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Filing # 121418228 E-Filed 02/15/2021 05:53:11 PM
99551-14
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR LEE COUNTY, FLORIDA
JOSEPH AND PATRICIA WELSH, CIRCUIT CIVIL DIVISION
Plaintiffs, CASE NO. 21-CA-376
vs.
TOWER HILL PRIME INSURANCE
COMPANY,
Defendant.
/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
Defendant, Tower Hill Prime Insurance Company, by and through the undersigned
counsel, hereby files this Answer and Affirmative Defenses to Plaintiffs’, Joseph and Patricia
Welsh, Complaint and states as follows:
1, DEFENDANT denies the allegations, characterizations, and legal conclusions contained
in Paragraph 1 of Plaintiffs’ Complaint and demands strict proof thereof.
2. DEFENDANT is without knowledge, and, therefore, denies the allegations,
characterizations, and legal conclusions contained in Paragraph 2 of Plaintiffs’ Complaint
and demands strict proof thereof.
3. DEFENDANT admits that at all times material hereto it was a corporation duly licensed to
transact business in the State of Florida and doing business in Lee County, Florida as
alleged in Paragraph 3 of Plaintiffs’ Complaint.
4. DEFENDANT is without knowledge, and, therefore, denies the allegations,
characterizations, and legal conclusions contained in Paragraph 4 of Plaintiffs’ Complaint
and demands strict proof thereof.
eFiled Lee County Clerk of Courts Page 110.
11.
12.
DEFENDANT admits that it issued an insurance policy to Plaintiffs, bearing policy number
E001736162, for a property located at 16703 Crownsbury Way, Fort Myers, Florida 33908,
to Plaintiffs as alleged in Paragraph 5 of Plaintiffs’ Complaint, but denies all other
allegations, characterizations, and legal conclusions contained within that paragraph and
demands strict proof thereof.
DEFENDANT is without knowledge and, therefore, denies the allegations,
characterizations, and legal conclusions contained within in Paragraph 6 of Plaintiffs’
Complaint and demands strict proof thereof.
DEFENDANT denies the allegations, characterizations, and legal conclusions contained
in Paragraph 7 of Plaintiffs’ Complaint and demands strict proof thereof.
DEFENDANT denies the allegations, characterizations, and legal conclusions contained
in Paragraph 8 of Plaintiffs’ Complaint and demands strict proof thereof.
COUNT I- BREACH OF CONTRACT AGAINST DEFENDANT
DEFENDANT te-alleges, re-states, and incorporates its responses to Paragraphs 1 through
8 above verbatim, as if fully set forth herein.
DEFENDANT admits that it issued an insurance policy to Plaintiffs, bearing policy number
E001736162, as alleged in Paragraph 10 of Plaintiffs’ Complaint, but is without knowledge
and, therefore, denies all other allegations, characterizations, and legal conclusions
contained within that paragraph and demands strict proof thereof.
DEFENDANT denies the allegations, characterizations, and legal conclusions contained
in Paragraph 11 of Plaintiffs’ Complaint and demands strict proof thereof.
DEFENDANT denies the allegations, characterizations, and legal conclusions contained
in Paragraph 12 of Plaintiffs’ Complaint and demands strict proof thereof.
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eFiled Lee County Clerk of Courts Page 213.
14.
15.
16.
17.
DEFENDANT denies the allegations, characterizations, and legal conclusions contained
in Paragraph 13 of Plaintiffs’ Complaint and demands strict proof thereof.
DEFENDANT denies the allegations, characterizations, and legal conclusions contained
in Paragraph 14 of Plaintiffs’ Complaint and demands strict proof thereof.
DEFENDANT denies the allegations, characterizations, and legal conclusions contained
in Paragraph 15 of Plaintiffs’ Complaint and demands strict proof thereof.
DEFENDANT denies the allegations, characterizations, and legal conclusions contained
in Paragraph 16 of Plaintiffs’ Complaint and demands strict proof thereof.
DEFENDANT denies the allegations, characterizations, and legal conclusions contained
in Paragraph 17 of Plaintiffs’ Complaint and demands strict proof thereof.
AFFIRMATIVE DEFENSES
DEFENDANT asserts the claimed damages include damages occurring prior to the
inception date of the coverage for the peril claimed. Pursuant to the subject policy
provisions concerning the policy period and pre-existing damage, DEFENDANT asserts it
is not liable for damages occurring prior to the inception date of the coverage for the peril
claimed.
DEFENDANT asserts coverage is limited as set forth in the terms and conditions under
Perils Insured Against, specifically that DEFENDANT does not insure for loss caused by
any of the following: wear and tear, marring, deterioration; inherent vice, latent defect,
mechanical breakdown; settling, shrinking, bulging or expansion, including resultant
cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings.
DEFENDANT asserts coverage is limited as set forth in the terms and conditions under
Section I— Exclusions, specifically that DEFENDANT does not insure for loss caused by
-3-
eFiled Lee County Clerk of Courts Page 3any of the following: Faulty, inadequate or defective design, specifications, workmanship,
repair, construction, renovation, remodeling, grading, compaction; Faulty, inadequate or
defective materials used in repair, construction, renovation or remodeling; or Faulty,
inadequate or defective maintenance; of part or all of any property whether on or off the
"residence premises."
. DEFENDANT asserts it has no duty under the terms and conditions of the subject policy
or under applicable Florida law, to tender payment to the Plaintiffs as Plaintiffs failed to
provide prompt notice of the loss in violation of the Your Duties After Loss provision of
the subject policy, thereby resulting in prejudice to the DEFENDANT and its opportunity
or ability to inspect the property, adjust the claim, and/or evaluate its obligations under the
policy of insurance, therefore relieving it of any indemnity obligation to the Plaintiffs under
the subject policy.
. DEFENDANT asserts that by failing to promptly report the loss within the timeframe
allowed pursuant to Florida law, Plaintiffs violated the statute of limitations for bringing
this action and materially breached the insurance policy provision concerning the same
defense. Therefore, DEFENDANT is not liable for the damages.
. DEFENDANT asserts Plaintiffs’ claims are barred and/or limited to the extent that
Plaintiffs failed to satisfy conditions precedent and subsequent to the existence of insurance
coverage under the policy.
. DEFENDANT asserts Plaintiffs’ claims are barred and/or limited to the extent that
Plaintiffs failed to minimize, mitigate, or avoid any alleged loss or damage.
. DEFENDANT asserts that Plaintiffs lack standing to bring the instant lawsuit.
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eFiled Lee County Clerk of Courts Page 49. DEFENDANT expressly reserves the right to amend and/or add additional Affirmative
Defenses as discovery progresses.
DEMAND FOR JURY TRIAL
The Defendant, Tower Hill Prime Insurance Company, hereby demands a trial by jury of
all issues triable as of right by a jury.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida
ePortal to: Hershal E. Spangler, Esq., hspangler@itsaboutjustice.law; cara@itsaboutjustice.law;
on this 15th day of February, 2021.
4s/ Cary W. Capper
Cary W. Capper, Esquire — FB#: 0932371
Teresita M. Baron, Esquire — FB#: 57256
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for Tower Hill Prime Insurance Company
2800 Ponce de Leon Boulevard
Suite 800
Coral Gables, FL 33134
Phone: (305) 448-3939
Fax: (305) 441-1745
miacrtpleadings@wickersmith.com
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eFiled Lee County Clerk of Courts Page 5
Preview
Filing # 121418228 E-Filed 02/15/2021 05:53:11 PM 99551-14 IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA JOSEPH AND PATRICIA WELSH, CIRCUIT CIVIL DIVISION Plaintiffs, CASE NO. 21-CA-376 vs. TOWER HILL PRIME INSURANCE COMPANY, Defendant. / DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES Defendant, Tower Hill Prime Insurance Company, by and through the undersigned counsel, hereby files this Answer and Affirmative Defenses to Plaintiffs’, Joseph and Patricia Welsh, Complaint and states as follows: 1, DEFENDANT denies the allegations, characterizations, and legal conclusions contained in Paragraph 1 of Plaintiffs’ Complaint and demands strict proof thereof. 2. DEFENDANT is without knowledge, and, therefore, denies the allegations, characterizations, and legal conclusions contained in Paragraph 2 of Plaintiffs’ Complaint and demands strict proof thereof. 3. DEFENDANT admits that at all times material hereto it was a corporation duly licensed to transact business in the State of Florida and doing business in Lee County, Florida as alleged in Paragraph 3 of Plaintiffs’ Complaint. 4. DEFENDANT is without knowledge, and, therefore, denies the allegations, characterizations, and legal conclusions contained in Paragraph 4 of Plaintiffs’ Complaint and demands strict proof thereof. eFiled Lee County Clerk of Courts Page 110. 11. 12. DEFENDANT admits that it issued an insurance policy to Plaintiffs, bearing policy number E001736162, for a property located at 16703 Crownsbury Way, Fort Myers, Florida 33908, to Plaintiffs as alleged in Paragraph 5 of Plaintiffs’ Complaint, but denies all other allegations, characterizations, and legal conclusions contained within that paragraph and demands strict proof thereof. DEFENDANT is without knowledge and, therefore, denies the allegations, characterizations, and legal conclusions contained within in Paragraph 6 of Plaintiffs’ Complaint and demands strict proof thereof. DEFENDANT denies the allegations, characterizations, and legal conclusions contained in Paragraph 7 of Plaintiffs’ Complaint and demands strict proof thereof. DEFENDANT denies the allegations, characterizations, and legal conclusions contained in Paragraph 8 of Plaintiffs’ Complaint and demands strict proof thereof. COUNT I- BREACH OF CONTRACT AGAINST DEFENDANT DEFENDANT te-alleges, re-states, and incorporates its responses to Paragraphs 1 through 8 above verbatim, as if fully set forth herein. DEFENDANT admits that it issued an insurance policy to Plaintiffs, bearing policy number E001736162, as alleged in Paragraph 10 of Plaintiffs’ Complaint, but is without knowledge and, therefore, denies all other allegations, characterizations, and legal conclusions contained within that paragraph and demands strict proof thereof. DEFENDANT denies the allegations, characterizations, and legal conclusions contained in Paragraph 11 of Plaintiffs’ Complaint and demands strict proof thereof. DEFENDANT denies the allegations, characterizations, and legal conclusions contained in Paragraph 12 of Plaintiffs’ Complaint and demands strict proof thereof. -2- eFiled Lee County Clerk of Courts Page 213. 14. 15. 16. 17. DEFENDANT denies the allegations, characterizations, and legal conclusions contained in Paragraph 13 of Plaintiffs’ Complaint and demands strict proof thereof. DEFENDANT denies the allegations, characterizations, and legal conclusions contained in Paragraph 14 of Plaintiffs’ Complaint and demands strict proof thereof. DEFENDANT denies the allegations, characterizations, and legal conclusions contained in Paragraph 15 of Plaintiffs’ Complaint and demands strict proof thereof. DEFENDANT denies the allegations, characterizations, and legal conclusions contained in Paragraph 16 of Plaintiffs’ Complaint and demands strict proof thereof. DEFENDANT denies the allegations, characterizations, and legal conclusions contained in Paragraph 17 of Plaintiffs’ Complaint and demands strict proof thereof. AFFIRMATIVE DEFENSES DEFENDANT asserts the claimed damages include damages occurring prior to the inception date of the coverage for the peril claimed. Pursuant to the subject policy provisions concerning the policy period and pre-existing damage, DEFENDANT asserts it is not liable for damages occurring prior to the inception date of the coverage for the peril claimed. DEFENDANT asserts coverage is limited as set forth in the terms and conditions under Perils Insured Against, specifically that DEFENDANT does not insure for loss caused by any of the following: wear and tear, marring, deterioration; inherent vice, latent defect, mechanical breakdown; settling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings. DEFENDANT asserts coverage is limited as set forth in the terms and conditions under Section I— Exclusions, specifically that DEFENDANT does not insure for loss caused by -3- eFiled Lee County Clerk of Courts Page 3any of the following: Faulty, inadequate or defective design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; Faulty, inadequate or defective materials used in repair, construction, renovation or remodeling; or Faulty, inadequate or defective maintenance; of part or all of any property whether on or off the "residence premises." . DEFENDANT asserts it has no duty under the terms and conditions of the subject policy or under applicable Florida law, to tender payment to the Plaintiffs as Plaintiffs failed to provide prompt notice of the loss in violation of the Your Duties After Loss provision of the subject policy, thereby resulting in prejudice to the DEFENDANT and its opportunity or ability to inspect the property, adjust the claim, and/or evaluate its obligations under the policy of insurance, therefore relieving it of any indemnity obligation to the Plaintiffs under the subject policy. . DEFENDANT asserts that by failing to promptly report the loss within the timeframe allowed pursuant to Florida law, Plaintiffs violated the statute of limitations for bringing this action and materially breached the insurance policy provision concerning the same defense. Therefore, DEFENDANT is not liable for the damages. . DEFENDANT asserts Plaintiffs’ claims are barred and/or limited to the extent that Plaintiffs failed to satisfy conditions precedent and subsequent to the existence of insurance coverage under the policy. . DEFENDANT asserts Plaintiffs’ claims are barred and/or limited to the extent that Plaintiffs failed to minimize, mitigate, or avoid any alleged loss or damage. . DEFENDANT asserts that Plaintiffs lack standing to bring the instant lawsuit. -4- eFiled Lee County Clerk of Courts Page 49. DEFENDANT expressly reserves the right to amend and/or add additional Affirmative Defenses as discovery progresses. DEMAND FOR JURY TRIAL The Defendant, Tower Hill Prime Insurance Company, hereby demands a trial by jury of all issues triable as of right by a jury. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida ePortal to: Hershal E. Spangler, Esq., hspangler@itsaboutjustice.law; cara@itsaboutjustice.law; on this 15th day of February, 2021. 4s/ Cary W. Capper Cary W. Capper, Esquire — FB#: 0932371 Teresita M. Baron, Esquire — FB#: 57256 WICKER SMITH O'HARA MCCOY & FORD, P.A. Attorneys for Tower Hill Prime Insurance Company 2800 Ponce de Leon Boulevard Suite 800 Coral Gables, FL 33134 Phone: (305) 448-3939 Fax: (305) 441-1745 miacrtpleadings@wickersmith.com -5- eFiled Lee County Clerk of Courts Page 5