On August 31, 2017 a
Motion-Secondary
was filed
involving a dispute between
Great Lakes Glass Llc,
and
Usaa Casualty Insurance Company,
for SMALL CLAIMS 2 - $101 - $500
in the District Court of Pinellas County.
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Filing # 63492549 E-Filed 10/30/2017 02:37:52 PM
IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION
Case No.: 17-006393-SC
GREAT LAKES GLASS, LLC,
as assignee of ADRIAN STRETTON,
Plaintiff,
vs.
USAA CASUALTY INSURANCE COMPANY,
Defendant.
/
REPLY AND MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES
AND/OR MOTION FOR MORE DEFINITE STATEMENT
COMES NOW, the Plaintiff, GREAT LAKES GLASS, LLC, as assignee of ADRIAN
STRETTON, by and through the undersigned attorney, and pursuant to Florida Rules of Civil
Procedure 1.110(d) and 1.140, requests that this Court enter an Order striking the affirmative
defenses or in the alternative, requests entry of an Order requiring the Defendant to provide a
more definite statement regarding
Plaintiff denies
w
the enumerated affirmative defenses,
each and every Affirmative Defense and demands
and as grounds
strict
states:
proof thereof.
Plaintiff further as a reply and avoidance pleads waiver, unclean hands and latches on the part of
Defendant.
MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES
AND/OR MOTION FOR MORE DEFINITE STATEMENT
1. In its Answer, the Defendant alleges and affirmative defense without alleging any legally
sufficient ultimate facts to support such defense.
>M‘*ELECTRONICALLY FILED 10/30/2017 02:37:52 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
2. The affirmative defenses alleged in the Defendant’s Answer fails to provide any reference
to relevant evidence and disregard the general rules for setting forth affirmative defenses
under Florida Rules of Civil Procedure 1.110(d). As the affirmative defense pled by the
Defendant is a mere conclusion of law unsupported by allegation of ultimate fact, that
affirmative defense must be stricken as being legally insufficient.
3. The affirmative defenses do not set out the facts in such a manner as to reasonably inform
the Plaintiff of What defense is being asserted against the Plaintiff to allow the Plaintiff a
fair oppor’umity to address and respond to that affirmative defense. To properly respond
to the affirmative defense as it iscurrently pled would require the Plaintiff to speculate as
to the basis for the affirmative defense.
4. The pleader of an affirmative defense cannot simply state conclusions without alleging
ultimate facts, which would support the defense alleged. In Zito V. Washington Federal
Savings & Loan Assoc. of Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975), m denied,
330 So.2d 23 (Fla. 1976), the 3d DCA held:
[T]he certainty required is that the pleader must
set forth the facts in such a manner as to
reasonably inform its adversary of What is proposed
to be proved or to provide the latter with a fair
oppor’umity to meet it and prepare his evidence.
Ij. At 176.
5. The 4thDCA came to a similar conclusion in Cady V. Cheyy Chase Savings & Loan: Inc.,
528 So.2d 136 (Fla. 4th DCA 1988), wherein the 4thDCA held:
[A] careful analysis of each of the affirmative
defenses reflect they are, on the Whole, conclusory
in their content, and lacking in any real allegations
of ultimate fact demonstrating a good defense to
the complaint.
13. at 137-38.
6. Defendant’s affirmative defenses are vague and ambiguous conclusion of law, which do
not set forth the ultimate facts upon which it is based. The Defendant’s failure to
properly allege the affirmative defense as set out in itsanswer entitle the Plaintiff to an
order striking that affirmative defense or requiring the Defendant to set out sufficient
facts which would support that defense.
7. The allegation contained in defendant’s Affirmative Defenses are merely a denial of the
claim or lack the specificity required by a pleader.
WHEREFORE, Plaintiff, GREAT LAKES GLASS, LLC, as assignee of ADRIAN STRETTON,
respectfully requests that this Court enter an Order striking the Defendant’s affirmative defenses
as being legally insufficient, or in the alternative, respectfully requests that this Court enter an
Order requiring the Defendant to provide the ultimate facts upon which the defense isbased.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
Electronic mail on this 30th day of October, 2017 to: William Kebler Esquire, at service-
Wkebler@bankerlopez.com
Reeder & Nussbaum, P.A.
/s/ Marc B. Nussbaum
Marc B. Nussbaum, Esquire
2201 4th Street North, Suite G
St. Petersburg, FL 33704
72752 1 -28 89
FBN 0492825
Attorney for Plaintiff
attorney@counselorsoflaw.com
Document Filed Date
October 30, 2017
Case Filing Date
August 31, 2017
Category
SMALL CLAIMS 2 - $101 - $500
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Filing # 63492549 E-Filed 10/30/2017 02:37:52 PM IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION Case No.: 17-006393-SC GREAT LAKES GLASS, LLC, as assignee of ADRIAN STRETTON, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. / REPLY AND MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES AND/OR MOTION FOR MORE DEFINITE STATEMENT COMES NOW, the Plaintiff, GREAT LAKES GLASS, LLC, as assignee of ADRIAN STRETTON, by and through the undersigned attorney, and pursuant to Florida Rules of Civil Procedure 1.110(d) and 1.140, requests that this Court enter an Order striking the affirmative defenses or in the alternative, requests entry of an Order requiring the Defendant to provide a more definite statement regarding Plaintiff denies w the enumerated affirmative defenses, each and every Affirmative Defense and demands and as grounds strict states: proof thereof. Plaintiff further as a reply and avoidance pleads waiver, unclean hands and latches on the part of Defendant. MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES AND/OR MOTION FOR MORE DEFINITE STATEMENT 1. In its Answer, the Defendant alleges and affirmative defense without alleging any legally sufficient ultimate facts to support such defense. >M‘*ELECTRONICALLY FILED 10/30/2017 02:37:52 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*** 2. The affirmative defenses alleged in the Defendant’s Answer fails to provide any reference to relevant evidence and disregard the general rules for setting forth affirmative defenses under Florida Rules of Civil Procedure 1.110(d). As the affirmative defense pled by the Defendant is a mere conclusion of law unsupported by allegation of ultimate fact, that affirmative defense must be stricken as being legally insufficient. 3. The affirmative defenses do not set out the facts in such a manner as to reasonably inform the Plaintiff of What defense is being asserted against the Plaintiff to allow the Plaintiff a fair oppor’umity to address and respond to that affirmative defense. To properly respond to the affirmative defense as it iscurrently pled would require the Plaintiff to speculate as to the basis for the affirmative defense. 4. The pleader of an affirmative defense cannot simply state conclusions without alleging ultimate facts, which would support the defense alleged. In Zito V. Washington Federal Savings & Loan Assoc. of Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975), m denied, 330 So.2d 23 (Fla. 1976), the 3d DCA held: [T]he certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform its adversary of What is proposed to be proved or to provide the latter with a fair oppor’umity to meet it and prepare his evidence. Ij. At 176. 5. The 4thDCA came to a similar conclusion in Cady V. Cheyy Chase Savings & Loan: Inc., 528 So.2d 136 (Fla. 4th DCA 1988), wherein the 4thDCA held: [A] careful analysis of each of the affirmative defenses reflect they are, on the Whole, conclusory in their content, and lacking in any real allegations of ultimate fact demonstrating a good defense to the complaint. 13. at 137-38. 6. Defendant’s affirmative defenses are vague and ambiguous conclusion of law, which do not set forth the ultimate facts upon which it is based. The Defendant’s failure to properly allege the affirmative defense as set out in itsanswer entitle the Plaintiff to an order striking that affirmative defense or requiring the Defendant to set out sufficient facts which would support that defense. 7. The allegation contained in defendant’s Affirmative Defenses are merely a denial of the claim or lack the specificity required by a pleader. WHEREFORE, Plaintiff, GREAT LAKES GLASS, LLC, as assignee of ADRIAN STRETTON, respectfully requests that this Court enter an Order striking the Defendant’s affirmative defenses as being legally insufficient, or in the alternative, respectfully requests that this Court enter an Order requiring the Defendant to provide the ultimate facts upon which the defense isbased. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Electronic mail on this 30th day of October, 2017 to: William Kebler Esquire, at service- Wkebler@bankerlopez.com Reeder & Nussbaum, P.A. /s/ Marc B. Nussbaum Marc B. Nussbaum, Esquire 2201 4th Street North, Suite G St. Petersburg, FL 33704 72752 1 -28 89 FBN 0492825 Attorney for Plaintiff attorney@counselorsoflaw.com