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Filing # 104971023 E-Filed 03/16/2020 05:38:50 PM
IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT
IN AND FOR BAY COUNTY, FLORIDA
PATSY J. ODOM,
Plaintiff,
v. Case No.: 19 004405
TOWER HILL SIGNATURE INSURANCE
COMPANY, a Florida insurance corporation,
Defendant.
/
DEFENDANT, TOWER HILL SIGNATURE INSURANCE COMPANY’S
ANSWER AND AFFIRMATIVE DEFENSES
Defendant, TOWER HILL SIGNATURE INSURANCE COMPANY (“Tower Hill”), by
and through its attorneys, answers and defends the allegations in the Complaint filed by Plaintiff,
PATSY ODOM, as follows:
GENERAL ALLEGATIONS
1. Admitted for jurisdictional purposes only. Otherwise, denied.
2. Without knowledge and therefore, denied.
3. Admitted that Tower Hill is qualified to conduct insurance business in the State
of Florida and Bay County. Otherwise, denied
4, Admitted that Tower Hill issued policy number PIH0384517 (“Policy”) for the
property located at 7601 Kingswood Road, Southport, Florida 32409, subject to the terms,
conditions, policy period, and exclusions of the Policy and that the Policy is a written document
that speaks for itself. Otherwise, denied.
5. Without knowledge and therefore, denied.
6. Denied.
Page 1 of 87. Denied.
8. Denied.
9. Admitted that the correspondence dated January 29, 2019 speaks for itself and
was accompanied by payment related to Plaintiff’s claim. Otherwise, denied.
10. Denied.
COUNT I (Breach of Contract)
11. Tower Hill reasserts and re-alleges its responses to Paragraphs | through 10 as if
set forth herein.
12. Denied.
13. Denied.
14. Denied.
15. Denied.
16. Denied.
Tower Hill denies the allegations in Plaintiff's Wherefore Clause.
Tower Hill demands trial by jury of all issues so triable.
COUNT I~ PETITION FOR DECLARATORY RELIEF
17. Tower Hill reasserts and re-alleges its responses to Paragraphs 1 through 10 as if
set forth herein.
18. Denied.
19. Denied. The Policy speaks for itself.
20. Admitted that the Policy speaks for itself related to recoverable depreciation.
Otherwise, denied.
Page 2 of 821.
Admitted that there are terms and conditions related to recoverable depreciation.
Otherwise, denied.
22.
23.
24.
25.
Admitted that Florida Statute 627.7011 speaks for itself. Otherwise, denied.
Denied. The Policy speaks for itself.
Denied.
Exhibit “A” is a written correspondence that speaks for itself. Therefore, a
response is not required. To the extent a response is required, denied.
26.
Exhibit “B” is a written correspondence that speaks for itself. Therefore, a
response is not required. To the extent a response is required, denied.
27.
28.
29.
30.
31.
Denied.
Denied.
Denied.
Denied.
Denied.
Tower Hill denies the allegations in Plaintiff's Wherefore Clause, including all subparts.
DEMAND FOR JURY TRIAL
Tower Hill demands trial by jury of all issues so triable.
AFFIRMATIVE DEFENSES
First Affirmative Defense
This action and/or any relief sought by Plaintiff against Tower Hill is barred by the terms,
conditions and exclusions of the policy, including but not limited to:
Page 3 of 8SECTION I —- PERILS INSURED AGAINST
COVERAGE A —- DWELLING and COVERAGE B - OTHER STRUCTURES
We insure against risk of direct loss to property described in Coverages A and B only if
that loss is a physical loss to property. We do not insure, however, for loss:
2. Caused by:
e. Any of the following:
(wD Wear and tear, marring, deterioration;
(2) Inherent vice, latent defect, mechanical breakdown;
(6) Settling, shrinking, bulging or expansion, including resultant
cracking, of pavements, patios, foundations, walls, floors, roofs or
ceilings;
SPECIAL PROVISIONS - FLORIDA
PERILS INSURED AGAINST
We do not cover loss:
(c) Caused by constant or repeated seepage or leakage of water or steam or
the presence or condensation of humidity, moisture or vapor, over a period
of 14 or more days, whether hidden or not;
h. Rain, snow, sleet, sand or dust to the interior of a building unless a
covered peril first damages the building causing an opening in a roof or
wall and the rain, snow, sleet or dust enters through this opening.
SECTION I - EXCLUSIONS
1. 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.
m. Constant or repeated seepage or leakage of water or steam, or the
presence or condensation of humidity, moisture or vapor; which occurs
over a period of 14 or more days, whether hidden or not.
2. We do not insure for loss to property described in Coverages A and B caused by
any of the following.
Page 4 of 8c Faulty, inadequate or defective:
Q)
G)
(4)
Design, specifications, workmanship, repair, construction,
renovation, remodeling, grading, compaction;
Materials used in repair, construction, renovation or remodeling; or
Maintenance;
of part or all of any property whether on or off the “residence
premises.”
To the extent any damage at Plaintiff's property was caused by the above occurrences,
such damage would be excluded from coverage under the policy of insurance.
Second Affirmative Defense
This action and/or any relief sought by Plaintiff against Tower Hill is barred due to
Plaintiffs failure to meet all conditions precedent under the policy of insurance, prejudicing
Tower Hill’s investigation of Plaintiffs claim, including but not limited to:
SPECIAL PROVISIONS - FLORIDA
CONDITIONS
2.
2.
Your Duties After Loss is deleted and replaced by the following:
Duties After Loss
In case of a loss to covered property, we have no duty to provide coverage under
this policy if the failure to comply with the following duties is prejudicial to us.
These duties must be performed either by you, an “insured” seeking coverage, or
a representative of either:
e Protect the covered property from further damage. The following must be
performed:
a
Take reasonable emergency measures that are necessary to protect
the covered property from further damage, as provided under
SECTION I — ADDITIONAL COVERAGES 2. Reasonable
Emergency Measures.
A reasonable emergency measure under 2.e.(1) above may include
a permanent repair when necessary to protect the covered property
from further damage or to prevent unwanted entry to the property.
Page 5 of 8To the degree reasonably possible, the damaged property must be
retained for us to inspect; and
(2) Keep an accurate record of repair expenses;
8. Suit Against Us is deleted and replaced by the following:
8. Suit Against Us
If you and we fail to agree on a settlement, scope of repair, or method of repair
regarding the loss, prior to filing suit, you must notify us of your disagreement in
writing.
No legal action can be brought against us unless the Section I policy provisions
have been complied with and the action is started within 5 years from the date of
the loss.
Plaintiff failed to make timely and reasonable repairs to the Property. Accordingly,
Plaintiff's claim is barred.
Third Affirmative Defense
Plaintiff's claim is barred, as any alleged damages, if any, were caused or substantially
contributed to by Plaintiff's own negligence or failure to reasonably mitigate such that Plaintiff's
claims should be barred or reduced accordingly pursuant to Florida law.
Fourth Affirmative Defense
Plaintiff is not entitled to change the nature or terms of the Policy by virtue of filing a
lawsuit. To the extent repairs have not been made as of the date of this lawsuit, Plaintiff is not
entitled to any payment for repairs not performed or the replacement of property that was not
damaged by a covered loss, nor is Plaintiff entitled to RCV, “matching” or Ordinance & Law
coverage under Florida law. Accordingly, Plaintiff's claim is barred.
Fifth Affirmative Defense
Tower Hill asserts that Plaintiff's claim for breach of the policy and for attorney fees
pursuant to Fla. Stat. § 627.428 is barred as there was no breakdown in the claims process and
Page 6 of 8Plaintiff's lawsuit was prematurely filed. Therefore, Tower Hill cannot have breached the policy
of insurance as a matter of law and Plaintiffs request for attorney fees is barred. See Goldman v.
United Servs. Auto, Ass'n, 244 So. 3d 310, 312 (Fla. 4th DCA 2018).
Sixth Affirmative Defense
Tower Hill complied with all terms and conditions of the Policy and Florida law. To the
extent recoverable depreciation was not provided, Plaintiff failed to make timely repairs and
submit documentation related to the repairs to qualify for payment. Accordingly, Plaintiff's
claim is barred.
WHEREFORE, Defendant, TOWER HILL SIGNATURE INSURANCE COMPANY,
prays its defenses raised be granted and that judgment shall be entered against Plaintiff
dismissing this cause of action in favor of Defendant; that Plaintiff shall take nothing hereby and
Defendant shall go hence without day; and for such further relief the Court deems just and
proper.
4/ Nicole M. Fluet
NICOLE M. FLUET, Fla. Bar No. 91077
nfluct@gallowaylawfirm.com
SARAH K. CULLETON, Fla. Bar No. 1015231
sculleton@gallowaylawfirm.com
Galloway, Johnson, Tompkins, Burr & Smith, PLC
400 N. Ashley Drive, Suite 1000
Tampa, Florida 33602
(813) 977-1200
(813) 977-1288 (facsimile)
tampaservice@gallowaylawfirm.com
Counsel for Defendant, Tower Hill Signature
Insurance Company
Page 7 of 8CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
the following via the Florida Courts E-Filing Portal and/or electronic mail delivery this 16" day
of March, 2020:
Clark Hamilton, Jr., Esq. Jay Manuel, Esq.
Tyler & Hamilton, P.A. Manuel & Thompson, P.A.
4741 Atlantic Boulevard, Suite A 120 Richard Jackson Boulevard, Suite 200
Jacksonville, FL 32207 Panama City, Florida 325407
Telephone: 904-398-9999 Phone: 850-785-5555
Facsimile: 904-398-0806 Fax: 850-785-0133
courtdocs@floridainsurancelawyers.com jay@manuelthompson.com
tandhpa@bellsouth.net velinda@manuelthompson.com
Counsel for Plaintiff tim@manuelthompson.com
Counsel for Plaintiff
[o] Nicole M. Fluet
NICOLE M. FLUET
SARAH K. CULLETON
Page 8 of 8
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Filing # 104971023 E-Filed 03/16/2020 05:38:50 PM IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA PATSY J. ODOM, Plaintiff, v. Case No.: 19 004405 TOWER HILL SIGNATURE INSURANCE COMPANY, a Florida insurance corporation, Defendant. / DEFENDANT, TOWER HILL SIGNATURE INSURANCE COMPANY’S ANSWER AND AFFIRMATIVE DEFENSES Defendant, TOWER HILL SIGNATURE INSURANCE COMPANY (“Tower Hill”), by and through its attorneys, answers and defends the allegations in the Complaint filed by Plaintiff, PATSY ODOM, as follows: GENERAL ALLEGATIONS 1. Admitted for jurisdictional purposes only. Otherwise, denied. 2. Without knowledge and therefore, denied. 3. Admitted that Tower Hill is qualified to conduct insurance business in the State of Florida and Bay County. Otherwise, denied 4, Admitted that Tower Hill issued policy number PIH0384517 (“Policy”) for the property located at 7601 Kingswood Road, Southport, Florida 32409, subject to the terms, conditions, policy period, and exclusions of the Policy and that the Policy is a written document that speaks for itself. Otherwise, denied. 5. Without knowledge and therefore, denied. 6. Denied. Page 1 of 87. Denied. 8. Denied. 9. Admitted that the correspondence dated January 29, 2019 speaks for itself and was accompanied by payment related to Plaintiff’s claim. Otherwise, denied. 10. Denied. COUNT I (Breach of Contract) 11. Tower Hill reasserts and re-alleges its responses to Paragraphs | through 10 as if set forth herein. 12. Denied. 13. Denied. 14. Denied. 15. Denied. 16. Denied. Tower Hill denies the allegations in Plaintiff's Wherefore Clause. Tower Hill demands trial by jury of all issues so triable. COUNT I~ PETITION FOR DECLARATORY RELIEF 17. Tower Hill reasserts and re-alleges its responses to Paragraphs 1 through 10 as if set forth herein. 18. Denied. 19. Denied. The Policy speaks for itself. 20. Admitted that the Policy speaks for itself related to recoverable depreciation. Otherwise, denied. Page 2 of 821. Admitted that there are terms and conditions related to recoverable depreciation. Otherwise, denied. 22. 23. 24. 25. Admitted that Florida Statute 627.7011 speaks for itself. Otherwise, denied. Denied. The Policy speaks for itself. Denied. Exhibit “A” is a written correspondence that speaks for itself. Therefore, a response is not required. To the extent a response is required, denied. 26. Exhibit “B” is a written correspondence that speaks for itself. Therefore, a response is not required. To the extent a response is required, denied. 27. 28. 29. 30. 31. Denied. Denied. Denied. Denied. Denied. Tower Hill denies the allegations in Plaintiff's Wherefore Clause, including all subparts. DEMAND FOR JURY TRIAL Tower Hill demands trial by jury of all issues so triable. AFFIRMATIVE DEFENSES First Affirmative Defense This action and/or any relief sought by Plaintiff against Tower Hill is barred by the terms, conditions and exclusions of the policy, including but not limited to: Page 3 of 8SECTION I —- PERILS INSURED AGAINST COVERAGE A —- DWELLING and COVERAGE B - OTHER STRUCTURES We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. We do not insure, however, for loss: 2. Caused by: e. Any of the following: (wD Wear and tear, marring, deterioration; (2) Inherent vice, latent defect, mechanical breakdown; (6) Settling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings; SPECIAL PROVISIONS - FLORIDA PERILS INSURED AGAINST We do not cover loss: (c) Caused by constant or repeated seepage or leakage of water or steam or the presence or condensation of humidity, moisture or vapor, over a period of 14 or more days, whether hidden or not; h. Rain, snow, sleet, sand or dust to the interior of a building unless a covered peril first damages the building causing an opening in a roof or wall and the rain, snow, sleet or dust enters through this opening. SECTION I - EXCLUSIONS 1. 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. m. Constant or repeated seepage or leakage of water or steam, or the presence or condensation of humidity, moisture or vapor; which occurs over a period of 14 or more days, whether hidden or not. 2. We do not insure for loss to property described in Coverages A and B caused by any of the following. Page 4 of 8c Faulty, inadequate or defective: Q) G) (4) Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; Materials used in repair, construction, renovation or remodeling; or Maintenance; of part or all of any property whether on or off the “residence premises.” To the extent any damage at Plaintiff's property was caused by the above occurrences, such damage would be excluded from coverage under the policy of insurance. Second Affirmative Defense This action and/or any relief sought by Plaintiff against Tower Hill is barred due to Plaintiffs failure to meet all conditions precedent under the policy of insurance, prejudicing Tower Hill’s investigation of Plaintiffs claim, including but not limited to: SPECIAL PROVISIONS - FLORIDA CONDITIONS 2. 2. Your Duties After Loss is deleted and replaced by the following: Duties After Loss In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an “insured” seeking coverage, or a representative of either: e Protect the covered property from further damage. The following must be performed: a Take reasonable emergency measures that are necessary to protect the covered property from further damage, as provided under SECTION I — ADDITIONAL COVERAGES 2. Reasonable Emergency Measures. A reasonable emergency measure under 2.e.(1) above may include a permanent repair when necessary to protect the covered property from further damage or to prevent unwanted entry to the property. Page 5 of 8To the degree reasonably possible, the damaged property must be retained for us to inspect; and (2) Keep an accurate record of repair expenses; 8. Suit Against Us is deleted and replaced by the following: 8. Suit Against Us If you and we fail to agree on a settlement, scope of repair, or method of repair regarding the loss, prior to filing suit, you must notify us of your disagreement in writing. No legal action can be brought against us unless the Section I policy provisions have been complied with and the action is started within 5 years from the date of the loss. Plaintiff failed to make timely and reasonable repairs to the Property. Accordingly, Plaintiff's claim is barred. Third Affirmative Defense Plaintiff's claim is barred, as any alleged damages, if any, were caused or substantially contributed to by Plaintiff's own negligence or failure to reasonably mitigate such that Plaintiff's claims should be barred or reduced accordingly pursuant to Florida law. Fourth Affirmative Defense Plaintiff is not entitled to change the nature or terms of the Policy by virtue of filing a lawsuit. To the extent repairs have not been made as of the date of this lawsuit, Plaintiff is not entitled to any payment for repairs not performed or the replacement of property that was not damaged by a covered loss, nor is Plaintiff entitled to RCV, “matching” or Ordinance & Law coverage under Florida law. Accordingly, Plaintiff's claim is barred. Fifth Affirmative Defense Tower Hill asserts that Plaintiff's claim for breach of the policy and for attorney fees pursuant to Fla. Stat. § 627.428 is barred as there was no breakdown in the claims process and Page 6 of 8Plaintiff's lawsuit was prematurely filed. Therefore, Tower Hill cannot have breached the policy of insurance as a matter of law and Plaintiffs request for attorney fees is barred. See Goldman v. United Servs. Auto, Ass'n, 244 So. 3d 310, 312 (Fla. 4th DCA 2018). Sixth Affirmative Defense Tower Hill complied with all terms and conditions of the Policy and Florida law. To the extent recoverable depreciation was not provided, Plaintiff failed to make timely repairs and submit documentation related to the repairs to qualify for payment. Accordingly, Plaintiff's claim is barred. WHEREFORE, Defendant, TOWER HILL SIGNATURE INSURANCE COMPANY, prays its defenses raised be granted and that judgment shall be entered against Plaintiff dismissing this cause of action in favor of Defendant; that Plaintiff shall take nothing hereby and Defendant shall go hence without day; and for such further relief the Court deems just and proper. 4/ Nicole M. Fluet NICOLE M. FLUET, Fla. Bar No. 91077 nfluct@gallowaylawfirm.com SARAH K. CULLETON, Fla. Bar No. 1015231 sculleton@gallowaylawfirm.com Galloway, Johnson, Tompkins, Burr & Smith, PLC 400 N. Ashley Drive, Suite 1000 Tampa, Florida 33602 (813) 977-1200 (813) 977-1288 (facsimile) tampaservice@gallowaylawfirm.com Counsel for Defendant, Tower Hill Signature Insurance Company Page 7 of 8CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the following via the Florida Courts E-Filing Portal and/or electronic mail delivery this 16" day of March, 2020: Clark Hamilton, Jr., Esq. Jay Manuel, Esq. Tyler & Hamilton, P.A. Manuel & Thompson, P.A. 4741 Atlantic Boulevard, Suite A 120 Richard Jackson Boulevard, Suite 200 Jacksonville, FL 32207 Panama City, Florida 325407 Telephone: 904-398-9999 Phone: 850-785-5555 Facsimile: 904-398-0806 Fax: 850-785-0133 courtdocs@floridainsurancelawyers.com jay@manuelthompson.com tandhpa@bellsouth.net velinda@manuelthompson.com Counsel for Plaintiff tim@manuelthompson.com Counsel for Plaintiff [o] Nicole M. Fluet NICOLE M. FLUET SARAH K. CULLETON Page 8 of 8