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Filing # 115586508 E-Filed 10/26/2020 11:51:33 AM
IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: COCE-20-007173
ALL REPAIR & RESTORATION LLC
DBA ALL DRY USA (A/A/O LISA ANN.
CUCCH),
PLAINTIFF,
HERITAGE PROPERTY & CASUALTY
INSURANCE COMPANY,
DEFENDANT.
/
PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES
Comes now the Plaintiff, ALL REPAIR & RESTORATION LLC DBA ALL DRY USA
(A/A/O LISA ANN CUCCHI) (“Plaintiff”), by and through undersigned counsel, and pursuant
to Fla. R. Civ. P. 1.140(b) and (f), hereby files this Motion to Strike Defendant’s, HERITAGE
PROPERTY & CASUALTY INSURANCE COMPANY, Affirmative Defenses, and in support
thereof states as follows:
1 Lisa Ann Cucchi (the “Insured”) was the owner of the property located at 5744 S
Plum Bay Pkwy., Fort Luaderdale, FL 33321 (the “Property”) when the Property suffered
damage as a result of Hurricane Irma which caused water damage (the “Loss”). Defendant
acknowledged the loss with claim number HP 187790 (the “Claim”).
2. The Insured assigned to Plaintiff post-loss insurance benefits for work performed
in relation to the Claim, and thus Plaintiff performed necessary and reasonable services. Plaintiff
#** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/26/2020 11:51:33 AM.**#*
provided to Defendant an estimate in the amount of $19,149.57 (the “Estimate”), the reasonable
cost for the services. Defendant refuses to pay for Plaintiff's services, and thus Plaintiff filed suit
for breach of contract.
3 Defendant filed its answer and affirmative defenses on or around June 5, 2020.
See Defendant’s Answer and Affirmative Defenses attached as Exhibit “A.”
4 Defendant’s affirmative defenses are improperly pled, and should thus be
stricken.
MEMORANDUM OF LAW
I. In Gatt v. Keyes Corp., “[t]he matters raised by [defendant] Gatt’s [second]
affirmative defense simply denied the facts contained in the broker’s
complaint and did not raise any new matters to defeat the complaint. As
such, the trial court acted properly in striking the second affirmative
defense.”*
5 In Gatt v. Keyes Corp., a 1984 case, the Third District Court of Appeals reversed
the trial court’s summary judgment ruling in favor of plaintiff Keyes Corp. and against defendant
Gatt, but also held that defendant Gatt’s second affirmative defense was properly stricken by the
trial court. “The matters raised by Gatt’s [second] affirmative defense simply denied the
facts contained in the broker’s complaint and did not raise any new matters to defeat the
complaint. As such, the trial court acted properly in striking the second affirmative
defense.” (Emphasis added.) The Third District Court of Appeals explicitly relied upon the
rulings in Wiggins v. Portmay Corp. and Tropical Exterminators, Inc. v. Murray?
6. In Gatt, defendant Gatt hired plaintiff Keyes Corp., a broker, to arrange the sale of
defendant Gatt’s property. When a prospective purchaser refused to move forward with an
' Gatt v. Keyes Corp., 446 So. 2d 211, 212 (Fla. 3d DCA 1984) (citing Wiggins v. Portmay
Corp., 430 So. 2d 541 (Fla. Ist DCA 1983)); Tropical Exterminators v. Murray, 171 So. 2d 432
(Fla. 2d DCA 1965).
2 Id.
agreement to purchase defendant Gatt’s property, plaintiff Keyes filed an action to obtain its
broker’s commission, but defendant Gatt filed a general denial and two affirmative defenses. The
second affirmative defense improperly “argued that the purchaser was not ready, willing and able
a3
because he chose to avoid the contract.
7 In Tropical Exterminators v. Murray, a 1965 case, the appeals court reversed a
summary judgment against defendant Tropical Exterminators for personal injury, arising out of a
car accident involving an employee of Tropical Exterminators.‘ The appeals court agreed with
defendant Tropical Exterminators’ argument that “sudden unforeseeable loss of consciousness is
not an affirmative defense,” because “there is no negligence when an accident is caused by a
sudden unforeseeable loss of consciousness.” The trial court erroneously refused to hear the
defense when deciding upon plaintiff Murray’s motion for summary judgment, because
defendant Tropical Exterminators only raised it as a denial to negligence, not as an affirmative
defense.
8 Affirmative defenses “don’t deny the facts of the opposing party’s claim, but they
oS
raise some new matter which defeats the opposite party’s otherwise apparently valid claim.
9. In Wiggins v. Portmay Corp., a 1983 case, the appeals court reversed a summary
judgment against defendant Wiggins in a suit for repayment of a debt.° The appeals court agreed
with defendant Wiggins’ argument that Wiggins did not raise any affirmative defenses when he
argued in an affidavit that the money paid to him by plaintiff Portmay was an advance for a
property transaction and a payment for services rendered.’ The trial court erroneously refused to
3 Gat, 446 So. 2d at 212.
47; ropical Exterminators, 171 So. 2d at 432.
° Id. at 433.
° Wiggins v. Portmay Corp., 430 So. 2d 541 (Fla. Ist DCA 1983).
7 Id. at 542.
hear the defense when deciding upon plaintiff Portmay’s motion for summary judgment because
defendant Wiggins did not plead them as affirmative defenses.
10. “Affirmative defenses do not simply deny the facts of the opposing party’s claim.
They raise some new matter which defeats an otherwise apparently valid claim. .. [T]he
complaint alleged that Wiggins was indebted to Portmay. Wiggins denied any indebtedness in
both his answer and his affidavit. The matters raised in [defendant] Wiggins’ affidavit simply
denied the facts contained in Portmay’s complaint and did not raise any new matters to defeat
8
Portmay’s claim.
11. “An ‘affirmative defense’ is any defense that assumes the complaint or charges to
be correct but raises other facts that, if true, would establish a valid excuse or justification or a
right to engage in the conduct in question. An affirmative defense does not concer itself with
dD
the elements [] of the offense at all; it concedes them.
IL. Affirmative defenses which are “conclusory in their content, [| and lacking in
any real allegations of ultimate fact demonstratin: g a good defense to the
soll
complaint,” are “insufficient as a matter of law. “Certainty is required
when pleading defenses, and pleading conclusions of law unsupported by
allegations of ultimate fact insufficient.”"!
12. In Cady v. Chevy Chase Savings and Loan, Inc., a 1988 foreclosure suit, the court
held that the defendant homeowner’s affirmative defenses were improper and legally
insufficient. “The negligence allegations are bare conclusions failing to set forth the act or
omission causing the damage complained of,” and “[t]he allegation that the loan was illegal is
8 id.
° Kassem v. Martin, 2017 WL 176941, n.2 (M.D. Fla. 2017) (quoting State v. Cohen, 568 So. 2d
49, 51-52 (Fla. 1990)) (civil lawsuit); Long v. Baker, 37 F. Supp. 3d 1243, n.4 (M.D. Fla. 2014)
(quoting Cohen, 568 So. 2d at 51-52) (civil lawsuit).
Morgan v. Bank of New York Mellon, 200 So. 3d 792, 796 (Fla. Ist DCA 2016) (quoting Cady
vy. Chevy Chase Savings and Loan, Inc., 528 So. 2d 136, 137-38 (Fla. 4th DCA 1988)).
u Jaffer v. Chase Home Finance, LLC, 155 So. 3d 1199, 1206 (Fla. 4th DCA 2015) (quoting
Cady, 528 So. 2d at 138).
conclusory and, without allegations of ultimate fact showing the illegality, does not constitute a
sufficient defense.” “Finally, allegations that certain representations were false without
designating which ones were false and who made them simply does not constitute an acceptable
ol
pleading of a defense based on false misrepresentation.
13. “Certainty is required when pleading defenses, and pleading conclusions of
law unsupported by allegations of ultimate fact is legally insufficient.”"*
14. “{T]he burden of proving each element of an affirmative defense rests on the
ool 5
party that asserts the defense.
DEFENDANT’S AFFIRMATIVE DEFENSES
15. Defendant’s first affirmative defense states that “The Plaintiffs claim is barred
and/or limited because the Plaintiff has already received coverage pursuant to the terms and
conditions of the Policy for the damages associated with the covered loss. As such, there is no
further liability under the Policy for additional payments at this time pursuant to the Policy’s loss
settlement provisions.”
16. Defendant’s first affirmative defense is improper and legally insufficient, because
it merely denies the facts alleged in the Plaintiff's complaint, without raising a new matter which
would defeat an otherwise valid claim.
a. In paragraph 12 of Plaintiffs complaint, Plaintiff alleges that Defendant only
paid $0.00 to Plaintiff.
2 Cady, 528 So. 2d at 138.
13 Td.
14
8 Custer Medical Center v. United Auto. Ins., 62 So. 3d 1086 (Fla. 2010) (citing Dorse v.
Armstrong World Industries, Inc., 513 So. 2d 1265, 1269 n.5 (Fla. 1987)).
5
b. In paragraph 13 of Plaintiff's complaint, Plaintiff alleges that the amount in
controversy is at least $19,149.57.
c. In paragraph 17 of Plaintiffs complaint, Plaintiff alleges that Defendant was
required under the Policy to make payment in the amount of $19,149.57 for
services described in the Estimate.
This affirmative defense is in substance the same as Defendant’s denial in its Answer. Hence, it
should be stricken.
17. Further, Defendant’s first affirmative defense is improper and legally insufficient,
because it is conclusory in its content, and lacking in any real allegations of ultimate fact.
Specifically, Defendant fails to support its allegation that Plaintiff received payment specifically
for its shrink-wrap services.
18. Defendant’s second affirmative defense states that “The Plaintiff's claim is barred
and/or limited because of the prior payment(s) made to the Plaintiffs. In the event an award of
damages is entered, Defendant is entitled to a set off in an amount equal to the prior payment(s)
already made.”
19. Defendant’s second affirmative defense is improper and legally insufficient,
because it merely denies the facts alleged in the Plaintiff's complaint, without raising a new
matter which would defeat an otherwise valid claim.
a. In paragraph 12 of Plaintiff's complaint, Plaintiff alleges that Defendant only
paid $0.00 to Plaintiff.
b. In paragraph 13 of Plaintiff's complaint, Plaintiff alleges that the amount in
controversy is at least $19,149.57.
c. In paragraph 17 of Plaintiffs complaint, Plaintiff alleges that Defendant was
required under the Policy to make payment in the amount of $19,149.57 for
services described in the Estimate.
This affirmative defense is in substance the same as Defendant’s denial in its Answer. Hence, it
should be stricken.
20. Further, Defendant’s second affirmative defense is improper and legally
insufficient, because it is conclusory in its content, and lacking in any real allegations of ultimate
fact. Specifically, Defendant fails to support its allegation that Plaintiff received payment
specifically for its shrink-wrap services.
21. Defendant’s third affirmative defense states that “Plaintiff has been paid in full for
any and all reasonable and related services and/or damages for the subject loss, and therefore
Defendant bears no responsibility for any further coverage/damages/payment.”
22. Defendant’s third affirmative defense is improper and legally insufficient, because
it merely denies the facts alleged in the Plaintiff's complaint, without raising a new matter which
would defeat an otherwise valid claim.
a. In paragraph 12 of Plaintiff's complaint, Plaintiff alleges that Defendant only
paid $0.00 to Plaintiff.
In paragraph 13 of Plaintiff's complaint, Plaintiff alleges that the amount in
controversy is at least $19,149.57.
In paragraph 17 of Plaintiff's complaint, Plaintiff alleges that Defendant was
required under the Policy to make payment in the amount of $19,149.57 for
services described in the Estimate.
This affirmative defense is in substance the same as Defendant’s denial in its Answer. Hence, it
should be stricken.
23. Further, Defendant’s third affirmative defense is improper and legally
insufficient, because it is conclusory in its content, and lacking in any real allegations of ultimate
fact. Specifically, Defendant fails to support its allegation that Plaintiff received payment
specifically for its shrink-wrap services.
24. Defendant’s fourth affirmative defense states that “Some or all of the services
provided by Plaintiff are not as a result of the subject loss, and/or the scope/damages are
exaggerated/unnecessary/unreasonable/not covered, and therefore Defendant is not responsible
to indemnify for some and/or all of said damages.”
25. Defendant’s fourth affirmative defense is improper and legally insufficient,
because it merely denies the facts alleged in the Plaintiff's complaint, without raising a new
matter which would defeat an otherwise valid claim.
a. In paragraph 14 of Plaintiffs complaint, Plaintiff alleges that there is coverage
under the Policy for the Loss.
In paragraph 15 of Plaintiff's complaint, Plaintiff alleges that Defendant was
tequired to make payment because the Loss occurred.
In paragraph 16 of Plaintiff's complaint, Plaintiff alleges that There is
coverage under the Policy for Plaintiff's services.
In paragraph 17 of Plaintiff's complaint, Plaintiff alleges that Defendant was
required under the Policy to make payment in the amount of $19,149.57 for
services described in the Estimate.
This affirmative defense is in substance the same as Defendant’s denial in its Answer. Hence, it
should be stricken.
26. Further, Defendant’s fourth affirmative defense is improper and_ legally
insufficient, because it is conclusory in its content, and lacking in any real allegations of ultimate
fact. Specifically, Defendant fails to raise facts to support its allegation that Plaintiff's services
were not as a result of the subject loss, and/or the scope/damages are
exaggerated/unnecessary/unreasonable/not covered
WHEREFORE, Plaintiff respectfully requests that this Court grant Plaintiff's Motion to
Strike Defendant’s Affirmative Defenses, enter into an order striking Defendant’s Affirmative
Defenses, and grant any other relief that is just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 26, 2020 a true and correct copy of the foregoing
has been furnished via E-service to: Ashely J. Arends, Esq., aarends@heritagepci.com;
Ipollard@heritagepci.com; eservice@heritagepci.com.
By: s/ Mordechai L. Breier
Mordechai L. Breier, Esq.
Florida Bar No.: 0088186
Oren Reich, Esq.
Florida Bar No.: 0103371
CONSUMER LAW OFFICE, P.A.
633 NE 167" Street, Suite #725
North Miami Beach, FL 33162
Phone: (305) 940-0924 | Fax: (305) 602-8204
E-service: service@myconsumerlawoffice.com
E-mail: oreich@myconsumerlawoffice.com
EXHIBIT “A”
Filing # 108433614 E-Filed 06/05/2020 09:49:51 AM
IN THE COUNTY COURT OF THE
17™ JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO: COCE-20-007173
ALL REPAIR & RESTORATION LLC
DBA ALL DRY USA (A/A/O LISA ANN.
CUCCHD),
Plaintiff,
vs.
HERITAGE PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
TO PLAINTIFF’S AMENDED COMPLAINT
COMES NOW, the Defendant, HERITAGE PROPERTY AND CASUALTY
INSURANCE COMPANY (“Defendant”), by and through its undersigned Counsel, and hereby
files its answer and affirmative defenses to plaintiffs’ amended complaint, and in support, states
as follows:
1 Admitted for jurisdictional purposes only, otherwise denied.
Without knowledge, therefore, denied.
Admitted.
Admitted for jurisdictional purposes only.
THE STATEMENT OF FACTS
Admitted that the property located at 5744 S Plum Bay Pkwy, Fort Lauderdale, FL.
33321 sustained a loss, some of which was caused by Hurricane Irma; however the
remainder of the loss was not covered, pursuant to the terms, conditions, exclusions, and
endorsements of the policy. All other allegations, inferences, as well as further coverage
are denied.
Admitted only that Defendant assigned claim number HP187790 to the reported loss for
identification purposes, and investigated the loss. Otherwise, denied
Without knowledge, therefore, denied.
Admitted only that Plaintiff had a policy of insurance (Policy Number HOH221670) with
an effective date range of December 17, 2016 through December 17, 2017, subject to its
terms, conditions, exclusions and endorsements. Otherwise denied.
Without knowledge, therefore, denied.
10. Denied.
11 Without knowledge, therefore denied.
12. Denied.
13 Admitted for jurisdictional purposes, otherwise denied.
14. Denied as phrased.
15 Denied as phrased, Defendant has made payment to Plaintiffs and no additional money is
due.
16. Denied as phrased.
17. Denied.
18. Denied as phrased.
19. Denied.
20. Denied.
21 Denied.
22. Denied.
23 Denied
24. Denied.
25 Denied
26. Denied.
27. Without knowledge, therefore, denied.
28. Without knowledge, therefore, denied.
29. Without knowledge, therefore, denied.
30. Without knowledge, therefore, denied.
31 Without knowledge, therefore, denied.
32. Without knowledge, therefore, denied.
COUNT I —- BREACH OF CONTRACT
33 Defendant adopts and incorporates by reference its responses to Paragraphs | through 33
above as if fully stated herein.
34. Denied.
35 Denied.
36. Denied.
37. Denied.
Defendant denies the damages/relief requested in the WHEREFORE clause.
AFFIRMATIVE DEFENSES
First Affirmative Defense — Loss Settlement
The Plaintiff's claim is barred and/or limited because the Plaintiff has already received
coverage pursuant to the terms and conditions of the Policy for the damages associated with the
covered loss. As such, there is no further liability under the Policy for additional payments at
this time pursuant to the Policy’s loss settlement provisions.
Second Affirmative Defense — Set Off
The Plaintiff's claim is barred and/or limited because of the prior payment(s) made to the
Plaintiffs. In the event an award of damages is entered, Defendant is entitled to a set off in an
amount equal to the prior payment(s) already made.
Third Affirmative Defense — Completely Indemnified
Plaintiff has been paid in full for any and all reasonable and related services and/or damages
for the subject loss, and therefore Defendant bears no responsibility for any further
coverage/damages/payment.
Fourth Affirmative Defense — Damages Unrelated to the Loss
Some or all of the services provided by Plaintiff are not as a result of the subject loss, and/or
the scope/damages are exaggerated/unnecessary/unreasonable/not covered, and therefore Defendant
is not responsible to indemnify for some and/or all of said damages.
REQUEST FOR JURY TRIAL
Defendant demands Trial by Jury of all issues so triable as a matter of right.
WHEREFORE the Defendant, HERITAGE PROPERTY & CASUALTY INSURANCE
COMPANY, seeks entry of judgment in its favor, and for such other relief as this Court deems
mete. At the time of this Answer to the Complaint, Defendant did not know which additional
affirmative defenses, if any, may apply. Rather than waive the same, Defendant reserves the right
to amend this Answer to assert additional affirmative defense which may be revealed through
discovery.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via
electronic mail to Mordechai L. Breier, Esq. and Oren Reich, Esq., Consumer Law Office, P.A.,
633 NE 167% Street, Suite 225, North = Miami Beach, FL 33162;
oreich@myconsumerlawoffice.com; service@myconsumerlawoffice.com:_ on this 5" day of
June 2020, pursuant to Rule 2.516 of the Florida Rules of Judicial Administration.
COUNSEL FOR HERITAGE PROPERTY
& CASUALTY INSURANCE COMPANY
1571 Sawgrass Corporate Parkway, Suite 400
Sunrise, FL 33323
Office: (954) 315-1450 ext. 7585
By:_/s/ Ashley Jaye Arends
ASHLEY JAYE ARENDS, ESQUIRE
Florida Bar No.: 060782
arends@heritagepci.com
For service of process, please also include:
Ipollard. Jheritagepci.com;
service@heritagepci.com
Preview
Filing # 115586508 E-Filed 10/26/2020 11:51:33 AM IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: COCE-20-007173 ALL REPAIR & RESTORATION LLC DBA ALL DRY USA (A/A/O LISA ANN. CUCCH), PLAINTIFF, HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, DEFENDANT. / PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES Comes now the Plaintiff, ALL REPAIR & RESTORATION LLC DBA ALL DRY USA (A/A/O LISA ANN CUCCHI) (“Plaintiff”), by and through undersigned counsel, and pursuant to Fla. R. Civ. P. 1.140(b) and (f), hereby files this Motion to Strike Defendant’s, HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, Affirmative Defenses, and in support thereof states as follows: 1 Lisa Ann Cucchi (the “Insured”) was the owner of the property located at 5744 S Plum Bay Pkwy., Fort Luaderdale, FL 33321 (the “Property”) when the Property suffered damage as a result of Hurricane Irma which caused water damage (the “Loss”). Defendant acknowledged the loss with claim number HP 187790 (the “Claim”). 2. The Insured assigned to Plaintiff post-loss insurance benefits for work performed in relation to the Claim, and thus Plaintiff performed necessary and reasonable services. Plaintiff #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/26/2020 11:51:33 AM.**#* provided to Defendant an estimate in the amount of $19,149.57 (the “Estimate”), the reasonable cost for the services. Defendant refuses to pay for Plaintiff's services, and thus Plaintiff filed suit for breach of contract. 3 Defendant filed its answer and affirmative defenses on or around June 5, 2020. See Defendant’s Answer and Affirmative Defenses attached as Exhibit “A.” 4 Defendant’s affirmative defenses are improperly pled, and should thus be stricken. MEMORANDUM OF LAW I. In Gatt v. Keyes Corp., “[t]he matters raised by [defendant] Gatt’s [second] affirmative defense simply denied the facts contained in the broker’s complaint and did not raise any new matters to defeat the complaint. As such, the trial court acted properly in striking the second affirmative defense.”* 5 In Gatt v. Keyes Corp., a 1984 case, the Third District Court of Appeals reversed the trial court’s summary judgment ruling in favor of plaintiff Keyes Corp. and against defendant Gatt, but also held that defendant Gatt’s second affirmative defense was properly stricken by the trial court. “The matters raised by Gatt’s [second] affirmative defense simply denied the facts contained in the broker’s complaint and did not raise any new matters to defeat the complaint. As such, the trial court acted properly in striking the second affirmative defense.” (Emphasis added.) The Third District Court of Appeals explicitly relied upon the rulings in Wiggins v. Portmay Corp. and Tropical Exterminators, Inc. v. Murray? 6. In Gatt, defendant Gatt hired plaintiff Keyes Corp., a broker, to arrange the sale of defendant Gatt’s property. When a prospective purchaser refused to move forward with an ' Gatt v. Keyes Corp., 446 So. 2d 211, 212 (Fla. 3d DCA 1984) (citing Wiggins v. Portmay Corp., 430 So. 2d 541 (Fla. Ist DCA 1983)); Tropical Exterminators v. Murray, 171 So. 2d 432 (Fla. 2d DCA 1965). 2 Id. agreement to purchase defendant Gatt’s property, plaintiff Keyes filed an action to obtain its broker’s commission, but defendant Gatt filed a general denial and two affirmative defenses. The second affirmative defense improperly “argued that the purchaser was not ready, willing and able a3 because he chose to avoid the contract. 7 In Tropical Exterminators v. Murray, a 1965 case, the appeals court reversed a summary judgment against defendant Tropical Exterminators for personal injury, arising out of a car accident involving an employee of Tropical Exterminators.‘ The appeals court agreed with defendant Tropical Exterminators’ argument that “sudden unforeseeable loss of consciousness is not an affirmative defense,” because “there is no negligence when an accident is caused by a sudden unforeseeable loss of consciousness.” The trial court erroneously refused to hear the defense when deciding upon plaintiff Murray’s motion for summary judgment, because defendant Tropical Exterminators only raised it as a denial to negligence, not as an affirmative defense. 8 Affirmative defenses “don’t deny the facts of the opposing party’s claim, but they oS raise some new matter which defeats the opposite party’s otherwise apparently valid claim. 9. In Wiggins v. Portmay Corp., a 1983 case, the appeals court reversed a summary judgment against defendant Wiggins in a suit for repayment of a debt.° The appeals court agreed with defendant Wiggins’ argument that Wiggins did not raise any affirmative defenses when he argued in an affidavit that the money paid to him by plaintiff Portmay was an advance for a property transaction and a payment for services rendered.’ The trial court erroneously refused to 3 Gat, 446 So. 2d at 212. 47; ropical Exterminators, 171 So. 2d at 432. ° Id. at 433. ° Wiggins v. Portmay Corp., 430 So. 2d 541 (Fla. Ist DCA 1983). 7 Id. at 542. hear the defense when deciding upon plaintiff Portmay’s motion for summary judgment because defendant Wiggins did not plead them as affirmative defenses. 10. “Affirmative defenses do not simply deny the facts of the opposing party’s claim. They raise some new matter which defeats an otherwise apparently valid claim. .. [T]he complaint alleged that Wiggins was indebted to Portmay. Wiggins denied any indebtedness in both his answer and his affidavit. The matters raised in [defendant] Wiggins’ affidavit simply denied the facts contained in Portmay’s complaint and did not raise any new matters to defeat 8 Portmay’s claim. 11. “An ‘affirmative defense’ is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question. An affirmative defense does not concer itself with dD the elements [] of the offense at all; it concedes them. IL. Affirmative defenses which are “conclusory in their content, [| and lacking in any real allegations of ultimate fact demonstratin: g a good defense to the soll complaint,” are “insufficient as a matter of law. “Certainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact insufficient.”"! 12. In Cady v. Chevy Chase Savings and Loan, Inc., a 1988 foreclosure suit, the court held that the defendant homeowner’s affirmative defenses were improper and legally insufficient. “The negligence allegations are bare conclusions failing to set forth the act or omission causing the damage complained of,” and “[t]he allegation that the loan was illegal is 8 id. ° Kassem v. Martin, 2017 WL 176941, n.2 (M.D. Fla. 2017) (quoting State v. Cohen, 568 So. 2d 49, 51-52 (Fla. 1990)) (civil lawsuit); Long v. Baker, 37 F. Supp. 3d 1243, n.4 (M.D. Fla. 2014) (quoting Cohen, 568 So. 2d at 51-52) (civil lawsuit). Morgan v. Bank of New York Mellon, 200 So. 3d 792, 796 (Fla. Ist DCA 2016) (quoting Cady vy. Chevy Chase Savings and Loan, Inc., 528 So. 2d 136, 137-38 (Fla. 4th DCA 1988)). u Jaffer v. Chase Home Finance, LLC, 155 So. 3d 1199, 1206 (Fla. 4th DCA 2015) (quoting Cady, 528 So. 2d at 138). conclusory and, without allegations of ultimate fact showing the illegality, does not constitute a sufficient defense.” “Finally, allegations that certain representations were false without designating which ones were false and who made them simply does not constitute an acceptable ol pleading of a defense based on false misrepresentation. 13. “Certainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.”"* 14. “{T]he burden of proving each element of an affirmative defense rests on the ool 5 party that asserts the defense. DEFENDANT’S AFFIRMATIVE DEFENSES 15. Defendant’s first affirmative defense states that “The Plaintiffs claim is barred and/or limited because the Plaintiff has already received coverage pursuant to the terms and conditions of the Policy for the damages associated with the covered loss. As such, there is no further liability under the Policy for additional payments at this time pursuant to the Policy’s loss settlement provisions.” 16. Defendant’s first affirmative defense is improper and legally insufficient, because it merely denies the facts alleged in the Plaintiff's complaint, without raising a new matter which would defeat an otherwise valid claim. a. In paragraph 12 of Plaintiffs complaint, Plaintiff alleges that Defendant only paid $0.00 to Plaintiff. 2 Cady, 528 So. 2d at 138. 13 Td. 14 8 Custer Medical Center v. United Auto. Ins., 62 So. 3d 1086 (Fla. 2010) (citing Dorse v. Armstrong World Industries, Inc., 513 So. 2d 1265, 1269 n.5 (Fla. 1987)). 5 b. In paragraph 13 of Plaintiff's complaint, Plaintiff alleges that the amount in controversy is at least $19,149.57. c. In paragraph 17 of Plaintiffs complaint, Plaintiff alleges that Defendant was required under the Policy to make payment in the amount of $19,149.57 for services described in the Estimate. This affirmative defense is in substance the same as Defendant’s denial in its Answer. Hence, it should be stricken. 17. Further, Defendant’s first affirmative defense is improper and legally insufficient, because it is conclusory in its content, and lacking in any real allegations of ultimate fact. Specifically, Defendant fails to support its allegation that Plaintiff received payment specifically for its shrink-wrap services. 18. Defendant’s second affirmative defense states that “The Plaintiff's claim is barred and/or limited because of the prior payment(s) made to the Plaintiffs. In the event an award of damages is entered, Defendant is entitled to a set off in an amount equal to the prior payment(s) already made.” 19. Defendant’s second affirmative defense is improper and legally insufficient, because it merely denies the facts alleged in the Plaintiff's complaint, without raising a new matter which would defeat an otherwise valid claim. a. In paragraph 12 of Plaintiff's complaint, Plaintiff alleges that Defendant only paid $0.00 to Plaintiff. b. In paragraph 13 of Plaintiff's complaint, Plaintiff alleges that the amount in controversy is at least $19,149.57. c. In paragraph 17 of Plaintiffs complaint, Plaintiff alleges that Defendant was required under the Policy to make payment in the amount of $19,149.57 for services described in the Estimate. This affirmative defense is in substance the same as Defendant’s denial in its Answer. Hence, it should be stricken. 20. Further, Defendant’s second affirmative defense is improper and legally insufficient, because it is conclusory in its content, and lacking in any real allegations of ultimate fact. Specifically, Defendant fails to support its allegation that Plaintiff received payment specifically for its shrink-wrap services. 21. Defendant’s third affirmative defense states that “Plaintiff has been paid in full for any and all reasonable and related services and/or damages for the subject loss, and therefore Defendant bears no responsibility for any further coverage/damages/payment.” 22. Defendant’s third affirmative defense is improper and legally insufficient, because it merely denies the facts alleged in the Plaintiff's complaint, without raising a new matter which would defeat an otherwise valid claim. a. In paragraph 12 of Plaintiff's complaint, Plaintiff alleges that Defendant only paid $0.00 to Plaintiff. In paragraph 13 of Plaintiff's complaint, Plaintiff alleges that the amount in controversy is at least $19,149.57. In paragraph 17 of Plaintiff's complaint, Plaintiff alleges that Defendant was required under the Policy to make payment in the amount of $19,149.57 for services described in the Estimate. This affirmative defense is in substance the same as Defendant’s denial in its Answer. Hence, it should be stricken. 23. Further, Defendant’s third affirmative defense is improper and legally insufficient, because it is conclusory in its content, and lacking in any real allegations of ultimate fact. Specifically, Defendant fails to support its allegation that Plaintiff received payment specifically for its shrink-wrap services. 24. Defendant’s fourth affirmative defense states that “Some or all of the services provided by Plaintiff are not as a result of the subject loss, and/or the scope/damages are exaggerated/unnecessary/unreasonable/not covered, and therefore Defendant is not responsible to indemnify for some and/or all of said damages.” 25. Defendant’s fourth affirmative defense is improper and legally insufficient, because it merely denies the facts alleged in the Plaintiff's complaint, without raising a new matter which would defeat an otherwise valid claim. a. In paragraph 14 of Plaintiffs complaint, Plaintiff alleges that there is coverage under the Policy for the Loss. In paragraph 15 of Plaintiff's complaint, Plaintiff alleges that Defendant was tequired to make payment because the Loss occurred. In paragraph 16 of Plaintiff's complaint, Plaintiff alleges that There is coverage under the Policy for Plaintiff's services. In paragraph 17 of Plaintiff's complaint, Plaintiff alleges that Defendant was required under the Policy to make payment in the amount of $19,149.57 for services described in the Estimate. This affirmative defense is in substance the same as Defendant’s denial in its Answer. Hence, it should be stricken. 26. Further, Defendant’s fourth affirmative defense is improper and_ legally insufficient, because it is conclusory in its content, and lacking in any real allegations of ultimate fact. Specifically, Defendant fails to raise facts to support its allegation that Plaintiff's services were not as a result of the subject loss, and/or the scope/damages are exaggerated/unnecessary/unreasonable/not covered WHEREFORE, Plaintiff respectfully requests that this Court grant Plaintiff's Motion to Strike Defendant’s Affirmative Defenses, enter into an order striking Defendant’s Affirmative Defenses, and grant any other relief that is just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 26, 2020 a true and correct copy of the foregoing has been furnished via E-service to: Ashely J. Arends, Esq., aarends@heritagepci.com; Ipollard@heritagepci.com; eservice@heritagepci.com. By: s/ Mordechai L. Breier Mordechai L. Breier, Esq. Florida Bar No.: 0088186 Oren Reich, Esq. Florida Bar No.: 0103371 CONSUMER LAW OFFICE, P.A. 633 NE 167" Street, Suite #725 North Miami Beach, FL 33162 Phone: (305) 940-0924 | Fax: (305) 602-8204 E-service: service@myconsumerlawoffice.com E-mail: oreich@myconsumerlawoffice.com EXHIBIT “A” Filing # 108433614 E-Filed 06/05/2020 09:49:51 AM IN THE COUNTY COURT OF THE 17™ JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO: COCE-20-007173 ALL REPAIR & RESTORATION LLC DBA ALL DRY USA (A/A/O LISA ANN. CUCCHD), Plaintiff, vs. HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. / DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT COMES NOW, the Defendant, HERITAGE PROPERTY AND CASUALTY INSURANCE COMPANY (“Defendant”), by and through its undersigned Counsel, and hereby files its answer and affirmative defenses to plaintiffs’ amended complaint, and in support, states as follows: 1 Admitted for jurisdictional purposes only, otherwise denied. Without knowledge, therefore, denied. Admitted. Admitted for jurisdictional purposes only. THE STATEMENT OF FACTS Admitted that the property located at 5744 S Plum Bay Pkwy, Fort Lauderdale, FL. 33321 sustained a loss, some of which was caused by Hurricane Irma; however the remainder of the loss was not covered, pursuant to the terms, conditions, exclusions, and endorsements of the policy. All other allegations, inferences, as well as further coverage are denied. Admitted only that Defendant assigned claim number HP187790 to the reported loss for identification purposes, and investigated the loss. Otherwise, denied Without knowledge, therefore, denied. Admitted only that Plaintiff had a policy of insurance (Policy Number HOH221670) with an effective date range of December 17, 2016 through December 17, 2017, subject to its terms, conditions, exclusions and endorsements. Otherwise denied. Without knowledge, therefore, denied. 10. Denied. 11 Without knowledge, therefore denied. 12. Denied. 13 Admitted for jurisdictional purposes, otherwise denied. 14. Denied as phrased. 15 Denied as phrased, Defendant has made payment to Plaintiffs and no additional money is due. 16. Denied as phrased. 17. Denied. 18. Denied as phrased. 19. Denied. 20. Denied. 21 Denied. 22. Denied. 23 Denied 24. Denied. 25 Denied 26. Denied. 27. Without knowledge, therefore, denied. 28. Without knowledge, therefore, denied. 29. Without knowledge, therefore, denied. 30. Without knowledge, therefore, denied. 31 Without knowledge, therefore, denied. 32. Without knowledge, therefore, denied. COUNT I —- BREACH OF CONTRACT 33 Defendant adopts and incorporates by reference its responses to Paragraphs | through 33 above as if fully stated herein. 34. Denied. 35 Denied. 36. Denied. 37. Denied. Defendant denies the damages/relief requested in the WHEREFORE clause. AFFIRMATIVE DEFENSES First Affirmative Defense — Loss Settlement The Plaintiff's claim is barred and/or limited because the Plaintiff has already received coverage pursuant to the terms and conditions of the Policy for the damages associated with the covered loss. As such, there is no further liability under the Policy for additional payments at this time pursuant to the Policy’s loss settlement provisions. Second Affirmative Defense — Set Off The Plaintiff's claim is barred and/or limited because of the prior payment(s) made to the Plaintiffs. In the event an award of damages is entered, Defendant is entitled to a set off in an amount equal to the prior payment(s) already made. Third Affirmative Defense — Completely Indemnified Plaintiff has been paid in full for any and all reasonable and related services and/or damages for the subject loss, and therefore Defendant bears no responsibility for any further coverage/damages/payment. Fourth Affirmative Defense — Damages Unrelated to the Loss Some or all of the services provided by Plaintiff are not as a result of the subject loss, and/or the scope/damages are exaggerated/unnecessary/unreasonable/not covered, and therefore Defendant is not responsible to indemnify for some and/or all of said damages. REQUEST FOR JURY TRIAL Defendant demands Trial by Jury of all issues so triable as a matter of right. WHEREFORE the Defendant, HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, seeks entry of judgment in its favor, and for such other relief as this Court deems mete. At the time of this Answer to the Complaint, Defendant did not know which additional affirmative defenses, if any, may apply. Rather than waive the same, Defendant reserves the right to amend this Answer to assert additional affirmative defense which may be revealed through discovery. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via electronic mail to Mordechai L. Breier, Esq. and Oren Reich, Esq., Consumer Law Office, P.A., 633 NE 167% Street, Suite 225, North = Miami Beach, FL 33162; oreich@myconsumerlawoffice.com; service@myconsumerlawoffice.com:_ on this 5" day of June 2020, pursuant to Rule 2.516 of the Florida Rules of Judicial Administration. COUNSEL FOR HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY 1571 Sawgrass Corporate Parkway, Suite 400 Sunrise, FL 33323 Office: (954) 315-1450 ext. 7585 By:_/s/ Ashley Jaye Arends ASHLEY JAYE ARENDS, ESQUIRE Florida Bar No.: 060782 arends@heritagepci.com For service of process, please also include: Ipollard. Jheritagepci.com; service@heritagepci.com