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Filing # 101032479 E-Filed 01/02/2020 02:34:40 PM
IN THE CIRCUIT COURT OF THE 147
JUDICIAL CIRCUIT IN AND FOR
BAY COUNTY, FLORIDA
CIVIL DIVISION
RONNIE L. NELSON & MICHELLE D.
NELSON,
Plaintiff,
vs.
Case No. 19-004449 CA
AMERICAN SECURITY INSURANCE
COMPANY, a foreign corporation,
Defendant.
/
ANSWER AND AFFIRMATIVE DEFENSES
Defendant, AMERICAN SECURITY INSURANCE COMPANY (“Defendant”), hereby
files its Answer and Affirmative Defenses to the Complaint filed by Plaintiffs, RONNIE L.
NELSON & MICHELLE D. NELSON (“Plaintiffs”), as follows:
1. Defendant admits the allegations in paragraph 1 for jurisdictional purposes only,
and denies all remaining allegations.
2. Defendant admits that at all times material hereto it was an insurer authorized to do
business in the state of Florida and in Bay County; that it is a Delaware corporation with its
principal place of business in Atlanta, Georgia; and denies the remainder of the allegations in
paragraph 2.
3. Defendant is without knowledge as to the allegations of paragraph 3, and, therefore,
denies same and demands strict proof thereof.
4. Defendant admits that it issued a lender placed certificate to JPMorgan Chase Bank,
N.A., its successors and/or assigns, as the named insured, with respect to the dwelling located at1617 Wyoming Avenue, Lynn Haven, Florida 32444 (the “Property”) with certificate number
MLR21027228231 (the “Certificate”), and that the Certificate is effective July 24, 2018 through
July 24, 2019. To the extent Plaintiffs characterize the terms of the Certificate, Defendant states
that the Certificate, being a written document, is the best evidence of the terms and conditions
therein contained. Defendant denies the remaining allegations in paragraph 4.
5. Defendant admits only that a claim was made on October 19, 2018, with an alleged
loss date of October 10, 2018, with respect to the Property; that it assigned claim number
00102475836 to the alleged loss, and denies the remaining allegations in paragraph 5.
6. Defendant admits only that a claim was made on October 19, 2018, with an alleged
loss date of October 10, 2018, with respect to the Property; that it assigned claim number
00102475836 to the alleged loss, and denies the remaining allegations in paragraph 6.
7. Defendant denies the allegations in paragraph 7 with strict proof demanded thereof.
8. Defendant denies the allegations in paragraph 8 with strict proof demanded thereof.
9. Defendant denies the allegations in paragraph 9 with strict proof demanded thereof.
COUNT I
BREACH OF CONTRACT
Defendant adopts and re-alleges its answers to paragraphs 1 through 9 as though fully set
forth herein.
10. Defendant denies the allegations in paragraph 10 with strict proof demanded
thereof.
11. Defendant denies the allegations in paragraph 11 with strict proof demanded
thereof.
12. Defendant denies the allegations in paragraph 12 with strict proof demanded
thereof.As to Plaintiffs’ prayers for relief, Defendant denies that Plaintiffs are entitled to the
requested relief or any other relief.
COUNT Il
PETITION FOR DECLARATORY JUDGMENT
Defendant adopts and re-alleges its answers to paragraphs | through 9 as though fully set
forth herein.
13. To the extent the allegations in paragraph 13 attempt to characterize the Certificate,
Defendant states that the Certificate, being a written document, is the best evidence of the terms
and conditions therein contained. To the extent paragraph 13 requires a response, Defendant
admits that the Certificate provided certain coverage in connection with the Property pursuant to
its terms and conditions, and denies the remaining allegations in paragraph 13.
14. Defendant denies the allegations in paragraph 14 with strict proof demanded
thereof.
15. Defendant denies the allegations in paragraph 15 with strict proof demanded
thereof.
16. Defendant denies the allegations in paragraph 16 with strict proof demanded
thereof.
17. Defendant denies the allegations in paragraph 17 with strict proof demanded
thereof. Specifically, Plaintiffs previously alleged in paragraph 4 that they are not in possession
of the Certificate; and so this allegation is a logical impossibility.
18. Defendant denies the allegations in paragraph 18 with strict proof demanded
thereof.19. Defendant is without knowledge as to Plaintiffs’ interpretations and beliefs as set
forth in the allegations of paragraph 19, and, therefore, denies these allegations and demands strict
proof thereof. The remaining allegations of paragraph 19 are denied.
20. Defendant is without knowledge as to Plaintiffs’ interpretations and beliefs as set
forth in the allegations of paragraph 20, and, therefore, denies these allegations and demands strict
proof thereof. The remaining allegations of paragraph 20 are denied.
21. Defendant is without knowledge as to Plaintiffs’ interpretations and beliefs as set
forth in the allegations of paragraph 21, and, therefore, denies these allegations and demands strict
proof thereof. The remaining allegations of paragraph 21 are denied.
22. Defendant denies the allegations in paragraph 22 with strict proof demanded
thereof.
23. Defendant denies the allegations in paragraph 23 with strict proof demanded
thereof.
As to Plaintiffs’ prayers for relief, Defendants denies that Plaintiffs are entitled to the
requested relief or any other relief.
DEMAND FOR JURY TRIAL
Defendant admits that Plaintiffs demand a trial by jury of all issues that are triable as a
matter of right.
GENERAL DENIAL
Defendant denies each and every allegation of the Complaint not specifically admitted
herein.AFFIRMATIVE DEFENSES
Defendant states the following affirmative defenses to the Complaint and reserves the right
to amend these defenses as discovery continues or the facts warrant:
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
As Defendant’s first affirmative defense, Plaintiffs’ claim is barred because the alleged loss
is not covered under the Certificate as it resulted from, among other things, (i) wear and tear; (ii)
deterioration; (iii) mold, wet or dry rot; (iv) faulty, inadequate or defective workmanship, repair
and/or maintenance; (v) neglect; (vi) rust or other corrosion; (vii) constant or repeated seepage or
leakage of water over a period of weeks, months or years; and/or (viii) acts of persons.
SECOND AFFIRMATIVE DEFENSE
(Failure of Condition Precedent)
As Defendant’s second affirmative defense, Plaintiffs breached the terms of the Certificate
by failing to perform duties after loss, including but not limited to, (i) protecting the property from
further damage; (ii) making reasonable and necessary repairs required to protect the property; (iii)
keeping an accurate record of repair expenses; (iv) providing documents or records that Defendant
requested; (v) cooperating with the investigation of the claim, and/or (vi) giving immediate notice.
THIRD AFFIRMATIVE DEFENSE
(Mitigation)
As Defendant’s third affirmative defense, Plaintiffs’ claim is barred, in whole or in part,
because Plaintiffs failed to mitigate their alleged damages.FOURTH AFFIRMATIVE DEFENSE
(Payment)
As Defendant’s fourth affirmative defense, Plaintiffs’ claim is barred because Defendant
issued payments in relation to claim numbers 00102475836, and as a result, the claims have been
satisfied through payment in accordance with the terms of the Certificate.
FIFTH AFFIRMATIVE DEFENSE
(Waiver and Estoppel)
As Defendant’s fifth affirmative defense, Plaintiffs’ claim is barred, in whole or in part, by
the doctrine of waiver and estoppel. By accepting the benefit of settlement payments from
Defendant on the claims that are the basis of this action, Plaintiffs waived their rights to future
settlement payments and is also estopped from seeking duplicative damages.
SIXTH AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action — Causation)
As Defendant’s sixth affirmative defense, Plaintiffs’ claims are barred because the
damages they seek are not attributable, in whole or in part, to the alleged loss. Asa result, Plaintiffs
cannot prove that the cause of the alleged damage is attributable to the claim that is the subject of
this action.
NTH AFFIRMATIVE DEFENSE
(Lack of Coverage)
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs’ claimed loss is not
covered by any provision of the Certificate.
EIGHTH AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action - Declaratory Relief)
Plaintiffs cannot assert a cause of action for declaratory relief because they do not, and
cannot, assert that there is any need for the Court’s determination of the existence or nonexistence
of any fact upon which Defendant’s obligations under the Certificate depend. Additionally,Plaintiffs’ claim for declaratory relief is duplicative of Plaintiffs’ breach of contract claim, the
adjudication of which will determine the very same factual and legal issues on which Plaintiffs
seek declaratory relief.
NINTH AFFIRMATIVE DEFENSE
(Concealment and Misrepresentation)
As Defendant’s ninth affirmative defense, Plaintiffs’ claim is barred because Plaintiffs’
misrepresentations of fact regarding the property damage sustained in connection with the
insurance claim negates Plaintiffs’ ability to obtain insurance proceeds under the Certificate.
Plaintiffs intentionally misrepresented material facts about the loss, including, but not limited to
scope of the alleged damage to the property. The Certificate states as follows: “Concealment or
Fraud. We do not provide coverage if you have intentionally concealed or misrepresented any
material fact or circumstance relating to this insurance. We do not provide coverage if you have
acted fraudulently or made false statements relating to this insurance whether before or after loss.”
Accordingly, Plaintiffs’ claim is barred because Plaintiffs is misrepresenting the scope of the
alleged loss.
WHEREFORE, Defendant, AMERICAN SECURITY INSURANCE COMPANY,
having answered the Complaint, respectfully requests that the court enter judgment in Defendant’s
favor and award Defendant its costs associated with this action and such other and further relief as
the Court deems just and proper.
Dated this 2° day of January, 2020.HOLLAND & KNIGHT LLP
Brandon J. Williams, Esq. (Fla. Bar No. 106237)
brandon. williams@hklaw.com
Kalpesh Mehta, Esq. (Fla. Bar No. 121882)
kal.mehta@hklaw.com
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Telephone: 305.374.8500
Facsimile: 305.789.7799
Counsel for: Defendant American Security Ins. Co.
By: s:/Brandon J. Williams
Brandon J. Williams, Esq.
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was filed with The Florida Court’s E-
Filing Portal on January 2, 2020 which will provide electronic service upon the following:
Todd J. Stabinski
STABINSKI & FUNT, P.A.
757 NW 27" Avenue,
Third Floor
Miami, Florida 33125
Telephone: (305) 643-3100
Facsimile: (305) 643-1382
E-mail: ts@stabinskilaw.com
wjohnson@stabinskilaw.com
Counsel for Plaintiffs
S:/ Brandon J. Williams
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Filing # 101032479 E-Filed 01/02/2020 02:34:40 PM IN THE CIRCUIT COURT OF THE 147 JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA CIVIL DIVISION RONNIE L. NELSON & MICHELLE D. NELSON, Plaintiff, vs. Case No. 19-004449 CA AMERICAN SECURITY INSURANCE COMPANY, a foreign corporation, Defendant. / ANSWER AND AFFIRMATIVE DEFENSES Defendant, AMERICAN SECURITY INSURANCE COMPANY (“Defendant”), hereby files its Answer and Affirmative Defenses to the Complaint filed by Plaintiffs, RONNIE L. NELSON & MICHELLE D. NELSON (“Plaintiffs”), as follows: 1. Defendant admits the allegations in paragraph 1 for jurisdictional purposes only, and denies all remaining allegations. 2. Defendant admits that at all times material hereto it was an insurer authorized to do business in the state of Florida and in Bay County; that it is a Delaware corporation with its principal place of business in Atlanta, Georgia; and denies the remainder of the allegations in paragraph 2. 3. Defendant is without knowledge as to the allegations of paragraph 3, and, therefore, denies same and demands strict proof thereof. 4. Defendant admits that it issued a lender placed certificate to JPMorgan Chase Bank, N.A., its successors and/or assigns, as the named insured, with respect to the dwelling located at1617 Wyoming Avenue, Lynn Haven, Florida 32444 (the “Property”) with certificate number MLR21027228231 (the “Certificate”), and that the Certificate is effective July 24, 2018 through July 24, 2019. To the extent Plaintiffs characterize the terms of the Certificate, Defendant states that the Certificate, being a written document, is the best evidence of the terms and conditions therein contained. Defendant denies the remaining allegations in paragraph 4. 5. Defendant admits only that a claim was made on October 19, 2018, with an alleged loss date of October 10, 2018, with respect to the Property; that it assigned claim number 00102475836 to the alleged loss, and denies the remaining allegations in paragraph 5. 6. Defendant admits only that a claim was made on October 19, 2018, with an alleged loss date of October 10, 2018, with respect to the Property; that it assigned claim number 00102475836 to the alleged loss, and denies the remaining allegations in paragraph 6. 7. Defendant denies the allegations in paragraph 7 with strict proof demanded thereof. 8. Defendant denies the allegations in paragraph 8 with strict proof demanded thereof. 9. Defendant denies the allegations in paragraph 9 with strict proof demanded thereof. COUNT I BREACH OF CONTRACT Defendant adopts and re-alleges its answers to paragraphs 1 through 9 as though fully set forth herein. 10. Defendant denies the allegations in paragraph 10 with strict proof demanded thereof. 11. Defendant denies the allegations in paragraph 11 with strict proof demanded thereof. 12. Defendant denies the allegations in paragraph 12 with strict proof demanded thereof.As to Plaintiffs’ prayers for relief, Defendant denies that Plaintiffs are entitled to the requested relief or any other relief. COUNT Il PETITION FOR DECLARATORY JUDGMENT Defendant adopts and re-alleges its answers to paragraphs | through 9 as though fully set forth herein. 13. To the extent the allegations in paragraph 13 attempt to characterize the Certificate, Defendant states that the Certificate, being a written document, is the best evidence of the terms and conditions therein contained. To the extent paragraph 13 requires a response, Defendant admits that the Certificate provided certain coverage in connection with the Property pursuant to its terms and conditions, and denies the remaining allegations in paragraph 13. 14. Defendant denies the allegations in paragraph 14 with strict proof demanded thereof. 15. Defendant denies the allegations in paragraph 15 with strict proof demanded thereof. 16. Defendant denies the allegations in paragraph 16 with strict proof demanded thereof. 17. Defendant denies the allegations in paragraph 17 with strict proof demanded thereof. Specifically, Plaintiffs previously alleged in paragraph 4 that they are not in possession of the Certificate; and so this allegation is a logical impossibility. 18. Defendant denies the allegations in paragraph 18 with strict proof demanded thereof.19. Defendant is without knowledge as to Plaintiffs’ interpretations and beliefs as set forth in the allegations of paragraph 19, and, therefore, denies these allegations and demands strict proof thereof. The remaining allegations of paragraph 19 are denied. 20. Defendant is without knowledge as to Plaintiffs’ interpretations and beliefs as set forth in the allegations of paragraph 20, and, therefore, denies these allegations and demands strict proof thereof. The remaining allegations of paragraph 20 are denied. 21. Defendant is without knowledge as to Plaintiffs’ interpretations and beliefs as set forth in the allegations of paragraph 21, and, therefore, denies these allegations and demands strict proof thereof. The remaining allegations of paragraph 21 are denied. 22. Defendant denies the allegations in paragraph 22 with strict proof demanded thereof. 23. Defendant denies the allegations in paragraph 23 with strict proof demanded thereof. As to Plaintiffs’ prayers for relief, Defendants denies that Plaintiffs are entitled to the requested relief or any other relief. DEMAND FOR JURY TRIAL Defendant admits that Plaintiffs demand a trial by jury of all issues that are triable as a matter of right. GENERAL DENIAL Defendant denies each and every allegation of the Complaint not specifically admitted herein.AFFIRMATIVE DEFENSES Defendant states the following affirmative defenses to the Complaint and reserves the right to amend these defenses as discovery continues or the facts warrant: FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) As Defendant’s first affirmative defense, Plaintiffs’ claim is barred because the alleged loss is not covered under the Certificate as it resulted from, among other things, (i) wear and tear; (ii) deterioration; (iii) mold, wet or dry rot; (iv) faulty, inadequate or defective workmanship, repair and/or maintenance; (v) neglect; (vi) rust or other corrosion; (vii) constant or repeated seepage or leakage of water over a period of weeks, months or years; and/or (viii) acts of persons. SECOND AFFIRMATIVE DEFENSE (Failure of Condition Precedent) As Defendant’s second affirmative defense, Plaintiffs breached the terms of the Certificate by failing to perform duties after loss, including but not limited to, (i) protecting the property from further damage; (ii) making reasonable and necessary repairs required to protect the property; (iii) keeping an accurate record of repair expenses; (iv) providing documents or records that Defendant requested; (v) cooperating with the investigation of the claim, and/or (vi) giving immediate notice. THIRD AFFIRMATIVE DEFENSE (Mitigation) As Defendant’s third affirmative defense, Plaintiffs’ claim is barred, in whole or in part, because Plaintiffs failed to mitigate their alleged damages.FOURTH AFFIRMATIVE DEFENSE (Payment) As Defendant’s fourth affirmative defense, Plaintiffs’ claim is barred because Defendant issued payments in relation to claim numbers 00102475836, and as a result, the claims have been satisfied through payment in accordance with the terms of the Certificate. FIFTH AFFIRMATIVE DEFENSE (Waiver and Estoppel) As Defendant’s fifth affirmative defense, Plaintiffs’ claim is barred, in whole or in part, by the doctrine of waiver and estoppel. By accepting the benefit of settlement payments from Defendant on the claims that are the basis of this action, Plaintiffs waived their rights to future settlement payments and is also estopped from seeking duplicative damages. SIXTH AFFIRMATIVE DEFENSE (Failure to State a Cause of Action — Causation) As Defendant’s sixth affirmative defense, Plaintiffs’ claims are barred because the damages they seek are not attributable, in whole or in part, to the alleged loss. Asa result, Plaintiffs cannot prove that the cause of the alleged damage is attributable to the claim that is the subject of this action. NTH AFFIRMATIVE DEFENSE (Lack of Coverage) Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs’ claimed loss is not covered by any provision of the Certificate. EIGHTH AFFIRMATIVE DEFENSE (Failure to State a Cause of Action - Declaratory Relief) Plaintiffs cannot assert a cause of action for declaratory relief because they do not, and cannot, assert that there is any need for the Court’s determination of the existence or nonexistence of any fact upon which Defendant’s obligations under the Certificate depend. Additionally,Plaintiffs’ claim for declaratory relief is duplicative of Plaintiffs’ breach of contract claim, the adjudication of which will determine the very same factual and legal issues on which Plaintiffs seek declaratory relief. NINTH AFFIRMATIVE DEFENSE (Concealment and Misrepresentation) As Defendant’s ninth affirmative defense, Plaintiffs’ claim is barred because Plaintiffs’ misrepresentations of fact regarding the property damage sustained in connection with the insurance claim negates Plaintiffs’ ability to obtain insurance proceeds under the Certificate. Plaintiffs intentionally misrepresented material facts about the loss, including, but not limited to scope of the alleged damage to the property. The Certificate states as follows: “Concealment or Fraud. We do not provide coverage if you have intentionally concealed or misrepresented any material fact or circumstance relating to this insurance. We do not provide coverage if you have acted fraudulently or made false statements relating to this insurance whether before or after loss.” Accordingly, Plaintiffs’ claim is barred because Plaintiffs is misrepresenting the scope of the alleged loss. WHEREFORE, Defendant, AMERICAN SECURITY INSURANCE COMPANY, having answered the Complaint, respectfully requests that the court enter judgment in Defendant’s favor and award Defendant its costs associated with this action and such other and further relief as the Court deems just and proper. Dated this 2° day of January, 2020.HOLLAND & KNIGHT LLP Brandon J. Williams, Esq. (Fla. Bar No. 106237) brandon. williams@hklaw.com Kalpesh Mehta, Esq. (Fla. Bar No. 121882) kal.mehta@hklaw.com 701 Brickell Avenue, Suite 3300 Miami, Florida 33131 Telephone: 305.374.8500 Facsimile: 305.789.7799 Counsel for: Defendant American Security Ins. Co. By: s:/Brandon J. Williams Brandon J. Williams, Esq. CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was filed with The Florida Court’s E- Filing Portal on January 2, 2020 which will provide electronic service upon the following: Todd J. Stabinski STABINSKI & FUNT, P.A. 757 NW 27" Avenue, Third Floor Miami, Florida 33125 Telephone: (305) 643-3100 Facsimile: (305) 643-1382 E-mail: ts@stabinskilaw.com wjohnson@stabinskilaw.com Counsel for Plaintiffs S:/ Brandon J. Williams