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Filing #62189653 E-Filed 09/29/2017 12:22:44 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
RAMON A. SOLANO and
JOSEFINA SOLANO,
Plaintiffs,
v. CASE NO.: 2017-CA-004877-0
UNIVERSAL INSURANCE COMPANY
OF NORTH AMERICA
Defendant.
/
PLAINTIFFS’ REPLY TO AFFIRMATIVE DEFENSES AND MOTION TO STRIKE
COMES NOW Plaintiffs, RAMON A. SOLANO and JOSEFINA SOLANO, by and through
the undersigned attorney, and hereby files their Responses to Defendant’s Affirmative Defenses to
Count J of Plaintiffs’ Amended Complaint and moves to strike them and states that Defendant
UNIVERSAL INSURANCE COMPANY OF NORTH AMERICA’S Affirmative Defenses lack any
basis in either law or fact, and are-hereby denied and avoided by the Plaintiff.
A. DEFENDANT’S FIRST, THIRD, FOURTH, SIXTH AND SEVENTH AFFIRMATIVE
DEFENSES MUST BE STRICKEN AS MERE DENIALS AND PAPER ISSUES
1 The Third District Court of Appeal in Zito v. Washington Federal Savings & Loan
Association of Miami Beach, 318 So.2d 174 (Fla. 3rd DCA, 1975) held that:
"The requirement of certainty will be insisted upon in the pleading of a defense and the
certainty required is that the pleader must set forth the facts in such a manner as to
reasonably inform his adversary of what is proposed to be proved in order to provide
the latter with a fair opportunity to meet it and prepare his evidence," Id. at page 176.
See also Citizens National Bank of Orlando v Youngblood, 296 So 2d. 92 (Fla. 4" DCA 1972) and
Walker v. Walker, 254 So 2d 832 (Fla. 1* DCA 1971).
2. Defendant's First, Third, Fourth, Sixth and Seventh Affirmative Defenses raise nothing
more than paper issues and no facts are offered to support them. Bared v Miami Professional Sports,
353 So. 2d 167 (Fla. 3" DCA 1977). Therefore, the affirmative defenses are legally insufficient and
Page | of 4
have been asserted only to delay these proceedings and should be stricken. The Affirmative Defenses
fail to comply with Florida Rule of Civil Procedure 1.110(d) in that it fails to set forth affirmatively
any matter constituting an avoidance or affirmative defense. Affirmative Defenses are matters that
attempt to avoid the action and must be affirmatively established by the Defendants.
3 Rather than denying the facts of the opposing party's claim, affirmative defenses raise
some new matter which defeats the opposite party's otherwise apparently valid claim. Tropical
Exterminators, Inc. v. Murray, 171 So. 2d 432, 433 (Fla. 2d DCA 1965). The Affirmative Defenses
raised by a party must be in the form of a "confession and avoidance" and not mere denials. BPS
Guard Services, Inc. v. Gulf Power Company, 488 So. 2d 638, 641 (1st DCA 1986).
4 Therefore, Defendant’s Affirmative Defenses are legally insufficient in that they only
deny facts alleged by Plaintiff, rather than asserting a new fact or matter which defeats or avoids
Plaintiff's claim. Specifically, Defendant merely regurgitates portions of the insurance policy and,
without factual allegations, state in a conclusory manner that the provisions do not afford coverage —
this is a prototypical denial of Plaintiff's breach of contract claim and which does not constitute an
affirmative defense. As such, they must be stricken.
5, Additionally, as to Defendant’s general allegations and affirmative defenses supporting
a denial of coverage, Defendant has waived such position and Defendant is estopped from taking
such a position after it conceded coverage and under-estimated payment, due to Plaintiffs under
the policy.
WHEREFORE, Plaintiff respectfully moves this Court to Strike Defendant’s Affirmative
Defenses and for any other relief this Court deems just and proper.
CERTIFICATE OF SERVICE
(See on Next Page)
Page 2 of 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by the U.S.
Mail and/or e-mail, as applicable, pursuant to Rule 2.516, Fla.R.Jud.Admin on this 29" day of
September, 2017 to: [See attached service list]
LAW OFFICE OF DAVID D. GONGORA, P.A.
5401 S Kirkman Rd., Suite 310
Orlando, FL 32819
Telephone: (407) 500-2524
Primary Email: David@davidgongora.com
Secondary Email: LegalAssistA@davidgongora.com
2nd Secondary Email: DavidGongoraEsq@gmail.com
Attorney fo} uf
By:
David D, ongora, Esq. FBN: Noms
Page 3 of 4
SERVICE OF COURT DOCUMENT - CASE NO: 2017-CA-004877-0
Court: IN THE CIRCUIT COURT OF THE 9™ JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
Case No.: 2017-CA-004877-O
Style of Case: Ramon A. Solano and Josefina Solano v. Universal Insurance Company of North
America
Document(s) Attached: Plaintiffs’ Reply to Affirmative Defenses and Motion to Strike
SERVICE LIST
Sent via email:
David@davidgongora.com;legalassistA @davidgongora.com;davidgongoraesq@gmail.com
pleadings@rocklawpa.com; ccranton@rocklawpa.ccom; clakeberg@rocklaw.com
F. Caroline H. Cranton, Esq.
Andrew P. Rock, Esq.
The Rock Law Group, P.A.
1760 Fennell Street
Maitland, FL 32751
Attorneys for Defendant
Universal Insurance Company of
North America
Page 4 of 4
Preview
Filing #62189653 E-Filed 09/29/2017 12:22:44 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA RAMON A. SOLANO and JOSEFINA SOLANO, Plaintiffs, v. CASE NO.: 2017-CA-004877-0 UNIVERSAL INSURANCE COMPANY OF NORTH AMERICA Defendant. / PLAINTIFFS’ REPLY TO AFFIRMATIVE DEFENSES AND MOTION TO STRIKE COMES NOW Plaintiffs, RAMON A. SOLANO and JOSEFINA SOLANO, by and through the undersigned attorney, and hereby files their Responses to Defendant’s Affirmative Defenses to Count J of Plaintiffs’ Amended Complaint and moves to strike them and states that Defendant UNIVERSAL INSURANCE COMPANY OF NORTH AMERICA’S Affirmative Defenses lack any basis in either law or fact, and are-hereby denied and avoided by the Plaintiff. A. DEFENDANT’S FIRST, THIRD, FOURTH, SIXTH AND SEVENTH AFFIRMATIVE DEFENSES MUST BE STRICKEN AS MERE DENIALS AND PAPER ISSUES 1 The Third District Court of Appeal in Zito v. Washington Federal Savings & Loan Association of Miami Beach, 318 So.2d 174 (Fla. 3rd DCA, 1975) held that: "The requirement of certainty will be insisted upon in the pleading of a defense and the certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence," Id. at page 176. See also Citizens National Bank of Orlando v Youngblood, 296 So 2d. 92 (Fla. 4" DCA 1972) and Walker v. Walker, 254 So 2d 832 (Fla. 1* DCA 1971). 2. Defendant's First, Third, Fourth, Sixth and Seventh Affirmative Defenses raise nothing more than paper issues and no facts are offered to support them. Bared v Miami Professional Sports, 353 So. 2d 167 (Fla. 3" DCA 1977). Therefore, the affirmative defenses are legally insufficient and Page | of 4 have been asserted only to delay these proceedings and should be stricken. The Affirmative Defenses fail to comply with Florida Rule of Civil Procedure 1.110(d) in that it fails to set forth affirmatively any matter constituting an avoidance or affirmative defense. Affirmative Defenses are matters that attempt to avoid the action and must be affirmatively established by the Defendants. 3 Rather than denying the facts of the opposing party's claim, affirmative defenses raise some new matter which defeats the opposite party's otherwise apparently valid claim. Tropical Exterminators, Inc. v. Murray, 171 So. 2d 432, 433 (Fla. 2d DCA 1965). The Affirmative Defenses raised by a party must be in the form of a "confession and avoidance" and not mere denials. BPS Guard Services, Inc. v. Gulf Power Company, 488 So. 2d 638, 641 (1st DCA 1986). 4 Therefore, Defendant’s Affirmative Defenses are legally insufficient in that they only deny facts alleged by Plaintiff, rather than asserting a new fact or matter which defeats or avoids Plaintiff's claim. Specifically, Defendant merely regurgitates portions of the insurance policy and, without factual allegations, state in a conclusory manner that the provisions do not afford coverage — this is a prototypical denial of Plaintiff's breach of contract claim and which does not constitute an affirmative defense. As such, they must be stricken. 5, Additionally, as to Defendant’s general allegations and affirmative defenses supporting a denial of coverage, Defendant has waived such position and Defendant is estopped from taking such a position after it conceded coverage and under-estimated payment, due to Plaintiffs under the policy. WHEREFORE, Plaintiff respectfully moves this Court to Strike Defendant’s Affirmative Defenses and for any other relief this Court deems just and proper. CERTIFICATE OF SERVICE (See on Next Page) Page 2 of 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by the U.S. Mail and/or e-mail, as applicable, pursuant to Rule 2.516, Fla.R.Jud.Admin on this 29" day of September, 2017 to: [See attached service list] LAW OFFICE OF DAVID D. GONGORA, P.A. 5401 S Kirkman Rd., Suite 310 Orlando, FL 32819 Telephone: (407) 500-2524 Primary Email: David@davidgongora.com Secondary Email: LegalAssistA@davidgongora.com 2nd Secondary Email: DavidGongoraEsq@gmail.com Attorney fo} uf By: David D, ongora, Esq. FBN: Noms Page 3 of 4 SERVICE OF COURT DOCUMENT - CASE NO: 2017-CA-004877-0 Court: IN THE CIRCUIT COURT OF THE 9™ JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA Case No.: 2017-CA-004877-O Style of Case: Ramon A. Solano and Josefina Solano v. Universal Insurance Company of North America Document(s) Attached: Plaintiffs’ Reply to Affirmative Defenses and Motion to Strike SERVICE LIST Sent via email: David@davidgongora.com;legalassistA @davidgongora.com;davidgongoraesq@gmail.com pleadings@rocklawpa.com; ccranton@rocklawpa.ccom; clakeberg@rocklaw.com F. Caroline H. Cranton, Esq. Andrew P. Rock, Esq. The Rock Law Group, P.A. 1760 Fennell Street Maitland, FL 32751 Attorneys for Defendant Universal Insurance Company of North America Page 4 of 4