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Filing # 144079574 E-Filed 02/16/2022 08:50:56 PM
IN THE CIRCUIT COURT OF THE 14TH
JUDICIAL CIRCUIT IN AND FOR BAY
COUNTY, FLORIDA
VATANA AN AND BORAVY CHAN, Case No.: 21000967CA
Plaintiff, Claim No.: FL20-0137204-O920
vs.
UNIVERSAL PROPERTY AND
CASUALTY INSURANCE COMPANY,
Defendant.
_____________________________/
ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW the Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE
COMPANY, by and through undersigned counsel, and files its Answer and Affirmative Defenses
to Plaintiffs’ Complaint and as such would state as follows:
GENERAL ALLEGATIONS
1. Defendant admits that Plaintiff purports that this case is within the jurisdictional
threshold of this Court. Defendant specifically denies that Plaintiff is entitled to any of the
requested relief, and further denies all remaining allegations.
2. Without knowledge, therefore denied and strict proof thereof is demanded.
3. Admitted.
4. Admitted for jurisdictional purposes only.
5. Admitted only to the extent that the Plaintiffs were issued a policy with Defendant
which provided coverage at all times material hereto, subject to the provisions, conditions,
exclusions, and limitations of the subject policy and the applicable Florida Statutes Denies any
inferences to the remainder of the allegations and strict proof thereof is demanded.
6. Admitted that the policy speaks for itself.
7. Admitted only to the extent that the subject insurance policy was in full force and
effect at the time of loss. Denies any inferences to the remainder of the allegations and strict
proof thereof is demanded.
8. Admitted.
COUNT I – BREACH OF CONTRACT AGAINST DEFENDANT
9. Defendant adopts and incorporates its responses to paragraphs 1 through 8 as if
fully set forth herein.
10. Admitted.
11. Denied and strict proof thereof is demanded.
12. Denied and strict proof thereof is demanded.
13. Denied and strict proof thereof is demanded.
14. Denied and strict proof thereof is demanded.
15. Without knowledge, therefore denied and strict proof thereof is demanded.
16. Without knowledge, therefore denied and strict proof thereof is demanded.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Defendant asserts that it has fully indemnified Plaintiffs for the covered damages resulting
from the alleged loss. Pursuant to contract law, no breach has occurred when a party fully performs
all of its obligations under the terms of the contract. Defendant determined the value of the covered
damages related to the subject loss to be below that of the policy’s applicable deductible, therefore
no payment was tendered and Defendant is in complete satisfaction of all obligations under the
subject policy thereby discharging any further obligations.
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SECOND AFFIRMATIVE DEFENSE
The subject claim includes repairs that are unnecessary and/or unrelated to the reported
loss. Therefore, any recovery should be reduced by said unnecessary and/or unrelated repairs.
THIRD AFFIRMATIVE DEFENSE
The subject policy between Plaintiffs and Defendant contains a deductible in the amount
of $6,669.00 (SIX THOUSAND SIX HUNDRED SIXTY-NINE DOLLARS AND 00/100). Any
damage sustained to the subject property is subject to the aforementioned deductible, which was
bargained for and chosen by the Plaintiffs. As such, any recovery should be reduced by said
applicable deductible, and must be above the $6,669.00 deductible, or Plaintiffs are barred from
recovery.
FOURTH AFFIRMATIVE DEFENSE
The Defendant affirmatively states that the damages reportedly resulting from the loss that
is the subject of this litigation are not covered under the policy and/or are excluded under the policy
and its applicable endorsements as set forth below:
Coverage A – Dwelling And Coverage B – Other Structures
1. We insure against direct physical loss to property described in Coverages A and B. However,
loss does not include and we will not pay for any “diminution in value”.
2. We do not insure, however, for loss:
c. Caused by:
…
(7) Any of the following:
(a) Wear and tear, “marring”, deterioration;
(b) Mechanical breakdown, latent defect, inherent vice or any quality in property that
causes it to damage or destroy itself
Based on Defendant inspection’s of the subject property, some of the damages are clearly excluded
from coverage based on the aforementioned provision.
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FIFTH AFFIRMATIVE DEFENSE
The Defendant affirmatively states that the damages reportedly resulting from the loss that
is the subject of this litigation are not covered under the policy and/or are excluded under the policy
and its applicable endorsements as set forth below:
SECTION I – EXCLUSIONS
B. We do not insure for loss to property described in Coverages A and B caused by any
of the following. However, any ensuing loss to property described in Coverages A and B
not precluded by any other provision in this policy is covered.
3. Faulty, inadequate or defective:
a. Planning, zoning, development, surveying, siting;
b. Design, specifications, workmanship, repair, construction, renovation,
remodeling, grading, compaction;
c. Materials used in repair, construction, renovation or remodeling; or
d. Maintenance;
of part or all of any property whether on or off the "residence premises".
Based on Defendant inspection of the subject property, the claimed damages were as a
result of Plaintiffs’ failure to secure proper repairs and/or properly maintain the property, and are
clearly excluded from coverage based on the aforementioned provision.
SIXTH AFFIRMATIVE DEFENSE
The Defendant would affirmatively allege that some of the damages are exempted from
coverage pursuant to the following provision.
SECTION I – CONDITIONS
R. Concealment Or Fraud
We do not provide coverage to an "insured" who, whether before or after a loss,
has:
1. Intentionally concealed or misrepresented any material fact or
circumstance;
2. Engaged in fraudulent conduct; or
3. Made material false statements;
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relating to this insurance.
As such the claim is excluded from coverage based on the aforementioned provision.
RESERVATION OF RIGHT TO AMEND
Defendant reserves the right to amend its Answer and Affirmative Defenses upon the
discovery of new information through the course of litigation.
WHEREFORE, the Defendant, UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY, demands Judgment against the Plaintiffs for costs and all other
damages which this Court deems just and equitable, respectfully requests this Honorable Court
deny all demands of Plaintiffs for costs and all other damages, and trial by jury for all issues so
triable.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
E-Mail this 16th day of February 2022 to the following:
Brandon M. Pharis, Esq.
Cohen Law Group
350 N. Lake Destiny Rd.
Maitland, FL 32751 at:
bpharis@itsaboutjustice.law
leah@itsaboutjustice.law
ROIG LAWYERS
100 S. Ashley Drive, Suite 1350
Tampa, FL 33602
(813) 514-1894 / (954) 462-7798 Fax
Pleadings@RoigLawyers.com
BY: /s/ Kristopher D. Wenmark
KRISTOPHER D. WENMARK, ESQ.
Florida Bar No. 119448
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Filing # 144079574 E-Filed 02/16/2022 08:50:56 PM IN THE CIRCUIT COURT OF THE 14TH JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA VATANA AN AND BORAVY CHAN, Case No.: 21000967CA Plaintiff, Claim No.: FL20-0137204-O920 vs. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. _____________________________/ ANSWER AND AFFIRMATIVE DEFENSES COMES NOW the Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, by and through undersigned counsel, and files its Answer and Affirmative Defenses to Plaintiffs’ Complaint and as such would state as follows: GENERAL ALLEGATIONS 1. Defendant admits that Plaintiff purports that this case is within the jurisdictional threshold of this Court. Defendant specifically denies that Plaintiff is entitled to any of the requested relief, and further denies all remaining allegations. 2. Without knowledge, therefore denied and strict proof thereof is demanded. 3. Admitted. 4. Admitted for jurisdictional purposes only. 5. Admitted only to the extent that the Plaintiffs were issued a policy with Defendant which provided coverage at all times material hereto, subject to the provisions, conditions, exclusions, and limitations of the subject policy and the applicable Florida Statutes Denies any inferences to the remainder of the allegations and strict proof thereof is demanded. 6. Admitted that the policy speaks for itself. 7. Admitted only to the extent that the subject insurance policy was in full force and effect at the time of loss. Denies any inferences to the remainder of the allegations and strict proof thereof is demanded. 8. Admitted. COUNT I – BREACH OF CONTRACT AGAINST DEFENDANT 9. Defendant adopts and incorporates its responses to paragraphs 1 through 8 as if fully set forth herein. 10. Admitted. 11. Denied and strict proof thereof is demanded. 12. Denied and strict proof thereof is demanded. 13. Denied and strict proof thereof is demanded. 14. Denied and strict proof thereof is demanded. 15. Without knowledge, therefore denied and strict proof thereof is demanded. 16. Without knowledge, therefore denied and strict proof thereof is demanded. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Defendant asserts that it has fully indemnified Plaintiffs for the covered damages resulting from the alleged loss. Pursuant to contract law, no breach has occurred when a party fully performs all of its obligations under the terms of the contract. Defendant determined the value of the covered damages related to the subject loss to be below that of the policy’s applicable deductible, therefore no payment was tendered and Defendant is in complete satisfaction of all obligations under the subject policy thereby discharging any further obligations. Page 2 of 5 SECOND AFFIRMATIVE DEFENSE The subject claim includes repairs that are unnecessary and/or unrelated to the reported loss. Therefore, any recovery should be reduced by said unnecessary and/or unrelated repairs. THIRD AFFIRMATIVE DEFENSE The subject policy between Plaintiffs and Defendant contains a deductible in the amount of $6,669.00 (SIX THOUSAND SIX HUNDRED SIXTY-NINE DOLLARS AND 00/100). Any damage sustained to the subject property is subject to the aforementioned deductible, which was bargained for and chosen by the Plaintiffs. As such, any recovery should be reduced by said applicable deductible, and must be above the $6,669.00 deductible, or Plaintiffs are barred from recovery. FOURTH AFFIRMATIVE DEFENSE The Defendant affirmatively states that the damages reportedly resulting from the loss that is the subject of this litigation are not covered under the policy and/or are excluded under the policy and its applicable endorsements as set forth below: Coverage A – Dwelling And Coverage B – Other Structures 1. We insure against direct physical loss to property described in Coverages A and B. However, loss does not include and we will not pay for any “diminution in value”. 2. We do not insure, however, for loss: c. Caused by: … (7) Any of the following: (a) Wear and tear, “marring”, deterioration; (b) Mechanical breakdown, latent defect, inherent vice or any quality in property that causes it to damage or destroy itself Based on Defendant inspection’s of the subject property, some of the damages are clearly excluded from coverage based on the aforementioned provision. Page 3 of 5 FIFTH AFFIRMATIVE DEFENSE The Defendant affirmatively states that the damages reportedly resulting from the loss that is the subject of this litigation are not covered under the policy and/or are excluded under the policy and its applicable endorsements as set forth below: SECTION I – EXCLUSIONS B. We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered. 3. Faulty, inadequate or defective: a. Planning, zoning, development, surveying, siting; b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; c. Materials used in repair, construction, renovation or remodeling; or d. Maintenance; of part or all of any property whether on or off the "residence premises". Based on Defendant inspection of the subject property, the claimed damages were as a result of Plaintiffs’ failure to secure proper repairs and/or properly maintain the property, and are clearly excluded from coverage based on the aforementioned provision. SIXTH AFFIRMATIVE DEFENSE The Defendant would affirmatively allege that some of the damages are exempted from coverage pursuant to the following provision. SECTION I – CONDITIONS R. Concealment Or Fraud We do not provide coverage to an "insured" who, whether before or after a loss, has: 1. Intentionally concealed or misrepresented any material fact or circumstance; 2. Engaged in fraudulent conduct; or 3. Made material false statements; Page 4 of 5 relating to this insurance. As such the claim is excluded from coverage based on the aforementioned provision. RESERVATION OF RIGHT TO AMEND Defendant reserves the right to amend its Answer and Affirmative Defenses upon the discovery of new information through the course of litigation. WHEREFORE, the Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, demands Judgment against the Plaintiffs for costs and all other damages which this Court deems just and equitable, respectfully requests this Honorable Court deny all demands of Plaintiffs for costs and all other damages, and trial by jury for all issues so triable. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by E-Mail this 16th day of February 2022 to the following: Brandon M. Pharis, Esq. Cohen Law Group 350 N. Lake Destiny Rd. Maitland, FL 32751 at: bpharis@itsaboutjustice.law leah@itsaboutjustice.law ROIG LAWYERS 100 S. Ashley Drive, Suite 1350 Tampa, FL 33602 (813) 514-1894 / (954) 462-7798 Fax Pleadings@RoigLawyers.com BY: /s/ Kristopher D. Wenmark KRISTOPHER D. WENMARK, ESQ. Florida Bar No. 119448 Page 5 of 5