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Filing # 118081428 E-Filed 12/11/2020 02:48:33 PM
IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT
IN AND FOR BAY COUNTY, FLORIDA
JAMES R. SMITH and TESSA SMITH,
Plaintiffs, Case No.: 19004406CA
v.
SECURITY FIRST INSURANCE COMPANY,
Defendant.
/
DEFENDANT’S AMENDED ANSWER AND AFFIRMATIVE
DEFENSES AND DEMAND FOR JURY TRIAL
Defendant, Security First Insurance Company, by and through undersigned
counsel and pursuant to the Florida Rules of Civil Procedure, hereby files its Answer,
Affirmative Defenses and Demand for Jury Trial, and states as follows:
GENERAL ALLEGATIONS
1. Admitted for jurisdictional purposes only; otherwise, denied.
2. Defendant is without knowledge; therefore, denied.
3. Admitted for venue purposes only; otherwise, denied.
4. Admitted that Defendant issued a homeowners’ insurance policy No.
P00225176 to James R. Smith and Tessa Smith for the property located at
7401 W Highway 98, Port St. Joe, FL 32456 with effective dates from April 28,
2018 through April 28, 2019, subject to its terms, conditions, limitations, and
exclusions; otherwise, denied.
5. Admitted that Defendant issued a homeowners’ insurance policy No.
P00225176 to James R. Smith and Tessa Smith for the property located at 7401
W Highway 98,Port St. Joe, FL 32456 with effective dates from April 28, 2018 through April
28, 2019, subject to its terms, conditions, limitations, and exclusions; otherwise,
denied.
6. Admitted that a covered loss occurred for which Plaintiffs have been fully
indemnified and there are no insurance benefits due and owing; otherwise,
denied including any and all inference of liability and damages.
7. Admitted that a covered loss occurred for which Plaintiffs have been fully
indemnified and there are no insurance benefits due and owing; otherwise,
denied including any and all inference of liability and damages.
8. Admitted only that an alleged date of loss of October 10, 2018 was reported on
October 12, 2018; otherwise, denied.
9. Admitted that a covered loss occurred for which Plaintiffs have been fully
indemnified and there are no insurance benefits due and owing; otherwise,
denied including any and all inference of liability and damages.
10.Admitted that a covered loss occurred for which Plaintiff has been fully
indemnified and there are no insurance benefits due and owing; otherwise,
denied including any and all inference of liability and damages.
COUNT 1- BREACH OF CONTRACT
11. Defendant adopts and incorporates by reference its assertions set forth in
paragraphs one (1) through ten (10).
12. Denied.
13. Denied
14. Denied.
Page 215. Denied.
16. Denied.
17. Denied.
18. Denied.
19. Defendant is without knowledge; therefore, denied.
AFFIRMATIVE DEFENSES
The Defendant asserts the following affirmative defenses to Plaintiffs Complaint,
but does not assume a burden of proof on any of the defenses asserted. Defendant
reserves its right to assert other affirmative defenses, withdraw or modify its affirmative
defenses, or otherwise amend this Answer based upon the discovery of additional facts
or evidence. Additionally, these affirmative defenses are pleaded in the alternative, and
do not constitute an admission of liability by Defendant.
First Affi ive Def
Defendant asserts it is entitled to set-off any and all applicable deductibles related
to the claims at issue in this action. Specifically, the subject Policy has a $9,100.00
hurricane deductible.
Second Affirmative Defense
Defendant asserts any right to recover is limited by the terms and conditions of the
subject insurance policy. Specifically, the policy provides as follows:
SECTION I - EXCLUSIONS
Page 31. We do not insure for loss caused directly or indirectly by any of the following.
Such loss is excluded regardless of any other cause or event contributing concurrently or
in any sequence to the loss.
Water Damage 1.c. is deleted and replaced by the following:
c. Water Damage meaning:
(1) Flood, surface water, waves, tidal water, overflow of a body of
water, or spray from any of these, whether or not driven by wind;
CONSEQUENTIAL DAMAGE:
Defendant, SECURITY FIRST INSURANCE COMPANY, by and through its
undersigned counsel, hereby files this Motion to Strike Plaintiffs Request for
Consequential Damages, pursuant to Rule 1.140, Florida Rules of Civil Procedure, and
states as follows:
1. Plaintiff's Complaint alleges a cause of action for breach of contract of an
insurance policy based upon hurricane loss to Plaintiff's property.
2. Plaintiffs Complaint demands “for actual and consequential damages...” See
Complaint.
3. Plaintiff is not entitled to consequential damages, as the subject policy limits
and coverages determine what may be recoverable by Plaintiff.
4. Damages recoverable by a party injured by a breach of contract are those
which would naturally result from the breach and can reasonably be said to
have been contemplated at the time the contract was made. Sharick v. Se.
University of the Health Sciences, Inc., 780 So.2d 136, 139 (Fla. 3d DCA 2000).
Page 45. The request for consequential damages is improper in this first-party property
breach of contract action and the jury should only be permitted to consider the
amount due under the subject insurance policy.
6. Furthermore, this is a first-party property breach of contract case and not a bad
faith case.
7. Absent a finding of bad faith, an insurer’s damages should be limited to the
coverage amount under the insurance policy. Govt Employees Ins. Co.
Robinson, 581 So.2d 230 (Fla. 3d DCA 1991).
8. If a portion of the allegations as to damages is improper, a Motion to Strike
directed to those parts is appropriate. Abstract Co. of Sarasota v. Roberts, 144
So.2d 3, 5 (Fla 2d DCA 1962).
WHEREFORE, SECURITY FIRST INSURANCE COMPANY requests an
Order striking Plaintiff's request for consequential damages, and for any such relief
as this Court deems just and proper.
DEMAND FOR JURY TRIAL
Defendant hereby demands a trial by jury on all issues deemed so triable.
WHEREFORE, Defendant, SECURITY FIRST INSURANCE COMPANY, hereby
demands judgment in its favor and all other relief deemed just by this Court.
PageSCERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 11'" day of December, 2020, a true and
correct copy of the foregoing was filed with the Clerk of Bay County by using the
Florida Courts e-filing Portal, which will send an automatic e-mail message to the
following parties registered with the e-Filing Portal system: Justin Petrie, Esq.,
Kandell, Kandell, & Petrie, Suite 601 — Grand Bay Plaza, 2665 S. Bayshore
Drive, Miami, FL 33133, justin@kkpfirm.com, (305) 858-2220.
By:
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant SECURITY FIRST
INSURANCE COMPANY
4301 West Boy Scout Boulevard
Suite 400
Tampa, Florida 33607
Telephone (813) 864-9348
Facsimile (813) 286-2900
Primary e-mail: Katherine.moran@csklegal.com
Secondary e-mail:
michael.schweitzer@csklegal.com
Katherine L. Moran
Katherine L. Moran
Florida Bar No.: 1018653
Page 6
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Filing # 118081428 E-Filed 12/11/2020 02:48:33 PM IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA JAMES R. SMITH and TESSA SMITH, Plaintiffs, Case No.: 19004406CA v. SECURITY FIRST INSURANCE COMPANY, Defendant. / DEFENDANT’S AMENDED ANSWER AND AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL Defendant, Security First Insurance Company, by and through undersigned counsel and pursuant to the Florida Rules of Civil Procedure, hereby files its Answer, Affirmative Defenses and Demand for Jury Trial, and states as follows: GENERAL ALLEGATIONS 1. Admitted for jurisdictional purposes only; otherwise, denied. 2. Defendant is without knowledge; therefore, denied. 3. Admitted for venue purposes only; otherwise, denied. 4. Admitted that Defendant issued a homeowners’ insurance policy No. P00225176 to James R. Smith and Tessa Smith for the property located at 7401 W Highway 98, Port St. Joe, FL 32456 with effective dates from April 28, 2018 through April 28, 2019, subject to its terms, conditions, limitations, and exclusions; otherwise, denied. 5. Admitted that Defendant issued a homeowners’ insurance policy No. P00225176 to James R. Smith and Tessa Smith for the property located at 7401 W Highway 98,Port St. Joe, FL 32456 with effective dates from April 28, 2018 through April 28, 2019, subject to its terms, conditions, limitations, and exclusions; otherwise, denied. 6. Admitted that a covered loss occurred for which Plaintiffs have been fully indemnified and there are no insurance benefits due and owing; otherwise, denied including any and all inference of liability and damages. 7. Admitted that a covered loss occurred for which Plaintiffs have been fully indemnified and there are no insurance benefits due and owing; otherwise, denied including any and all inference of liability and damages. 8. Admitted only that an alleged date of loss of October 10, 2018 was reported on October 12, 2018; otherwise, denied. 9. Admitted that a covered loss occurred for which Plaintiffs have been fully indemnified and there are no insurance benefits due and owing; otherwise, denied including any and all inference of liability and damages. 10.Admitted that a covered loss occurred for which Plaintiff has been fully indemnified and there are no insurance benefits due and owing; otherwise, denied including any and all inference of liability and damages. COUNT 1- BREACH OF CONTRACT 11. Defendant adopts and incorporates by reference its assertions set forth in paragraphs one (1) through ten (10). 12. Denied. 13. Denied 14. Denied. Page 215. Denied. 16. Denied. 17. Denied. 18. Denied. 19. Defendant is without knowledge; therefore, denied. AFFIRMATIVE DEFENSES The Defendant asserts the following affirmative defenses to Plaintiffs Complaint, but does not assume a burden of proof on any of the defenses asserted. Defendant reserves its right to assert other affirmative defenses, withdraw or modify its affirmative defenses, or otherwise amend this Answer based upon the discovery of additional facts or evidence. Additionally, these affirmative defenses are pleaded in the alternative, and do not constitute an admission of liability by Defendant. First Affi ive Def Defendant asserts it is entitled to set-off any and all applicable deductibles related to the claims at issue in this action. Specifically, the subject Policy has a $9,100.00 hurricane deductible. Second Affirmative Defense Defendant asserts any right to recover is limited by the terms and conditions of the subject insurance policy. Specifically, the policy provides as follows: SECTION I - EXCLUSIONS Page 31. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. Water Damage 1.c. is deleted and replaced by the following: c. Water Damage meaning: (1) Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind; CONSEQUENTIAL DAMAGE: Defendant, SECURITY FIRST INSURANCE COMPANY, by and through its undersigned counsel, hereby files this Motion to Strike Plaintiffs Request for Consequential Damages, pursuant to Rule 1.140, Florida Rules of Civil Procedure, and states as follows: 1. Plaintiff's Complaint alleges a cause of action for breach of contract of an insurance policy based upon hurricane loss to Plaintiff's property. 2. Plaintiffs Complaint demands “for actual and consequential damages...” See Complaint. 3. Plaintiff is not entitled to consequential damages, as the subject policy limits and coverages determine what may be recoverable by Plaintiff. 4. Damages recoverable by a party injured by a breach of contract are those which would naturally result from the breach and can reasonably be said to have been contemplated at the time the contract was made. Sharick v. Se. University of the Health Sciences, Inc., 780 So.2d 136, 139 (Fla. 3d DCA 2000). Page 45. The request for consequential damages is improper in this first-party property breach of contract action and the jury should only be permitted to consider the amount due under the subject insurance policy. 6. Furthermore, this is a first-party property breach of contract case and not a bad faith case. 7. Absent a finding of bad faith, an insurer’s damages should be limited to the coverage amount under the insurance policy. Govt Employees Ins. Co. Robinson, 581 So.2d 230 (Fla. 3d DCA 1991). 8. If a portion of the allegations as to damages is improper, a Motion to Strike directed to those parts is appropriate. Abstract Co. of Sarasota v. Roberts, 144 So.2d 3, 5 (Fla 2d DCA 1962). WHEREFORE, SECURITY FIRST INSURANCE COMPANY requests an Order striking Plaintiff's request for consequential damages, and for any such relief as this Court deems just and proper. DEMAND FOR JURY TRIAL Defendant hereby demands a trial by jury on all issues deemed so triable. WHEREFORE, Defendant, SECURITY FIRST INSURANCE COMPANY, hereby demands judgment in its favor and all other relief deemed just by this Court. PageSCERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 11'" day of December, 2020, a true and correct copy of the foregoing was filed with the Clerk of Bay County by using the Florida Courts e-filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Justin Petrie, Esq., Kandell, Kandell, & Petrie, Suite 601 — Grand Bay Plaza, 2665 S. Bayshore Drive, Miami, FL 33133, justin@kkpfirm.com, (305) 858-2220. By: COLE, SCOTT & KISSANE, P.A. Counsel for Defendant SECURITY FIRST INSURANCE COMPANY 4301 West Boy Scout Boulevard Suite 400 Tampa, Florida 33607 Telephone (813) 864-9348 Facsimile (813) 286-2900 Primary e-mail: Katherine.moran@csklegal.com Secondary e-mail: michael.schweitzer@csklegal.com Katherine L. Moran Katherine L. Moran Florida Bar No.: 1018653 Page 6