Legal Document: PAINTER, NICHOLAS vs. UNITED PROPERTY & CASUALTY INSURANCE COMPANY

On May 31, 133 a was filed involving a dispute between Painter, Carissa, Painter, Nicholas, and United Property & Casualty Insurance Company, for Contracts in the District Court of Charlotte County.

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Filing # 139607302 E-Filed 12/02/2021 04:47:34 PM

IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT IN AND FOR,
CHARLOTTE COUNTY, FLORIDA
NICHOLAS PAINTER AND
CARISSA PAINTER,
CASE NO.: 21001194CA
Plaintiffs,
Vv.

UNITED PROPERTY & CASUALTY
INSURANCE COMPANY,

Defendant.
/

PLAINTIFFS’ NOTICE OF FILING ORDERS
IN RESPONSE TO DEFENDANT’S MOTION TO DISMISS

COMES NOW, the Plaintiffs, NICHOLAS PAINTER and CARISSA PAINTER, by and

through the undersigned counsel, hereby file this Notice of Filing Orders in Response to

Defendant’s Motion to Dismiss for the attached Orders denying Defendants’ Motions to Dismiss

as to compliance with Section 627.70152, Florida Statues, in the following cases:

1. Amended Order Denying Motion to Dismiss (Richard Widows, et al. v. Homeowners
Choice Property & Casualty Insurance.; CACE21014834), which is attached hereto as
“Exhibit A.”

2. Order Denying Defendant’s Motion to Dismiss (Jeanine Micat, Julie Pierre v. United
Property & Casualty Insurance Company; 21-CC-003549), which is attached hereto as
“Exhibit B.”

3. Order Denying Motion to Dismiss (Amy Phelps v. Family Security Insurance Company,
Inc.; 2021-CA-001820), which is attached hereto as “Exhibit C.”

4. Jonathan Gagnon & Keri Gagnon v. Typtap Insurance Company, Case No. 05-2021-
CA-036370, which is attached hereto as “Exhibit D.”

5. Order Denying Defendant’s Motion to Dismiss Plaintiffs’ Complaint (Charles and
Victoria Carter v. Homeowners Choice Property and Casualty Insurance; 2021-CA-
002363), which is attached hereto as “Exhibit E.”

6. Order Denying Motion to Dismiss (Claudia Lorca v. State Farm Florida Insurance
Company; CONO2 1022778), which is attached hereto as “Exhibit F.”

Page 1 of 3
7. Order on Defendant’s Motion to Dismiss Plaintiffs’ Complaint Per Fla. Stat. 627.70152
(R. Scott Criss and Barbara Criss v. American Integrity Insurance Company of Florida;
2021-CC-799), which is attached hereto as “Exhibit G.”

8. Order Denying Motion to Dismiss Without Prejudice (James Lee v. State Farm Florida
Insurance Company; 2021-CA-002074 SEC 04), which is attached hereto as “Exhibit H.”

9. Recommended Order of Magistrate denying Defendant’s Motion to Dismiss Plaintiff's
Complaint for Failure to Comply with Fla. Stat. 627.70152 (Park Place Villas
Condominium — Association, Ine. v American Coastal Insurance Company;
202 1CA003381NC), which is attached hereto as “Exhibit I.”

10. Order Denying Motion to Dismiss (Zamara Osborne v. United Property & Casualty
Insurance Company; 2021-CA-002095), which is attached hereto as “Exhibit J.”

11. Order on Defendant’s Motion to Dismiss (Miriam Carballo and Javier Sanchez v.
Universal Property & Casualty Insurance Company; 50-2021-CA-009227-XXXX MB),
which is attached hereto as “Exhibit K.”

12. Order on Defendant’s Motion to Dismiss (Ernest and Laura Tipton v. Family Security
Insurance Company; 05-2021-CA-037428-XXXX-XX), which is attached hereto as
“Exhibit L.”

13. Order on Defendant’s Motion to Dismiss Plaintiff's Complaint and Motion to Dismiss
Count II of Plaintiffs Complaint (E A P Mold & Water v. Olympus Ins. Co.; 2021-016348-
SP-23), which is attached hereto as “Exhibit M.”

14. Order Denying Motion to Dismiss (Olive Oddman Hamilton v. State Farm Florida
Insurance Company; CACE21014472), which is attached hereto as “Exhibit N.”

15. Order Denying Motion to Dismiss (Gina Constantino v. Security First Insurance
Company DBA Security First Florida; 2020-CA-003032), which is attached hereto as
“Exhibit O.”

16. Order Denying Defendant’s Motion to Dismiss (Edwina Peyton v. Security First
Insurance Company; 21-CA-5661), which is attached hereto as “Exhibit P.”

17. Order on Defendant’s Motion to Dismiss (Amy Nash v. State Farm Florida Insurance
Company; CACE21014902), which is attached hereto as “Exhibit Q.”

18. Order Denying Motion to Dismiss (Luis Gomez v. Spinnaker Insurance Company;
COCE21040134), which is attached hereto as “Exhibit R.”

19. Order Denying Defendant’s Motion to Dismiss Based Upon Failure to Submit a Notice
of Intent to Initiate Litigation per Fla. Stat. §627.70152 (Lenore Clayborne v. American

Page 2 of 3
Integrity Insurance Company of Florida, 21-CC-078099), which is attached hereto as
“Exhibit S.”

20. Order on Defendant’s Amended Motion to Dismiss (ELR Restoration, Inc. a/a/o Jiten
Parikh y. ASI Preferred Insurance Corp.; 2021-CA-003384-O), which is attached hereto
as “Exhibit T.”

21. Order Denying Defendant, Family Security Insurance Company’s Motion to Dismiss,
and Granting Defendant’s Motion for Extension of Time to Respond to Discovery (Alice
Bedsole y. Family Security Insurance Company; 2021-CA-398), which is attached hereto
as “Exhibit U.”
22. Order on Defendant’s Motion to Dismiss and Plaintiffs’ Motion for Sanctions (Thomas
Trottier and Deana Trottier v. Family Security Insurance Company, Inc.; 21-000929-CA),
which is attached hereto as “Exhibit V.”

23. Order Denying Defendant’s Motion to Dismiss (Donald Stokely and Meikah Stokely v.
Security First Insurance Company; 21-CA-5705), which is attached hereto as “Exhibit
w”

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via
Florida Courts E-filing portal, this 2°" day of December 2021, to: C. DeWitt Revels, III, Esq., and
Reyhana A. Khan, Esq. of WALKER, REVELS, GRENINGER & NETCHER, PLLC,
Attorneys for Defendant, 189 S. Orange Ave., Suite 1830, Orlando, Florida 32801;
DRevels@wrgn-law.com; Rkhan@wrg.law; and CDR-Service@wren-law.com.

KANNER & PINTALUGA, P.A.
Attorneys for Plaintiffs
925 S. Federal Highway, Sixth Floor
Boca Raton, FL 33432
Phone: (561) 424-0032
Fax: (561) 853-2188
Court Phone Number: (1-888) 824-7834
Email: adennis@kpattormey.com
jherrera@kpattorney.cor
FirstPartyEService@kpattorney.com

By: /s/ Anthony M. Dennis
ANTHONY M. DENNIS, ESQ.
Florida Bar No.: 123526

Page 3 of 3
“EXHIBIT A”
Filing # 137184563 E-Filed 10/25/2021 12:26:30 PM

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. CACE21014834 DIVISION 08. JUDGE David A Haimes

Richard Widows, et al
Plaintiff(s) / Petitioner(s)
Vv

Homeowners Choice Property & Casualty Insurance
Defendant(s) / Respondent(s)
/

AMENDED ORDER DENYING MOTION TO DISMISS

THIS MATTER is before the Court on the Defendant’s Motion to Dismiss. On October 13,

2021, the Court held a hearing on said motion where it heard arguments from counsel for both

parties, and granted the motion to dismiss without prejudice. After conducting further research

and analysis, the Court reset the matter for hearing on October 22, 2021, wherein it heard

additional arguments. After carefully reviewing the merits of said motion, the court file herein,

and for the reasons that follow, the Court DENIES the motion to dismiss.

Effective July 1, 2021, Florida Statute Section 627.70152 became effective. Subsection

(3)(a) of the statute provides that “[a]s a condition precedent to filing a suit under a property

insurance policy, a claimant must provide the department with written notice of intent to initiate

litigation on a form provided by the department.” Fla. Stat § 627.70152(3)(a) (emphasis

added). The statute further requires that such “notice must be given at least 10 business days

before filing suit under the policy.” Id. (emphasis added). Finally, Subsection (5) of the statute

provides that “[a] court must dismiss without prejudice any claimant’s suit relating to a claim for

which a notice of intent to initiate litigation was not given. . . .” Fla. Stat § 627.70152(5)

(emphasis added). Based on the new statute, Defendant asserts that the Court should dismiss

the complaint without prejudice because the Plaintiff failed to give the required 10 day notice
CaseNo: CACE21014834
Page 2 of 2

prior to filing the present action.

The Plaintiff does not dispute that he did not give the required 10 day notice; however, the

Plaintiff contends that the statute does not apply retroactively. The Court agrees and holds that

the present case falls squarely within the Supreme Court case of Menendez v. Progressive

Express Insurance Co., 35 So.3d 873 (Fla. 2010), wherein the Court held that a statute that

results in a change of substantive law could not be applied retroactively. Although the 10 day

notice requirement, standing alone, appears to be procedural, it also implicates other

additional aspects, including the right to re-inspect, submit a settlement demand and a

potential reduction in attorney’s fees. In Menendez, the Court found that a similar statute to be

substantive and held it could not be applied retroactively. Id. at 880.

Accordingly, after due consideration, it is

ORDERED and ADJUDGED that Defendants’ Motion to Dismiss is hereby DENIED.

Defendant shall have 10 days within which to file its Answer to the Plaintiffs Complaint.

DONE and ORDERED in Chambers, at Broward County, Florida on 10-25-2021.
cAc TAM
ee
pee ~
CACE21014834 10-25-2021 11:17 AM
Hon. David A Haimes
CIRCUIT JUDGE
Electronically Signed by David A Haimes
Copies Furnished To:
Benjamin W Raslavich , E-mail : ben@theKRfirm.com
Benjamin W Raslavich , E-mail : service1@theKRfirm.com
Benjamin W Raslavich , E-mail : clay@thekrfirm.com
Chrystal P. Robinson , E-mail : chrystal@thekrfirm.com
Chrystal P. Robinson , E-mail : tashauna@thekrfirm.com
Chrystal P. Robinson , E-mail : pleadingsboca@thekrfirm.com
Samantha Ketant , E-mail : sketant@hcpci.com
Samantha Ketant , E-mail : jbien-aime@hcpci.com
Samantha Ketant , E-mail : legal@hcpci.com
“EXHIBIT B”
Filing # 136440256 E-Filed 10/13/2021 09:41:57 AM

IN THE COUNTY COURT IN AND FOR LEE
COUNTY, FLORIDA
JEANINE MICAT,
JULIE PIERRE,
PLAINTIFFS, CASE NO.: 21-CC-003549

VS.

UNITED PROPERTY & CASUALTY INSURANCE COMPANY,
DEFENDANT.
/

ORDER DENYING DEFENDANT’S MOTION TO DISMISS

THIS CAUSE came to be heard on Defendant’s Motion to dismiss, and after hearing

argument on October 11, 2021, reviewing the file, and otherwise being fully apprised of the

premises, ORDERS AND ADJUDGES:

Defendant’s Motion to Dismiss was predicated on Plaintiffs’ failure to comply with the

pre-suit notice requirements of Fla. Stat. § 627.70152.

Defendant’s Motion to Dismiss is DENIED. Menendez v. Progressive Express Ins. Co.,

35 So. 3d 873 (Fla. 2010).
Defendant shall answer the complaint within 20 days.

DONE AND ORDERED in Chambers in Lee County, Florida

(QY
Electronic Service List 2Signed by Nicole Lynn Mira, 10/13/2021 09:41:41 eDcSPXGe
Brian Adam Oltchick
Brian Adam Oltchick
Brian Adam Oltchick
Carolina M. Suazo, Esq.
Carolina Melinda Suazo Esq.
Carolina Melinda Suazo Esq.
John Stat Bernstein
“EXHIBIT C”
Filing # 136015144 E-Filed 10/06/2021 12:01:47 PM

IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR SEMINOLE COUNTY, FLORIDA

CASE NO.: 2021-CA-001820

AMY PHELPS,

Plaintiff,

vs.

FAMILY SECURITY INSURANCE
COMPANY, INC.,
Defendant.
/

ORDER DENYING MOTION TO DISMISS

THIS CAUSE came before the Court on “Defendant’s Amended Motion to Dismiss, or

in the Alternative, Motion to Strike Plaintiff’s Claim for Attorney’s Fees” filed on September 8,

2021. Having reviewed the Motion, Plaintiff’s response, and the court file, and being otherwise

fully advised, it is hereby ORDERED AND ADJUDGED that:

1 “Defendant’s Amended Motion to Dismiss, or in the Alternative, Motion to
Strike Plaintiff’s Claim for Attorney’s Fees” is DENIED.

Defendant shall have twenty (20) days from the date this Order is rendered to
serve a response.

DONE AND ORDERED in Chambers at Sanford, Seminole County, Florida, on
Tuesday, October 5, 2021.
es

feeceeee
Jessica Recksiedier, Circuit Judge
59-2021-CA-001820 10/05/2021 11:19:54 PM

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this Order has been furnished by e-mail or U.S.
Mail on Wednesday, October 6, 2021, to the following:

SHANNON M WHITESELL JOSEPH GELLI

shannon.whitesell@thekrfirm.com jgelli@garrisonyount.com

service2@thekrfirm.com vseaman@garrisonyount.com

eservice@garrisonyount.com

Ali A Kadir Benjamin Raslavich

ali@thekrfirm.com ben@thekrfirm.com

service2@thekrfirm.com

Shannon Whitesell Carolina Melinda Suazo Esq.

shannon.whitesell@thekrfirm.com csuazo@garrisonyount.com

eservice@garrisonyount.com

Carolina M. Suazo, Esq.

csuazo@garrisonyount.com

ry
A
Vanessa Lau, Judicial Assistant
59-2021-CA-001820 10/06/2021 12:01:10 PM

2 of 2
“EXHIBIT D”
Filing # 137371916 E-Filed 10/27/2021 12:30:05 PM

IN THE CIRCUIT COURT OF THE 18" JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION

JONATHAN GAGNON and
KERI GAGNON, CASE NO.: 05-2021-CA-036370

Plaintiff(s),
VS.

TYPTAP INSURANCE COMPANY,

Defendant.
/

ORDER ON DEFENDANT'S MOTION TO DISMISS

THIS CAME having come before the Court for hearing on October 26, 2021 on

Defendant's Motion to Dismiss Plaintiff's Complaint. The Court having reviewed the motion, the

court file, hearing argument of counsel and being otherwise fully advised in the premises, it is,

ORDERED and ADJUDGED:

1 Defendant’s Motion to Dismiss is DENIED.

2. Defendant shall have twenty (20) days from the date of this Order to file a response to

the Complaint.

DONE AND ORDERED in Chambers, at Viera, Brevard County, Florida, this 22 day

of, Det , 2021.

on ae .

CURT IACOB
CIRCUIT JUDGE

Copies furnished to legal@hepci.com: kbernstine@hepci.com: yzequeira@hepci.com:
gran apflegal.com: sist(@krapflegal.com:
courtney humeston@ Krapflegal.com
“EXHIBIT E”
IN THE CIRCUIT COURT POR THE
ISTIUDIGAL CIRCUIT INAND
POR ESCAMBIA COUNTY. FL,

CHARLES AND VICTORIA CARTER

Mamtilts, CASE NO: 202LCA 002363

vB.

HOMBOWNERS CHOICE PROPERTY AND CASUALTY INSURANCE

Defendant.

enim ei

ORDER
DEFENDANT'S
DENYING T MOTION
2 TO
‘DISMISS PLAINTIFES COMPLAINT
THIS MATTER having come before this Count upoo Defendant's Motion to Dismiss Plaintiffs’
Complaint, and the Court having reviewed the Motion and court file and being otherwise fully
advised by the panies at a hearing on Defendant's Motion on October 29, 2021, it ix hereby
ORDERED AND ADJUDGED that:

t Plaintiffs are aot sequired to provide a Notice of iment fo Initiate Litigation pursuant to FS.
627 7015242), and such requirement ia wot rewoactvely applied, as it ts a substantive
change to the law.
Defendant's Motion to Dismiss is DENTED.
Defendant shall Gle its response to Maina ffs’ Complaint withis 20 days of the date of this
Odes,

DONE AND ORDERED in Excambia County, Moda.

inentte
i
Seine od ok TTA
tere me
“EXHIBIT F”
Filing # 137585972 E-Filed 10/29/2021 06:42:49 PM

IN THE COUNTY COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. CONO21022778 DIVISION 73. JUDGE Steven P. Deluca

Claudia Lorca
Plaintiff(s) / Petitioner(s)
Vv

State Farm Florida Insurance Company
Defendant(s) / Respondent(s)
/

ORDER DENYING MOTION TO DISMISS

THIS COURT, having been fully advised of the issues on Defendant's Motion to Dismiss
Plaintiff's Complaint, and the Court having considered same, it is hereupon:
ORDERED AND ADJUDGED AS FOLLOWS:
1 Defendant’s Motion is hereby DENIED.
2. The Court finds that Menedenz v. Progressive Express Ins. Co., 35 So. 3d 873 (Fla.
2010) is applicable.
3. Defendant shall provide their answer to Plaintiff's Complaint within twenty (20)
days of the date of this order.

DONE and ORDERED in Chambers, at Broward County, Florida on 10-29-2021.
ss Ze Bov7R
‘< Pepe
CONO21022778 10-29-2021 12:38 PM
Hon. Steven P. Deluca
COUNTY JUDGE
Electronically Signed by Steven P. Deluca
Copies Furnished To:
Earleen H. Cote , E-mail : kara.beard@kubickidraper.com
Earleen H. Cote , E-mail : cindee.north@kubickidraper.com
Earleen H. Cote , E-mail : ehc-kd@kubickidraper.com
John Stat Bernstein , E-mail : service@bpinjury.com
“EXHIBIT G”
Filing # 138066291 E-Filed 11/08/2021 10:04:27 AM

IN THE COUNTY COURT OF THE FIFTH JUDICIAL CIRCUIT IN
AND FOR SUMTER COUNTY, FLORIDA

R. SCOTT CRISS and BARBARA CRISS,

Plaintiffs,
VS. CASE NO.: 2021-CC-799

AMERICAN INTEGRITY INSURANCE
COMPANY OF FLORIDA,

Defendant.

ORDER ON DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PER
FLA. STAT. 627.70152

THIS COURT having considered Defendant’s Motion to Dismiss Plaintiffs’ Complaint

per Fla. Stat. 672.70152 and Incorporated Memorandum of Law, filed on September 23, 2021;

Plaintiffs’ Response in Opposition to Defendant’s Motion to Dismiss Plaintiffs’ Complaint per

Fla. Stat. 672.70152 and Motion to Compel, filed on October 12, 2021; and having reviewed the

records of this case, finds as follows:

1 Plaintiffs’ Complaint for Breach of Contract & Demand for Jury Trial was filed on

August 25, 2021. Plaintiffs asserted they complied with all obligations and conditions precedent

to this lawsuit.

2. Defendant asserts Plaintiffs failed to comply with the notice requirements of section

627.70152, Florida Statutes.

3. Plaintiffs maintain section 627.70152, Florida Statutes is inapplicable and requests

Defendant be compelled to respond to the Complaint.

4. Florida law is well-settled that the trial court’s standard of review regarding a motion

to dismiss is as follows:
The purpose of a motion to dismiss is to request the trial court to determine
whether the complaint properly states a cause of action upon which relief can be
granted and, if it does not, to enter an order of dismissal. The trial court must
confine its review to the four corners of the complaint, draw all inferences in
favor of the pleader, and accept as true all well-pleaded allegations. It is not for
the court to speculate whether the allegations are true or whether the pleader has
the ability to prove them. The question for the trial court to decide is simply
whether, assuming all the allegations in the complaint to be true, the plaintiff
would be entitled to the relief requested.

H juet v. Mike Shad Ford, Inc., 915 So.2d 723, 725 (Fla. Sth DCA 2005)

Thus, this Court must confine its gaze to the four corners of the Complaint, “accept as

true” the Plaintiffs allegations, and determine whether the Plaintiff has properly alleged a valid

cause of action against the Defendant.

5. Section 627.70152(3)(a), Florida Statutes provides as follows:

As a condition precedent to filing a suit under a property insurance policy, a
claimant must provide the department with written notice of intent to initiate
litigation on a form provided by the department. Such notice must be given at
least 10 business days before filing suit under the policy, but may not be given
before the insurer has made a determination of coverage under s. 627.70131.
Notice to the insurer must be provided by the department to the e-mail address
designated by the insurer under s. 624.422. The notice must state with specificity
all of the following information:
1. That the notice is provided pursuant to this section.
2. The alleged acts or omissions of the insurer giving rise to the suit, which may
include a denial of coverage.
3. If provided by an attorney or other representative, that a copy of the notice was
provided to the claimant.
4. If the notice is provided following a denial of coverage, an estimate of
damages, if known.
5. If the notice is provided following acts or omissions by the insurer other than.
denial of coverage, both of the following:
a. The presuit settlement demand, which must itemize the damages, attorney fees,
and costs.
b. The disputed amount.

Documentation to support the information provided in this paragraph may be
provided along with the notice to the insurer.
6. Plaintiffs filed this case after the effective date of §627.70152 on July 1, 2021

requiring written notice of intent to initiate litigation. As noted By Defendant, Plaintiffs’

Complaint & Demand for Jury Trial did not include a statement that they complied with section

627.70152, Florida Statutes.

7. The Court finds, however, that dismissal of an action finding that plaintiff failed to

perform a condition precedent is erroneous since such consideration looks outside the four

comers of the complaint. See Nelson v. Hillsborough County, 189 So.3d 1037 (Fla. 2d DCA

2016). Assertions that all conditions precedent have been met pursuant to Fla. R. Civ. P.

1.120(c) is adequate and the burden shifts to defendant to deny with specificity and particularity

that the required condition precedent was not met and to properly present this issue to the trial

court in the context of a summary judgment motion or motion for judgment on the pleadings. See

Ashley v. Lamar, 468 So. 2d 433, 434 (Fla. Sth DCA 1985). See also Honick v. Ace Ins. Co. of

the Midwest, 2021 WL 4804446 (M.D. Fla. Oct. 14, 2021).

Based upon the foregoing, it is hereby;

ORDERED AND ADJUDGED:

1 Defendant’s Motion to Dismiss Plaintiffs’ Complaint per Fla. Stat. 672.70152 is

DENIED.

2. Defendant has twenty (20) days from the date of this order to respond to Plaintiffs’

Complaint for Breach of Contract & Demand for Jury Trial.

DONE AND ORDERED in Chambers, at Bushnell, Sumter County, Florida, on this 8"
”
day of November 2021.
J LBS
€ oe.
Paul L. Militello
County Court Judge
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished to the
following individuals by the E-filing Portal this 8 day of November 2021:

Joel K. Ortega, Esquire
Kanner & Pintaluga, P.A.
Counsel for Plaintiffs

Alex S. Lyle, Esquire
Counsel for Defendant
—
BY: _} be Uae)
Judicial Assistafit “yy
wo. a
“EXHIBIT H”
Filing # 138130510 E-Filed 11/08/2021 04:51:05 PM

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT
IN AND FOR POLK COUNTY, FLORIDA
CIVIL DIVISION
Case No.: 2021-CA-002074 SEC 04

JAMES LEE,

Plaintiff,

vs.

STATE FARM FLORIDA
INSURANCE COMPANY,

Defendant.
/

ORDER DENYING MOTION TO DISMISS WITHOUT PREJUDICE

THIS CAUSE having come on for hearing on October 18, 2021, on Defendant’s Motion

to Dismiss without Prejudice, and the Court being fully advised in the premises, it is hereby,

ORDERED and ADJUDGED

1, The Defendant’s Motion to Dismiss without Prejudice is DENIED.

DONE and ORDERED in Chambers in Bartow, Polk County, niet 08 2ont day of

, 2021.

DANA Y. MOORE
Judge
Copies furnished to:
Shannon M. Whitesell, Esq.
Katherine V. Shadwick, Esq.

Page 1 of 1
“EXHIBIT I’
IN THE CIRCUIT COURT OF THE TWELFIN JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA

PARK PLACE VILLAS CONDOMINIUM
ASSOCIATION, INC.,
Plaintiff,
vs. CASE NO: 2021 C.A 003381 NC

AMERICAN COASTAL INSURANCE COMPANY,
Defendant

RECOMMENDED ORDER OF MAGISTRATE

This matter came on for hearing on October 21, 2021, on the following motions:

1. Defendant’s Motion to Dismiss Plaintiff's Complaint for Failure to Comply with Fla.
Stat. 627.70152; and
2. Plaintiff's Motion to Stay Discovery, Abate Litigation, and Motion to Compel
Appraisal.

The Magistrate has jurisdiction pursuant to Fla. R. Civ. P. 1.490. Upon further consideration of
the parties’ arguments and authorities, the Magistrate recommends the Court rule as set forth
below.

Motion to Dismiss: The Magistrate recommends the Court DENY the Motion to Dismiss for
the reasons stated at the hearing.

Motion to Stay Discovery, Abate Litigation, and Motion to Compel Appraisal: Plaintiff filed
this action on July 13, 2021. The Complaint states one count for breach of contract arising from
an alleged Hurricane Irma loss. In relevant part, Plaintiff alleges its property was damaged by
wind and water caused by Hurricane Irma on September 10, 2017, and otherwise generally avers
that Plaintiff complied with all conditions precedent to suit.

Plaintiff's Motion alleges that it timely reported its Hurricane Irma claim on July 7, 2020,
approximately 34 months after Hurricane Irma struck Florida. Plaintiff contends Defendant was
required by § 627.70131(5)(a), Florida Statutes to render a coverage determination within 90 days
of receiving notice of the loss and failed to do so. Thus, Plaintiff filed its action on July 13, 2021.
Plaintiff contends that Defendant did not issue a coverage determination letter until July 20, 2021.
According to Plaintiff, the letter “acknowledged there was evidence of wind damage to Plaintiff's
1

Filed 10/27/2021 02:29 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
property that would be covered under the policy.” (Motion at | 5) Plaintiff further contends
Defendant acknowledged there “was damage to all of Plaintiff's buildings with the exception of
the pool house, but disputed that the damages were caused by Hurricane Irma.” (Motion at § 6)
Plaintiff contends that Defendant’s “determination that there was wind damage to Plaintiff's
property that is covered by the policy” combined with “disagreement as to the cause of certain
other damages and the amount of repairs claimed by Plaintiff, presents a genuine dispute as to the
amount of the loss between the parties.” (Motion at 8) Accordingly, Plaintiff contends the Court
must stay the case and refer the parties to the appraisal process to settle the dispute over the
disputed amount of the loss.

Defendant responds that appraisal is not appropriate because it has entirely denied coverage for
the alleged loss. Defendant further contends that Plaintiff's request for a dual-track approach is
inappropriate because the facts here do not track those in the American Capital case.

The Magistrate does not find the Plaintiff waived the right to seek appraisal. The cases finding
such a waiver, in particular the Heritage Prop. & Cas. case, are distinguishable on their facts.
See Heritage Prop. & Cas. Ins. Co. v. Superior Contr. & Env. Specialties, LLC, 314 So. 3d 743
(Fla. 2d DCA 2021). Here, the timeline! of events does not support a finding of waiver.

Upon review of the Defendant’s letter and the case law proffered by the parties, the Magistrate
recommends the Court DENY Plaintiff's motion. While the Defendant’s July 20, 2021, letter
speaks of “potential wind-related damage” to the roofs of Building 2 and Building 9, the letter
concludes that due to the 1031-day delay in reporting the claim, the Defendant “was prejudiced
in its investigation, and could not confirm or deny whether any conditions were caused by wind
and if so, when it may have occurred.” (Letter at p. 2) Critically, Defendant concludes that “there
is no coverage available under the Policy due to the Insured’s breach of the ‘Duties in the Event
Of Loss Or Damage’ provision of the Policy.” (Letter at pp. 2-3) This denial of coverage is
repeated at page 4 where the letter states,

Notwithstanding your failure to provide prompt notice, and our resulting
compromised investigative position, the Policy does not provide coverage for the
damage observed at the property. Based upon the results of American Coastal’s
investigation, including review of historical documents and the Wareham report, the

1 Plaintiff allegedly sustained a loss due to Hurricane Irma on September 10, 2017. Plaintiff
did not report the loss to Defendant
until July 7, 2020. Defendant investigated the loss but made no coverage determination before Plaintiff filed suit on July 13, 2021.
Defendant's coverage determination letter to the Plaintiff is dated July 20, 2021. Defendant moved to dismiss on August 16, 2021, and
Plaintiff filed its motion to abate and to compel appraisal on August 30, 2021. On September 7, 2021. the parties entered a joint
stipulation to stay discovery based on these outstanding motions. The Court entered an Order on the stipulation on September 10, 2021.
observed damages to the property are found to have been attributable to a number of
excluded causes of loss. As such, based upon the terms and conditions of your
Policy, American Coastal regrets to inform you that there is no coverage for this
loss.

(Letter at p. 4) The letter then lists several specific policy provisions on which Defendant based
its coverage determination. (Letter at pp. 5-6) There can be no doubt that the letter is a coverage
determination letter, and the letter concludes that there is no coverage under the insured’s policy
for the claimed loss. Accordingly, the cases relied on by Plaintiff to compel appraisal are not
persuasive. See e.g., Villagio at Estero Condo. Ass'n, Inc. v. Amer. Cap. Assur. Corp., 2021 WL
1432160 (Fla, 2d DCA Apr. 16, 2021); Merrick Preserve Condo. Ass'n, Inc. v. Cypress Prop. &
Cas. Ins. Co., 315 So. 3d 45 (Fla. 4 DCA 2021); American Cap. Assur. Corp. v. Leeward Bay
at Tarpon Bay Condo. Ass'n, Inc., 306 So. 3d 1238 (Fla. 2d DCA 2020).

Defendant shall file an answer to Plaintiff's Complaint within 10 days of the date the Court adopts
this Recommended Order as final.

Ot WISH TO 0] iii POR AND COMMENDATION MA rH
MAGIST) MUST FIL! CEPTIO iS_IN_ ACCOR WITH FLO Dp RUE ivi
OC EDUR Wi) wi REQUD 2 TO H} OUI rH
FFICIENT TG UFPO OUR EX¢ PTIO ETION WI ED ED
DIN INCLUD WRITIEN Ti PTO NT PROCEEDIN THI 3ON
IN REV MUS) SCR: NECESS EO CH! OU;
REVIEW.
‘ok,
Jf 10/26/2021
£ MME if ek
Magistrate Del ‘berah Bailey
Plaintiff: Will Davich, Esq.
, Defendant: David Maldoff, Esq.
p | All Appearances via Zoom

Copies furnishedas per attached service list
2021 CA 3381

PARK PL V AMERICAN COASTAL

COPIES EMAILED TO:

DAVID MALDOFF ESQ
dmaldoff@butler.
legal

KYLE HYMAN ESQ
khyman@itsaboutjustice.com
“EXHIBIT J”
Filing # 138247894 E-Filed 11/10/2021 09:19:02 AM

IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR SEMINOLE COUNTY, FLORIDA

CASE NO.: 2021-CA-002095

TAMARA OSBORNE,

Plaintiff,

vs.

UNITED PROPERTY & CASUALTY
INSURANCE COMPANY,

Defendant.
/

ORDER DENYING MOTION TO DISMISS
THIS CAUSE came before the Court on “Defendant’s Motion to Dismiss for Failure to

Comply with a Condition Precedent Under Florida Statute 627.70152” filed on November
5,
2021. Having reviewed the Motion and the court file, and being otherwise fully advised, it is

hereby ORDERED AND ADJUDGED that:

1 “Defendant’s Motion to Dismiss for Failure to Comply with a Condition
Precedent Under Florida Statute 627.70152” is DENIED.

Defendant shall have twenty (20) days from the date this Order is rendered to
serve a response.

DONE AND ORDERED in Chambers at Sanford, Seminole County, Florida, on
Tuesday, November 9, 2021.

Bxzececcee
Jessica Recksiedler, Ci
§9-2021-CA-002095 11 1 01:28:15 PM

CERTIFICATE
OF SERVICE
I HEREBY CERTIFY that a copy of this Order has been furnished by e-mail or U.S.
Mail on Wednesday, November 10, 2021, to the following:

JOEL ORTEGA

jortega@kpattorney.com

spacheco@kpattorney.com

FirstPartyEService@kpattorney.com

CRISTINA P CAMBO

cpc@bolin-law.com

IIk@bolin-law.com

amd@bolin-law.com

Cristina P. Cambo, Esq

cpc@bolin-law.com

vnb@bolin-law.com

Cristina Cambo

jlt@bolin-law.com

U
a)
Vanessa Lau, Judici
§9-2021-CA-002095 41/10/2021 09:18:19 AM

2 of 2
“EXHIBIT K”
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA

CASE NUMBER: 50-2021-CA-009227-XXXX MB

MIRIAM CARBALLO and
JAVIER SANCHEZ,

Plaintiff(s),

vs.

UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY,

Defendant.
/

ORDER ON DEFENDANT’S MOTION TO DISMISS

THIS MATTER cane before the undersigned on Defendant, Universal Property &
Casualty Insurance Company's Motionto Dismiss for Failure to Comply with Section
627.70152(3), Florida Statutes, and the undersigned having reviewed the parties’ submissions,
having heard argument of counsel, and being fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that the motion is denied. Defendant shall have 20 days
to file its answer.
DONE AND ORDERED in Chambers at Palm Beach County, Florida.

50-2021-CA-009227. ice, Gy 6/2021
anges Hart rs CoN

50-2021-CA-009227-XXXX-MB 11/16/2021
James Nutt
Clreuit Judge

Copies furnished to:
Alexis Altman, Esq., (Attorney(s)for Plaintiffs)
Tracy Segal, Esq. (Incoming Attorney for Defendant)

Page lof 2
Case No. 50-2021-CA-009227-XXXX-MB

609347551

Page 2 of 2
“EXHIBIT L”
Filing # 138679348 E-Filed 11/17/2021 09:29:09 AM

IN THE CIRCUIT COURT OF THE 18TH
JUDICIAL CIRCUIT IN AND FOR
BREVARD COUNTY, FLORIDA

ERNEST AND LAURA TIPTON, CASE NO: 05-2021-CA-037428-XXXX-XX

Plaintiffs,
Vv.

FAMILY SECURITY INSURANCE COMPANY,

Defendant.
—! /

ORDER ON DEFENDANT’S MOTION TO DISMISS

THIS CAUSE, having come before the Court on Defendant, FAMILY SECURITY

INSURANCE COMPANY’s Motion to Dismiss and the Court having reviewed the submissions

of the parties and having heard arguments of counsel, it is hereby,

ORDERED AND ADJUDGED as follows:

1 Defendant’s Motion to Dismiss is hereby denied.

2 The Court finds that Fla. Stat. §627.70152 is substantive and does not apply

retroactively.

3 Defendant shall have twenty (20) days from the date of this order to respond to

Plaintiffs’ Complaint.

DONE AND ORDERED in Chambers at Brevard County, Florida on this ith day of

Th evemba% 2021.
LEE CA
CIRCUIT COURT JUDGE
Copies Furnished To:
Charles S. Thompson, Esq. cthompson@hightowertowerlaw.net ytabraue@hightowerlaw.net
miaservice@hightowerlaw.net azayas@hightowerlaw.net
Kevin George, Esq. kevin.george@thekrfirm.com ali@thekrfirm.com service2@thekrfirm.com
amanda@thekrfirm.com

a oped prt Cover bitter
“EXHIBIT M”
Filing # 138684166 E-Filed 11/17/2021 10:02:15 AM

IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CASE NO: 2021-016348-SP-23
SECTION: NDO3
JUDGE: Linda Singer Stein

EAP Mold & Water
Plaintiff(s) / Petitioner(s)

VS.

Olympus Ins Co
Defendant(s) / Respondent(s)
/

ORDER ON DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND
MOTION TO DISMISS COUNT II OF PLAINTIFF’S COMPLAINT

THIS CAUSE having come to be heard on October 29,2021 on Defendant’s Motion to

Dismiss Plaintiff's Complaint or in the alternative Defendant’s Motion to Dismiss Count

II of Plaintiff's Complaint, and this Court having heard arguments and being otherwise

duly advised in the premises, it is:

ORDERED AND ADJUDGED

1. Defendant’s Motion to Dismiss Plaintiff's Complaint for failure to comply with
Florida Statute 627.7152(2)(a) is DENIED because Plaintiff's assignment of
benefits was signed contemporaneously with the written, itemized, per-unit costs
estimate of the services to be performed by the Plaintiff as assignee.
2. Defendant’s Motion to Dismiss Count II of Plaintiffs Complaint is DENIED.
3. Defendant shall respond to Plaintiff's Complaint within 20 days of the execution of
this Order.

Case No: 2021-016348-SP-23 Page 1 of 2
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 17th day of
November, 2021.

we tosdsysp-23 1 leupeptin ay

2021-016348-SP-23 11-17-2021 9:44 AM
Hon. Linda Singer Stein

COUNTY COURT JUDGE
Electronically Signed

No Further Judic n Requ TE MOTION

CLERK TO REC! E (TP POST JUDGME NI

Electronically Served:
Benjamin W Raslavich, ben@theKRfirm.com
Benjamin W Raslavich, servicel@theKRfirm.com
Benjamin W Raslavich, clay@thekrfirm.com
Bridgette Crespo, bridgette@cslawpartners.com
Jill Carabotta, jill@cslawpartners.com
Jill Carabotta, susan@cslawpartners.com
Jill Carabotta, filings@cslawpartners.com
Joseph Patrick Rosier, joe@thekrfirm.com
Joseph Patrick Rosier, ben@thekrfirm.com
Joseph Patrick Rosier, servicel @thekrfirm.com
Maria Alvarez, maria@cslawpartners.com
Nader Sarsour, Esq., nader@cslawpartners.com

Physically Served:

Case No: 2021-016348-SP-23 Page 2 of 2
“EXHIBIT N”
Filing # 137184659 E-Filed 10/25/2021 12:27:15 PM

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. CACE21014472 D

Case Info

Judge

GENTILE, GEOFFREY H Track Judge’s New Case

Case No.

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Document Filed Date

November 15, 2072

Case Filing Date

May 31, 133

County

Parties

BLUNDY, DANIEL R Attorneys for Defendants
BLUNDY, DANIEL R Attorney for the Defendant
DENNIS, ANTHONY MOORE Attorneys for Plaintiffs
DENNIS, ANTHONY MOORE Attorney for the Plaintiff
EDWARDS, JOHN D Attorneys for Plaintiffs
GENTILE, GEOFFREY H Judge
LEONARDIS, RICHARD GERARD Attorney
ORTEGA, JOEL Attorneys for Plaintiffs
ORTEGA, JOEL Attorney for the Plaintiff
PAINTER, CARISSA Plaintiff
PAINTER, NICHOLAS Plaintiff
REVELS, C. III Attorney
UNITED PROPERTY & CASUALTY INSURANCE COMPANY Defendant
Reyhana Khan Attorneys for Defendants
Max Messinger Attorneys for Plaintiffs
Carolina Suazo Attorney
Shannon Whitesell Attorney
Katherine Shadwick Attorney
David Maldoff Attorney
Kyle Hyman Attorney
Cristina Cambo Attorney
Alexis Altman Attorney
Tracy Segal Attorney
Charles Thompson Attorney
Kevin George Attorney
Nader Sarsour Attorney
Aaron Kling Attorney
Kevin Elmore Attorney
Pierre Louis Attorney
Joni Hamilton Attorney
Barbara Hernando Attorney
Amy Smith Attorneys for Plaintiffs
Amanda Droleski Attorneys for Defendants
Claude Revels Attorneys for Defendants
Jeremy Griner Attorneys for Plaintiffs

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Document for PAINTER, NICHOLAS vs. UNITED PROPERTY & CASUALTY INSURANCE COMPANY

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