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Filing # 120355951 E-Filed 01/27/2021 03:49:55 PM
IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT IN AND
FOR CHARLOTTE COUNTY, FLORIDA
CASE NO.: 20-CA-001073
BERKLEY ROBERTS AND DENISE
ROBERTS,
Plaintiff(s),
vs.
TOWER HILL PRIME INSURANCE
COMPANY,
Defendant.
/
DEFENDANT'S ANSWER, AFFIRMATIVE DEFENSES, AND
DEMAND FOR JURY TRIAL TO PLAINTIFF’S COMPLAINT
Defendant, TOWER HILL PRIME INSURANCE COMPANY (hereinafter “Tower Hill”
or “Defendant”) by and through the undersigned counsel, pursuant to Florida Rule of Civil
Procedure 1.110, hereby serves an Answer, Affirmative Defenses, and Demand for Jury Trial to
Plaintiff's Complaint and states the following:
1. Admitted for jurisdictional purposes only that this purports to be an action within the
jurisdictional limits of this Court, but denied that Tower Hill is liable for any damages in
this action.
2. Admitted based on current information and belief.
3. Admitted only that Tower Hill is a licensed Florida insurance company, authorized to do
business in the State of Florida, including Charlotte County, Florida. All other
allegations and inferences are denied.12.
13.
Case No.: 20-CA-001073
Page 2
Admitted only that Tower Hill is a licensed Florida insurance company, authorized to do
business in the State of Florida. All other allegations and inferences are denied.
Admitted only that Tower Hill issued Policy No.: E001426127 to Berkley R. Roberts and
Denise O. Roberts, for the period from January 28, 2017 to January 28, 2018 (the “policy”,
for the property located at 14266 Silver Lakes Circle, Port Charlotte, Florida 33953, whic!
provided insurance coverage for the property, subject to the policy’s terms, conditions,
limitations, exclusions, and endorsements. All other allegations and inferences are denied.
Denied as phrased. Admitted only that Tower Hill received notice of a claim on or around
March 20, 2020, alleging a date of loss of September 9, 2017. The Policy speaks for itself,
regarding the policy’s terms, conditions, limitations, exclusions, and endorsements. All
other allegations and inferences are denied.
Denied as phrased. The Policy speaks for itself, regarding the policy’s terms, conditions,
limitations, exclusions, and endorsements. All other allegations and inferences are
denied.
Denied. Plaintiff submitted an insurance claim nine hundred and twenty three days after
the alleged date of loss occurred.
Admitted that Tower Hill assigned claim number 3300335010 to the alleged loss
reported by the Plaintiff. All other allegations and inferences are denied.
. Denied.
. Denied.
Denied as phrased.
Denied as phrased.Case No.: 20-CA-001073
Page 3
14. Admitted that defendant was provided access to the insured’s property for a limited
inspection. All other allegations and inferences are denied.
COUNT I- BREACH OF CONTRACT
15. Tower Hill re-alleges and re-incorporates its responses to the allegations in paragraphs 1
through 14 as if fully set forth herein and responds to further allegations as follows:
16. Admitted that Plaintiff has brought forth a breach of contract action. All other allegations
and inferences are denied.
17. Denied as phrased.
18. Denied.
19. Denied.
20. Denied.
21. Denied.
22. Denied as phrased.
23. Denied.
Regarding the “WHEREFORE” clause in the Complaint, or any other allegations contained within
the Complaint that have not been expressly responded to, Tower Hill denies each and every such
allegation contained therein. Plaintiff's request for jury trial requires no response from Tower Hill.
AFFIRMATIVE DEFENSES
First Affirmative Defense- Failure to Comply with Duties After Loss
Plaintiff is precluded from recovering under the policy since the insureds failed to comply
with their duties after loss by failing to show Defendant the damaged property. The insured
reported a claim for roof damages to Defendant more than thirty (30) months after the alleged loss
event. The insureds’ late reporting prejudiced Defendant in its claim investigation in thatCase No.: 20-CA-001073
Page 4
Defendant was prevented from verifying the cause of the loss or the extent of the damages from
the claimed loss event, if any, in close proximity to the date of the alleged loss. See Policy
Endorsement HO 00 03 04 91 Section I- Conditions, Duties After Loss, par. 2. (page 9 of 18).
Hence, there is no coverage for the damages at issue in this case.
Second Affirmative Defense — Wear and Tear
This policy provides no coverage for damage caused by wear, tear, marring or
deterioration. See Policy HO 00 03 04 91 Section I — Perils Insured Against, Coverage A —
Dwelling and Coverage B — Other Structures, par. 2.e.(1), p. 7 of 18. For example, Tower Hill’s
investigation of the claim revealed that the claimed damage to the roof was caused by wear and
tear and foot traffic. Therefore, Plaintiff cannot recover from Tower Hill to the extent that damage
was caused by wear and tear as such damages are excluded under the policy.
Third Affirmative Defense- Mechanical breakdown, latent defect, inherent vice
The policy provides no coverage for damage caused by mechanical breakdown, latent
defect and/or inherent vice. See Policy HO 00 03 04 91 Section I — Perils Insured Against,
Coverage A — Dwelling and Coverage B — Other Structures, par. 2.e.(2), p. 7 of 18. Upon
inspection, Tower Hill found evidence of mechanical breakdown, latent defect and/or inherent vice
of the roof system. Therefore, Plaintiffs cannot recover from Tower Hill for any alleged damage
or loss caused by any of the above.
Fourth Affirmative Defense - Faulty, Inadequate or Defective
Installation, Construction, Repair or Maintenance
The policy provides no coverage for damage caused by faulty, inadequate or defective 1)
planning, zoning, development, surveying, siting; 2) design, specifications, workmanship, repair,Case No.: 20-CA-001073
Page 5
construction; 3) materials used in repair, construction, renovation or remodeling; or, 4)
maintenance. See Policy HO 00 03 04 91 Section I — Exclusions, par. 2.c p. 9 of 18. Tower Hill’s
investigation revealed that there were prior repairs to the roof of the residence. To the extent that
any damage resulted from faulty repairs, construction, or maintenance, Plaintiff cannot recover
from Tower Hill as such damages are excluded under the policy.
Fifth Affirmative Defense — Settling, Shrinking, Cracking of the Roof
This policy provides no coverage for damage caused by settling, shrinking, bulging or
expansion, including resultant cracking of the roof. See Policy HO 00 03 04 91 Section I — Perils
Insured Against, Coverage A — Dwelling and Coverage B — Other Structures, par. 2.e.(6) (page 7
of 18). Tower Hill’s inspection revealed that the claimed damages to the roof were caused by
thermal expansion and contraction. Therefore, Plaintiffs are precluded from recovery to the
extent that the claimed damage was caused by the thermal movement of roofing and building
materials, which resulted in the claimed damages to the roof and interior, as this type of damage
is not covered under the policy.
Sixth Affirmative Defense- Actual Value of Repairs
In the event that covered property is damaged by an applicable Peril Insured Against,
insureds are only entitled to recover the actual cash value of the loss after application of the
$8,500 hurricane deductible, but not more than the necessary amount actually spent to repair
or replace the damage building as work is performed and expenses are incurred. See Policy
Endorsement HO 00 03 04 91, Section I- Conditions, paragraph 3. (4). (Page 10 of 18). The
Insureds have not submitted any documents to support the cost of completed repairs that exceed
the policy deductible. Therefore, Plaintiff cannot recover from Defendant.Case No.: 20-CA-001073
Page 6
Seventh Affirmative Defense- Overstated Damages
In the event that covered property is damaged by an applicable Peril Insured Against,
Tower Hill is only obligated to pay the amount exceeding the deductible that is necessary to
perform repairs and return the property to its pre-loss condition. See Policy. Here, the repair costs
plaintiff seeks are overstated and/or are not reasonable nor necessarily related to the reported loss
event. Overstating the damages is deemed a material misrepresentation and/or false statement
relating to the insurance and voids coverage under the policy. See Policy Endorsement RU 312
HO FL 10 16 Sections I and II — Conditions, par. 2.a. (page 14, 15 of 16). Therefore, plaintiff is
not entitled to the damages claimed.
Eighth Affirmative Defense- Ordinance and Law
The Plaintiff's recovery, if any, is limited and subject to all the conditions and terms set for
in the subject policy, including but not limited to, the ordinance and law provision. See Policy.
RESERVATION OF DEFENSES
Defendant, Tower Hill, expressly reserves the right to amend and/or add additional
defenses and affirmative defenses as discovery and investigation are ongoing.
DEMAND FOR JURY TRIAL
Defendant requests a trial by jury on all issues so triable as a matter of right.
WHEREFORE, Tower Hill Prime Insurance Company seeks entry of judgment in its
favor and for such other relief as this Court deems just and proper.Case No.: 20-CA-001073
Page 7
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via Electronic Mail, to all counsel of record on the attached Service List, this 27th day of January,
2021.
LUKS, SANTANIELLO, PETRILLO &
COHEN
Attorneys for Defendant
110 SE 6TH STREET
20TH FLOOR
FORT LAUDERDALE, FL 33301
Telephone: (954) 761-9900
Facsimile: (954) 761-9940
By:__/s/ Brittany L. Ehrenman
William J. Peterfriend
Florida Bar No.: 544647
Brittany L. Ehrenman
Florida Bar No.: 1010954
LUKSFLL-Pleadings@LS-Law.com
SERVICE LIST
Shaun J. MArker, Esq.
MERLIN LAW GROUP, P.A.
222 Lakeview Avenue, Suite 1250
West Palm Beach, FL 33401
smarker@merlinlawgroup.com
rgregory@merlinlawgroup.com
dmyskowski@merlinlawgroup.com
ksantangelo@merlinlawgroup.com
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Filing # 120355951 E-Filed 01/27/2021 03:49:55 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO.: 20-CA-001073 BERKLEY ROBERTS AND DENISE ROBERTS, Plaintiff(s), vs. TOWER HILL PRIME INSURANCE COMPANY, Defendant. / DEFENDANT'S ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL TO PLAINTIFF’S COMPLAINT Defendant, TOWER HILL PRIME INSURANCE COMPANY (hereinafter “Tower Hill” or “Defendant”) by and through the undersigned counsel, pursuant to Florida Rule of Civil Procedure 1.110, hereby serves an Answer, Affirmative Defenses, and Demand for Jury Trial to Plaintiff's Complaint and states the following: 1. Admitted for jurisdictional purposes only that this purports to be an action within the jurisdictional limits of this Court, but denied that Tower Hill is liable for any damages in this action. 2. Admitted based on current information and belief. 3. Admitted only that Tower Hill is a licensed Florida insurance company, authorized to do business in the State of Florida, including Charlotte County, Florida. All other allegations and inferences are denied.12. 13. Case No.: 20-CA-001073 Page 2 Admitted only that Tower Hill is a licensed Florida insurance company, authorized to do business in the State of Florida. All other allegations and inferences are denied. Admitted only that Tower Hill issued Policy No.: E001426127 to Berkley R. Roberts and Denise O. Roberts, for the period from January 28, 2017 to January 28, 2018 (the “policy”, for the property located at 14266 Silver Lakes Circle, Port Charlotte, Florida 33953, whic! provided insurance coverage for the property, subject to the policy’s terms, conditions, limitations, exclusions, and endorsements. All other allegations and inferences are denied. Denied as phrased. Admitted only that Tower Hill received notice of a claim on or around March 20, 2020, alleging a date of loss of September 9, 2017. The Policy speaks for itself, regarding the policy’s terms, conditions, limitations, exclusions, and endorsements. All other allegations and inferences are denied. Denied as phrased. The Policy speaks for itself, regarding the policy’s terms, conditions, limitations, exclusions, and endorsements. All other allegations and inferences are denied. Denied. Plaintiff submitted an insurance claim nine hundred and twenty three days after the alleged date of loss occurred. Admitted that Tower Hill assigned claim number 3300335010 to the alleged loss reported by the Plaintiff. All other allegations and inferences are denied. . Denied. . Denied. Denied as phrased. Denied as phrased.Case No.: 20-CA-001073 Page 3 14. Admitted that defendant was provided access to the insured’s property for a limited inspection. All other allegations and inferences are denied. COUNT I- BREACH OF CONTRACT 15. Tower Hill re-alleges and re-incorporates its responses to the allegations in paragraphs 1 through 14 as if fully set forth herein and responds to further allegations as follows: 16. Admitted that Plaintiff has brought forth a breach of contract action. All other allegations and inferences are denied. 17. Denied as phrased. 18. Denied. 19. Denied. 20. Denied. 21. Denied. 22. Denied as phrased. 23. Denied. Regarding the “WHEREFORE” clause in the Complaint, or any other allegations contained within the Complaint that have not been expressly responded to, Tower Hill denies each and every such allegation contained therein. Plaintiff's request for jury trial requires no response from Tower Hill. AFFIRMATIVE DEFENSES First Affirmative Defense- Failure to Comply with Duties After Loss Plaintiff is precluded from recovering under the policy since the insureds failed to comply with their duties after loss by failing to show Defendant the damaged property. The insured reported a claim for roof damages to Defendant more than thirty (30) months after the alleged loss event. The insureds’ late reporting prejudiced Defendant in its claim investigation in thatCase No.: 20-CA-001073 Page 4 Defendant was prevented from verifying the cause of the loss or the extent of the damages from the claimed loss event, if any, in close proximity to the date of the alleged loss. See Policy Endorsement HO 00 03 04 91 Section I- Conditions, Duties After Loss, par. 2. (page 9 of 18). Hence, there is no coverage for the damages at issue in this case. Second Affirmative Defense — Wear and Tear This policy provides no coverage for damage caused by wear, tear, marring or deterioration. See Policy HO 00 03 04 91 Section I — Perils Insured Against, Coverage A — Dwelling and Coverage B — Other Structures, par. 2.e.(1), p. 7 of 18. For example, Tower Hill’s investigation of the claim revealed that the claimed damage to the roof was caused by wear and tear and foot traffic. Therefore, Plaintiff cannot recover from Tower Hill to the extent that damage was caused by wear and tear as such damages are excluded under the policy. Third Affirmative Defense- Mechanical breakdown, latent defect, inherent vice The policy provides no coverage for damage caused by mechanical breakdown, latent defect and/or inherent vice. See Policy HO 00 03 04 91 Section I — Perils Insured Against, Coverage A — Dwelling and Coverage B — Other Structures, par. 2.e.(2), p. 7 of 18. Upon inspection, Tower Hill found evidence of mechanical breakdown, latent defect and/or inherent vice of the roof system. Therefore, Plaintiffs cannot recover from Tower Hill for any alleged damage or loss caused by any of the above. Fourth Affirmative Defense - Faulty, Inadequate or Defective Installation, Construction, Repair or Maintenance The policy provides no coverage for damage caused by faulty, inadequate or defective 1) planning, zoning, development, surveying, siting; 2) design, specifications, workmanship, repair,Case No.: 20-CA-001073 Page 5 construction; 3) materials used in repair, construction, renovation or remodeling; or, 4) maintenance. See Policy HO 00 03 04 91 Section I — Exclusions, par. 2.c p. 9 of 18. Tower Hill’s investigation revealed that there were prior repairs to the roof of the residence. To the extent that any damage resulted from faulty repairs, construction, or maintenance, Plaintiff cannot recover from Tower Hill as such damages are excluded under the policy. Fifth Affirmative Defense — Settling, Shrinking, Cracking of the Roof This policy provides no coverage for damage caused by settling, shrinking, bulging or expansion, including resultant cracking of the roof. See Policy HO 00 03 04 91 Section I — Perils Insured Against, Coverage A — Dwelling and Coverage B — Other Structures, par. 2.e.(6) (page 7 of 18). Tower Hill’s inspection revealed that the claimed damages to the roof were caused by thermal expansion and contraction. Therefore, Plaintiffs are precluded from recovery to the extent that the claimed damage was caused by the thermal movement of roofing and building materials, which resulted in the claimed damages to the roof and interior, as this type of damage is not covered under the policy. Sixth Affirmative Defense- Actual Value of Repairs In the event that covered property is damaged by an applicable Peril Insured Against, insureds are only entitled to recover the actual cash value of the loss after application of the $8,500 hurricane deductible, but not more than the necessary amount actually spent to repair or replace the damage building as work is performed and expenses are incurred. See Policy Endorsement HO 00 03 04 91, Section I- Conditions, paragraph 3. (4). (Page 10 of 18). The Insureds have not submitted any documents to support the cost of completed repairs that exceed the policy deductible. Therefore, Plaintiff cannot recover from Defendant.Case No.: 20-CA-001073 Page 6 Seventh Affirmative Defense- Overstated Damages In the event that covered property is damaged by an applicable Peril Insured Against, Tower Hill is only obligated to pay the amount exceeding the deductible that is necessary to perform repairs and return the property to its pre-loss condition. See Policy. Here, the repair costs plaintiff seeks are overstated and/or are not reasonable nor necessarily related to the reported loss event. Overstating the damages is deemed a material misrepresentation and/or false statement relating to the insurance and voids coverage under the policy. See Policy Endorsement RU 312 HO FL 10 16 Sections I and II — Conditions, par. 2.a. (page 14, 15 of 16). Therefore, plaintiff is not entitled to the damages claimed. Eighth Affirmative Defense- Ordinance and Law The Plaintiff's recovery, if any, is limited and subject to all the conditions and terms set for in the subject policy, including but not limited to, the ordinance and law provision. See Policy. RESERVATION OF DEFENSES Defendant, Tower Hill, expressly reserves the right to amend and/or add additional defenses and affirmative defenses as discovery and investigation are ongoing. DEMAND FOR JURY TRIAL Defendant requests a trial by jury on all issues so triable as a matter of right. WHEREFORE, Tower Hill Prime Insurance Company seeks entry of judgment in its favor and for such other relief as this Court deems just and proper.Case No.: 20-CA-001073 Page 7 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic Mail, to all counsel of record on the attached Service List, this 27th day of January, 2021. LUKS, SANTANIELLO, PETRILLO & COHEN Attorneys for Defendant 110 SE 6TH STREET 20TH FLOOR FORT LAUDERDALE, FL 33301 Telephone: (954) 761-9900 Facsimile: (954) 761-9940 By:__/s/ Brittany L. Ehrenman William J. Peterfriend Florida Bar No.: 544647 Brittany L. Ehrenman Florida Bar No.: 1010954 LUKSFLL-Pleadings@LS-Law.com SERVICE LIST Shaun J. MArker, Esq. MERLIN LAW GROUP, P.A. 222 Lakeview Avenue, Suite 1250 West Palm Beach, FL 33401 smarker@merlinlawgroup.com rgregory@merlinlawgroup.com dmyskowski@merlinlawgroup.com ksantangelo@merlinlawgroup.com