Preview
Filing # 80101904 E-Filed 10/30/2018 07:30:29 PM
IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT, IN AND FOR
COLLIER COUNTY, FLORIDA
CASE NO.: 112018-CA-000393-001-XX
PAUL & CATHERINE GERVASI,
Plaintiffs,
v.
UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
/
DEFENDANT’S MOTION FOR LEAVE TO AMEND DEFENDANT’S ANSWER,
AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL
COMES NOW, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE
COMPANY (“Defendant”), by and through its undersigned counsel, and pursuant to Florida Rule
of Civil Procedure 1.190(a), hereby files its Motion for Leave to Amend Defendant’s Answer,
Affirmative Defenses, and Demand for Jury Trial, and in support thereof, states as follows:
1. This is an action for monetary relief in relation to a property insurance claim for
alleged damage to the residences premises located at 9270 Campanile Circle, Unit 201, Naples,
Florida 34114, purportedly the result of Hurricane Irma.
2 On or about February 15, 2018, Paul Gervasi and Catherine Gervasi (“Plaintiffs”)
filed suit against the Defendant alleging it “has failed or refused to provide coverage under the
insurance policy and has failed to pay promptly the amounts due and has thereby breached the
contract of insurance. As a direct result of Universal’s breach of the insurance contract, Plaintiffs
have been financially damaged and continue to suffer damage and loss. Please refer to 4914 and
15 of the Complaint for Damages.
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 10/31/2018 11:44:54 AM3. On or about April 27, 2018, Defendant filed its Answer, Affirmative Defenses, and
Demand for Jury Trial, wherein it asserted five (5) Affirmative Defenses.
4. However, upon careful examination of the file materials in relation to the insurance
claim that is the subject matter of the pending litigation, the undersigned discovered that certain
responses to allegations in the Complaint need to be amended to accurately reflect the Defendant’s
position in this litigation. Additionally, the undersigned discovered the Defendant inadvertently
left out several defenses to coverage and/or that certain defenses need to be amended to accurately
reflect the Defendant’s position in this litigation.
5. As a result, Defendant respectfully moves this Honorable Court for leave to amend
its Answer, Affirmative Defenses, and Demand for Jury Trial for purposes of amending certain
responses to the allegations set forth in the Complaint for Damages, as well as setting forth those
additional defenses to coverage as noted in the preceding paragraph.
6. Florida Rule of Civil Procedure 1.190(a) provides that “[IJeave of court [to amend
pleadings] shall be given freely when justice so requires.” See Fla. R. Civ. P. 1.190(a).
7. This Rule has been liberally applied even in instances where affirmative defenses
have been raised on the first day of trial. See AZEMCO (North America), Inc. v. Brown, 553 So.
2d 1245 (Fla. 3d DCA 1989); see also St. Petersburg Auto. Museum, Inc. v. Thompson, 561 So.
2d 321, 322 (Fla. 2d DCA 1990) (“it was an abuse of discretion for the trial court not to vacate the
order granting appellees' motion for judgment on the pleadings and permitting Lewis, Kjeer and
SPAM to file an amended answer, whatever affirmative defenses were available to them and to
continue to participate in the litigation.”); Imperial Bonita Estate, Inc. v. Minister, 283 So. 2d 138,
139 (Fla. 2d DCA 1973) (“trial court erred in not allowing appellant to amend its answer.”).8. Generally, leave to amend shall be freely granted unless it appears that allowing the
amendment would prejudice the opposing parties, the privilege to amend has been abused or
amendment would be futile. Spectrum Interiors, Inc. v. Exterior Walls, Inc., 65 So. 3d 543 (Fla.
5th DCA 2011); see also Crown v. Chase Home Fin., 41 So. 3d 978 (Fla. 5th DCA 2010).
9. In the case sub judice, there can be no contention that by the Defendant amending
its Answer, Affirmative Defenses, and Demand for Jury Trial, Plaintiffs would be prejudiced.
10. This is especially true in light of the fact that (a) this case has not been brought up
for hearing on a motion for summary judgment; and (b) discovery in this matter is still ongoing.
11. There can also be no contention that the Defendant has abused its privilege to
amend, or that amendment would be futile, as it only seeks relief from this Honorable Court for
purposes of amending its Answer, Affirmative Defenses, and Demand for Jury Trial for purposes
of amending certain responses to allegations in the Complaint in order to accurately reflect the
Defendant’s position in this litigation and to assert meritorious defenses in order to accurately
teflect the Defendant’s position in relation to the claim that is the subject of this litigation.
12. Accordingly, based upon the foregoing reasons, arguments, and legal authority
cited herein, including Florida Rule of Civil Procedure 1.190(a), Motion for Leave to Amend
Defendant’s Answer, Affirmative Defenses, and Demand for Jury Trial should be granted.
WHEREFORE, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE
COMPANY, respectfully requests this Honorable Court enter an Order granting its Motion for
Leave to Amend Defendant’s Answer, Affirmative Defenses, and Demand for Jury Trial, thereby
deeming the Defendant’s Amended Answer, Affirmative Defenses, and Demand for Jury Trial
attached as Exhibit A filed and relating back to the date of the original pleading, and for any and
all further relief this Court deems just and proper.CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
to Andrew McDonald, Esq. using the Florida Courts E-Filing Portal, to
eservice@mcdonaldbarnhill.com, on this 30th day of October, 2018.
GROELLE & SALMON, P.A.
/s/ Joseph A. Matera
Joseph A. Matera II, Esq.
Florida Bar No.: 98014
gstcourtdocs@gspalaw.com
jmatera@gspalaw.com
7650 W. Courtney Campbell Causeway
Suite 800
Tampa, Florida 33607
(813) 849-7200
Counsel for Defendant
UPC.26133EXHIBIT AIN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT, IN AND FOR
COLLIER COUNTY, FLORIDA
CASE NO.: 11-2018-CA-000393-001-XX
PAUL & CATHERINE GERVASI,
Plaintiffs,
v.
UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
/
DEFENDANT’S AMENDED ANSWER, AFFIRMATIVE
DEFENSES, AND DEMAND FOR JURY TRIAL
COMES NOW, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE
COMPANY (hereinafter “Defendant”), by and through its undersigned counsel, hereby files its
Amended Answer, Affirmative Defenses, and Demand for Jury Trial in response to the Plaintiffs’
Complaint, and in support thereof, states as follows:
General Allegations
1. Defendant is without knowledge, therefore denied.
2. Admitted the Defendant is a corporation licensed to conduct and transact business
in the State of Florida, otherwise denied.
3. Denied.
Count I: Breach of Contract
4. Defendant reincorporates, repeats, and re-alleges its responses to paragraphs one
through three (1-3) above, as though fully set forth and incorporated herein.5. Admitted Paragraph 5 of the Plaintiffs’ Complaint speaks for itself, otherwise
denied.
6. Admitted the Defendant issued a policy of insurance numbered, 592-719-604, to
Paul and Catherine Gervasi (“Plaintiffs”), for the residence premises located at 9270 Campanile
Circle, Unit 201, Naples, Florida 34114, for the policy period effective April 24, 2017 to April 24,
2018 (“Policy”), in exchange for an annual premium, otherwise denied.
7. Admitted the Defendant received notice of an alleged loss at the residence premises,
with a reported date of loss of September 10, 2017, otherwise denied.
8. Admitted the Defendant received notice of an alleged loss at the residence premises,
with a reported date of loss of September 10, 2017, purportedly the result of Hurricane Irma,
otherwise denied.
9. Admitted the Policy speaks for itself, otherwise denied.
10. | Admitted the Defendant received notice of an alleged loss at the residence premises
located at 9270 Campanile Circle, Unit 201, Naples, Florida 34114, otherwise denied.
11. Admitted the Defendant received notice of an alleged loss at the residence premises
located at 9270 Campanile Circle, Unit 201, Naples, Florida 34114, otherwise denied.
12. Denied.
13. Denied.
14. Denied.
15. Denied.
16. Denied.
Defendant hereby denies any and all factual allegations asserted in the Plaintiffs’
Complaint not specifically admitted herein.AFFIRMATIVE DEFENSES
1. As and for its First Affirmative Defense, Defendant asserts that this claim is
subject to the policy terms and conditions, and/or the limitations and exclusions as to coverage for
the claimed loss. As the Plaintiffs’ Complaint asserts a claim for breach of contract, the Policy
controls the rights and obligations of the parties, the applicable deductibles and the amount of
coverage, for the claim.
2. As and for its Second Affirmative Defense, Defendant asserts that Plaintiffs’ claim
and right of recovery of proceeds is subject to the Policy’s Hurricane Deductible. Any amount the
Plaintiffs may be able to recover must be reduced by the applicable deductible pursuant to the
subject policy provision:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
CALENDAR YEAR HURRICANE DEDUCTIBLE WITH SUPPLEMENTAL
REPORTING REQUIREMENT — FLORIDA
week
C. Hurricane Deductible
1. In the event of a single hurricane loss, we will pay only that
part of the total of all loss payable under Property Coverages
for loss by windstorm during a hurricane that exceeds the
hurricane percentage or flat dollar deductible stated in this
endorsement or as indicated in the Declarations.
If a percentage, the dollar amount of the hurricane
percentage deductible is determined by multiplying the limit
of liability of Coverage A, B, or D shown in the
Declarations, whichever is greatest, by the percentage
amount shown in the Schedule above or as indicated in the
Declarations, but in no event shall be less than $500.
The Policy carries a $500 hurricane deductible.
3. As and for its Third Affirmative Defense, Defendant asserts that the alleged loss
and reported damages described in the Plaintiffs’ Complaint are not covered, in whole or in part,
by the following policy provision and endorsement, which provides as follows:THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
CALENDAR YEAR HURRICANE DEDUCTIBLE WITH SUPPLEMENTAL
REPORTING REQUIREMENT — FLORIDA
eke
A. Loss By Windstorm During A Hurricane
As respects Paragraph C. Hurricane Deductible, coverage for
loss caused by the peril of windstorm during a hurricane which
occurs anywhere in the state of Florida, includes loss to the
inside of a building or the property contained in a building
caused by rain, snow, sleet, hail, sand or dust if the direct force
of the windstorm damages the building, causing an opening in a
roof or wall and the rain, snow, sleet, hail, sand or dust enters
through this opening.
To the extent that some or all of the damages being claimed by the Plaintiffs are caused by or the
result of rain, snow, sleet, sand or dust entering through an opening in a roof or wall not created
by the direct force of a windstorm, said damages are expressly not covered under the Policy.
4. As and for its Fourth Affirmative Defense, Defendant asserts it has no duty under
the terms and conditions of the Policy or under applicable Florida law, to tender any additional
payment as the Plaintiffs failed to provide the Defendant with an inventory list, in violation of the
Your Duties After Loss provision of the Policy, thereby resulting in prejudice to the Defendant
and its opportunity or ability to adjust the claim, and/or evaluate its obligations under the Policy,
therefore relieving it of any indemnity obligation to the Plaintiffs under the terms and conditions
of the subject Policy.
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
SPECIAL PROVISIONS — FLORIDA
RREK
SECTION I- CONDITIONS
Under 2. Your Duties After Loss, the sentence “In case of a loss
to covered property, you must see that the following are done:” is
deleted and replaced by the following:
In case of a loss to covered property, we have no duty to provide
coverage under this policy if the failure to comply with the following
4duties is prejudicial to us. These duties must be performed either by
you, an “insured” seeking coverage, or a representative of either:
week
e. Prepare an inventory of damaged personal property showing
the quantity, description, actual cash value and amount of
loss. Attach all bills, receipts and related documents that
justify the figures in the inventory;
Prior to the initiation of this action, neither the Defendant nor its agents and/or representatives
received a contents inventory list from the Plaintiffs, their agents and/or representatives.
5. As and for its Fifth Affirmative Defense, Defendant asserts it has no duty under
the terms and conditions of the Policy or under applicable Florida law, to tender any additional
payment as the Plaintiffs failed to provide the Defendant with a signed, sworn Proof of Loss, in
violation of the Your Duties After Loss provision of the Policy, thereby resulting in prejudice to
the Defendant and its opportunity or ability to adjust the claim, and/or evaluate its obligations
under the Policy, therefore relieving it of any indemnity obligation to the Plaintiffs under the terms
and conditions of the subject Policy.
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
SPECIAL PROVISIONS — FLORIDA
RREK
SECTION I- CONDITIONS
Under 2. Your Duties After Loss, the sentence “In case of a loss
to covered property, you must see that the following are done:” is
deleted and replaced by the following:
In case of a loss to covered property, we have no duty to provide
coverage under this policy if the failure to comply with the following
duties is prejudicial to us. These duties must be performed either by
you, an “insured” seeking coverage, or a representative of either:
eK
g. Send to us, within 60 days after our request, your signed,
sworn proof of loss which sets forth, to the best of your
knowledge and belief:
(1) The time and cause of loss;(2) The interest of the “insured” and all others in the
property involved and all liens on the property;
(3) Other insurance which may cover the loss;
(4) Changes in title or occupancy of the property during the
term of the policy;
(5) Specifications of damaged buildings and detailed repair
estimates;
(6) The inventory of damaged personal property described
in 2.e. above;
(7) Receipts for additional living expenses incurred and
records that support the fair rental value loss; and
(8) Evidence or affidavit that supports a claim under the
Credit Card, Fund Transfer Card, Forgery and
Counterfeit Money coverage, stating the amount and
cause of loss.
Tn a letter from the Defendant addressed to Infante Adjustment Bureau, P.A., dated November 29,
2017, Defendant requested the Plaintiffs submit a signed, sworn Proof of Loss. However, prior to
the initiation of this action, neither the Defendant nor its agents and/or representatives received a
signed, sworn Proof of Loss from the Plaintiffs, their agents and/or representatives.
6. As and for its Sixth Affirmative Defense, Defendant asserts it has no duty under
the terms and conditions of the Policy or under applicable Florida law, to tender any additional
payment as the Plaintiffs failed to provide the Defendant with records and documents it requested
in violation of the Your Duties After Loss provision of the Policy, thereby resulting in prejudice
to the Defendant and its opportunity or ability to inspect the property, adjust the claim, and/or
evaluate its obligations under the Policy, therefore relieving it of any indemnity obligation to the
Plaintiffs under the terms and conditions of the subject Policy.
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
SPECIAL PROVISIONS — FLORIDA
wee
SECTION I —- CONDITIONSUnder 2. Your Duties After Loss, the sentence “In case of a loss to
covered property, you must see that the following are done:” is
deleted and replaced by the following:
Tn case of a loss to covered property, we have no duty to provide
coverage under this Policy if the failure to comply with the
following duties is prejudicial to us. These duties must be
performed either by you, an “insured” seeking coverage, or a
tepresentative of either:
keke
Item f. is deleted and replaced by the following:
f. As often as we reasonably require:
keke
(2) Provide us with the records and documents we request
and permit us to make copies;
Ina letter from the Defendant addressed to Infante Adjustment Bureau, P.A., dated November 29,
2017, Defendant requested the Plaintiffs provide a copy of the Plaintiffs’ Attorney’s Letter of
Representation or the Plaintiffs’ Public Adjuster’s Letter of Representation; the earliest date and
time when the Defendant could re-inspect the insured location; the Plaintiffs’ recorded statement
of facts and damage (if specifically requested by the Defendant); an estimate from the Plaintiffs’
Attorney or the Plaintiffs’ Public Adjuster; the Plaintiffs’ signed, sworn Proof of Loss; any
Emergency Mitigation Invoice/Documents, including contracts, photos, and daily logs; any
invoice, report, or opinion from a plumber, contractor, roofer, etc.; any receipts for purchases
telated to this claim; any information regarding prior claims. Of the aforementioned requests,
Defendant did not receive notice from the Plaintiffs as to when the Defendant could re-inspect the
insured location; Defendant did not receive an estimate from the Plaintiffs’ Attorney or Public
Adjuster; Defendant did not receive the Plaintiffs’ signed, sworn Proof of Loss; Defendant did not
receive any Emergency Mitigation Invoice/Documents, including contracts, photos, and daily
logs; Defendant did not receive any invoice, report, or opinion from a plumber, contractor, roofer,etc.; Defendant did not receive any receipts for purchases related to this claim; and the Defendant
did not receive any information regarding prior claims.
7. As and for its Seventh Affirmative Defense, Defendant asserts it has no duty under
the terms and conditions of the Policy or under applicable Florida law, to tender any additional
payment as the Plaintiffs failed to cooperate with the Defendant in the investigation of the claim,
in violation of the Your Duties After Loss provision of the Policy, thereby resulting in prejudice
to the Defendant and its opportunity or ability to adjust the claim, and/or evaluate its obligations
under the Policy, therefore relieving it of any indemnity obligation to the Plaintiffs under the terms
and conditions of the subject Policy.
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ewe SPECIAL PROVISIONS — FLORIDA
SECTION I-CONDITIONS
Under 2. Your Duties After Loss, the sentence “In case of a loss
to covered property, you must see that the following are done:” is
deleted and replaced by the following:
In case of a loss to covered property, we have no duty to provide
coverage under this policy if the failure to comply with the following
duties is prejudicial to us. These duties must be performed either by
you, an “insured” seeking coverage, or a representative of either:
RRR
Item f. is deleted and replaced by the following:
f. As often as we reasonably require:
Re
(7) Cooperate with us in the investigation of a claim.
As noted in the Defendant’s Fourth, Fifth, and Sixth Affirmative Defenses, Plaintiffs have failed
to comply with one or more Policy provisions. Specifically, Plaintiffs have failed to provide the
Defendant with their inventory of alleged damaged property; Plaintiffs have failed to submit their
signed, sworn Proof of Loss; and the Plaintiffs have failed to provide the Defendant with variousdocuments despite the Defendant’s request. Given the Plaintiffs’ failure to comply with various
post-loss obligations as mandated under the terms and conditions set forth in the subject Policy,
Plaintiffs have failed to cooperate with the Defendant in its investigation of the claim.
8. As and for its Eighth Affirmative Defense, Defendant asserts it has no duty under
the terms and conditions of the Policy or under applicable Florida law, to tender any additional
payment as the Plaintiffs failed to comply with one or more policy provisions prior to the initiation
of this action, thereby resulting in prejudice to the Defendant and its opportunity or ability to adjust
the claim, and/or evaluate its obligations under the Policy, therefore relieving it of any indemnity
obligation to the Plaintiffs under the terms and conditions of the subject Policy.
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
SPECIAL PROVISIONS - FLORIDA
sek
SECTION 1 - CONDITIONS
KEKE
8. Suit Against Us is deleted and replaced by the following:
8. Suit Against Us No action can be brought unless the policy
provisions have been complied with and the action is started
within five (5) years after the date of loss.
As noted in the Defendant’s Fourth, Fifth, and Sixth Affirmative Defenses, Plaintiffs have failed
to comply with one or more Policy provisions. Specifically, Plaintiffs have failed to provide the
Defendant with their inventory of alleged damaged property; Plaintiffs have failed to submit their
signed, sworn Proof of Loss; and the Plaintiffs have failed to provide the Defendant with various
documents despite the Defendant’s request. Given the Plaintiffs’ failure to comply with various
post-loss obligations as mandated under the terms and conditions set forth in the subject Policy,
filing of the Plaintiffs’ Complaint was premature and in violation of the “Suit Against Us” clause.9. As and for its Ninth Affirmative Defense, Defendant asserts that it has fulfilled
any indemnity obligation to the Plaintiffs for the covered loss pursuant to the following policy
provision and endorsement, which provides:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
SPECIAL PROVISIONS — FLORIDA
eee
SECTION I - CONDITIONS
ReRE
3. Loss Settlement (HO 00 06) is deleted and replaced by the
following:
3. Loss Settlement (HO 00 06) property losses are settled as
follows:
In this Condition 3., the terms “cost to repair or replace” and
“replacement cost” do not include the increased costs incurred
to comply with the enforcement of any ordinance or law, except
to the extent that coverage for these increased costs is provided
in 11. Ordinance Or Law under Additional Coverages. Covered
property losses are settled as follows:
a. Personal property at actual cash value at the time of loss but
nor more than the amount required to repair or replace.
b. Coverage A — Dwelling:
(1) At the actual cost to repair or replace.
(2) Coverage A — Dwelling:
(1) At the actual cost to repair or replace.
(2) We will initially pay at least the actual cash value of
the insured loss, less any applicable deductible. We
will then pay any remaining amounts necessary to
perform such repairs as work is performed and
expenses are incurred, subject to b.(1) above and this
item b.(2).
Ifa total loss of a building or structure insured under
this policy occurs, the provisions of b.(2) above do
not apply and we will pay the replacement cost
coverage without reservation or holdback of any
depreciation in value, subject to policy limits. This
does not prohibit us from exercising our right to
repair damaged property in compliance with this
policy and pursuant to Florida Statutes.
(3) If the dwelling where loss or damage occurs has been
vacant for more than thirty (30) consecutive days
before the loss or damage, we will:
10Not pay for any loss or damage caused by any of the
following perils, even if they are Perils Insured
Against:
(a) Vandalism;
(b) Sprinkler leakage, when ceased by or arising out
of the freezing of a fire protective sprinkler
system, unless you have protected the system
against freezing;
(c) Dwelling glass breakage;
(d) Water damage;
(e) Theft; or
(f) Attempted theft.
Dwellings under construction are not considered
vacant.
10. As and for its Tenth Affirmative Defense, Defendant asserts that it is entitled to a
set-off of any and all previous monies paid to the Plaintiffs, including, but not limited to, $2,032.00.
Defendant reserves the right to amend and/or supplement its amended answer and
affirmative defenses as discovery in this matter is still ongoing.
DEMAND FOR JURY TRIAL
Defendant hereby demands a trial by jury on all issues so triable and seeks any and all other
relief that the Court deems just and proper.
WHEREFORE, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE
COMPANY, has answered Plaintiffs’ allegations, asserted its amended defenses thereto, demands
trial by jury on all issues so triable as a matter of right, and requests that the Court enter judgment
in its favor, tax all costs and reasonable attorney fees against the Plaintiffs, and for such other and
further relief as the Court deems just and proper.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
llCERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
to Andrew McDonald, Esq. using the Florida Courts E-Filing Portal, to
eservice@mcdonaldbarnhill.com, on this 30th day of October, 2018.
GROELLE & SALMON, P.A.
/s/ Joseph A. Matera
Joseph A. Matera II, Esq.
Florida Bar No.: 98014
gstcourtdocs@gspalaw.com
jmatera@gspalaw.com
7650 W. Courtney Campbell Causeway
Suite 800
Tampa, Florida 33607
(813) 849-7200
Counsel for Defendant
UPC.26133
12
Preview
Filing # 80101904 E-Filed 10/30/2018 07:30:29 PM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT, IN AND FOR COLLIER COUNTY, FLORIDA CASE NO.: 112018-CA-000393-001-XX PAUL & CATHERINE GERVASI, Plaintiffs, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. / DEFENDANT’S MOTION FOR LEAVE TO AMEND DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL COMES NOW, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY (“Defendant”), by and through its undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.190(a), hereby files its Motion for Leave to Amend Defendant’s Answer, Affirmative Defenses, and Demand for Jury Trial, and in support thereof, states as follows: 1. This is an action for monetary relief in relation to a property insurance claim for alleged damage to the residences premises located at 9270 Campanile Circle, Unit 201, Naples, Florida 34114, purportedly the result of Hurricane Irma. 2 On or about February 15, 2018, Paul Gervasi and Catherine Gervasi (“Plaintiffs”) filed suit against the Defendant alleging it “has failed or refused to provide coverage under the insurance policy and has failed to pay promptly the amounts due and has thereby breached the contract of insurance. As a direct result of Universal’s breach of the insurance contract, Plaintiffs have been financially damaged and continue to suffer damage and loss. Please refer to 4914 and 15 of the Complaint for Damages. FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 10/31/2018 11:44:54 AM3. On or about April 27, 2018, Defendant filed its Answer, Affirmative Defenses, and Demand for Jury Trial, wherein it asserted five (5) Affirmative Defenses. 4. However, upon careful examination of the file materials in relation to the insurance claim that is the subject matter of the pending litigation, the undersigned discovered that certain responses to allegations in the Complaint need to be amended to accurately reflect the Defendant’s position in this litigation. Additionally, the undersigned discovered the Defendant inadvertently left out several defenses to coverage and/or that certain defenses need to be amended to accurately reflect the Defendant’s position in this litigation. 5. As a result, Defendant respectfully moves this Honorable Court for leave to amend its Answer, Affirmative Defenses, and Demand for Jury Trial for purposes of amending certain responses to the allegations set forth in the Complaint for Damages, as well as setting forth those additional defenses to coverage as noted in the preceding paragraph. 6. Florida Rule of Civil Procedure 1.190(a) provides that “[IJeave of court [to amend pleadings] shall be given freely when justice so requires.” See Fla. R. Civ. P. 1.190(a). 7. This Rule has been liberally applied even in instances where affirmative defenses have been raised on the first day of trial. See AZEMCO (North America), Inc. v. Brown, 553 So. 2d 1245 (Fla. 3d DCA 1989); see also St. Petersburg Auto. Museum, Inc. v. Thompson, 561 So. 2d 321, 322 (Fla. 2d DCA 1990) (“it was an abuse of discretion for the trial court not to vacate the order granting appellees' motion for judgment on the pleadings and permitting Lewis, Kjeer and SPAM to file an amended answer, whatever affirmative defenses were available to them and to continue to participate in the litigation.”); Imperial Bonita Estate, Inc. v. Minister, 283 So. 2d 138, 139 (Fla. 2d DCA 1973) (“trial court erred in not allowing appellant to amend its answer.”).8. Generally, leave to amend shall be freely granted unless it appears that allowing the amendment would prejudice the opposing parties, the privilege to amend has been abused or amendment would be futile. Spectrum Interiors, Inc. v. Exterior Walls, Inc., 65 So. 3d 543 (Fla. 5th DCA 2011); see also Crown v. Chase Home Fin., 41 So. 3d 978 (Fla. 5th DCA 2010). 9. In the case sub judice, there can be no contention that by the Defendant amending its Answer, Affirmative Defenses, and Demand for Jury Trial, Plaintiffs would be prejudiced. 10. This is especially true in light of the fact that (a) this case has not been brought up for hearing on a motion for summary judgment; and (b) discovery in this matter is still ongoing. 11. There can also be no contention that the Defendant has abused its privilege to amend, or that amendment would be futile, as it only seeks relief from this Honorable Court for purposes of amending its Answer, Affirmative Defenses, and Demand for Jury Trial for purposes of amending certain responses to allegations in the Complaint in order to accurately reflect the Defendant’s position in this litigation and to assert meritorious defenses in order to accurately teflect the Defendant’s position in relation to the claim that is the subject of this litigation. 12. Accordingly, based upon the foregoing reasons, arguments, and legal authority cited herein, including Florida Rule of Civil Procedure 1.190(a), Motion for Leave to Amend Defendant’s Answer, Affirmative Defenses, and Demand for Jury Trial should be granted. WHEREFORE, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, respectfully requests this Honorable Court enter an Order granting its Motion for Leave to Amend Defendant’s Answer, Affirmative Defenses, and Demand for Jury Trial, thereby deeming the Defendant’s Amended Answer, Affirmative Defenses, and Demand for Jury Trial attached as Exhibit A filed and relating back to the date of the original pleading, and for any and all further relief this Court deems just and proper.CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Andrew McDonald, Esq. using the Florida Courts E-Filing Portal, to eservice@mcdonaldbarnhill.com, on this 30th day of October, 2018. GROELLE & SALMON, P.A. /s/ Joseph A. Matera Joseph A. Matera II, Esq. Florida Bar No.: 98014 gstcourtdocs@gspalaw.com jmatera@gspalaw.com 7650 W. Courtney Campbell Causeway Suite 800 Tampa, Florida 33607 (813) 849-7200 Counsel for Defendant UPC.26133EXHIBIT AIN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT, IN AND FOR COLLIER COUNTY, FLORIDA CASE NO.: 11-2018-CA-000393-001-XX PAUL & CATHERINE GERVASI, Plaintiffs, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. / DEFENDANT’S AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL COMES NOW, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY (hereinafter “Defendant”), by and through its undersigned counsel, hereby files its Amended Answer, Affirmative Defenses, and Demand for Jury Trial in response to the Plaintiffs’ Complaint, and in support thereof, states as follows: General Allegations 1. Defendant is without knowledge, therefore denied. 2. Admitted the Defendant is a corporation licensed to conduct and transact business in the State of Florida, otherwise denied. 3. Denied. Count I: Breach of Contract 4. Defendant reincorporates, repeats, and re-alleges its responses to paragraphs one through three (1-3) above, as though fully set forth and incorporated herein.5. Admitted Paragraph 5 of the Plaintiffs’ Complaint speaks for itself, otherwise denied. 6. Admitted the Defendant issued a policy of insurance numbered, 592-719-604, to Paul and Catherine Gervasi (“Plaintiffs”), for the residence premises located at 9270 Campanile Circle, Unit 201, Naples, Florida 34114, for the policy period effective April 24, 2017 to April 24, 2018 (“Policy”), in exchange for an annual premium, otherwise denied. 7. Admitted the Defendant received notice of an alleged loss at the residence premises, with a reported date of loss of September 10, 2017, otherwise denied. 8. Admitted the Defendant received notice of an alleged loss at the residence premises, with a reported date of loss of September 10, 2017, purportedly the result of Hurricane Irma, otherwise denied. 9. Admitted the Policy speaks for itself, otherwise denied. 10. | Admitted the Defendant received notice of an alleged loss at the residence premises located at 9270 Campanile Circle, Unit 201, Naples, Florida 34114, otherwise denied. 11. Admitted the Defendant received notice of an alleged loss at the residence premises located at 9270 Campanile Circle, Unit 201, Naples, Florida 34114, otherwise denied. 12. Denied. 13. Denied. 14. Denied. 15. Denied. 16. Denied. Defendant hereby denies any and all factual allegations asserted in the Plaintiffs’ Complaint not specifically admitted herein.AFFIRMATIVE DEFENSES 1. As and for its First Affirmative Defense, Defendant asserts that this claim is subject to the policy terms and conditions, and/or the limitations and exclusions as to coverage for the claimed loss. As the Plaintiffs’ Complaint asserts a claim for breach of contract, the Policy controls the rights and obligations of the parties, the applicable deductibles and the amount of coverage, for the claim. 2. As and for its Second Affirmative Defense, Defendant asserts that Plaintiffs’ claim and right of recovery of proceeds is subject to the Policy’s Hurricane Deductible. Any amount the Plaintiffs may be able to recover must be reduced by the applicable deductible pursuant to the subject policy provision: THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CALENDAR YEAR HURRICANE DEDUCTIBLE WITH SUPPLEMENTAL REPORTING REQUIREMENT — FLORIDA week C. Hurricane Deductible 1. In the event of a single hurricane loss, we will pay only that part of the total of all loss payable under Property Coverages for loss by windstorm during a hurricane that exceeds the hurricane percentage or flat dollar deductible stated in this endorsement or as indicated in the Declarations. If a percentage, the dollar amount of the hurricane percentage deductible is determined by multiplying the limit of liability of Coverage A, B, or D shown in the Declarations, whichever is greatest, by the percentage amount shown in the Schedule above or as indicated in the Declarations, but in no event shall be less than $500. The Policy carries a $500 hurricane deductible. 3. As and for its Third Affirmative Defense, Defendant asserts that the alleged loss and reported damages described in the Plaintiffs’ Complaint are not covered, in whole or in part, by the following policy provision and endorsement, which provides as follows:THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CALENDAR YEAR HURRICANE DEDUCTIBLE WITH SUPPLEMENTAL REPORTING REQUIREMENT — FLORIDA eke A. Loss By Windstorm During A Hurricane As respects Paragraph C. Hurricane Deductible, coverage for loss caused by the peril of windstorm during a hurricane which occurs anywhere in the state of Florida, includes loss to the inside of a building or the property contained in a building caused by rain, snow, sleet, hail, sand or dust if the direct force of the windstorm damages the building, causing an opening in a roof or wall and the rain, snow, sleet, hail, sand or dust enters through this opening. To the extent that some or all of the damages being claimed by the Plaintiffs are caused by or the result of rain, snow, sleet, sand or dust entering through an opening in a roof or wall not created by the direct force of a windstorm, said damages are expressly not covered under the Policy. 4. As and for its Fourth Affirmative Defense, Defendant asserts it has no duty under the terms and conditions of the Policy or under applicable Florida law, to tender any additional payment as the Plaintiffs failed to provide the Defendant with an inventory list, in violation of the Your Duties After Loss provision of the Policy, thereby resulting in prejudice to the Defendant and its opportunity or ability to adjust the claim, and/or evaluate its obligations under the Policy, therefore relieving it of any indemnity obligation to the Plaintiffs under the terms and conditions of the subject Policy. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. SPECIAL PROVISIONS — FLORIDA RREK SECTION I- CONDITIONS Under 2. Your Duties After Loss, the sentence “In case of a loss to covered property, you must see that the following are done:” is deleted and replaced by the following: In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following 4duties is prejudicial to us. These duties must be performed either by you, an “insured” seeking coverage, or a representative of either: week e. Prepare an inventory of damaged personal property showing the quantity, description, actual cash value and amount of loss. Attach all bills, receipts and related documents that justify the figures in the inventory; Prior to the initiation of this action, neither the Defendant nor its agents and/or representatives received a contents inventory list from the Plaintiffs, their agents and/or representatives. 5. As and for its Fifth Affirmative Defense, Defendant asserts it has no duty under the terms and conditions of the Policy or under applicable Florida law, to tender any additional payment as the Plaintiffs failed to provide the Defendant with a signed, sworn Proof of Loss, in violation of the Your Duties After Loss provision of the Policy, thereby resulting in prejudice to the Defendant and its opportunity or ability to adjust the claim, and/or evaluate its obligations under the Policy, therefore relieving it of any indemnity obligation to the Plaintiffs under the terms and conditions of the subject Policy. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. SPECIAL PROVISIONS — FLORIDA RREK SECTION I- CONDITIONS Under 2. Your Duties After Loss, the sentence “In case of a loss to covered property, you must see that the following are done:” is deleted and replaced by the following: In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an “insured” seeking coverage, or a representative of either: eK g. Send to us, within 60 days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief: (1) The time and cause of loss;(2) The interest of the “insured” and all others in the property involved and all liens on the property; (3) Other insurance which may cover the loss; (4) Changes in title or occupancy of the property during the term of the policy; (5) Specifications of damaged buildings and detailed repair estimates; (6) The inventory of damaged personal property described in 2.e. above; (7) Receipts for additional living expenses incurred and records that support the fair rental value loss; and (8) Evidence or affidavit that supports a claim under the Credit Card, Fund Transfer Card, Forgery and Counterfeit Money coverage, stating the amount and cause of loss. Tn a letter from the Defendant addressed to Infante Adjustment Bureau, P.A., dated November 29, 2017, Defendant requested the Plaintiffs submit a signed, sworn Proof of Loss. However, prior to the initiation of this action, neither the Defendant nor its agents and/or representatives received a signed, sworn Proof of Loss from the Plaintiffs, their agents and/or representatives. 6. As and for its Sixth Affirmative Defense, Defendant asserts it has no duty under the terms and conditions of the Policy or under applicable Florida law, to tender any additional payment as the Plaintiffs failed to provide the Defendant with records and documents it requested in violation of the Your Duties After Loss provision of the Policy, thereby resulting in prejudice to the Defendant and its opportunity or ability to inspect the property, adjust the claim, and/or evaluate its obligations under the Policy, therefore relieving it of any indemnity obligation to the Plaintiffs under the terms and conditions of the subject Policy. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. SPECIAL PROVISIONS — FLORIDA wee SECTION I —- CONDITIONSUnder 2. Your Duties After Loss, the sentence “In case of a loss to covered property, you must see that the following are done:” is deleted and replaced by the following: Tn case of a loss to covered property, we have no duty to provide coverage under this Policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an “insured” seeking coverage, or a tepresentative of either: keke Item f. is deleted and replaced by the following: f. As often as we reasonably require: keke (2) Provide us with the records and documents we request and permit us to make copies; Ina letter from the Defendant addressed to Infante Adjustment Bureau, P.A., dated November 29, 2017, Defendant requested the Plaintiffs provide a copy of the Plaintiffs’ Attorney’s Letter of Representation or the Plaintiffs’ Public Adjuster’s Letter of Representation; the earliest date and time when the Defendant could re-inspect the insured location; the Plaintiffs’ recorded statement of facts and damage (if specifically requested by the Defendant); an estimate from the Plaintiffs’ Attorney or the Plaintiffs’ Public Adjuster; the Plaintiffs’ signed, sworn Proof of Loss; any Emergency Mitigation Invoice/Documents, including contracts, photos, and daily logs; any invoice, report, or opinion from a plumber, contractor, roofer, etc.; any receipts for purchases telated to this claim; any information regarding prior claims. Of the aforementioned requests, Defendant did not receive notice from the Plaintiffs as to when the Defendant could re-inspect the insured location; Defendant did not receive an estimate from the Plaintiffs’ Attorney or Public Adjuster; Defendant did not receive the Plaintiffs’ signed, sworn Proof of Loss; Defendant did not receive any Emergency Mitigation Invoice/Documents, including contracts, photos, and daily logs; Defendant did not receive any invoice, report, or opinion from a plumber, contractor, roofer,etc.; Defendant did not receive any receipts for purchases related to this claim; and the Defendant did not receive any information regarding prior claims. 7. As and for its Seventh Affirmative Defense, Defendant asserts it has no duty under the terms and conditions of the Policy or under applicable Florida law, to tender any additional payment as the Plaintiffs failed to cooperate with the Defendant in the investigation of the claim, in violation of the Your Duties After Loss provision of the Policy, thereby resulting in prejudice to the Defendant and its opportunity or ability to adjust the claim, and/or evaluate its obligations under the Policy, therefore relieving it of any indemnity obligation to the Plaintiffs under the terms and conditions of the subject Policy. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ewe SPECIAL PROVISIONS — FLORIDA SECTION I-CONDITIONS Under 2. Your Duties After Loss, the sentence “In case of a loss to covered property, you must see that the following are done:” is deleted and replaced by the following: In case of a loss to covered property, we have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us. These duties must be performed either by you, an “insured” seeking coverage, or a representative of either: RRR Item f. is deleted and replaced by the following: f. As often as we reasonably require: Re (7) Cooperate with us in the investigation of a claim. As noted in the Defendant’s Fourth, Fifth, and Sixth Affirmative Defenses, Plaintiffs have failed to comply with one or more Policy provisions. Specifically, Plaintiffs have failed to provide the Defendant with their inventory of alleged damaged property; Plaintiffs have failed to submit their signed, sworn Proof of Loss; and the Plaintiffs have failed to provide the Defendant with variousdocuments despite the Defendant’s request. Given the Plaintiffs’ failure to comply with various post-loss obligations as mandated under the terms and conditions set forth in the subject Policy, Plaintiffs have failed to cooperate with the Defendant in its investigation of the claim. 8. As and for its Eighth Affirmative Defense, Defendant asserts it has no duty under the terms and conditions of the Policy or under applicable Florida law, to tender any additional payment as the Plaintiffs failed to comply with one or more policy provisions prior to the initiation of this action, thereby resulting in prejudice to the Defendant and its opportunity or ability to adjust the claim, and/or evaluate its obligations under the Policy, therefore relieving it of any indemnity obligation to the Plaintiffs under the terms and conditions of the subject Policy. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. SPECIAL PROVISIONS - FLORIDA sek SECTION 1 - CONDITIONS KEKE 8. Suit Against Us is deleted and replaced by the following: 8. Suit Against Us No action can be brought unless the policy provisions have been complied with and the action is started within five (5) years after the date of loss. As noted in the Defendant’s Fourth, Fifth, and Sixth Affirmative Defenses, Plaintiffs have failed to comply with one or more Policy provisions. Specifically, Plaintiffs have failed to provide the Defendant with their inventory of alleged damaged property; Plaintiffs have failed to submit their signed, sworn Proof of Loss; and the Plaintiffs have failed to provide the Defendant with various documents despite the Defendant’s request. Given the Plaintiffs’ failure to comply with various post-loss obligations as mandated under the terms and conditions set forth in the subject Policy, filing of the Plaintiffs’ Complaint was premature and in violation of the “Suit Against Us” clause.9. As and for its Ninth Affirmative Defense, Defendant asserts that it has fulfilled any indemnity obligation to the Plaintiffs for the covered loss pursuant to the following policy provision and endorsement, which provides: THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. SPECIAL PROVISIONS — FLORIDA eee SECTION I - CONDITIONS ReRE 3. Loss Settlement (HO 00 06) is deleted and replaced by the following: 3. Loss Settlement (HO 00 06) property losses are settled as follows: In this Condition 3., the terms “cost to repair or replace” and “replacement cost” do not include the increased costs incurred to comply with the enforcement of any ordinance or law, except to the extent that coverage for these increased costs is provided in 11. Ordinance Or Law under Additional Coverages. Covered property losses are settled as follows: a. Personal property at actual cash value at the time of loss but nor more than the amount required to repair or replace. b. Coverage A — Dwelling: (1) At the actual cost to repair or replace. (2) Coverage A — Dwelling: (1) At the actual cost to repair or replace. (2) We will initially pay at least the actual cash value of the insured loss, less any applicable deductible. We will then pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred, subject to b.(1) above and this item b.(2). Ifa total loss of a building or structure insured under this policy occurs, the provisions of b.(2) above do not apply and we will pay the replacement cost coverage without reservation or holdback of any depreciation in value, subject to policy limits. This does not prohibit us from exercising our right to repair damaged property in compliance with this policy and pursuant to Florida Statutes. (3) If the dwelling where loss or damage occurs has been vacant for more than thirty (30) consecutive days before the loss or damage, we will: 10Not pay for any loss or damage caused by any of the following perils, even if they are Perils Insured Against: (a) Vandalism; (b) Sprinkler leakage, when ceased by or arising out of the freezing of a fire protective sprinkler system, unless you have protected the system against freezing; (c) Dwelling glass breakage; (d) Water damage; (e) Theft; or (f) Attempted theft. Dwellings under construction are not considered vacant. 10. As and for its Tenth Affirmative Defense, Defendant asserts that it is entitled to a set-off of any and all previous monies paid to the Plaintiffs, including, but not limited to, $2,032.00. Defendant reserves the right to amend and/or supplement its amended answer and affirmative defenses as discovery in this matter is still ongoing. DEMAND FOR JURY TRIAL Defendant hereby demands a trial by jury on all issues so triable and seeks any and all other relief that the Court deems just and proper. WHEREFORE, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, has answered Plaintiffs’ allegations, asserted its amended defenses thereto, demands trial by jury on all issues so triable as a matter of right, and requests that the Court enter judgment in its favor, tax all costs and reasonable attorney fees against the Plaintiffs, and for such other and further relief as the Court deems just and proper. (THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK) llCERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Andrew McDonald, Esq. using the Florida Courts E-Filing Portal, to eservice@mcdonaldbarnhill.com, on this 30th day of October, 2018. GROELLE & SALMON, P.A. /s/ Joseph A. Matera Joseph A. Matera II, Esq. Florida Bar No.: 98014 gstcourtdocs@gspalaw.com jmatera@gspalaw.com 7650 W. Courtney Campbell Causeway Suite 800 Tampa, Florida 33607 (813) 849-7200 Counsel for Defendant UPC.26133 12