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Filing #61006828 E-Filed 08/28/2017 02:04:29 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT.
IN AND FOR ORANGE COUNTY, FLORIDA
RAMON A. SOLANO and
JOSEFINA SOLANO,
Plaintiff,
GENERAL JURISDICTION DIVISION
¥.
CASE NO.: 2017-CA-004877-O
UNIVERSAL INSURANCE COMPANY OF
NORTH AMERICA,
Defendant.
/
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO
DISMISS AND INCORPORATED MEMORANDUM OF LAW
COMES NOW Plaintiffs, RAMON A. SOLANO and JOSEFINA SOLANO, by and
through the undersigned attorney, and hereby files this Response to Defendant's Motion to
Dismiss, and as grounds therefore would state:
A. Plaintiff’s Complaint states a cause of action despite the contract not being attached
because Plaintiffs alleged they do not have a copy and such copy may be obtained during
discovery and that the existence ofa contract and its breach has been alleged by the Plaintiffs.
A plaintiff's failure to attach a purported written contract to the complaint asserting breach
of express contract may not warrant dismissal for failure to state aclaim. See Manicini Enterprises,
Inc. v. American Exp. Co., 236 F.R.D. 695 (S.D. Fla. 2006); see also § 2:62.Key supporting
citations—Contract actions—Contracts as exhibits, 20 Fla. Prac., Sum. Jdgmt. & Rel. Term.
Motions § 2:62 (2016 ed.)
In Manicini Enterprises, an Information technology (IT) consultant brought suit against
related financial services companies for breach of contract, quantum meruit, and unjust
enrichment, alleging that defendants unilaterally underpaid for certain placement and IT consulting
projects. See Manicini Enterprises, Inc. v. Am. Exp. Co., 236 F.R.D. 695 (S.D. Fla. 2006).
Defendants moved to dismiss alleging, among other reasons, plaintiff failed to attach the purported
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governing contracts to the complaint. /d. at 697. In holding that Plaintiff's failure to attach the
purported written contracts does not warrant dismissal, the Southern District of Florida found that
plaintiff has sufficiently alleged the existence and breach of express contracts. Jd. at 698.
Furthermore, the court found “any remaining inquiries which Defendants may have concerning
the specific terms of the alleged contracts may be resolved through the discovery process.” Jd.
In the matter presently before the Court, as in Manicini Enterprises, the Plaintiffs allege
the existence of an express contract, a complete copy of which Plaintiffs do not have, and which
may be obtained through the discovery process. As in Manicini Enterprises, Plaintiff's inability
to attach a copy of the Insurance Policy to the Complaint does not render the Complaint defective
for failure to state a cause of action. This argument must be seen for what it is — yet another
dilatory tactic on behalf of the insurance company which must be denied.
B. Declaratory action is appropriate where there exist extrinsic facts which would affect
the clear and unambiguous language of the written agreement.
Plaintiff has alleged an uncertainty as to the existence of riglits under the insurance contract
and an actual bona fide dispute with the insurer concerning those rights. The two declaratory
causes of action statutes that are available to a policyholder provide separate and distinct causes
of action. §86.011 Fla. Stat., authorizes actions seeking declarations regarding the existence or
non-existence of contractual rights (i.e. including, but not limited to, a right to coverage under an
insurance policy). §86.021 Fla. Stat., authorizes actions seeking declarations as to an interpretation
of an ambiguous contractual provision, Specifically, the statutes state:
§86.011 Jurisdiction of trial court... The. court may render
declaratory judgments on the existence, or nonexistence:
(1) Of any ... right; or
(2) Of any fact upon which the existence or nonexistence of such ...
right does or- may depend, whether such ... right now exists or will
arise in the future
[-.]
§86.021 Power to construe.--Any person claiming to be interested
or who may be in doubt about his or her rights under a ... contract ...
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or whose rights, ... or . legal relations are affected by a .,, contract
»- may have determined any question of construction . arising
under such ... contract ... or any part thereof, and obtain a declaration
of rights ... or other ... legal relations thereunder.
This court need only look at the recent trend of case law interpreting the different causes
of declaratory relief action that are available under Chapter 86 Fla. Stat. In Lutz. v. Protective Life
Insurance Company, 951 So.2d 884 (Fla. 4th DCA 2007), Mr. Lutz (as a first party litigant)
brought an action for declaratory relief against his insurer regarding his claimed entitlement to
rights under the policy without alleging any ambiguity for the court to interpret. The lower court
held that Lutz could not, bring a declaratory relief action for the claim. However, the Fourth
District Court of Appeals reversed, noting that it is enough that Lutz pled an uncertainty as to the
existence of some rights under the policy and a bona fide dispute with the insurer concerning those
tights. Specifically, the court stated:
"In the instant case, it is enough that Lutz has set forth an uncertainty
as to the existence of some rights under the insurance contract and
an actual dispute with the insurer concerning those rights and
obligations, See §86.101, Fla. Stat. 2005) (stating the purpose of the
Declaratory Judgment Act is to ‘settle and to afford relief from
insecurity and uncertainty with respect to rights, status, and other
equitable or legal relations and is to be liberally administered and
construed.'); See Also Higgins y. State Farm Fire & Cas. Co., 894
So. 2d 5 (Fla. 2004) (holding that claim may lie for declaratory
judgment to determine the existence or non-existence of obligations
and rights under an insurance policy even where it is necessary for
the court to determine factual issues upon which the obligations and
tights depend)."
Lutz, 951 So. 2d at 889. Therefore, Plaintiff's right to bring this cause of action for a declaratory
judgment under §86.011, Florida Statutes, depends upon whether Plaintiff can show that Plaintiff
is in doubt as to the existence or nonexistence of a right under the policy and that Plaintiff is
entitled to have such doubt removed. See Caidin v, Lakow, 546 So.2d 788 (Fla. 3d DCA 1989).
"The mere fact that the contract is clear and unambiguous on its face does not prevent one
from seeking a declaration of his rights under such contract where there exist extrinsic facts
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which would affect the clear and unambiguous language of the written agreement." See
Caidin at 789 (emphasis added).
The Florida Supreme Court decisions in Higgins v. State Farm Fire & Cas. Co., 894 So.
2d 5 (Fla. 2004) and Allstate Ins. Co. v. Suarez, 833 So.2d 762 (Fla. 2002) are illustrative.
Although Higgins involved a third party property claim, its holding that a claim for declaratory
relief is available even when there are factual issues to be decided is applicable to first party claim.
See Lutz at 889. In Suarez, the Supreme Court found in favor of afirst party insured who had filed
an action for declaratory relief to establish rights to the policy's appraisal process.
Additionally, the Southern District of Florida illustrates Plaintiff's entitlement to
declaratory relief. See Quadomain Condo. Ass'n, Inc. v. QBE Ins. Corp., 07-60003-CIV-
MORENO, 2007 WL 1424596, at *3-4 (S.D. Fla. May 14, 2007). In Quadomain, Claimant
insured sought declaratory judgment to affirm that the insurance contract was valid and
enforceable and that pursuant to the terms and conditions of the insurance contract, it was entitled
to property insurance coverage for its damage arising from Hurricane Wilma. See Jd. at 3. The
insurance company responded, as in this case, that claimant fails to allege that the instant policy is
ambiguous that that therefore the declaratory judgment is improper. See Jd. The Court noted that
the insured claimant adequately alleged the elements of a declaratory action and specified:
Once again, in order to support a claim for declaratory judgment under section
86.021, a party must allege the following elements:
(1) a bona fide adverse interest between the parties concerning a power, privilege,
immunity or right of the plaintiff
(2) the plaintiffs doubt about the existence or non-existence of this rights or
privileges; and
(3) that he is entitled to have the doubt removed.
Floyd v. Guardian Life Ins. Co., 415 So.2d 103, 104 (Fla. 3d DCA 1982). First, a
“bona fide adverse interest” is established when a plaintiff makes a claim that it
was insured undér the deferidant's insurance policy. Jd at 104, Quadomain's
property was insured by a QBE policy. Second, if the insurer's acts regarding
coverage make the plaintiff uncertain about its status under the policy, then the
plaintiff is “entitled to have that status determined.” Jd. at 105. Quadomain alleges
that QBE has failed to “investigate, adjust, pay and/or settle Quadomain's claii
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and therefore, QBE's actions have created doubt as to Quadomain's right to receive
payment on its claim.
See Id. at 3-4. Thereafter, the Southern District rejected the insurance company’s
contention that declaratory relief was unavailable to claimant when declaring entitlement
to coverage and the court went on to find that the declaratory action, in this context, serves
an important purpose:
QBE's main argument is that Quadomain does not allege ambiguity. While QBE
concedes that an ambiguous policy will be construed in favor of coverage,
Northland Cas. Co. v. HBE Corp., 160 F.Supp.2d 1348, 1358 (M.D.Fla.2001), it
contends that Quadomain has not alleged that any portion of this policy is illusory
or ambiguous. It is well settled law that an insurance provision will only become
illusory when its terms contradict one another. Purrelli v. State Farm Fire & Cas.
Co., 698 So.2d 618 (Fla. 2d DCA 1997), The mere fact that an insurance policy is
a complex document which requires a thorough analysis does not translate to
ambiguity. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 139 F.Supp.2d 1374, 1379
(S.D.Fla.2001) (citing City of Delray Beach y, Agric. Ins. Co., 85 F.3d 1527 (11th
Cir.1996)). Although these are correct statements of black letter insurance contract
law, this Court finds that they do not bear on whether Quadomain is entitled to
survive a motion to dismiss on its claim for a declaratory judgment.
Unlike the above claim regarding coinsurance, the Court holds that here
Quadomain has adequately pled ari actual controversy. Namely, Quadomain has
submitted its claim for hurricane damages, and QBE has yet to “investigate,
adjust, pay and/or settle Quadomain's claim.” This failure to act is sufficient
for Quadomain to infer the existence of a dispute as to its right to coverage
under the insurance policy. In this context, a declaratory judgment would not
serve only to “ ‘answer abstract questions’ or ‘satisfy idle curiosity.’ “ Lutz,
951 So.2d at (quotingX Corp. v. Y Person, 622 So.2d 1098, 1102 (Fla. 2d
DCA 1993)). Just as in Lu a declarato’ judgment may allow Quadomain to
stablish that OBE breached its contract. See Lutz, 951 So.2d at ——. On the
other hand, a declaratory judgment favorable to QBE may convince
Quadomain not to expend additional resources to litigate the present suit.
Quadomain's allegations are sufficient to proceed. Therefore, the Court denies
QBE's Motion to Dismiss Count I, as it relates to coverage.
Quadomain Condo. Association, Inc. v. OBE Ins. Corp., 07-60003-CIV-MORENO, 2007 WL
1424596, at *3-4 (S.D. Fla. May 14, 2007)(emphasis added).
As in Caidin, Plaintiffs allege that there exist extrinsic facts which would affect the clear
and unambiguous terms of the agreement. Specifically, Plaintiffs allege that the actual cash value,
the extrinsic fact, was. incorrectly calculated or determined by the insurance company and such
affects the Plaintiffs’ rights under the language of the agreement, the specific right to be paid at
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least such amount under the policy within a specified time frame. As in Quadomain, Plaintiffs
declaration of such rights serves the same important purpose set forth in the Court’s opinion.
WHEREFORE, Plaintiff respectfully requests that this Court deny Defendant's Motion to
Dismiss.
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 day of
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 for Plaintiff
By:
David D. Gongora, Esq. FBN: 110745
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Preview
Filing #61006828 E-Filed 08/28/2017 02:04:29 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT. IN AND FOR ORANGE COUNTY, FLORIDA RAMON A. SOLANO and JOSEFINA SOLANO, Plaintiff, GENERAL JURISDICTION DIVISION ¥. CASE NO.: 2017-CA-004877-O UNIVERSAL INSURANCE COMPANY OF NORTH AMERICA, Defendant. / PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW COMES NOW Plaintiffs, RAMON A. SOLANO and JOSEFINA SOLANO, by and through the undersigned attorney, and hereby files this Response to Defendant's Motion to Dismiss, and as grounds therefore would state: A. Plaintiff’s Complaint states a cause of action despite the contract not being attached because Plaintiffs alleged they do not have a copy and such copy may be obtained during discovery and that the existence ofa contract and its breach has been alleged by the Plaintiffs. A plaintiff's failure to attach a purported written contract to the complaint asserting breach of express contract may not warrant dismissal for failure to state aclaim. See Manicini Enterprises, Inc. v. American Exp. Co., 236 F.R.D. 695 (S.D. Fla. 2006); see also § 2:62.Key supporting citations—Contract actions—Contracts as exhibits, 20 Fla. Prac., Sum. Jdgmt. & Rel. Term. Motions § 2:62 (2016 ed.) In Manicini Enterprises, an Information technology (IT) consultant brought suit against related financial services companies for breach of contract, quantum meruit, and unjust enrichment, alleging that defendants unilaterally underpaid for certain placement and IT consulting projects. See Manicini Enterprises, Inc. v. Am. Exp. Co., 236 F.R.D. 695 (S.D. Fla. 2006). Defendants moved to dismiss alleging, among other reasons, plaintiff failed to attach the purported Page 1 of 6 governing contracts to the complaint. /d. at 697. In holding that Plaintiff's failure to attach the purported written contracts does not warrant dismissal, the Southern District of Florida found that plaintiff has sufficiently alleged the existence and breach of express contracts. Jd. at 698. Furthermore, the court found “any remaining inquiries which Defendants may have concerning the specific terms of the alleged contracts may be resolved through the discovery process.” Jd. In the matter presently before the Court, as in Manicini Enterprises, the Plaintiffs allege the existence of an express contract, a complete copy of which Plaintiffs do not have, and which may be obtained through the discovery process. As in Manicini Enterprises, Plaintiff's inability to attach a copy of the Insurance Policy to the Complaint does not render the Complaint defective for failure to state a cause of action. This argument must be seen for what it is — yet another dilatory tactic on behalf of the insurance company which must be denied. B. Declaratory action is appropriate where there exist extrinsic facts which would affect the clear and unambiguous language of the written agreement. Plaintiff has alleged an uncertainty as to the existence of riglits under the insurance contract and an actual bona fide dispute with the insurer concerning those rights. The two declaratory causes of action statutes that are available to a policyholder provide separate and distinct causes of action. §86.011 Fla. Stat., authorizes actions seeking declarations regarding the existence or non-existence of contractual rights (i.e. including, but not limited to, a right to coverage under an insurance policy). §86.021 Fla. Stat., authorizes actions seeking declarations as to an interpretation of an ambiguous contractual provision, Specifically, the statutes state: §86.011 Jurisdiction of trial court... The. court may render declaratory judgments on the existence, or nonexistence: (1) Of any ... right; or (2) Of any fact upon which the existence or nonexistence of such ... right does or- may depend, whether such ... right now exists or will arise in the future [-.] §86.021 Power to construe.--Any person claiming to be interested or who may be in doubt about his or her rights under a ... contract ... Page 2 of 6 or whose rights, ... or . legal relations are affected by a .,, contract »- may have determined any question of construction . arising under such ... contract ... or any part thereof, and obtain a declaration of rights ... or other ... legal relations thereunder. This court need only look at the recent trend of case law interpreting the different causes of declaratory relief action that are available under Chapter 86 Fla. Stat. In Lutz. v. Protective Life Insurance Company, 951 So.2d 884 (Fla. 4th DCA 2007), Mr. Lutz (as a first party litigant) brought an action for declaratory relief against his insurer regarding his claimed entitlement to rights under the policy without alleging any ambiguity for the court to interpret. The lower court held that Lutz could not, bring a declaratory relief action for the claim. However, the Fourth District Court of Appeals reversed, noting that it is enough that Lutz pled an uncertainty as to the existence of some rights under the policy and a bona fide dispute with the insurer concerning those tights. Specifically, the court stated: "In the instant case, it is enough that Lutz has set forth an uncertainty as to the existence of some rights under the insurance contract and an actual dispute with the insurer concerning those rights and obligations, See §86.101, Fla. Stat. 2005) (stating the purpose of the Declaratory Judgment Act is to ‘settle and to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations and is to be liberally administered and construed.'); See Also Higgins y. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004) (holding that claim may lie for declaratory judgment to determine the existence or non-existence of obligations and rights under an insurance policy even where it is necessary for the court to determine factual issues upon which the obligations and tights depend)." Lutz, 951 So. 2d at 889. Therefore, Plaintiff's right to bring this cause of action for a declaratory judgment under §86.011, Florida Statutes, depends upon whether Plaintiff can show that Plaintiff is in doubt as to the existence or nonexistence of a right under the policy and that Plaintiff is entitled to have such doubt removed. See Caidin v, Lakow, 546 So.2d 788 (Fla. 3d DCA 1989). "The mere fact that the contract is clear and unambiguous on its face does not prevent one from seeking a declaration of his rights under such contract where there exist extrinsic facts Page 3 of 6 which would affect the clear and unambiguous language of the written agreement." See Caidin at 789 (emphasis added). The Florida Supreme Court decisions in Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004) and Allstate Ins. Co. v. Suarez, 833 So.2d 762 (Fla. 2002) are illustrative. Although Higgins involved a third party property claim, its holding that a claim for declaratory relief is available even when there are factual issues to be decided is applicable to first party claim. See Lutz at 889. In Suarez, the Supreme Court found in favor of afirst party insured who had filed an action for declaratory relief to establish rights to the policy's appraisal process. Additionally, the Southern District of Florida illustrates Plaintiff's entitlement to declaratory relief. See Quadomain Condo. Ass'n, Inc. v. QBE Ins. Corp., 07-60003-CIV- MORENO, 2007 WL 1424596, at *3-4 (S.D. Fla. May 14, 2007). In Quadomain, Claimant insured sought declaratory judgment to affirm that the insurance contract was valid and enforceable and that pursuant to the terms and conditions of the insurance contract, it was entitled to property insurance coverage for its damage arising from Hurricane Wilma. See Jd. at 3. The insurance company responded, as in this case, that claimant fails to allege that the instant policy is ambiguous that that therefore the declaratory judgment is improper. See Jd. The Court noted that the insured claimant adequately alleged the elements of a declaratory action and specified: Once again, in order to support a claim for declaratory judgment under section 86.021, a party must allege the following elements: (1) a bona fide adverse interest between the parties concerning a power, privilege, immunity or right of the plaintiff (2) the plaintiffs doubt about the existence or non-existence of this rights or privileges; and (3) that he is entitled to have the doubt removed. Floyd v. Guardian Life Ins. Co., 415 So.2d 103, 104 (Fla. 3d DCA 1982). First, a “bona fide adverse interest” is established when a plaintiff makes a claim that it was insured undér the deferidant's insurance policy. Jd at 104, Quadomain's property was insured by a QBE policy. Second, if the insurer's acts regarding coverage make the plaintiff uncertain about its status under the policy, then the plaintiff is “entitled to have that status determined.” Jd. at 105. Quadomain alleges that QBE has failed to “investigate, adjust, pay and/or settle Quadomain's claii Page 4 of 6 and therefore, QBE's actions have created doubt as to Quadomain's right to receive payment on its claim. See Id. at 3-4. Thereafter, the Southern District rejected the insurance company’s contention that declaratory relief was unavailable to claimant when declaring entitlement to coverage and the court went on to find that the declaratory action, in this context, serves an important purpose: QBE's main argument is that Quadomain does not allege ambiguity. While QBE concedes that an ambiguous policy will be construed in favor of coverage, Northland Cas. Co. v. HBE Corp., 160 F.Supp.2d 1348, 1358 (M.D.Fla.2001), it contends that Quadomain has not alleged that any portion of this policy is illusory or ambiguous. It is well settled law that an insurance provision will only become illusory when its terms contradict one another. Purrelli v. State Farm Fire & Cas. Co., 698 So.2d 618 (Fla. 2d DCA 1997), The mere fact that an insurance policy is a complex document which requires a thorough analysis does not translate to ambiguity. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 139 F.Supp.2d 1374, 1379 (S.D.Fla.2001) (citing City of Delray Beach y, Agric. Ins. Co., 85 F.3d 1527 (11th Cir.1996)). Although these are correct statements of black letter insurance contract law, this Court finds that they do not bear on whether Quadomain is entitled to survive a motion to dismiss on its claim for a declaratory judgment. Unlike the above claim regarding coinsurance, the Court holds that here Quadomain has adequately pled ari actual controversy. Namely, Quadomain has submitted its claim for hurricane damages, and QBE has yet to “investigate, adjust, pay and/or settle Quadomain's claim.” This failure to act is sufficient for Quadomain to infer the existence of a dispute as to its right to coverage under the insurance policy. In this context, a declaratory judgment would not serve only to “ ‘answer abstract questions’ or ‘satisfy idle curiosity.’ “ Lutz, 951 So.2d at (quotingX Corp. v. Y Person, 622 So.2d 1098, 1102 (Fla. 2d DCA 1993)). Just as in Lu a declarato’ judgment may allow Quadomain to stablish that OBE breached its contract. See Lutz, 951 So.2d at ——. On the other hand, a declaratory judgment favorable to QBE may convince Quadomain not to expend additional resources to litigate the present suit. Quadomain's allegations are sufficient to proceed. Therefore, the Court denies QBE's Motion to Dismiss Count I, as it relates to coverage. Quadomain Condo. Association, Inc. v. OBE Ins. Corp., 07-60003-CIV-MORENO, 2007 WL 1424596, at *3-4 (S.D. Fla. May 14, 2007)(emphasis added). As in Caidin, Plaintiffs allege that there exist extrinsic facts which would affect the clear and unambiguous terms of the agreement. Specifically, Plaintiffs allege that the actual cash value, the extrinsic fact, was. incorrectly calculated or determined by the insurance company and such affects the Plaintiffs’ rights under the language of the agreement, the specific right to be paid at Page 5 of 6 least such amount under the policy within a specified time frame. As in Quadomain, Plaintiffs declaration of such rights serves the same important purpose set forth in the Court’s opinion. WHEREFORE, Plaintiff respectfully requests that this Court deny Defendant's Motion to Dismiss. 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 day of 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 for Plaintiff By: David D. Gongora, Esq. FBN: 110745 Page 6 of 6