the Policy language cited in the Denial specifically to establish the existence and extent of the Plaintiff's tight to coverage for the losses forming the subject of this action. 19. ‘The purpose of this declaratory judgment action is to obtain a judicial interpretation of the Policy, as it relates to the facts involved herein, that determines the Plaintiff's right to coverage under the Policy for the Claim. Without such declaratory decree, Plaintiff is unable to obtain insurance benefits under the Policy. 20. ‘The adverse and antagonistic interests of the parties hereto ate all before this Honorable Court by proper process. 21. The relief sought by the Plaintiff is not merely the giving of legal advice by this Honorable Court or the answer to questions propounded by mere cutiosity. Page 3 of 5 LITIGATION & RECOVERY Law CENTER, PL. 16375 NE 18% Avenue - Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)WHEREFORE, the Plaintiff respectfully requests that this Honorable Court answer the following declarations: 1) Does Plaintiff have a right to coverage for the Claim under the Policy? 2) Is the Policy language cited in the Denial ambiguous under the facts giving rise to the Claim In so doing, Plaintiff request this Court enter judgment against the Defendant and issue a declaratory judgment establishing the existence and extent of the Plaintiff right to coverage under the Policy for the subject losses, and award the Plaintiff the reasonable attorneys’ fees and costs incurred in this regard, together with such other and further relief deemed just and fit. COUNT II — BREACH OF CONTRACT 22, The Plaintiff hereby re-alleges and re-avers the allegations contained in numbered paragraphs one (1) through thirteen (13) hereinabove as if fully set forth herein. 23. This cause of action is being brought as an alternative theory of law to the claim set forth in Count I hereinabove. 24, The Plaintiff provided the Defendant with timely notice of the Claim, and complied with all conditions and obligations imposed by the Policy. Nevet-the-less, the Defendant breached the Policy by failing to provide necessary reimbursement for covered losses in accordance with the Policy. 25. The Plaintiff received correspondence from the Defendant advising that the claim would be denied due to a purported exclusion in the Policy. 26. The Defendant failed to make a full payment for Plaintiffs losses, which are covered by the Policy. 27, The Defendant has failed to timely evaluate and pay the benefits owed to the Plaintiff under the Policy. Page 4 of 5 LITIGATION & RECOVERY Law CENTER, PL 16375 NE 18% Avenue - Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (Fax)28, As set forth in § 627.70131(5)(a) Fla. Stat., the Defendant was required to pay or deny the Claim within 90 days of same being reported by the Plaintiff, which the Defendant has failed or otherwise refused to do. 29. As a direct result of the Defendant’s breaches of the Policy, the Plaintiff has been damaged. ‘WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter judgment in their favor and against the Defendant and in so doing, award the Plaintiff the actual damages incurred in this regard, along with pre-judgment and post-judgment interest and the reasonable attorneys’ fees and costs incurred in this regard, together with such other and further relief deemed just and fit. The Plaintiff demand a trial by jury on all issues so triable. Respectfully submitted April 5, 2017. 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: Richard@losslitigators.com Pleading email: service@losslitigators.com By: __/s/ Richard Litofsky. Richard Litofsky, Esquire Fla, Bar No: 822965 Page 5 of 5 LITIGATION & RECOVERY LAW CENTER, PL 16375 NE 18t* Avenue - Suite 321 - North Miami Beach, Florida 33162 - 305-760-2314 - 305-760-2498 (fax)Common Policy Declarations Aspen Specially Insurance Company ASPPRO11 09/09 Name & Malling Address: Broker Name & Mailing Address Harbor 29 Condominium Assoc Inc Hult & Company, Inc 710 NE 29th Street, Unit #4C 1815 Griffin Road Miami, FL 33137 Dania Beach, FL 33004 Policy Number Effective Date: 05/02/15 12:01A.M PB7480915 Expiration Date:05/02/16 12:01AM Business Description: Condo Assoc FLAT CANCELLATION MINIMUM EARNED NOT PERMITTED PREMIUM APPLIES In retum for the payment of the premium indicated below, and subject to all the terms of this policy, we agree to pravide the insurance as stated in this Policy Premium and Fee Summary Coverage Premium Fees Commercial Property $3,370.00 Terrorism $ Inspection Fee $ 0.00 Policy Fee $ 35.00 Surplus Lines Tax 5% $ 170.25 FSLSO Service Fee 0.175% $ 5.96 CPIC Fee 1% $ 34.05 EMPA Fee $ 4.00 Total Premium Due $3,619.26 Minirum Retained Premium $ 842.50 Coverage Forms Applicable goverage fort schedule as more specifically outlined in Aspen Form ASPPROOG Schedule of Applicable Forms Surplus Lines Agent Name: — James Gallaudet Surplus Lines Agent Address: 1815 Griffin Road, Dania Beach, FL 33004 ‘Surplus Lines Agent License #: A092313 Surplus Lines Slate Taxes Were Filed: FL. Insured Producer Chiqui Cordero DISCOVERY ENTERPRISES INS AGCY 10733 N.W. 58TH ST. DORAL, FL 33178 COfim 6/2/2015 THIS INSURANCE IS ISSUED PURSUANT TO THE FLORIDA SURPLUS LINES LAW. PERSONS INSURED BY SURPLUS LINES CARRIERS DO NOT HAVE THE PROTECTION OF THE FLORIDA INSURANCE GUARANTY ACT TO THE EXTENT OF ANY RIGHT OF RECOVERY FOR THE OBLIGATION OF AN INSOLVENT UNLICENSED INSURER. SURPLUS LINES INSURERS' POLICY RATES AND FORMS ARE NOT APPROVED BY ANY FLORIDA REGULATORY AGENCY EXHIBIT 1 8 mentee — 800 Atlantic Avarue 21" Fl | Boston | Massachusetts | 02210 | Phone 617-532:7300 | Fax 817-832-734.insured’s Name Harbor 29 Condominium Ass. Inc, Policy # PB7480915 UMR # ~"itiayare Policies Only [Policy Dates From [05/02/2015 To [05/02/2016 ] Surplus Lines Agents Name James Gallaudet Surplus Lines Agents Address 1815 Griffin Rd, Suite 300 Dania Beach FL 39004 Surplus Lines Agents License # A092313 Producing Agent's Name DISCOVERY ENTERPRISES INS AGCY - MARIA DIAZ Producing Agent's Physical Address 10733 N.W. 58TH ST. , DORAL, FL 33178 “THIS INSURANCE IS ISSUED PURSUANT TO THE FLORIDA SURPLUS LINES LAW. PERSONS INSURED BY SURPLUS LINES CARRIERS DO NOT HAVE THE PROTECTION OF THE FLORIDA INSURANCE GUARANTY ACT TO THE EXTENT OF ANY RIGHT OF RECOVERY FOR THE OBLIGATION OF AN INSOLVENT UNLICENSED INSURER.” “SURPLUS LINES INSURERS’ POLICY RATES AND FORMS ARE NOT APPROVED BY ANY FLORIDA REGULATORY AGENCY.” PolicyPremium $3,370.00 Policy Fee $35.00, Inspection Fee $0.00 Provider Fee 0.00 Tax $170.25 Service Fee $5.96 FHCF Assessment $0.00 Citizen's Assessment $34.05 EMPA Surcharge $4.00 Surplus Lines Agent’s Countersignature domes Gallaudet A0G2313 Cr] “THIS POLICY CONTAINS A SEPARATE DEDUCTIBLE FOR HURRICANE OR WIND LOSSES, WHICH MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU.” DI “THIS POLICY CONTAINS A CO-PAY PROVISION THAT MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU.”vy ASPEN ASPEN SPECIALTY Commercial Property Coverage Part Declaratlons ASPPROG7 08/07 POLICY NUMBER: PB7480915 EFFECTIVE DATE: 05/02/15 NAMED INSURED: Harbor 29 Condominium Assos Inc RENEWAL OF: DESCRIPTION OF PREMISES Prem.No. Sidg.No, |. Location Addrans cee . a to. 4 TIO NE 29" 8 Mam, FL 30197 ~ Regitentisl Conds ~ FR Consinmtion COVERAGES PROVIDED (insurance at the described premises applies only for coverages for which e limit insurance is shown) “Coins Prom. No. Bldg.No, Coverage . Limit of Insurance. Cavacod Causes of Loss % —_Retes 1 1 Buiing 4.872.000 * Special Exe Fid, 2G 80 inc. ats toe.” on inet ek, *H Extra Expense Coverage, Limits on Loss Payment OPTIONAL COVERAGES (Applicable orily when entries are made in the schedule below) Aatteed Vatuo Replscoment Gast (X} Prem.No. Bldg. No. “Exp sie” Gaverage Anant Balding Barsonat Inckislag Property. “Stock” “Monthly Limit “Max, Period “Ext. Period indemnity (Fraction) OF indemnity (X)_—_tademnily (Days) nftation Guard Percen ~ Personal Proper ~ *Appiies to Business income Only MORTGAGE HOLDER(S) Prem.No. Bldg. No. Morlgage Holder Namo Malling Address DEDUCTIBLE: $ 5,000 AOP Deductible Excluding Wind or Hall Per Form CP1054 FORMS AND ENDORSEMENTS Forms and Endorsements applying to this Coverage Part and made pant of this policy at time of issue: Refer to ASPPRO06 07/07 SCHEDULE OF FORMS AND ENDORSEMENTS: THESE DECLARATIONS ARE PART OF THE POLICY DECLARATIONS CONTAINING THE NAME OF THE INSURED AND THE POLICY PERIOD. includes copynghted matenal of Insurance Services Ollice, Inc., with Ns permission 600 Atlantic Avenue 21” F] | Boston | Massachusetts | 02210 | Phone 617-532-7300 | Fax 617-532-7314