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Filing # 142757937 E-Filed 01/27/2022 10:36:26 AM
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.
_____________________________/
NOTICE OF FILING
COMES NOW the Defendant, UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY, by and through the undersigned counsel, and files this Notice of
Filing Case Law in support of Defendant’s Motion to Dismiss with the Clerk of the Court in the
above-referenced matter.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
E-Mail this 27th day of January 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
IN THE CIRCUIT COURT OF
THE 15 T H JUDICIAL CIRCUIT, IN
AND FOR PALM BEACH
COUNTY, FLORIDA
GLORIA PIROZZI CASE NO.: 2021-CA-008602-XX
Pl aintiff,
v.
Universal Property & Casualty In surance
Company,
Defendant.
______________________________/
ORDER ON DEFENDANT ’S MOT ION T O DISMISS AND DEFENDANT ’S
MOT ION T O ST AY DISCOVERY AND FOR A PROT ECT IVE ORDER
THIS MATTER came before th e Court on October 5, 2021, o n Defendant’s
Motio n to Dismiss Plaintiff’s Co mplaint an d Defendant’s Motion to Stay
Discovery and fo r a Protective Order. Th e Court h avin g reviewed th e Defendant’s
motions and Pl aintiff’s response, h aving h eard arg ument of coun sel and bein g
duly advised in th e premises, it is h ereby
ORDERED AND ADJUDGED that,
1. Defendant’s Mo tion to Dismiss Pl aintiff’s Complain t is GRANT ED.
Plaintiff h as failed to comply with the pre-suit notice requirements
o f section 627.70152, Fl orida Statutes (2021).
2. Th is lawsuit was filed on July 7, 2021 – after th e July 1, 2021
effective date of sectio n 627.70152, Florida Statutes (2021).
3. Th e Co urt co nsidered, h eard arg ument on, and co n cludes that
Menendez v. Progressive, 35 So.3d 873 (Fla. 2010) is disting uish able
and section 627.70152 is clear on its face.
4. Defendant’s Motion to Stay Disco very and for a Protective Order
is MOOT .
DONE and ORDERED in Ch ambers at Palm Beach County, Florida.
Page 1 of 2
Case No. 50-2021-CA-008602-XXXX-MB
C opies furnis hed to:
Cherine Valbrun, Es q., Anis ha Atchanah, Es q., Michael Cas s el, Es q.
4827- 5933- 3118, v. 2
Page 2 of 2
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN
AND FOR PALM BEACH COUNTY,
FLORIDA
CASE NO.: 50-2021-CA-009409-XXXX-
MB
GARY SMIGIEL AND ALEXANDRA
SMIGIEL,
Plaintiffs,
vs.
FAMILY SECURITY INSURANCE
COMPANY INC.,
Defendant.
/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
PLAINTIFFS’ COMPLAINT WITHOUT PREJUDICE
THIS CAUSE having come before this Court upon Defendant’s Motion to Dismiss
Plaintiffs’ Complaint, and the Court having reviewed the Motion and court file and being
otherwise fully advised by the parties at a hearing on Defendant’s Motion on October 6,
2021, it is hereby
ORDERED and ADJUDGED that:
1. On August 4, 2021, Plaintiffs filed the instant lawsuit against Defendant
alleging breach of a property insurance contract. The Complaint alleges a date of loss of
April 11, 2021. The policy in question had an effective date of June 18, 2020.
2. The lawsuit was filed after July 1, 2021, the effective date of § 627.70125, Fla.
Stat., which mandates that Plaintiffs provide the Department of Financial Services with a
Notice of Intent to Initiate Litigation at least 10 business days prior to filing suit against
Defendant.
3. Plaintiff failed to provide the statutorily required Notice of Intent to Initiate
Litigation, and Plaintiffs failed to plead compliance with this statutory requirement.
4. The Court has reviewed the Florida Supreme Court case Menendez v.
Progressive Exp. Ins. Co., Inc., 35 So. 3d 873, 874 (Fla. 2010), and finds it to be
distinguishable.
5. In the instant case, Plaintiffs have been unable to identify any substantive
right that has been infringed upon by the Notice of Intent to Initiate Litigation required
by § 627.70125, Fla. Stat.
6. Furthermore, § 627.70125, Fla. Stat. explicitly requires that a homeowners’
property insurance lawsuit be dismissed without prejudice when the Notice requirement
in § 627.70125, Fla. Stat. is not met.
7. Therefore, based upon a plain reading of § 627.70125, Fla. Stat., and the
controlling case law, Plaintiffs’ Complaint is hereby Dismissed without Prejudice because
the Notice requirement of § 627.70125, Fla. Stat. was not met.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, on this 12th day of October, 2021.
2
______________________________________
BRADLEY HARPER, Circuit Judge
Copies furnished via email:
C. Dewitt, Revels, III, Esq. Max M. Messinger, Esq.
Daniel R. Blundy, Esq. Ardalan Montazer, Esq.
Walker, Revels, Greninger & Netcher, Kanner & Pintaluga, P.A.
PLLC 925 S. Federal Highway, Sixth Floor
189 S. Orange Ave., Suite 1830 Boca Raton, FL 33432
Orlando, Florida 32801 amontazer@kpattorney.com
drevels@WRGN-law.com jgutowski@kpattorney.com
CDR-service@WRGN-law.com FirstPartyEService@kpattorney.com
dblundy@WRGN-law.com
3
Filing # 135182163 E-Filed 09/23/2021 01:42:42 PM
Filing # 136030499 E-Filed 10/06/2021 01:59:09 PM
Filing # 142728465 E-Filed 01/26/2022 05:17:00 PM
Preview
Filing # 142757937 E-Filed 01/27/2022 10:36:26 AM 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. _____________________________/ NOTICE OF FILING COMES NOW the Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, by and through the undersigned counsel, and files this Notice of Filing Case Law in support of Defendant’s Motion to Dismiss with the Clerk of the Court in the above-referenced matter. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by E-Mail this 27th day of January 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 IN THE CIRCUIT COURT OF THE 15 T H JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA GLORIA PIROZZI CASE NO.: 2021-CA-008602-XX Pl aintiff, v. Universal Property & Casualty In surance Company, Defendant. ______________________________/ ORDER ON DEFENDANT ’S MOT ION T O DISMISS AND DEFENDANT ’S MOT ION T O ST AY DISCOVERY AND FOR A PROT ECT IVE ORDER THIS MATTER came before th e Court on October 5, 2021, o n Defendant’s Motio n to Dismiss Plaintiff’s Co mplaint an d Defendant’s Motion to Stay Discovery and fo r a Protective Order. Th e Court h avin g reviewed th e Defendant’s motions and Pl aintiff’s response, h aving h eard arg ument of coun sel and bein g duly advised in th e premises, it is h ereby ORDERED AND ADJUDGED that, 1. Defendant’s Mo tion to Dismiss Pl aintiff’s Complain t is GRANT ED. Plaintiff h as failed to comply with the pre-suit notice requirements o f section 627.70152, Fl orida Statutes (2021). 2. Th is lawsuit was filed on July 7, 2021 – after th e July 1, 2021 effective date of sectio n 627.70152, Florida Statutes (2021). 3. Th e Co urt co nsidered, h eard arg ument on, and co n cludes that Menendez v. Progressive, 35 So.3d 873 (Fla. 2010) is disting uish able and section 627.70152 is clear on its face. 4. Defendant’s Motion to Stay Disco very and for a Protective Order is MOOT . DONE and ORDERED in Ch ambers at Palm Beach County, Florida. Page 1 of 2 Case No. 50-2021-CA-008602-XXXX-MB C opies furnis hed to: Cherine Valbrun, Es q., Anis ha Atchanah, Es q., Michael Cas s el, Es q. 4827- 5933- 3118, v. 2 Page 2 of 2 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 50-2021-CA-009409-XXXX- MB GARY SMIGIEL AND ALEXANDRA SMIGIEL, Plaintiffs, vs. FAMILY SECURITY INSURANCE COMPANY INC., Defendant. / ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT WITHOUT PREJUDICE THIS CAUSE having come before this Court upon Defendant’s Motion to Dismiss Plaintiffs’ Complaint, and the Court having reviewed the Motion and court file and being otherwise fully advised by the parties at a hearing on Defendant’s Motion on October 6, 2021, it is hereby ORDERED and ADJUDGED that: 1. On August 4, 2021, Plaintiffs filed the instant lawsuit against Defendant alleging breach of a property insurance contract. The Complaint alleges a date of loss of April 11, 2021. The policy in question had an effective date of June 18, 2020. 2. The lawsuit was filed after July 1, 2021, the effective date of § 627.70125, Fla. Stat., which mandates that Plaintiffs provide the Department of Financial Services with a Notice of Intent to Initiate Litigation at least 10 business days prior to filing suit against Defendant. 3. Plaintiff failed to provide the statutorily required Notice of Intent to Initiate Litigation, and Plaintiffs failed to plead compliance with this statutory requirement. 4. The Court has reviewed the Florida Supreme Court case Menendez v. Progressive Exp. Ins. Co., Inc., 35 So. 3d 873, 874 (Fla. 2010), and finds it to be distinguishable. 5. In the instant case, Plaintiffs have been unable to identify any substantive right that has been infringed upon by the Notice of Intent to Initiate Litigation required by § 627.70125, Fla. Stat. 6. Furthermore, § 627.70125, Fla. Stat. explicitly requires that a homeowners’ property insurance lawsuit be dismissed without prejudice when the Notice requirement in § 627.70125, Fla. Stat. is not met. 7. Therefore, based upon a plain reading of § 627.70125, Fla. Stat., and the controlling case law, Plaintiffs’ Complaint is hereby Dismissed without Prejudice because the Notice requirement of § 627.70125, Fla. Stat. was not met. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, on this 12th day of October, 2021. 2 ______________________________________ BRADLEY HARPER, Circuit Judge Copies furnished via email: C. Dewitt, Revels, III, Esq. Max M. Messinger, Esq. Daniel R. Blundy, Esq. Ardalan Montazer, Esq. Walker, Revels, Greninger & Netcher, Kanner & Pintaluga, P.A. PLLC 925 S. Federal Highway, Sixth Floor 189 S. Orange Ave., Suite 1830 Boca Raton, FL 33432 Orlando, Florida 32801 amontazer@kpattorney.com drevels@WRGN-law.com jgutowski@kpattorney.com CDR-service@WRGN-law.com FirstPartyEService@kpattorney.com dblundy@WRGN-law.com 3 Filing # 135182163 E-Filed 09/23/2021 01:42:42 PM Filing # 136030499 E-Filed 10/06/2021 01:59:09 PM Filing # 142728465 E-Filed 01/26/2022 05:17:00 PM