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Filing # 142028711 E-Filed 01/14/2022 02:16:53 PM
IN THE CIRCUIT COURT OF THE
5 JUDICIAL CIRCUIT IN AND
FOR LAKE COUNTY, FLORIDA
CASE NO: 2021-CA-001217
KELLI AND NICHOLAS J. CROFT,
Plaintiff,
Vv.
UNITED PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
SSF
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’
COMPLAINT AND DEMAND FOR JURY TRIAL
Defendant, UNITED PROPERTY AND CASUALTY INSURANCE COMPANY
(UPC/Defendant”), by and through its undersigned counsel hereby files its Answer and
Affirmative Defenses and Demand for Jury Trial in response to Plaintiffs’ Complaint, and in
support thereof, states as follows:
1 It is admitted only that Plaintiffs have alleged an amount in controversy sufficient
to satisfy the jurisdictional threshold of this Court. Except as expressly admitted, the allegations
in{ 1 are denied.
2. Defendant is without knowledge and demands strict proof thereof.
3 Defendant admits only that Defendant is a Florida Profit Corporation duly licensed
to transact insurance business in the State of Florida with a principle address located at 800 2nd
Avenue South, Saint Petersburg, FL 337012. All else is denied.
4 Admitted for jurisdictional purposes only.
5 Defendant denies the allegations in {| 5 as phrased. Defendant admits only that it
issued an insurance policy bearing Policy Number UHV 4267546 04 to Kelli Croft and Nicholas
FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 01/14/2022 04:14:47 PM
Croft, for property located at 901 Elm Forest Dr., Minneola, FL 34715 for the policy period of
7/12/2020 through 7/12/2021, which was at all times subject to the express terms, conditions,
limitations and exclusions contained therein.
6 Defendant denies the allegations in § 6 as phrased. Defendant admits only that it
issued an insurance policy bearing Policy Number UHV 4267546 04 to Kelli Croft and Nicholas
Croft, for property located at 901 Elm Forest Dr., Minneola, FL 34715 for the policy period of
7/12/2020 through 7/12/2021, which was at all times subject to the express terms, conditions,
limitations and exclusions contained therein. Defendant further denies Plaintiffs are not in
possession of a copy of said Policy.
7 Denied.
8 Denied.
COUNT I- BREACH OF CONTRACT AGAINST DEFENDANT
9 Defendant incorporates its responses to Paragraphs 1-8 above as though fully set
forth herein.
10. Defendant admits only that it issued an insurance policy bearing Policy Number
UHV 4267546 04 to Kelli Croft and Nicholas Croft, for property located at 901 Elm Forest Dr.,
Minneola, FL 34715 for the policy period of 7/12/2020 through 7/12/2021, which was at all times
subject to the express terms, conditions, limitations and exclusions contained therein.
ll Denied.
12. Denied.
13. Denied.
14, Denied.
15. Defendant asserts no response is required. To the extent a response is required,
denied and Plaintiff failed to comply with the Policy’s conditions.
16. Denied.
17. Denied.
Defendant denies all allegations in the Complaint and Wherefore Clause not expressly
admitted above and demands strict proof thereof.
AFFIRMATIVE DEFENSES
By way of affirmative defenses, Defendant, UNITED PROPERTY AND CASUALTY
INSURANCE COMPANY, asserts the following:
FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ claims fails and/or is limited from recovery as the named Insureds failed to
comply with the terms and conditions of the subject policy prior to filing suit against UPC by
failing to provide prompt notice, failed to permit inspection of damaged property and provide
requested documentation, and failed to provide notice of its disagreement of the coverage
determination prior to filing suit, thereby failing to permit UPC its right to pursue Mediation and/or
Appraisal. The Policy states:
Form HO 00 03 05 11 and ENDORSEMENT UPC 191 02 18
SECTION 1 — CONDITIONS
C. Duties After Loss
Paragraph 1. is replaced by the following:
1. Give prompt notice to us or our agent. A
claim, supplemental claim or reopened
claim for loss or damage caused by
hurricane or cther windstorm is barred
unless notice of a claim, supplemental
clalm or reopened claim far lass or damage
caused by hurricane or other windstorm is
given to us in accordance with the terms of
this policy within three years after the
hurricane first made landfall or a windstorm
other than hurricane caused the covered
damage. (Supplemental claim or reopened
claim means an additional claim for
recovery from us for losses from the same
hurricane or other windsterm which we
have previously adjusted pursuant to the
inital claim.}
7. As often as we reasonably require:
a. Show the damaged property;
b. Provide us with records and documents we request and
permit us to make copies;
7.4. Allow us to inspect all damaged
property to the degree reasonably possible
prior to its removal from the “insured
tocation” except as to any = repairs
performed under Additional Coverages 1.
and 2 — Debris Removal and Reasonable
Repairs.
F. Mediation or Appraisal
If you and we fall to agree on the settlement
regarding the lass_ prior to filing suit, you must
notify us of your disagreement in writing so
that either party may:
3. Mediation or Appraisal is required as a
prerequisite before an “Insured” can file
suit related to Section I of this policy
regarding the amount of loss_
H. Suits Against Us
If you and we fail to agree on the settlement
regarding the foss_prior to filing suit, you must
notify us of your disagreement in writing,
No action can be brought against us unless
there has been full compliance with all of the
terms under Section I of this policy and the
action is started within five years after the date
of loss. Mediation or Appraisal is required as a
prerequisite before an Insured can file suit
related to Section | of this policy regarding the
amount of loss.
The aforementioned acts/inactions are material breaches of the Insureds’ post-loss
obligations. These breaches create a presumption of prejudice in favor of the Defendant. The
Plaintiff maintains the burden of proof to overcome this presumption of prejudice. The Plaintiffs’
breaches are a bar to recovery.
SECOND AFFIRMATIVE DEFENSE
The damages alleged in the INSUREDS’ Complaint, or a portion of same, are specifically
excluded from coverage by the subject policy or were not caused by a covered peril under the
provisions of the subject Policy and all applicable endorsements thereto. UPC’s inspection of the
insured property, to the extent possible, revealed damage associated with the passage of a prior
event. Plaintiffs’ recovery, if any, fails and/or is limited to the extent that the alleged damages were
caused by wear and tear, marring, and/or deterioration, mechanical breakdown, latent defect,
inherent vice or any quality in property that caused it to damage or destroy itself, which are not
covered losses. The Policy states:
Form HO 00 03 05 11 and ENDORSEMENT UPC 191 02 18
SECTION I — PERILS INSURANCE AGAINST
A, Coverage A — Dwelling And Coverage B — Other Structures
1. We insure against direct physical loss to property described in Coverages A and B.
2. We do not insure, however, for loss:
ce Caused by:
(6. Any of the following:
(a) Wear and tear, marring, deterioration;
(b) Mechanical breakdown, latent defect, inherent vice or any quality in
property that caused it to damage or destroy itself.
THIRD AFFIRMATIVE DEFENSE
Plaintiffs’ claim fails and/or is limited because the Policy excludes coverage for damages
which are the consequence of faulty, inadequate or defective: workmanship, repair, construction,
renovation, or maintenance. As such, there is no coverage for these damages under the Policy.
Form HO 00 03 05 11 and ENDORSEMENT UPC 191 02 18
SECTION
I —- EXCLUSIONS
A. We do not insure for loss caused directly or indirectly by any of the following. Such
loss is excluded regardless of any other cause or event contributing concurrently or in
any sequence to the loss. These exclusions apply whether or not the loss event results in
widespread damage or affects a substantial area.
HK
A, We do not insure for loss to property described in Coverages A and B caused by any
of the following. However, any ensuing loss to property described in Coverages A and B
not precluded by any other provision in this policy is covered.
I. Weather conditions. However, this exclusion only applies if weather conditions
contribute in any way with a cause or event excluded in A. above to produce the loss.
oko ok
3. Faulty, inadequate or defective:
a. Planning, zoning, development, surveying, siting;
b. Design, specifications, workmanship, repair, construction, renovation, remodeling,
grading, compaction;
c. Materials used in repair, construction, renovation or remodeling; or
d. Maintenance;
of part or all of any property whether on or off the "residence premises".
FOURTH AFFIRMATIVE DEFENSE
Tn the event the Plaintiffs are found to be entitled to recover in this action, UPC is entitled
to a set-off for the full amount of any payment made or deemed to be due and owing to the Insured
as proceeds payable under the Policy or any endorsement to the Policy; a set-off for the full amount
of any applicable deductible under the Policy or any endorsement to the Policy or any endorsement
to the Policy and a set-off for the full amount of any payment made or deemed to be due and owing
to any water and/or mold mitigation companies as proceeds payable under the Policy or any
endorsement to the Policy.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim fails and/or is limited from recovery as the damages alleged in Plaintiffs’
Complaint are not Perils Insured Against under the subject Policy and/or are excluded from
coverage under the subject policy. The Policy states:
Form HO 00 03 05 11 and ENDORSEMENT UPC 191 02 18
SECTION 1 —- PERILS INSURED AGAINST
A. Coverage A — Dwelling And Coverage B — Other Structures
I. We insure against sudden and accidental direct physical loss to property described in
Coverages A and B.
2. We do not insure, however, for loss:
a. Excluded under Section I — Exclusions;
e Caused by:
: (5) Constant or repeated seepage or leakage of water or steam or the presence or
condensation of humidity, moisture or vapor that occurs over a period of 14 or more
days, whether hidden or not. In the event this exclusion applies, we will not pay for any
damages sustained starting from the first day the constant or repeated seepage or
leakage of water or steam or the presence or condensation of humidity, moisture or
vapor began;
SIXTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim fails and/or is limited from recovery as the damages alleged in Plaintiffs’
Complaint are not Perils Insured Against under the subject Policy and/or are excluded from
coverage under the subject policy. The Policy states:
Form HO 00 03 05 11 and ENDORSEMENT UPC 191 02 18
SECTION 1 —- PERILS INSURED AGAINST
A. Coverage A — Dwelling And Coverage B — Other Structures
I. We insure against sudden and accidental direct physical loss to property described in
Coverages A and B.
2. We do not insure, however, for loss:
a. Excluded under Section I — Exclusions;
@ Caused by:
Item (g) is deleted and replaced by the following:
(g) Animals, birds, rodents, reptiles,
insects and fish;
RESERVATION OF RIGHT TO AMEND
The Plaintiff's claim may not have been fully disclosed, and therefore, Defendant reserves
the right to amend or supplement its Affirmative Defenses with additional information if and when
such information is discovered.
DEMAND FOR JURY TRIAL
Defendant, UNITED PROPERTY AND CASUALTY INSURANCE COMPANY,
demands trial by jury as to all issues so triable as a matter of right.
WHEREFORE, Defendant, UNITED PROPERTY AND CASUALTY INSURANCE
COMPANY, having answered the Plaintiff's Complaint and set forth its Affirmative Defenses,
hereby demands judgment in its favor and against the Plaintiff's and prays that this cause be
dismissed with costs and expenses taxed against the Plaintiff.
(Certificate of Service on following page)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document was filed
electronically and was sent by E-mail from the Florida Courts’ E-Filing Portal system, unless
otherwise noted below on this 14" day of January 2022, on all counsel or parties of record listed
below:
SERVICE LIST
Attorney for Plaintiff
Jabari A. Bennett, Esq.
Cohen Law Group
350 North Lake Destiny Road
Maitland, FL 32751
jbennett@itsaboutjustice.law
tiina@itsaboutjustice.law
CHARTWELL LAW
Attorneys for Defendant
1191 East Newport Center Drive
Penthouse Suite H
Deerfield Beach, FL 33442
Telephone: (754) 227-7995
Facsimile: (754) 212-4170
By: /s/ J. Michael Magee, Jr.
Laurie Sharpe Dulcer
Florida Bar: 39323
Isharpe@chartwelllaw.com
mmarotto@chartwelllaw.com
J. Michael Magee, Jr., Esq.
Florida Bar: 108068
mmagee@chartwelllaw.com
jdominique-clark@chartwelllaw.com
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Filing # 142028711 E-Filed 01/14/2022 02:16:53 PM IN THE CIRCUIT COURT OF THE 5 JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA CASE NO: 2021-CA-001217 KELLI AND NICHOLAS J. CROFT, Plaintiff, Vv. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. SSF DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT AND DEMAND FOR JURY TRIAL Defendant, UNITED PROPERTY AND CASUALTY INSURANCE COMPANY (UPC/Defendant”), by and through its undersigned counsel hereby files its Answer and Affirmative Defenses and Demand for Jury Trial in response to Plaintiffs’ Complaint, and in support thereof, states as follows: 1 It is admitted only that Plaintiffs have alleged an amount in controversy sufficient to satisfy the jurisdictional threshold of this Court. Except as expressly admitted, the allegations in{ 1 are denied. 2. Defendant is without knowledge and demands strict proof thereof. 3 Defendant admits only that Defendant is a Florida Profit Corporation duly licensed to transact insurance business in the State of Florida with a principle address located at 800 2nd Avenue South, Saint Petersburg, FL 337012. All else is denied. 4 Admitted for jurisdictional purposes only. 5 Defendant denies the allegations in {| 5 as phrased. Defendant admits only that it issued an insurance policy bearing Policy Number UHV 4267546 04 to Kelli Croft and Nicholas FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 01/14/2022 04:14:47 PM Croft, for property located at 901 Elm Forest Dr., Minneola, FL 34715 for the policy period of 7/12/2020 through 7/12/2021, which was at all times subject to the express terms, conditions, limitations and exclusions contained therein. 6 Defendant denies the allegations in § 6 as phrased. Defendant admits only that it issued an insurance policy bearing Policy Number UHV 4267546 04 to Kelli Croft and Nicholas Croft, for property located at 901 Elm Forest Dr., Minneola, FL 34715 for the policy period of 7/12/2020 through 7/12/2021, which was at all times subject to the express terms, conditions, limitations and exclusions contained therein. Defendant further denies Plaintiffs are not in possession of a copy of said Policy. 7 Denied. 8 Denied. COUNT I- BREACH OF CONTRACT AGAINST DEFENDANT 9 Defendant incorporates its responses to Paragraphs 1-8 above as though fully set forth herein. 10. Defendant admits only that it issued an insurance policy bearing Policy Number UHV 4267546 04 to Kelli Croft and Nicholas Croft, for property located at 901 Elm Forest Dr., Minneola, FL 34715 for the policy period of 7/12/2020 through 7/12/2021, which was at all times subject to the express terms, conditions, limitations and exclusions contained therein. ll Denied. 12. Denied. 13. Denied. 14, Denied. 15. Defendant asserts no response is required. To the extent a response is required, denied and Plaintiff failed to comply with the Policy’s conditions. 16. Denied. 17. Denied. Defendant denies all allegations in the Complaint and Wherefore Clause not expressly admitted above and demands strict proof thereof. AFFIRMATIVE DEFENSES By way of affirmative defenses, Defendant, UNITED PROPERTY AND CASUALTY INSURANCE COMPANY, asserts the following: FIRST AFFIRMATIVE DEFENSE Plaintiffs’ claims fails and/or is limited from recovery as the named Insureds failed to comply with the terms and conditions of the subject policy prior to filing suit against UPC by failing to provide prompt notice, failed to permit inspection of damaged property and provide requested documentation, and failed to provide notice of its disagreement of the coverage determination prior to filing suit, thereby failing to permit UPC its right to pursue Mediation and/or Appraisal. The Policy states: Form HO 00 03 05 11 and ENDORSEMENT UPC 191 02 18 SECTION 1 — CONDITIONS C. Duties After Loss Paragraph 1. is replaced by the following: 1. Give prompt notice to us or our agent. A claim, supplemental claim or reopened claim for loss or damage caused by hurricane or cther windstorm is barred unless notice of a claim, supplemental clalm or reopened claim far lass or damage caused by hurricane or other windstorm is given to us in accordance with the terms of this policy within three years after the hurricane first made landfall or a windstorm other than hurricane caused the covered damage. (Supplemental claim or reopened claim means an additional claim for recovery from us for losses from the same hurricane or other windsterm which we have previously adjusted pursuant to the inital claim.} 7. As often as we reasonably require: a. Show the damaged property; b. Provide us with records and documents we request and permit us to make copies; 7.4. Allow us to inspect all damaged property to the degree reasonably possible prior to its removal from the “insured tocation” except as to any = repairs performed under Additional Coverages 1. and 2 — Debris Removal and Reasonable Repairs. F. Mediation or Appraisal If you and we fall to agree on the settlement regarding the lass_ prior to filing suit, you must notify us of your disagreement in writing so that either party may: 3. Mediation or Appraisal is required as a prerequisite before an “Insured” can file suit related to Section I of this policy regarding the amount of loss_ H. Suits Against Us If you and we fail to agree on the settlement regarding the foss_prior to filing suit, you must notify us of your disagreement in writing, No action can be brought against us unless there has been full compliance with all of the terms under Section I of this policy and the action is started within five years after the date of loss. Mediation or Appraisal is required as a prerequisite before an Insured can file suit related to Section | of this policy regarding the amount of loss. The aforementioned acts/inactions are material breaches of the Insureds’ post-loss obligations. These breaches create a presumption of prejudice in favor of the Defendant. The Plaintiff maintains the burden of proof to overcome this presumption of prejudice. The Plaintiffs’ breaches are a bar to recovery. SECOND AFFIRMATIVE DEFENSE The damages alleged in the INSUREDS’ Complaint, or a portion of same, are specifically excluded from coverage by the subject policy or were not caused by a covered peril under the provisions of the subject Policy and all applicable endorsements thereto. UPC’s inspection of the insured property, to the extent possible, revealed damage associated with the passage of a prior event. Plaintiffs’ recovery, if any, fails and/or is limited to the extent that the alleged damages were caused by wear and tear, marring, and/or deterioration, mechanical breakdown, latent defect, inherent vice or any quality in property that caused it to damage or destroy itself, which are not covered losses. The Policy states: Form HO 00 03 05 11 and ENDORSEMENT UPC 191 02 18 SECTION I — PERILS INSURANCE AGAINST A, Coverage A — Dwelling And Coverage B — Other Structures 1. We insure against direct physical loss to property described in Coverages A and B. 2. We do not insure, however, for loss: ce Caused by: (6. Any of the following: (a) Wear and tear, marring, deterioration; (b) Mechanical breakdown, latent defect, inherent vice or any quality in property that caused it to damage or destroy itself. THIRD AFFIRMATIVE DEFENSE Plaintiffs’ claim fails and/or is limited because the Policy excludes coverage for damages which are the consequence of faulty, inadequate or defective: workmanship, repair, construction, renovation, or maintenance. As such, there is no coverage for these damages under the Policy. Form HO 00 03 05 11 and ENDORSEMENT UPC 191 02 18 SECTION I —- EXCLUSIONS A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area. HK A, We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered. I. Weather conditions. However, this exclusion only applies if weather conditions contribute in any way with a cause or event excluded in A. above to produce the loss. oko ok 3. Faulty, inadequate or defective: a. Planning, zoning, development, surveying, siting; b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; c. Materials used in repair, construction, renovation or remodeling; or d. Maintenance; of part or all of any property whether on or off the "residence premises". FOURTH AFFIRMATIVE DEFENSE Tn the event the Plaintiffs are found to be entitled to recover in this action, UPC is entitled to a set-off for the full amount of any payment made or deemed to be due and owing to the Insured as proceeds payable under the Policy or any endorsement to the Policy; a set-off for the full amount of any applicable deductible under the Policy or any endorsement to the Policy or any endorsement to the Policy and a set-off for the full amount of any payment made or deemed to be due and owing to any water and/or mold mitigation companies as proceeds payable under the Policy or any endorsement to the Policy. FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ claim fails and/or is limited from recovery as the damages alleged in Plaintiffs’ Complaint are not Perils Insured Against under the subject Policy and/or are excluded from coverage under the subject policy. The Policy states: Form HO 00 03 05 11 and ENDORSEMENT UPC 191 02 18 SECTION 1 —- PERILS INSURED AGAINST A. Coverage A — Dwelling And Coverage B — Other Structures I. We insure against sudden and accidental direct physical loss to property described in Coverages A and B. 2. We do not insure, however, for loss: a. Excluded under Section I — Exclusions; e Caused by: : (5) Constant or repeated seepage or leakage of water or steam or the presence or condensation of humidity, moisture or vapor that occurs over a period of 14 or more days, whether hidden or not. In the event this exclusion applies, we will not pay for any damages sustained starting from the first day the constant or repeated seepage or leakage of water or steam or the presence or condensation of humidity, moisture or vapor began; SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ claim fails and/or is limited from recovery as the damages alleged in Plaintiffs’ Complaint are not Perils Insured Against under the subject Policy and/or are excluded from coverage under the subject policy. The Policy states: Form HO 00 03 05 11 and ENDORSEMENT UPC 191 02 18 SECTION 1 —- PERILS INSURED AGAINST A. Coverage A — Dwelling And Coverage B — Other Structures I. We insure against sudden and accidental direct physical loss to property described in Coverages A and B. 2. We do not insure, however, for loss: a. Excluded under Section I — Exclusions; @ Caused by: Item (g) is deleted and replaced by the following: (g) Animals, birds, rodents, reptiles, insects and fish; RESERVATION OF RIGHT TO AMEND The Plaintiff's claim may not have been fully disclosed, and therefore, Defendant reserves the right to amend or supplement its Affirmative Defenses with additional information if and when such information is discovered. DEMAND FOR JURY TRIAL Defendant, UNITED PROPERTY AND CASUALTY INSURANCE COMPANY, demands trial by jury as to all issues so triable as a matter of right. WHEREFORE, Defendant, UNITED PROPERTY AND CASUALTY INSURANCE COMPANY, having answered the Plaintiff's Complaint and set forth its Affirmative Defenses, hereby demands judgment in its favor and against the Plaintiff's and prays that this cause be dismissed with costs and expenses taxed against the Plaintiff. (Certificate of Service on following page) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was filed electronically and was sent by E-mail from the Florida Courts’ E-Filing Portal system, unless otherwise noted below on this 14" day of January 2022, on all counsel or parties of record listed below: SERVICE LIST Attorney for Plaintiff Jabari A. Bennett, Esq. Cohen Law Group 350 North Lake Destiny Road Maitland, FL 32751 jbennett@itsaboutjustice.law tiina@itsaboutjustice.law CHARTWELL LAW Attorneys for Defendant 1191 East Newport Center Drive Penthouse Suite H Deerfield Beach, FL 33442 Telephone: (754) 227-7995 Facsimile: (754) 212-4170 By: /s/ J. Michael Magee, Jr. Laurie Sharpe Dulcer Florida Bar: 39323 Isharpe@chartwelllaw.com mmarotto@chartwelllaw.com J. Michael Magee, Jr., Esq. Florida Bar: 108068 mmagee@chartwelllaw.com jdominique-clark@chartwelllaw.com