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Filing # 101497331 E-Filed 01/10/2020 05:23:38 PM
IN THE CIRCUIT COURT OF THE 14TH
JUDICIAL CIRCUIT IN AND FOR BAY
COUNTY, FLORIDA
JAMES MCDOUGAL AND GINGER
MCDOUGAL,
CASENO.: 19004523CA
Plaintiff(s),
vs.
CERTAIN UNDERWRITERS AT LLOYD’S
LONDON SUBSCRIBING TO POLICY
NUMBER ACA080027600-01,
Defendant(s).
DEFENDANT CERTAIN UNDERWRITERS AT LLOYD’S LONDON’S
ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFE’S CO.
AND DEMAND FOR JURY TRIAL
Defendant Certain Underwriters at Lloyd’s, London, (“Underwriters”), by and through
undersigned counsel, hereby files its Answer and Affirmative Defenses to the Complaint served
by Plaintiff James McDougal and Ginger McDougal (“Plaintiff”) on December 20, 2019, as
follows:
GENERALLY
Any and all allegations contained in Plaintiff's Complaint, in any introductory clause(s),
in any titles or subtitles, in any wherefore clause(s), and any prayer for relief not specifically
admitted, denied, or explained by answer below are hereby denied.
JURISDICTIONAL ALLEGATIONS
1. Underwriters admit the allegations in paragraph 1 of the Complaint, to the extent
that this purports to be an action for damages that exceeds $15,000.00, exclusive of interest, costs,
and attorney’s fees; however, all liability for said action is hereby denied.CASE NO.:19004523CA
2. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in this paragraph and therefore deny the allegations contained
in paragraph 2 of the Complaint.
3. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in this paragraph and therefore deny the allegations contained
in paragraph 3 of the Complaint.
4. Underwriters deny the allegations in paragraph 4 of the Complaint, to the extent
that the allegations in this paragraph imply that it is a Florida insurer. In an effort to clarify its
response, Underwriters admits that it does conduct business as an approved surplus lines carrier in
the State of Florida. Underwriters admit that it issued a property insurance policy to Plaintiff
bearing Policy No. ACA080027600-01 (the “Policy”). To the extent the allegations in paragraph
4 of the Complaint refer to the Policy terms, Underwriters maintain that the document is the best
evidence of its contents. Underwriters refer the Court to the Policy for its specific terms, conditions
and/or provisions, which speak for themselves.
5. Underwriters admit the allegations in paragraph 5 of the Complaint for
jurisdictional and venue purposes only.
GENERAL ALLEGATIONS
6. Underwriters admit that it issued Policy No. ACA080027600-01 to Plaintiff. To
the extent the allegations in paragraph 6 of the Complaint refer to the Policy terms, Underwriters
maintain that the document is the best evidence of its contents. Underwriters refer the Court to the
Policy for its specific terms, conditions and/or provisions, which speak for themselves. Based on
Plaintiff's allegation that it is not in possession of the Policy, Underwriters will file a copy of the
Policy with the Court separately for completeness of the Court record.
ZELLE LLP
Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131
Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA
7. Paragraph 7 of the Complaint states a legal conclusion for which no responsive
pleading is required. To the extent a response is deemed required, Underwriters deny the
allegations in paragraph 7 of the Complaint, except to state that the Policy speaks for itself and is
the best evidence of its contents.
8. Paragraph 8 of the Complaint states a legal conclusion for which no responsive
pleading is required. To the extent a response is deemed required, Underwriters deny the
allegations in paragraph 8 of the Complaint, except to state that the Policy speaks for itself and is
the best evidence of its contents.
9. Underwriters admit that the Policy was in effect on October 10, 2018 but refers the
Court to the Policy for its specific terms, conditions and/or provisions, which speak for themselves.
10. Paragraph 10 of the Complaint states a legal conclusion for which no responsive
pleading is required. To the extent a response is deemed required, Underwriters deny the
allegations in paragraph 10 of the Complaint, except to state that the Policy speaks for itself and
is the best evidence of its contents.
11. Underwriters deny the allegations contained in paragraph 11 of the Complaint.
12. Paragraph 12 of the Complaint states a legal conclusion for which no responsive
pleading is required. If a response is deemed required, Underwriters deny the allegations in
paragraph 12 of the Complaint.
COUNT I~ BREACH OF CONTRACT
13. Underwriters reincorporate its responses to paragraph 1-12 of the Complaint as if
fully set forth herein.
ZELLE LLP
Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131
Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA
14. Underwriters admit the allegations in paragraph 14 of the Complaint, to the extent
that this purports to be an action arising out of the Policy; however, all liability for said action is
hereby denied.
15. Underwriters admit only that a loss was reported as having occurred on or about
October 17, 2018.
16. Underwriters deny the allegations contained in paragraph 16 of the Complaint.
17. Underwriters deny the allegations contained in paragraph 17 of the Complaint.
18. Underwriters deny the allegations contained in paragraph 18 of the Complaint.
19. | Underwriters admit that it assigned claim number ICAT-2018-V-0000018315 to
the alleged loss and deny any remaining allegations contained in paragraph 19 of the Complaint.
20. Underwriters admit only that it conducted an initial inspection of the Insured
Location on October 29, 2018 and April 13, 2019 in connection with claim number ICAT-2018-
V-0000018315.
21. Underwriters admit only that it conducted an initial inspection of the Insured
Location on October 29, 2018 and April 13, 2019 in connection with claim number ICAT-2018-
‘V-0000018315.
22. Underwriters deny the allegations contained in paragraph 22 of the Complaint.
23. Underwriters admit that it paid $48,799.21to Plaintiff on or about November 15,
2018. Underwriters further state that Underwriters made additional payment to Plaintiff in 2019,
totaling payments to Plaintiff in the amount of $66,576.55.
24. Underwriters deny the allegations contained in paragraph 24 of the Complaint.
25. Underwriters deny the allegations contained in paragraph 25 of the Complaint.
26. Underwriters deny the allegations contained in paragraph 26 of the Complaint.
ZELLE LLP
Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131
Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA
27. Underwriters deny the allegations contained in paragraph 27 of the Complaint.
28. Underwriters deny the allegations contained in paragraph 28 of the Complaint.
29. Underwriters deny the allegations contained in paragraph 29 of the Complaint.
30. Underwriters deny the allegations contained in paragraph 30 of the Complaint.
31. Paragraph 31 of the Complaint states a legal conclusion for which no responsive
pleading is required. If a response is deemed required, Underwriters deny the allegations in
paragraph 31 of the Complaint.
AFFIRMATIVE DEFENSES
Defendant Certain Underwriters at Lloyd’s, London, by counsel, subject to further
investigation and discovery and consistent with Florida Rule of Civil Procedure 1.110(d), assert
the following affirmative defenses:
First Affirmative Defense
Plaintiff's Complaint fails to state a claim upon which relief may be granted against
Underwriters.
Second Affirmative Defense
Underwriters issued a property insurance policy to James McDougal covering 209 7th
Street, Mexico Beach, FL 32456 subject to all terms, conditions, exclusions, limitations,
provisions, forms and endorsements, bearing policy number Policy No. ACA080027600-01 with
effective dates of coverage from June 16, 2018 through June 16, 2019. Thus, the duty, if any, of
Underwriters to provide coverage for the claim is subject to all of the terms, conditions, definitions,
declarations, endorsements, limitations, and exclusions contained in the Policy.
ZELLE LLP
Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131
Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA
Third Affirmative Defense
Plaintiffs claims are barred in whole or in part by the doctrines of waiver, estoppel, laches,
release, accord and satisfaction, unclean hands and/or applicable statutes of limitation.
Fourth Affirmative Defense
Plaintiffs claims are barred and/or limited, in whole or in part, to the extent that damage
asserted by Plaintiff was preexisting and was not a result of a peril insured against pursuant to the
terms, conditions and provisions of the Policy. Specifically, to the extent that any damage predated
the issuance of the Policy (June 16, 2018 to June 16, 2019), such damage is excluded.
Fifth Affirmative Defense
Plaintiffs claims against Underwriters are barred and/or limited, in whole or in part, to
the extent that the alleged damage was caused by or resulted from wear and tear, marring or
deterioration. Accordingly, such damages are not covered pursuant to the terms, conditions and
exclusions of the Policy:
2. We do not insure, however, for loss:
C Caused by:
(6) Any of the following:
(a) Wear and tear, marring, deterioration.
Sixth Affirmative Defense
Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, to the
extent that the alleged damage was caused by or resulted from loss of structural integrity, cracking,
bulging, leaning, settling, shrinkage or expansion. Accordingly, such damages are not covered
pursuant to the terms, conditions and exclusions of the Policy:
2. We do not insure, however, for loss:
ZELLE LLP
Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131
Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA
b. Involving collapse, including any of the following
conditions of property or any part of the property:
(J) An abrupt falling down or caving in;
(2) Loss of structural integrity, including separation of parts of the
property or property in danger of falling down or caving in; or
(3) Any cracking, bulging, sagging, bending, leaning, settling,
shrinkage or expansion as such condition relates to (1) or (2) above.
Seventh Affirmative Defense
Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, to
the extent that the alleged damage was caused by or resulted from settling, cracking, shrinking or
expansion. Accordingly, such damages are not covered pursuant to the terms, conditions and
exclusions of the Policy:
2. We do not insure, however, for loss:
c. Caused by:
(6) Any of the following:
(f) Settling, shrinking, bulging or expansion, including resultant
cracking, of bulkheads, pavements, patios, footings, foundations,
walls, floors, roofs or ceilings.
Eighth Affirmative Defense
Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, to the
extent that the alleged damage was caused by or resulted from a mechanical breakdown, latent
defect, inherent vice or any quality in property that causes it to damage or destroy itself.
Accordingly, such damages are not covered pursuant to the terms, conditions and exclusions of
the Policy:
2. We do not insure, however, for loss:
ZELLE LLP
Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131
Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA
c. Caused by:
(6) Any of the following:
(b) Mechanical breakdown, latent defect, inherent vice or any
quality in property that causes it to damage or destroy itself.
Ninth Affirmative Defense
Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, to the
extent that the alleged damage was caused by or resulted from smog, rust or other corrosion, or
dry rot. Accordingly, such damages are not covered pursuant to the terms, conditions and
exclusions of the Policy:
2. We do not insure, however, for loss:
c. Caused by:
(6) Any of the following:
(c) Smog, rust or other corrosion, or dry rot
Tenth Affirmative Defense
Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, to the
extent that the alleged damage was caused by or resulted from discharge, dispersal, seepage,
migration, release or escape of pollutants. Accordingly, such damages are not covered pursuant to
the terms, conditions and exclusions of the Policy:
2. We do not insure, however, for loss:
c. Caused by:
(6) Any of the following:
(e) Discharge, dispersal, seepage, migration, release or escape
of pollutants unless the discharge, dispersal, seepage, migration,
ZELLE LLP
Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131
Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA
release or escape is itself caused by a Peril Insured Against named
under Coverage C.
Eleventh Affirmative Defense
Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, under
the Policy’s Hard Floor Covering Limitation which states:
Payment for covered losses involving damage to “Hard Floor
Covering” will be limited to the “Room(s)” where the direct
physical loss or damage occurred without regard physical loss or
damage occurred without regard to matching or uniformity whether
or not the “Hard Floor Covering” is continuous throughout other
rooms.
To the extent that Plaintiff seeks indemnity for replacement of flooring as a result of
matching, payment would be excepted.
Twelfth Affirmative Defense
Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part,
pursuant to the Endorsement for Limited Smog, Rust, Mold, Rot, Or Bacteria Coverage and
Limited Seepage or Leakage Coverage. The Endorsement sets forth a combined seepage or
leakage total sublimit of $1,000 and a mold combined total sublimit of $5,000.
Thirteenth Affirmative Defense
Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part,
pursuant to the Multi-Layer Roof Limitation Endorsement of the Policy. The Endorsement
provides that the “limit of liability that applies to the removal, repair or replacement of all or part
of a ‘roof? is limited to $10,000 if any part of the ‘roof’ is composed of more than one layer of
‘roofing overlay.’”
ZELLE LLP
Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131
Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA
Fourteenth Affirmative Defense
Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part,
pursuant to the Windstorm or Hail Exterior Paint or Waterproofing Exclusion Endorsement.
Fifteenth Affirmative Defense
Any recovery against Underwriters under the Policy for Plaintiff's claim must be reduced
to the extent the insured has failed to mitigate, minimize, or avoid its claimed damages.
Sixteenth Affirmative Defense
Underwriters reserve the right to amend these affirmative defenses as more information
becomes available through the course of litigation and/or to assert any and all additional
affirmative defenses as may be revealed by further discovery and/or investigation.
Demand for Trial by Jury
Underwriters demand trial by jury on all issues for which a jury trial is available under the
law.
WHEREFORE, Defendant respectfully requests:
a. this Court deny the relief requested by Plaintiff in the Complaint;
b. this Court order that Plaintiff take nothing by this action;
c. this Court enter judgment in favor of Defendant;
d. as well as for such further relief as this Court deems just and proper.
ZELLE LLP
Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131
Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 10th day of January, 2020, that a true and correct copy of the
foregoing was filed with the Court through the use of the Florida Courts eFiling Portal, and has been
served upon all parties via First Class U.S. Mail, and/or 4 __ via the Florida Courts eFiling Portal
eService, in accordance with rule 2.516, Florida Rules of Judicial Administration.
ZELLE LLP
Counsel for Defendant
SunTrust International Center
One Southeast Third Avenue, Ste. 1600
Miami, Florida 33131-4332
Tel: 786-693-2350
Fax: 612-336-9100
By:__/s/ Christine M. Renella
CHRISTINE M. RENELLA
Florida Bar. No. 65485
crenella@zelle.com
J.C. QUINTANA
Florida Bar No. 115572
WILLIAM G. ZIEDEN-WEBER
Florida Bar No. 938040
wzieden-weber@zelle.com
SERVICE LIST
Kimesha S. Smith, Esq. J. Patrick Floyd, Esq.
Insurance Litigation Group, P.A. LAW OFFICES J. PATRICK FLOYD, CHTD.
1500 NE 162" Street 408 Long Avenue
Miami, Florida 33162 Port St. Joe, FL 32456
Tel No.: 786-529-0090 Tel No.: 850-227-7413
Fax No.: 866-239-9520 Fax No.:850-229-8196
Email: service@ILGPA.COM Email: j-patrickfloyd@jpatrickfloyd.com
Counsel for Plaintiff Co-Counsel for Plaintiff
ZELLE LLP
Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131
Telephone 786-693-2350 — Facsimile 612-336-9100
Preview
Filing # 101497331 E-Filed 01/10/2020 05:23:38 PM IN THE CIRCUIT COURT OF THE 14TH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA JAMES MCDOUGAL AND GINGER MCDOUGAL, CASENO.: 19004523CA Plaintiff(s), vs. CERTAIN UNDERWRITERS AT LLOYD’S LONDON SUBSCRIBING TO POLICY NUMBER ACA080027600-01, Defendant(s). DEFENDANT CERTAIN UNDERWRITERS AT LLOYD’S LONDON’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFE’S CO. AND DEMAND FOR JURY TRIAL Defendant Certain Underwriters at Lloyd’s, London, (“Underwriters”), by and through undersigned counsel, hereby files its Answer and Affirmative Defenses to the Complaint served by Plaintiff James McDougal and Ginger McDougal (“Plaintiff”) on December 20, 2019, as follows: GENERALLY Any and all allegations contained in Plaintiff's Complaint, in any introductory clause(s), in any titles or subtitles, in any wherefore clause(s), and any prayer for relief not specifically admitted, denied, or explained by answer below are hereby denied. JURISDICTIONAL ALLEGATIONS 1. Underwriters admit the allegations in paragraph 1 of the Complaint, to the extent that this purports to be an action for damages that exceeds $15,000.00, exclusive of interest, costs, and attorney’s fees; however, all liability for said action is hereby denied.CASE NO.:19004523CA 2. Underwriters are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph and therefore deny the allegations contained in paragraph 2 of the Complaint. 3. Underwriters are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph and therefore deny the allegations contained in paragraph 3 of the Complaint. 4. Underwriters deny the allegations in paragraph 4 of the Complaint, to the extent that the allegations in this paragraph imply that it is a Florida insurer. In an effort to clarify its response, Underwriters admits that it does conduct business as an approved surplus lines carrier in the State of Florida. Underwriters admit that it issued a property insurance policy to Plaintiff bearing Policy No. ACA080027600-01 (the “Policy”). To the extent the allegations in paragraph 4 of the Complaint refer to the Policy terms, Underwriters maintain that the document is the best evidence of its contents. Underwriters refer the Court to the Policy for its specific terms, conditions and/or provisions, which speak for themselves. 5. Underwriters admit the allegations in paragraph 5 of the Complaint for jurisdictional and venue purposes only. GENERAL ALLEGATIONS 6. Underwriters admit that it issued Policy No. ACA080027600-01 to Plaintiff. To the extent the allegations in paragraph 6 of the Complaint refer to the Policy terms, Underwriters maintain that the document is the best evidence of its contents. Underwriters refer the Court to the Policy for its specific terms, conditions and/or provisions, which speak for themselves. Based on Plaintiff's allegation that it is not in possession of the Policy, Underwriters will file a copy of the Policy with the Court separately for completeness of the Court record. ZELLE LLP Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131 Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA 7. Paragraph 7 of the Complaint states a legal conclusion for which no responsive pleading is required. To the extent a response is deemed required, Underwriters deny the allegations in paragraph 7 of the Complaint, except to state that the Policy speaks for itself and is the best evidence of its contents. 8. Paragraph 8 of the Complaint states a legal conclusion for which no responsive pleading is required. To the extent a response is deemed required, Underwriters deny the allegations in paragraph 8 of the Complaint, except to state that the Policy speaks for itself and is the best evidence of its contents. 9. Underwriters admit that the Policy was in effect on October 10, 2018 but refers the Court to the Policy for its specific terms, conditions and/or provisions, which speak for themselves. 10. Paragraph 10 of the Complaint states a legal conclusion for which no responsive pleading is required. To the extent a response is deemed required, Underwriters deny the allegations in paragraph 10 of the Complaint, except to state that the Policy speaks for itself and is the best evidence of its contents. 11. Underwriters deny the allegations contained in paragraph 11 of the Complaint. 12. Paragraph 12 of the Complaint states a legal conclusion for which no responsive pleading is required. If a response is deemed required, Underwriters deny the allegations in paragraph 12 of the Complaint. COUNT I~ BREACH OF CONTRACT 13. Underwriters reincorporate its responses to paragraph 1-12 of the Complaint as if fully set forth herein. ZELLE LLP Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131 Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA 14. Underwriters admit the allegations in paragraph 14 of the Complaint, to the extent that this purports to be an action arising out of the Policy; however, all liability for said action is hereby denied. 15. Underwriters admit only that a loss was reported as having occurred on or about October 17, 2018. 16. Underwriters deny the allegations contained in paragraph 16 of the Complaint. 17. Underwriters deny the allegations contained in paragraph 17 of the Complaint. 18. Underwriters deny the allegations contained in paragraph 18 of the Complaint. 19. | Underwriters admit that it assigned claim number ICAT-2018-V-0000018315 to the alleged loss and deny any remaining allegations contained in paragraph 19 of the Complaint. 20. Underwriters admit only that it conducted an initial inspection of the Insured Location on October 29, 2018 and April 13, 2019 in connection with claim number ICAT-2018- V-0000018315. 21. Underwriters admit only that it conducted an initial inspection of the Insured Location on October 29, 2018 and April 13, 2019 in connection with claim number ICAT-2018- ‘V-0000018315. 22. Underwriters deny the allegations contained in paragraph 22 of the Complaint. 23. Underwriters admit that it paid $48,799.21to Plaintiff on or about November 15, 2018. Underwriters further state that Underwriters made additional payment to Plaintiff in 2019, totaling payments to Plaintiff in the amount of $66,576.55. 24. Underwriters deny the allegations contained in paragraph 24 of the Complaint. 25. Underwriters deny the allegations contained in paragraph 25 of the Complaint. 26. Underwriters deny the allegations contained in paragraph 26 of the Complaint. ZELLE LLP Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131 Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA 27. Underwriters deny the allegations contained in paragraph 27 of the Complaint. 28. Underwriters deny the allegations contained in paragraph 28 of the Complaint. 29. Underwriters deny the allegations contained in paragraph 29 of the Complaint. 30. Underwriters deny the allegations contained in paragraph 30 of the Complaint. 31. Paragraph 31 of the Complaint states a legal conclusion for which no responsive pleading is required. If a response is deemed required, Underwriters deny the allegations in paragraph 31 of the Complaint. AFFIRMATIVE DEFENSES Defendant Certain Underwriters at Lloyd’s, London, by counsel, subject to further investigation and discovery and consistent with Florida Rule of Civil Procedure 1.110(d), assert the following affirmative defenses: First Affirmative Defense Plaintiff's Complaint fails to state a claim upon which relief may be granted against Underwriters. Second Affirmative Defense Underwriters issued a property insurance policy to James McDougal covering 209 7th Street, Mexico Beach, FL 32456 subject to all terms, conditions, exclusions, limitations, provisions, forms and endorsements, bearing policy number Policy No. ACA080027600-01 with effective dates of coverage from June 16, 2018 through June 16, 2019. Thus, the duty, if any, of Underwriters to provide coverage for the claim is subject to all of the terms, conditions, definitions, declarations, endorsements, limitations, and exclusions contained in the Policy. ZELLE LLP Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131 Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA Third Affirmative Defense Plaintiffs claims are barred in whole or in part by the doctrines of waiver, estoppel, laches, release, accord and satisfaction, unclean hands and/or applicable statutes of limitation. Fourth Affirmative Defense Plaintiffs claims are barred and/or limited, in whole or in part, to the extent that damage asserted by Plaintiff was preexisting and was not a result of a peril insured against pursuant to the terms, conditions and provisions of the Policy. Specifically, to the extent that any damage predated the issuance of the Policy (June 16, 2018 to June 16, 2019), such damage is excluded. Fifth Affirmative Defense Plaintiffs claims against Underwriters are barred and/or limited, in whole or in part, to the extent that the alleged damage was caused by or resulted from wear and tear, marring or deterioration. Accordingly, such damages are not covered pursuant to the terms, conditions and exclusions of the Policy: 2. We do not insure, however, for loss: C Caused by: (6) Any of the following: (a) Wear and tear, marring, deterioration. Sixth Affirmative Defense Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, to the extent that the alleged damage was caused by or resulted from loss of structural integrity, cracking, bulging, leaning, settling, shrinkage or expansion. Accordingly, such damages are not covered pursuant to the terms, conditions and exclusions of the Policy: 2. We do not insure, however, for loss: ZELLE LLP Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131 Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA b. Involving collapse, including any of the following conditions of property or any part of the property: (J) An abrupt falling down or caving in; (2) Loss of structural integrity, including separation of parts of the property or property in danger of falling down or caving in; or (3) Any cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion as such condition relates to (1) or (2) above. Seventh Affirmative Defense Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, to the extent that the alleged damage was caused by or resulted from settling, cracking, shrinking or expansion. Accordingly, such damages are not covered pursuant to the terms, conditions and exclusions of the Policy: 2. We do not insure, however, for loss: c. Caused by: (6) Any of the following: (f) Settling, shrinking, bulging or expansion, including resultant cracking, of bulkheads, pavements, patios, footings, foundations, walls, floors, roofs or ceilings. Eighth Affirmative Defense Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, to the extent that the alleged damage was caused by or resulted from a mechanical breakdown, latent defect, inherent vice or any quality in property that causes it to damage or destroy itself. Accordingly, such damages are not covered pursuant to the terms, conditions and exclusions of the Policy: 2. We do not insure, however, for loss: ZELLE LLP Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131 Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA c. Caused by: (6) Any of the following: (b) Mechanical breakdown, latent defect, inherent vice or any quality in property that causes it to damage or destroy itself. Ninth Affirmative Defense Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, to the extent that the alleged damage was caused by or resulted from smog, rust or other corrosion, or dry rot. Accordingly, such damages are not covered pursuant to the terms, conditions and exclusions of the Policy: 2. We do not insure, however, for loss: c. Caused by: (6) Any of the following: (c) Smog, rust or other corrosion, or dry rot Tenth Affirmative Defense Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, to the extent that the alleged damage was caused by or resulted from discharge, dispersal, seepage, migration, release or escape of pollutants. Accordingly, such damages are not covered pursuant to the terms, conditions and exclusions of the Policy: 2. We do not insure, however, for loss: c. Caused by: (6) Any of the following: (e) Discharge, dispersal, seepage, migration, release or escape of pollutants unless the discharge, dispersal, seepage, migration, ZELLE LLP Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131 Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA release or escape is itself caused by a Peril Insured Against named under Coverage C. Eleventh Affirmative Defense Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, under the Policy’s Hard Floor Covering Limitation which states: Payment for covered losses involving damage to “Hard Floor Covering” will be limited to the “Room(s)” where the direct physical loss or damage occurred without regard physical loss or damage occurred without regard to matching or uniformity whether or not the “Hard Floor Covering” is continuous throughout other rooms. To the extent that Plaintiff seeks indemnity for replacement of flooring as a result of matching, payment would be excepted. Twelfth Affirmative Defense Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, pursuant to the Endorsement for Limited Smog, Rust, Mold, Rot, Or Bacteria Coverage and Limited Seepage or Leakage Coverage. The Endorsement sets forth a combined seepage or leakage total sublimit of $1,000 and a mold combined total sublimit of $5,000. Thirteenth Affirmative Defense Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, pursuant to the Multi-Layer Roof Limitation Endorsement of the Policy. The Endorsement provides that the “limit of liability that applies to the removal, repair or replacement of all or part of a ‘roof? is limited to $10,000 if any part of the ‘roof’ is composed of more than one layer of ‘roofing overlay.’” ZELLE LLP Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131 Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA Fourteenth Affirmative Defense Plaintiff's claims against Underwriters are barred and/or limited, in whole or in part, pursuant to the Windstorm or Hail Exterior Paint or Waterproofing Exclusion Endorsement. Fifteenth Affirmative Defense Any recovery against Underwriters under the Policy for Plaintiff's claim must be reduced to the extent the insured has failed to mitigate, minimize, or avoid its claimed damages. Sixteenth Affirmative Defense Underwriters reserve the right to amend these affirmative defenses as more information becomes available through the course of litigation and/or to assert any and all additional affirmative defenses as may be revealed by further discovery and/or investigation. Demand for Trial by Jury Underwriters demand trial by jury on all issues for which a jury trial is available under the law. WHEREFORE, Defendant respectfully requests: a. this Court deny the relief requested by Plaintiff in the Complaint; b. this Court order that Plaintiff take nothing by this action; c. this Court enter judgment in favor of Defendant; d. as well as for such further relief as this Court deems just and proper. ZELLE LLP Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131 Telephone 786-693-2350 — Facsimile 612-336-9100CASE NO.:19004523CA CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 10th day of January, 2020, that a true and correct copy of the foregoing was filed with the Court through the use of the Florida Courts eFiling Portal, and has been served upon all parties via First Class U.S. Mail, and/or 4 __ via the Florida Courts eFiling Portal eService, in accordance with rule 2.516, Florida Rules of Judicial Administration. ZELLE LLP Counsel for Defendant SunTrust International Center One Southeast Third Avenue, Ste. 1600 Miami, Florida 33131-4332 Tel: 786-693-2350 Fax: 612-336-9100 By:__/s/ Christine M. Renella CHRISTINE M. RENELLA Florida Bar. No. 65485 crenella@zelle.com J.C. QUINTANA Florida Bar No. 115572 WILLIAM G. ZIEDEN-WEBER Florida Bar No. 938040 wzieden-weber@zelle.com SERVICE LIST Kimesha S. Smith, Esq. J. Patrick Floyd, Esq. Insurance Litigation Group, P.A. LAW OFFICES J. PATRICK FLOYD, CHTD. 1500 NE 162" Street 408 Long Avenue Miami, Florida 33162 Port St. Joe, FL 32456 Tel No.: 786-529-0090 Tel No.: 850-227-7413 Fax No.: 866-239-9520 Fax No.:850-229-8196 Email: service@ILGPA.COM Email: j-patrickfloyd@jpatrickfloyd.com Counsel for Plaintiff Co-Counsel for Plaintiff ZELLE LLP Sun Trust International Center, One Southeast Third Avenue, Suite 1600 Miami, Florida 33131 Telephone 786-693-2350 — Facsimile 612-336-9100