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Filing# 173547079 E-Filed 05/19/2023 12:05:43 PM
CIT-38699 /kak
IN THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRUIT IN AND FOR BROWARD
COUNTY, FLORIDA
CASE NO.: CACE-22-000050
HERNANDO BETANCOURTH,
Plaintiff,
V.
CITIZENS PROPERTY INSURANCE
CORPORATION,
Defendant.
I
DEFENDANT'S MOTION TO CONSOLIDATE
Defendant, CITIZENS PROPERTY INSURANCE CORPORATION by and
("Citizens"),
through its undersigned counsel, hereby moves this Court for entry of an Order
consolidatingthis matter with County Court Case titled Waterfire Restoration, LLC. v.
Citizens Property Insurance Corporation,Case No. COINX-21-070586, which is currently
pending before the Honorable Judge Louis H. Schiff, and as grounds therefor, states as
follows:
1. there are two (2) pending lawsuits against Citizens seeking
Presently,
benefits for an alleged property loss under a single insurance policy,bearing policy
number 03687927 (the "Policy"),which afforded certain coverage to the insured
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/19/2023 12:05:43 PM.****
property located 7510 Johnson St. Hollywood, FL 33024 ("Property"),subject to the
terms, conditions, limitations,and exclusions.
Policy's
2. Both of the aforementioned related and pending lawsuits, although not
filed by the same counsel for Plaintiffs,both lawsuits allege damages to the same
Property under the same Policy
3. The outcome of the Insured's alleged breach of contract lawsuit is dispositive
as to whether there is to Waterfire Restorations, LLC, as the assignee of
any liability
Policybenefits in the matter pending before Judge Schiff.
4. As the could
parallellitigation potentiallyresult in conflictingorders
and determinations which may both limit the Insured's recovery and may result in
inconsistent and duplicative requests that in promotion
judgments, Citizens respectfully
and to avoid unnecessary costs, delay, and burden to the court,
of judicialefficiency
this matter be consolidated with the Circuit Court.
MEMORANDUM OF LAW
Florida Rule of Civil Procedure 1.270(a) provides for consolidation of cases
when there are common questions of law or fact in the related action. Rule 1.270(a)
in pertinentpart states:
When actions involvinga common question of law or fact are pending
before the court, it may order a joint hearing or trial of any or all the
matters in issue in the actions; it may order all actions consolidated;
and it may make such
orders concerning proceedings therein as may
tend to avoid unnecessary costs or delay
In State Farm Fla. Ms. Co. v. Bonham, 886 So. 2d 1072 (Fla.5th DCA 20041
the Court provided guidance regarding the application of Florida Rule of Civil
Procedure 1.270(a) by outliningfive conditions to consider in determining whether
the consolidation or the separationoftrials is proper. In Bonham, the Court held:
In deciding whether to consolidate cases, a trial court must consider
(1) Whether the trial process will be accelerated due to the
consolidation; (2) Whether unnecessary costs and delays can be
avoided by consolidation; (3) Whether there is possibility of
inconsistent verdicts; (4) Whether consolidation would eliminate
duplicative trials that involve substantially
the same core
of operative facts and questions of law; and (5) Whether consolidation
would deprive a party ofa substantive right.
id at 1075.
All five factors are present here and weigh in favor of consolidation. The
Plaintiff's suits present identical claims, identical questions of fact, and identical
questions of law. More importantly,the possibility
of inconsistent verdicts will be
eliminated and the trial process will be accelerated if these cases are consolidated.
trials on the same core
Duplicative facts and same questions of law will be avoided upon
consolidation of the cases. Moreover, if these cases are consolidated, it will ensure that
the Plaintiff would not be deprived of a substantive right by the operation of res
Plaintiff
judicata. Lastly, in all four cases is represented by the same respectivecounsel.
As such, consolidation of both cases is appropriate under these circumstances.
See e.g. Charley v. Green Tree Servicing,LLC, 125 So. 3d 285, 286 (Fla.4 DCA
2013)(finding it problematic that two different plaintiffs
filed separate actions to
foreclose on the same mortgage, and once aware that there were two separate actions
on the same mortgage, finding it wise to consolidate these actions);Relinger v. Fox, 55
So. 3d 638, 640 (Fla.2d DCA 2011)(noting the potentialproblems caused by the
pendency of two similar actions and suggesting consolidation of the actions);Mason v.
Homes by Whitake/; /nc, 971 So. 2d 1029 (Fla 5th DCA 2008)(holding the trial court
erred in denying to consolidate actions involvingthe same parties and the same
property); Macola v. Gov't Employee /ns. Co., 953 So. 2d 451, 454 (Fla.
2006)(consideringconsolidated cases where both causes of action were based on the
same underlying facts);Barnes v Meece, 530 So. 2d 958, 958 (Fla. 4th DCA
that the prospect of
1988)(finding i nco n sistent verdict requiresconsolidation).
Accordingly consolidation will economy and efficiency
promote judicial and will
reduce unnecessary costs and delay of having to engage in duplicate discovery,
deposing the same witnesses twi ce, and potentiallyhave twor separate juries
decide the same coverage and/or liability
issues.
This motion is being filed to promote trial convenience, and the efficient
administration of justice. Furthermore, the granting of this motion will not deprive
any party of any substantive rightsor prejudiceany party
WHEREFORE Defendant Citizens Property Insurance Corporation,
respectfully
requests this Honorable Court for entry of an Order consolidatingthis
matter with County Court Case titled Waterfire Restorations, LLC v. Citizens Property
Insurance Corporation, Case No. COINX-21-070586, which is currentlypending before the
Honorable Judge Schifffor any such further relief this Court deems just a nd proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via Electronic Mail, to all counsel of record on the attached Service List,this
19th day of May, 2023.
LUKS, SANTANIELLO, PETRILLO, COHEN
& PETERFRIEND
Attorneys for Defendant
301 Yamato Road
Suite 4150
Boca Raton, FL 33431
Telephone: (561) 893-9088
Facsimile: (561) 893-9048
By. /s/ Blair Hyman, Esq.
William J. Peterfriend
Florida Bar No.: 544647
Blair Hyman
Florida Bar No.: 44227
LUKSBOCA-PIeadings@LS-Law.com
SERVICE LIST
Peter Mineo Jr.,Esq.
The Mineo Salcedo Law Firm, P.A.
5600 Davie Road
Davie, FL 33314
Daniela Barreto, Esq.
Your Insurance Attorney, PLLC
2601 South Bayshore Drive 18th Floor
Coconut Grove, FL 33133
YIA4@Yourinsuranceattorney.com
Ese rvice@Yo u rin su ra nceatto rney.co m
Preview
Filing# 173547079 E-Filed 05/19/2023 12:05:43 PM CIT-38699 /kak IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-22-000050 HERNANDO BETANCOURTH, Plaintiff, V. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. I DEFENDANT'S MOTION TO CONSOLIDATE Defendant, CITIZENS PROPERTY INSURANCE CORPORATION by and ("Citizens"), through its undersigned counsel, hereby moves this Court for entry of an Order consolidatingthis matter with County Court Case titled Waterfire Restoration, LLC. v. Citizens Property Insurance Corporation,Case No. COINX-21-070586, which is currently pending before the Honorable Judge Louis H. Schiff, and as grounds therefor, states as follows: 1. there are two (2) pending lawsuits against Citizens seeking Presently, benefits for an alleged property loss under a single insurance policy,bearing policy number 03687927 (the "Policy"),which afforded certain coverage to the insured *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/19/2023 12:05:43 PM.**** property located 7510 Johnson St. Hollywood, FL 33024 ("Property"),subject to the terms, conditions, limitations,and exclusions. Policy's 2. Both of the aforementioned related and pending lawsuits, although not filed by the same counsel for Plaintiffs,both lawsuits allege damages to the same Property under the same Policy 3. The outcome of the Insured's alleged breach of contract lawsuit is dispositive as to whether there is to Waterfire Restorations, LLC, as the assignee of any liability Policybenefits in the matter pending before Judge Schiff. 4. As the could parallellitigation potentiallyresult in conflictingorders and determinations which may both limit the Insured's recovery and may result in inconsistent and duplicative requests that in promotion judgments, Citizens respectfully and to avoid unnecessary costs, delay, and burden to the court, of judicialefficiency this matter be consolidated with the Circuit Court. MEMORANDUM OF LAW Florida Rule of Civil Procedure 1.270(a) provides for consolidation of cases when there are common questions of law or fact in the related action. Rule 1.270(a) in pertinentpart states: When actions involvinga common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay In State Farm Fla. Ms. Co. v. Bonham, 886 So. 2d 1072 (Fla.5th DCA 20041 the Court provided guidance regarding the application of Florida Rule of Civil Procedure 1.270(a) by outliningfive conditions to consider in determining whether the consolidation or the separationoftrials is proper. In Bonham, the Court held: In deciding whether to consolidate cases, a trial court must consider (1) Whether the trial process will be accelerated due to the consolidation; (2) Whether unnecessary costs and delays can be avoided by consolidation; (3) Whether there is possibility of inconsistent verdicts; (4) Whether consolidation would eliminate duplicative trials that involve substantially the same core of operative facts and questions of law; and (5) Whether consolidation would deprive a party ofa substantive right. id at 1075. All five factors are present here and weigh in favor of consolidation. The Plaintiff's suits present identical claims, identical questions of fact, and identical questions of law. More importantly,the possibility of inconsistent verdicts will be eliminated and the trial process will be accelerated if these cases are consolidated. trials on the same core Duplicative facts and same questions of law will be avoided upon consolidation of the cases. Moreover, if these cases are consolidated, it will ensure that the Plaintiff would not be deprived of a substantive right by the operation of res Plaintiff judicata. Lastly, in all four cases is represented by the same respectivecounsel. As such, consolidation of both cases is appropriate under these circumstances. See e.g. Charley v. Green Tree Servicing,LLC, 125 So. 3d 285, 286 (Fla.4 DCA 2013)(finding it problematic that two different plaintiffs filed separate actions to foreclose on the same mortgage, and once aware that there were two separate actions on the same mortgage, finding it wise to consolidate these actions);Relinger v. Fox, 55 So. 3d 638, 640 (Fla.2d DCA 2011)(noting the potentialproblems caused by the pendency of two similar actions and suggesting consolidation of the actions);Mason v. Homes by Whitake/; /nc, 971 So. 2d 1029 (Fla 5th DCA 2008)(holding the trial court erred in denying to consolidate actions involvingthe same parties and the same property); Macola v. Gov't Employee /ns. Co., 953 So. 2d 451, 454 (Fla. 2006)(consideringconsolidated cases where both causes of action were based on the same underlying facts);Barnes v Meece, 530 So. 2d 958, 958 (Fla. 4th DCA that the prospect of 1988)(finding i nco n sistent verdict requiresconsolidation). Accordingly consolidation will economy and efficiency promote judicial and will reduce unnecessary costs and delay of having to engage in duplicate discovery, deposing the same witnesses twi ce, and potentiallyhave twor separate juries decide the same coverage and/or liability issues. This motion is being filed to promote trial convenience, and the efficient administration of justice. Furthermore, the granting of this motion will not deprive any party of any substantive rightsor prejudiceany party WHEREFORE Defendant Citizens Property Insurance Corporation, respectfully requests this Honorable Court for entry of an Order consolidatingthis matter with County Court Case titled Waterfire Restorations, LLC v. Citizens Property Insurance Corporation, Case No. COINX-21-070586, which is currentlypending before the Honorable Judge Schifffor any such further relief this Court deems just a nd proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic Mail, to all counsel of record on the attached Service List,this 19th day of May, 2023. LUKS, SANTANIELLO, PETRILLO, COHEN & PETERFRIEND Attorneys for Defendant 301 Yamato Road Suite 4150 Boca Raton, FL 33431 Telephone: (561) 893-9088 Facsimile: (561) 893-9048 By. /s/ Blair Hyman, Esq. William J. Peterfriend Florida Bar No.: 544647 Blair Hyman Florida Bar No.: 44227 LUKSBOCA-PIeadings@LS-Law.com SERVICE LIST Peter Mineo Jr.,Esq. The Mineo Salcedo Law Firm, P.A. 5600 Davie Road Davie, FL 33314 Daniela Barreto, Esq. Your Insurance Attorney, PLLC 2601 South Bayshore Drive 18th Floor Coconut Grove, FL 33133 YIA4@Yourinsuranceattorney.com Ese rvice@Yo u rin su ra nceatto rney.co m