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Filing # 108029508 E-Filed 05/27/2020 11:20:22 PM
IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA
ANTHONY DAVIS, JR.,
Case No. 2020-CA-024628
Plaintiff,
vs.
SECURITY FIRST INSURANCE COMPANY,
Defendant.
/
DEFENDANT, SECURITY FIRST INSURANCE COMPANY’S MOTION TO DISMISS
PLAINTIFF’S COMPLAINT
Defendant, SECURITY FIRST INSURANCE COMPANY (hereinafter “Security First”),
by and through undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.140,
hereby files this Motion to Dismiss Plaintiff's, ANTHONY DAVIS JR.’s, Complaint, and in
support thereof states as follows:
FACTUAL BACKGROUND
1 This case originated as a result of purported damages arising out of an
undescribed loss occurring on an unspecified date at Plaintiff's property, located at 4835 Key
Biscayne Drive. Titusville, Florida, 32780 [hereinafter “insured property”.] See Plaintiff's
Complaint.
2 This action is predicated upon a policy of insurance which Security First
issued to Plaintiff bearing Policy Number P004111407 affording certain coverage to the
insured property during the applicable policy period, subject to the Policy's terms,
conditions, limitations, exclusions and endorsements (hereinafter the “Policy”). See Policy,
which will be filed in support of this Motion as Exhibit “A”.
Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
3 On or about April 23, 2020, Plaintiff served his Complaint on Security First
alleging purported Breach of Contract. See Plaintiff's Complaint. The Complaint alleges
that on an unspecified date, the insured property sustained an undescribed loss due to
“water” at an unspecified location in the home. /d. at Par. 4. It also alleges that
Security First breached the Policy due to its purported failure to pay for an estimate
supplied by Plaintiff, which was not attached to the Complaint. /d. Par. 1/-14.
4 Plaintiff's Complaint must be dismissed by this Honorable Court for the
following reasons:
5 First, the Complaint must be dismissed and/or transferred to County Court
because the Policy upon which this action has been predicated at most limits the damage to
$10,000.00 per loss, which is obviously below this Honorable Court’s $30,000.00 jurisdiction.
For this reason, there is no amount in dispute and even if there was an amount, this Honorable
Court lacks jurisdiction in this matter since it falls below $30,000.00 excluding attorney’s
fees, costs and/or interest.
6. Second, the Complaint must be dismissed since it fails to state a legal cause
of action upon which relief may be granted as Plaintiff failed to provide ultimate facts
tegarding the cause, date and location of loss at the insured property upon which this
lawsuit is predicated. Florida Jurisprudence requires a pleading to set forth “a short and
plain statement of the ultimate facts showing that the pleader is entitled to relief.” See
Fla. R. Civ. P. 1.110(b) (2020). The Complaint falls short of this standard due to its
failure to provide ultimate facts as to the date, cause and location of the loss upon which it
appears to be predicated, which could be anything from a roof leak, to an air conditioning
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Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
leak, to a water heater leak, to a plumbing leak, to some other cause or event and which could
have literally occurred in one or several areas of the insured property.
7
Potential coverage for a loss requires a determination of the potential application
of many different applicable Policy terms, conditions, exclusions, limitations, and
endorsements. The lack of description within the Complaint of the date, cause and location of
loss, creates vagueness and ambiguity regarding the subject loss which prevents Security
First from recognizing what is being alleged against it and formulating its defenses.
Merely stating that a purported water loss occurred, without specifying the date, cause and
location of loss is not sufficient under Florida law.
8 Third, the Complaint must be dismissed as it fails to state a legal cause of
action upon which relief may be granted. Specifically, the contract upon which Plaintiff's
action has been predicated was not attached to the Complaint nor described in any specificity
within its four corners. Florida law has long been clear that the instrument upon which a
complaint is based must be attached to the Complaint to avoid a dismissal. Plaintiff alleges
that she is entitled to financial recovery based upon a prepared contract, but have conveniently
failed to attach a complete copy of said estimate, in violation of Florida law.
9 As such, for these reasons and the reasons stated below, this Honorable Court
must dismiss Plaintiff's Complaint.
MEMORANDUM
OF LAW AND ARGUMENT
L Motion to Dismiss Standard.
Fla. R. Civ. P. 1.140 states in relevant part as follows:
(b) How Presented. Every defense in law or fact to a claim for relief in
a pleading shall be asserted in the responsive pleading, if one is required,
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but the following defenses may be made by motion at the option of the
pleader: (1) lack of jurisdiction over the subject matter, (2) lack of
jurisdiction over the person, (3) improper venue, (4) insufficiency of
process, (5) insufficiency of service of process, (6) failure to state a cause of
action, and (7) failure to join indispensable parties.
On a motion to dismiss, the trial court is limited to reviewing the four corners of the
omplaint, and the material allegations of the complaint must be taken as true. Belcher
Center, LLC vy. Belcher Center, Inc., 883 So. 2d 338, 339 (Fla. 2d DCA 2004) (citing Al-
Hakim v. Holder, 787 So. 2d 939, 941 (Fla. 2d DCA 2001) (holding that there was no
authority to look beyond the complaint to decide on a motion to dismiss). Additionally,
the allegations must be considered in the light most favorable to the non-moving party.
Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003).
The trial court’s function is to determine whether the allegations contained in the four
corners of the complaint state a cause of action. LeGrande v. Emmanuel, 889 So. 2d 991,
996 (Fla. 3d DCA 2004).
Florida requires litigants’ pleadings, at the outset of a suit, to state their pleadings
with sufficient particularity fora defense to be prepared, which avoids a great deal of
wasted expense to the litigants and unnecessary judicial effort. Horowitz v. Laske, 855
So. 2d 169, 172-173 (Fla. 5th DCA 2003). “Whether the allegations of a Complaint are
sufficient to state a cause of action is a question of law.” Della Ratta v. Della Ratta, 927
So. 2d 1055, 1058 (Fla. 4th DCA 2006). In order to properly state a cause of action, a
complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.
Atkins vy. Topp Telecom, Inc., et al, 873 So. 2d 397, 399 (Fla. 4th DCA 2004).
Furthermore, the complaint must set out the elements and the facts that support the
claims so that the court and the defendant can clearly determine what is being alleged.
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See Messana v. Maule Industries, Inc., 50 So. 2d 874, 876 (Fla. 1951) (holding that a
complainant must “plead a factual matter sufficient to apprise his adversary of what he is
called upon to answer so that the court may, upon proper challenge, determine its legal
effect.”’)
I. Plaintiff's Complaint Must Be Dismissed and/or Transferred to County Court due
to Lack of Subject Matter Jurisdiction.
Plaintiff's Complaint is predicated upon a purported water loss occurring at the insured
property on an unspecified date and in an unspecified location. Additionally, this Honorable
Court’s subject matter jurisdiction is limited to damages exceeding $30,000.00 exclusive of all
costs, attorney’s fees and interest. Since the Policy at most limits potential coverage for
Plaintiffs loss to $10,000.00, Plaintiff has failed to state a legal cause of action entitling him to
relief. Additionally, this Honorable Court lacks jurisdiction in this matter and thus must either
dismiss this lawsuit or transfer it to County Court since the amount in dispute falls below
$30,000.00 excluding attorney’s fees, costs and interest.
As this Honorable Court is aware, Circuit Courts have jurisdiction over actions where
the amount in dispute exceeds the sum of $30,000.00 exclusive of attorney’s fees, costs and
interest, while County Courts possess exclusive jurisdiction over amounts in dispute that do not
exceed the sum of $30,000.00, exclusive of attorney’s fees, costs and interest. Fla. Const. Art.
V Sec. 5.; Fla. Stat. 26.012; Fla. Stat. 34.01. Importantly, a court is without jurisdiction to
consider a claim if it does not meet the jurisdictional amount threshold. See Burns v. Hacker,
729 So. 2d 398 (Fla. Sth DCA 1998) (Trial court was without jurisdiction to consider claim
because it did not meet the jurisdictional amount threshold of $15,000, and thus, plaintiff had to
file his claim in county court). Additionally, attorney’s fees sought by plaintiff are not included
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in jurisdictional amount for purposes of determining whether circuit court has subject-matter
jurisdiction of a claim, and a challenge to subject matter jurisdiction can be raised at any time.
See Kent v. Connecticut Bank and Trust Co., N. A., 386 So.2d 902, 903 (Fla. 2d DCA 1980);
Fla. R. Civ. P. 1.140 (H)(2).
Also, under Florida law, courts must construe an insurance contract it its entirety, striving
to give every provision meaning and effect. Associated Elec. & Gas Ins. Servs., Ltd. v. Houston
Oil and Gas Co., 552 So.2d 1110 (Fla. 3d DCA 1989). “Insurance contracts, like other contracts,
‘should receive a construction that is reasonable, practical, sensible, and just.’ ” State Farm Mut.
Auto. Ins. Co. v. Fischer, 16 So.3d 1028, 1031 (Fla. 2d DCA 2009) (quoting Gen. Star. Indem.
Co. v. W. Fla. Vill. Inn, Inc., 874 So.2d 26, 29 (Fla. 2d DCA 2004). Policy terms must be given
their plain, unambiguous and common meaning. Silva v. Southwest Blood Bank, Inc., 601 So.2d
1184 (Fla.1992). Thus, where language in a policy is plain and unambiguous, there is no special
construction or interpretation required, and the plain language in the contract is to be given the
meaning which it clearly expresses. Jefferson Ins. Co. of New York v. Sea World of Florida, Inc.,
586 So.2d 95 (Fla. Sth DCA 1991). Thus, where contractual language is clear and unambiguous,
the contract must be enforced as written. Great Global Assur. Co. v. Shoemaker, 599 So.2d 1036
(Fla. 4th DCA 1992).
Whether claimed damage comes within the scope of a policy exclusion is a question of
law. See Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So.2d 700, 701
(Fla.1993) (the issue of whether an exclusionary clause precludes coverage for damages is a
question of law); Jones v. Utica Mut. Ins. Co., 463 So.2d 1153, 1157 (Fla.1985) (“[T]he
construction of an insurance policy is a question of law....”).
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The Complaint alleges that it is predicated upon a loss due to water which is specifically
limited under the Policy to up to $10,000, as stated in the following provision:
LIMITED WATER DAMAGE COVERAGE — DISCHARGE OR OVERFLOW
For an additional premium, the policy is endorsed to provide the following:
Sudden and accidental direct physical loss to covered property by discharge or
overflow of water or steam from within a plumbing, heating, air conditioning or
automatic fire protective sprinkler system or from within a household appliance.
LIMIT OF LIABILITY:
The limit of liability for all damage to covered property provided by this endorsement is
$10,000 per loss.
This coverage does not increase the limit of liability that applies to the damaged covered
property.
All other provisions of your policy apply.
Where the endorsement at issue is clear and unambiguous, it must be given its express
meaning and the contract must be enforced in accordance with the express language. See Certain
Interested Underwriters at Lloyd's London y. Pitu, Inc., 95 So.3d 290 (Fla. 3d DCA 2012) In
Pitu the policy contained a water damage exclusion which stated it limited coverage due to water
damage to $25,000.00. /d. at 294. In that case Pitu argued that the endorsement added coverage
and that in addition to the coverage afforded under the policy it was entitled to an additional
$25,000.00 because of the endorsement. /d. at 293. The court found that nothing in the policy
supported that proposition and held that the endorsement at issue is clear and unambiguous in its
limitation of coverage. /d.
Consistent with the aforementioned Jurisprudence and Policy provisions, the Complaint
fails to state a legal cause of action since the purported loss in question is limited to $10,000.00
under the Policy. As such, as a matter of state law, this lawsuit must be dismissed or in the
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least, this Court lacks subject matter jurisdiction over this case since the amount in dispute per
loss falls below $30,000.00 excluding attorney’s fees, costs and/or interest.
Ii. Plaintiff's Complaint Must Be Dismissed for Failing to State a Legal Cause of
Action.
a. The Complaint Must Be Dismissed Due to its Failure to Allege Ultimate
Facts Regarding the Date, Cause and Location of Loss Upon Which This
Lawsuit is Predicated.
Plaintiff's Complaint is predicated upon an undescribed loss. It is inherently unfair to
require Security First to formulate its defenses and defend itself when it has not been placed on
notice as to the date of loss, cause of loss, area where the purported loss occurred, and whether
a single or multiple losses occurred. Not only can damage result from many different causes
and events, which would implicate different Policy provisions, but it is also possible that the
loss could also occur in one of more of several areas of the insured property. Additionally,
there are no allegations in the Complaint that a breach even occurred. Since Plaintiff failed to
allege ultimate facts regarding the date, cause and location of the purported loss in question,
the Complaint must be dismissed by this Honorable Court.
Under the Florida Rules of Civil Procedure, a complaint may be dismissed for failing
to state a legal cause of action. See Fla. R. Civ. P. 1.140(b) (2020). This is because under
Florida law, a pleading must set forth “a short and plain statement of the ultimate facts showing
that the pleader is entitled to relief.” See Fla. R. Civ. P. 1.110(b) (2020). Plaintiff's
Complaint fails to sufficiently state a legal cause of action for which relief can be granted. It
is a cardinal rule of pleading that a complaint be stated simply, in short and plain language
which set out the elements and the facts that support them so that it can clearly
determine what is being alleged. Barrett v. City of Margate, 743 So. 2d 1160 (Fla. 4th
DCA 1999); see also Fla. R. Civ. P. 1.110(b). Additionally, in a first party property breach of
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contract case, plaintiff is required to plead and prove at least two different elements: “(1) that
the property harmed or damaged falls within the ‘insuring clause’ of the policy, and (2) the loss
claimed falls within a second, ‘covered perils’ provision contained in the Policy . . . only then
might compensation be due, and then only if there is no applicable exclusion from coverage
that might apply.” Homeowners Choice Prop. & Cas. v. Maspons, 211 So. 3d 1067, 1068 (Fla.
3d DCA 2017).
The Complaint fails to provide any description or detail as to the date, cause or
location of loss against which Security First is asked to defend. This Court must dismiss the
Complaint for this reason. Quite simply, the lack of detail of the allegations contained
within the Complaint has created vagueness and ambiguity regarding the subject loss for
which Plaintiff is seeking recovery for in the instant action, which in turn prevents Security
First from formulating its defenses and denials as applicable. Specifically, it is unclear from
the Complaint what the date, cause and location of the purported loss was, which could be
anything from a roof leak, to an air conditioning leak, to a water heater leak, to some other
cause or event and could have occurred at any area of the home. The result is that Security
First simply does not know, and cannot ascertain, the allegations made against it.
Therefore, it is difficult for Security First to properly argue and defend itself in this
litigation, including raising appropriate allegations, denials and defenses.
b. The Complaint Must Be Dismissed for Violating Security First’s Due Process
Rights.
Plaintiff's intentional and calculated decision to ensure that the Complaint is repugnant
and as vague as possible in failing to include the date, cause and location of the purported loss
upon which this lawsuit has been predicated violates Security First’s due process rights.
Specifically, and as stated above, Security First is left guessing against which loss or losses it is
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asked to defend and thus cannot formulate its denials and defenses accordingly. As this
Honorable Court is aware, the failure to allege applicable affirmative defenses may result in a
potential waiver. As such, Security First’s due process rights have been violated, warranting
dismissal.
In accordance with the Florida Constitution, procedural due process requires a party
to be given fair notice and be afforded with a real opportunity to be heard and defend before
judgment is entered against that party. Crepage v. City of Lauderhill, 774 So. 2d 61, 64-65
(Fla. 4th DCA 2000); Burch v. City of Lakeland, 891 So. 2d 654, 656 (Fla. 2d DCA 2005);
Shlishey the Best, Inc. v. CitiFinancial Equity Services, 14 So. 3d 1271, 1273-1274 (Fla.
2d DCA 2009). The specific parameters of the notice and the opportunity to be heard
required by procedural due process are not evaluated by fixed rules of law, but rather by
the requirements of the particular proceeding. Borden v. Borden-Moore, 818 So. 2d 604,
607 (Fla. 5th DCA 2002), citing to several cases; See Crosby v. Fla. Parole Comm'n, 975
So. 2d 1222, 1223 (Fla. Ist DCA 2008). For example, the opportunity to be heard at an
evidentiary hearing requires time to secure the attendance of witnesses and to prepare for
the presentation of evidence and argument. Crepage, 774 So. 2d at 64-65. Additionally, to
qualify under due process standards, the opportunity to be heard must be meaningful,
full, and fair, and not merely colorable or illusive. Rucker v. City of Ocala, 684 So. 2d 836,
841 (Fla. Ist DCA 1996).
The Complaint violates Security First’s due process rights in defending itself and
acquiring facts in support of its denials and affirmative defenses. As discussed herein, the
Complaint is devoid of ultimate facts regarding the date, cause and location of the purported
loss in question. Instead, Plaintiff chose to be as vague and ambiguous as possible, which
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could allow him to pick and choose the number, date, cause and location of loss as the lawsuit
progresses. This would make the amount, date, cause and location of loss a moving target,
cause judicial and resource inefficiency, and would unduly prejudice Security First’s ability to
formulate its defenses. This shifting claim strategy also prevents Security First from having a
teal opportunity to be heard by the Honorable Court and rightfully defend itself. Since Security
First cannot rightfully and properly defend severely prejudicing Security First’s due process
tights.
IV. Plaintiff’s Complaint Must be Dismissed due to Plaintiff's Failure to attach a Copy
of the Contract Upon which this Action has been Predicated.
Plaintiff's Complaint is predicated upon Security First’s purported failure to pay for an
estimate for purported damages and for which he claims recovery. However, Plaintiff failed to
attach a copy of the estimate or other document upon which this action has been predicated to
the Complaint or describe it with any specificity. As such, the Complaint fails to state a legal
cause of action and must be dismissed.
Florida law is clear that “one of the ways to reach a failure to attach a necessary exhibit
is by motion to dismiss.” Safeco Ins. Co. of America v. Ware, 401 So. 2d 1129, 1130 (Fla. 4th
DCA 1981), citing to Trawick, Florida Practice & Procedure s 6-15 (1980). Additionally, a
complaint which is predicated upon a written document fails to state a legal cause of action
unless and until that document or an adequate portion of such document is attached or
incorporated into the Complaint. /d., citing to Meadows v. Edwards, 82 So. 2d 733 (Fla. 1955);
Walters v. Ocean Gate Phase I Condo., 925 So. 2d 440, 443 (Fla. 5th DCA 2006) (same); see
Samuels v. King Motor Co. of Ft. Lauderdale, 782 So. 2d 489, 495 (Fla. 4th DCA 2001) (to
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state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader
is entitled to relief.)
Here, Plaintiff's Complaint fails to attach a copy of the estimate, contract or other
document upon which she bases his action, and has also failed to describe that estimate with
sufficient particularity. For these reasons, it must be dismissed by this Honorable Court.
WHEREFORE, for the aforementioned reasons, this Honorable Court must
dismiss and/or transfer Plaintiff's Complaint, and grant any other relief deemed
necessary and/or appropriate.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the above and foregoing has
been furnished via E-Service to: Corey B. Justus, Esq., The Nation Law Firm, LLP 570 Crown
Oak Centre Drive, Longwood, Florida (lobrien@nationlaw.com; cjustu@nationlaw.com) on May
27, 2020.
Quintairos, Prieto, Wood and Boyer, P.A.
/s/ Jennifer L. Velazco
Jennifer L. Velazco, Esq. FBN: 27199
Tniv Gabay, Esq. FBN: 37487
1410 North Westshore Boulevard, Suite 200
Tampa, Florida 33607
T: 813-286-8818 / F: 813-286-9998
Attorneys for Defendant
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Preview
Filing # 108029508 E-Filed 05/27/2020 11:20:22 PM IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA ANTHONY DAVIS, JR., Case No. 2020-CA-024628 Plaintiff, vs. SECURITY FIRST INSURANCE COMPANY, Defendant. / DEFENDANT, SECURITY FIRST INSURANCE COMPANY’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendant, SECURITY FIRST INSURANCE COMPANY (hereinafter “Security First”), by and through undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.140, hereby files this Motion to Dismiss Plaintiff's, ANTHONY DAVIS JR.’s, Complaint, and in support thereof states as follows: FACTUAL BACKGROUND 1 This case originated as a result of purported damages arising out of an undescribed loss occurring on an unspecified date at Plaintiff's property, located at 4835 Key Biscayne Drive. Titusville, Florida, 32780 [hereinafter “insured property”.] See Plaintiff's Complaint. 2 This action is predicated upon a policy of insurance which Security First issued to Plaintiff bearing Policy Number P004111407 affording certain coverage to the insured property during the applicable policy period, subject to the Policy's terms, conditions, limitations, exclusions and endorsements (hereinafter the “Policy”). See Policy, which will be filed in support of this Motion as Exhibit “A”. Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX 3 On or about April 23, 2020, Plaintiff served his Complaint on Security First alleging purported Breach of Contract. See Plaintiff's Complaint. The Complaint alleges that on an unspecified date, the insured property sustained an undescribed loss due to “water” at an unspecified location in the home. /d. at Par. 4. It also alleges that Security First breached the Policy due to its purported failure to pay for an estimate supplied by Plaintiff, which was not attached to the Complaint. /d. Par. 1/-14. 4 Plaintiff's Complaint must be dismissed by this Honorable Court for the following reasons: 5 First, the Complaint must be dismissed and/or transferred to County Court because the Policy upon which this action has been predicated at most limits the damage to $10,000.00 per loss, which is obviously below this Honorable Court’s $30,000.00 jurisdiction. For this reason, there is no amount in dispute and even if there was an amount, this Honorable Court lacks jurisdiction in this matter since it falls below $30,000.00 excluding attorney’s fees, costs and/or interest. 6. Second, the Complaint must be dismissed since it fails to state a legal cause of action upon which relief may be granted as Plaintiff failed to provide ultimate facts tegarding the cause, date and location of loss at the insured property upon which this lawsuit is predicated. Florida Jurisprudence requires a pleading to set forth “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” See Fla. R. Civ. P. 1.110(b) (2020). The Complaint falls short of this standard due to its failure to provide ultimate facts as to the date, cause and location of the loss upon which it appears to be predicated, which could be anything from a roof leak, to an air conditioning 2 Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX leak, to a water heater leak, to a plumbing leak, to some other cause or event and which could have literally occurred in one or several areas of the insured property. 7 Potential coverage for a loss requires a determination of the potential application of many different applicable Policy terms, conditions, exclusions, limitations, and endorsements. The lack of description within the Complaint of the date, cause and location of loss, creates vagueness and ambiguity regarding the subject loss which prevents Security First from recognizing what is being alleged against it and formulating its defenses. Merely stating that a purported water loss occurred, without specifying the date, cause and location of loss is not sufficient under Florida law. 8 Third, the Complaint must be dismissed as it fails to state a legal cause of action upon which relief may be granted. Specifically, the contract upon which Plaintiff's action has been predicated was not attached to the Complaint nor described in any specificity within its four corners. Florida law has long been clear that the instrument upon which a complaint is based must be attached to the Complaint to avoid a dismissal. Plaintiff alleges that she is entitled to financial recovery based upon a prepared contract, but have conveniently failed to attach a complete copy of said estimate, in violation of Florida law. 9 As such, for these reasons and the reasons stated below, this Honorable Court must dismiss Plaintiff's Complaint. MEMORANDUM OF LAW AND ARGUMENT L Motion to Dismiss Standard. Fla. R. Civ. P. 1.140 states in relevant part as follows: (b) How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, 3 Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. On a motion to dismiss, the trial court is limited to reviewing the four corners of the omplaint, and the material allegations of the complaint must be taken as true. Belcher Center, LLC vy. Belcher Center, Inc., 883 So. 2d 338, 339 (Fla. 2d DCA 2004) (citing Al- Hakim v. Holder, 787 So. 2d 939, 941 (Fla. 2d DCA 2001) (holding that there was no authority to look beyond the complaint to decide on a motion to dismiss). Additionally, the allegations must be considered in the light most favorable to the non-moving party. Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003). The trial court’s function is to determine whether the allegations contained in the four corners of the complaint state a cause of action. LeGrande v. Emmanuel, 889 So. 2d 991, 996 (Fla. 3d DCA 2004). Florida requires litigants’ pleadings, at the outset of a suit, to state their pleadings with sufficient particularity fora defense to be prepared, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort. Horowitz v. Laske, 855 So. 2d 169, 172-173 (Fla. 5th DCA 2003). “Whether the allegations of a Complaint are sufficient to state a cause of action is a question of law.” Della Ratta v. Della Ratta, 927 So. 2d 1055, 1058 (Fla. 4th DCA 2006). In order to properly state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. Atkins vy. Topp Telecom, Inc., et al, 873 So. 2d 397, 399 (Fla. 4th DCA 2004). Furthermore, the complaint must set out the elements and the facts that support the claims so that the court and the defendant can clearly determine what is being alleged. 4 Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX See Messana v. Maule Industries, Inc., 50 So. 2d 874, 876 (Fla. 1951) (holding that a complainant must “plead a factual matter sufficient to apprise his adversary of what he is called upon to answer so that the court may, upon proper challenge, determine its legal effect.”’) I. Plaintiff's Complaint Must Be Dismissed and/or Transferred to County Court due to Lack of Subject Matter Jurisdiction. Plaintiff's Complaint is predicated upon a purported water loss occurring at the insured property on an unspecified date and in an unspecified location. Additionally, this Honorable Court’s subject matter jurisdiction is limited to damages exceeding $30,000.00 exclusive of all costs, attorney’s fees and interest. Since the Policy at most limits potential coverage for Plaintiffs loss to $10,000.00, Plaintiff has failed to state a legal cause of action entitling him to relief. Additionally, this Honorable Court lacks jurisdiction in this matter and thus must either dismiss this lawsuit or transfer it to County Court since the amount in dispute falls below $30,000.00 excluding attorney’s fees, costs and interest. As this Honorable Court is aware, Circuit Courts have jurisdiction over actions where the amount in dispute exceeds the sum of $30,000.00 exclusive of attorney’s fees, costs and interest, while County Courts possess exclusive jurisdiction over amounts in dispute that do not exceed the sum of $30,000.00, exclusive of attorney’s fees, costs and interest. Fla. Const. Art. V Sec. 5.; Fla. Stat. 26.012; Fla. Stat. 34.01. Importantly, a court is without jurisdiction to consider a claim if it does not meet the jurisdictional amount threshold. See Burns v. Hacker, 729 So. 2d 398 (Fla. Sth DCA 1998) (Trial court was without jurisdiction to consider claim because it did not meet the jurisdictional amount threshold of $15,000, and thus, plaintiff had to file his claim in county court). Additionally, attorney’s fees sought by plaintiff are not included 5 Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX in jurisdictional amount for purposes of determining whether circuit court has subject-matter jurisdiction of a claim, and a challenge to subject matter jurisdiction can be raised at any time. See Kent v. Connecticut Bank and Trust Co., N. A., 386 So.2d 902, 903 (Fla. 2d DCA 1980); Fla. R. Civ. P. 1.140 (H)(2). Also, under Florida law, courts must construe an insurance contract it its entirety, striving to give every provision meaning and effect. Associated Elec. & Gas Ins. Servs., Ltd. v. Houston Oil and Gas Co., 552 So.2d 1110 (Fla. 3d DCA 1989). “Insurance contracts, like other contracts, ‘should receive a construction that is reasonable, practical, sensible, and just.’ ” State Farm Mut. Auto. Ins. Co. v. Fischer, 16 So.3d 1028, 1031 (Fla. 2d DCA 2009) (quoting Gen. Star. Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So.2d 26, 29 (Fla. 2d DCA 2004). Policy terms must be given their plain, unambiguous and common meaning. Silva v. Southwest Blood Bank, Inc., 601 So.2d 1184 (Fla.1992). Thus, where language in a policy is plain and unambiguous, there is no special construction or interpretation required, and the plain language in the contract is to be given the meaning which it clearly expresses. Jefferson Ins. Co. of New York v. Sea World of Florida, Inc., 586 So.2d 95 (Fla. Sth DCA 1991). Thus, where contractual language is clear and unambiguous, the contract must be enforced as written. Great Global Assur. Co. v. Shoemaker, 599 So.2d 1036 (Fla. 4th DCA 1992). Whether claimed damage comes within the scope of a policy exclusion is a question of law. See Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So.2d 700, 701 (Fla.1993) (the issue of whether an exclusionary clause precludes coverage for damages is a question of law); Jones v. Utica Mut. Ins. Co., 463 So.2d 1153, 1157 (Fla.1985) (“[T]he construction of an insurance policy is a question of law....”). 6 Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX The Complaint alleges that it is predicated upon a loss due to water which is specifically limited under the Policy to up to $10,000, as stated in the following provision: LIMITED WATER DAMAGE COVERAGE — DISCHARGE OR OVERFLOW For an additional premium, the policy is endorsed to provide the following: Sudden and accidental direct physical loss to covered property by discharge or overflow of water or steam from within a plumbing, heating, air conditioning or automatic fire protective sprinkler system or from within a household appliance. LIMIT OF LIABILITY: The limit of liability for all damage to covered property provided by this endorsement is $10,000 per loss. This coverage does not increase the limit of liability that applies to the damaged covered property. All other provisions of your policy apply. Where the endorsement at issue is clear and unambiguous, it must be given its express meaning and the contract must be enforced in accordance with the express language. See Certain Interested Underwriters at Lloyd's London y. Pitu, Inc., 95 So.3d 290 (Fla. 3d DCA 2012) In Pitu the policy contained a water damage exclusion which stated it limited coverage due to water damage to $25,000.00. /d. at 294. In that case Pitu argued that the endorsement added coverage and that in addition to the coverage afforded under the policy it was entitled to an additional $25,000.00 because of the endorsement. /d. at 293. The court found that nothing in the policy supported that proposition and held that the endorsement at issue is clear and unambiguous in its limitation of coverage. /d. Consistent with the aforementioned Jurisprudence and Policy provisions, the Complaint fails to state a legal cause of action since the purported loss in question is limited to $10,000.00 under the Policy. As such, as a matter of state law, this lawsuit must be dismissed or in the 7 Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX least, this Court lacks subject matter jurisdiction over this case since the amount in dispute per loss falls below $30,000.00 excluding attorney’s fees, costs and/or interest. Ii. Plaintiff's Complaint Must Be Dismissed for Failing to State a Legal Cause of Action. a. The Complaint Must Be Dismissed Due to its Failure to Allege Ultimate Facts Regarding the Date, Cause and Location of Loss Upon Which This Lawsuit is Predicated. Plaintiff's Complaint is predicated upon an undescribed loss. It is inherently unfair to require Security First to formulate its defenses and defend itself when it has not been placed on notice as to the date of loss, cause of loss, area where the purported loss occurred, and whether a single or multiple losses occurred. Not only can damage result from many different causes and events, which would implicate different Policy provisions, but it is also possible that the loss could also occur in one of more of several areas of the insured property. Additionally, there are no allegations in the Complaint that a breach even occurred. Since Plaintiff failed to allege ultimate facts regarding the date, cause and location of the purported loss in question, the Complaint must be dismissed by this Honorable Court. Under the Florida Rules of Civil Procedure, a complaint may be dismissed for failing to state a legal cause of action. See Fla. R. Civ. P. 1.140(b) (2020). This is because under Florida law, a pleading must set forth “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” See Fla. R. Civ. P. 1.110(b) (2020). Plaintiff's Complaint fails to sufficiently state a legal cause of action for which relief can be granted. It is a cardinal rule of pleading that a complaint be stated simply, in short and plain language which set out the elements and the facts that support them so that it can clearly determine what is being alleged. Barrett v. City of Margate, 743 So. 2d 1160 (Fla. 4th DCA 1999); see also Fla. R. Civ. P. 1.110(b). Additionally, in a first party property breach of 8 Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX contract case, plaintiff is required to plead and prove at least two different elements: “(1) that the property harmed or damaged falls within the ‘insuring clause’ of the policy, and (2) the loss claimed falls within a second, ‘covered perils’ provision contained in the Policy . . . only then might compensation be due, and then only if there is no applicable exclusion from coverage that might apply.” Homeowners Choice Prop. & Cas. v. Maspons, 211 So. 3d 1067, 1068 (Fla. 3d DCA 2017). The Complaint fails to provide any description or detail as to the date, cause or location of loss against which Security First is asked to defend. This Court must dismiss the Complaint for this reason. Quite simply, the lack of detail of the allegations contained within the Complaint has created vagueness and ambiguity regarding the subject loss for which Plaintiff is seeking recovery for in the instant action, which in turn prevents Security First from formulating its defenses and denials as applicable. Specifically, it is unclear from the Complaint what the date, cause and location of the purported loss was, which could be anything from a roof leak, to an air conditioning leak, to a water heater leak, to some other cause or event and could have occurred at any area of the home. The result is that Security First simply does not know, and cannot ascertain, the allegations made against it. Therefore, it is difficult for Security First to properly argue and defend itself in this litigation, including raising appropriate allegations, denials and defenses. b. The Complaint Must Be Dismissed for Violating Security First’s Due Process Rights. Plaintiff's intentional and calculated decision to ensure that the Complaint is repugnant and as vague as possible in failing to include the date, cause and location of the purported loss upon which this lawsuit has been predicated violates Security First’s due process rights. Specifically, and as stated above, Security First is left guessing against which loss or losses it is 9 Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX asked to defend and thus cannot formulate its denials and defenses accordingly. As this Honorable Court is aware, the failure to allege applicable affirmative defenses may result in a potential waiver. As such, Security First’s due process rights have been violated, warranting dismissal. In accordance with the Florida Constitution, procedural due process requires a party to be given fair notice and be afforded with a real opportunity to be heard and defend before judgment is entered against that party. Crepage v. City of Lauderhill, 774 So. 2d 61, 64-65 (Fla. 4th DCA 2000); Burch v. City of Lakeland, 891 So. 2d 654, 656 (Fla. 2d DCA 2005); Shlishey the Best, Inc. v. CitiFinancial Equity Services, 14 So. 3d 1271, 1273-1274 (Fla. 2d DCA 2009). The specific parameters of the notice and the opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of the particular proceeding. Borden v. Borden-Moore, 818 So. 2d 604, 607 (Fla. 5th DCA 2002), citing to several cases; See Crosby v. Fla. Parole Comm'n, 975 So. 2d 1222, 1223 (Fla. Ist DCA 2008). For example, the opportunity to be heard at an evidentiary hearing requires time to secure the attendance of witnesses and to prepare for the presentation of evidence and argument. Crepage, 774 So. 2d at 64-65. Additionally, to qualify under due process standards, the opportunity to be heard must be meaningful, full, and fair, and not merely colorable or illusive. Rucker v. City of Ocala, 684 So. 2d 836, 841 (Fla. Ist DCA 1996). The Complaint violates Security First’s due process rights in defending itself and acquiring facts in support of its denials and affirmative defenses. As discussed herein, the Complaint is devoid of ultimate facts regarding the date, cause and location of the purported loss in question. Instead, Plaintiff chose to be as vague and ambiguous as possible, which 10 Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX could allow him to pick and choose the number, date, cause and location of loss as the lawsuit progresses. This would make the amount, date, cause and location of loss a moving target, cause judicial and resource inefficiency, and would unduly prejudice Security First’s ability to formulate its defenses. This shifting claim strategy also prevents Security First from having a teal opportunity to be heard by the Honorable Court and rightfully defend itself. Since Security First cannot rightfully and properly defend severely prejudicing Security First’s due process tights. IV. Plaintiff’s Complaint Must be Dismissed due to Plaintiff's Failure to attach a Copy of the Contract Upon which this Action has been Predicated. Plaintiff's Complaint is predicated upon Security First’s purported failure to pay for an estimate for purported damages and for which he claims recovery. However, Plaintiff failed to attach a copy of the estimate or other document upon which this action has been predicated to the Complaint or describe it with any specificity. As such, the Complaint fails to state a legal cause of action and must be dismissed. Florida law is clear that “one of the ways to reach a failure to attach a necessary exhibit is by motion to dismiss.” Safeco Ins. Co. of America v. Ware, 401 So. 2d 1129, 1130 (Fla. 4th DCA 1981), citing to Trawick, Florida Practice & Procedure s 6-15 (1980). Additionally, a complaint which is predicated upon a written document fails to state a legal cause of action unless and until that document or an adequate portion of such document is attached or incorporated into the Complaint. /d., citing to Meadows v. Edwards, 82 So. 2d 733 (Fla. 1955); Walters v. Ocean Gate Phase I Condo., 925 So. 2d 440, 443 (Fla. 5th DCA 2006) (same); see Samuels v. King Motor Co. of Ft. Lauderdale, 782 So. 2d 489, 495 (Fla. 4th DCA 2001) (to 11 Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.) Here, Plaintiff's Complaint fails to attach a copy of the estimate, contract or other document upon which she bases his action, and has also failed to describe that estimate with sufficient particularity. For these reasons, it must be dismissed by this Honorable Court. WHEREFORE, for the aforementioned reasons, this Honorable Court must dismiss and/or transfer Plaintiff's Complaint, and grant any other relief deemed necessary and/or appropriate. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished via E-Service to: Corey B. Justus, Esq., The Nation Law Firm, LLP 570 Crown Oak Centre Drive, Longwood, Florida (lobrien@nationlaw.com; cjustu@nationlaw.com) on May 27, 2020. Quintairos, Prieto, Wood and Boyer, P.A. /s/ Jennifer L. Velazco Jennifer L. Velazco, Esq. FBN: 27199 Tniv Gabay, Esq. FBN: 37487 1410 North Westshore Boulevard, Suite 200 Tampa, Florida 33607 T: 813-286-8818 / F: 813-286-9998 Attorneys for Defendant 12 Filing 108029508 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX