Complaint March 08, 2021 (2024)

 
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 Filing # 122703806 E-Filed 03/08/2021 04:33:48 PM IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA Oasis Realty Investments LLC, Plaintiff, vs. CASE NO.: CERTAIN UNDERWRITERS AT LLOYD'S LONDON, Defendant. / COMPLAINT & DEMAND FOR JURY TRIAL COMES NOW the Plaintiff, Oasis Realty Investments LLC, by and through the undersigned attorneys and sues the Defendant, CERTAIN UNDERWRITERS AT LLOYD'S LONDON, and alleges as follows: 1. This is an action for declaratory relief and breach of contract with damages greater than Thirty Thousand Dollars ($30,000.00), exclusive of interest, costs, and attorney's fees, but less than Seventy-Five Thousand Dollars ($75,000.00) inclusive of interest, costs, and attorney fees. 2. At all material times hereto, the Plaintiff, Oasis Realty Investments LLC, (hereinafter "Plaintiff') was and isa Florida Limited Liability Company. 3. At all material times hereto, Defendant, CERTAIN UNDERWRITERS AT LLOYD'S LONDON, (hereinafter "Defendant') was a corporation duly licensed to transact insurance business in the State of Florida. Defendant does business, has offices, and/or maintained agents for the transaction of its customary business in Orange County, Florida. 4. Plaintiff brings this action as a real property owner. Attached hereto and incorporated herein as Plaintiff s Exhibit "A" is a copy of a correspondence dated February 15, 2021 from the Defendant regarding the claim at issue. 5. Prior to April 20, 2020, the Plaintiff sought and purchased property insurance from Defendant to cover the property located at 7438 Restful Street, Winter Park, Florida, 32792 (hereinafter "Plaintiff s Property"). Said policy of insurance, which is believed to be policy number TMASDW261534 with corresponding claim number 3697190 (hereinafter "Plaintiff s Policy"), was issued by Defendant to Plaintiff to provide insurance coverage which included, but was not limited to, coverage afforded to protect Plaintiff s Property against wind, water and/or mold damage. 6. Plaintiff s Policy was issued by Defendant in Orange County, Florida and was in full force and effect as of April 20, 2020. A formal copy of Plaintiff s Policy is not currently in the possession of Plaintiff, but is well known to Defendant, and has been requested by Plaintiff through a Request to Produce (which will be served upon Defendant contemporaneously with this Complaint). See, e.g., Equity Premium, Inc. v. Twin City Fire Ins. Co., 956 So.2d 1257 (Fla 4th DCA 2007); Amiker v. Mid-Century Ins. Co., 398 So.2d 974 (Fla 1st DCA 1981); Parkway General Hospital, Inc. v.Allstate Ins. Co., 393 So.2d 1171 (Fla. 3rd DCA 1981) and Sasche v. Tampa Music Co., 252 So.2d 17 (Fla. 2nd DCA 1972). 7. On or about April 20, 2020, Plaintiff s Property and dwelling located at 7438 Restful Street, Winter Park, Florida, 32792 was damaged by a wind, water and/or mold event (hereinafter, the "Loss").Specifically, on or about April 20, 2020, a wind event created multiple leaks to the roof of Plaintiff s Property. The leaks caused interior water damage to various areas of the interior of Plaintiff s Property. The Loss was covered under PlaintiffsPolicy issued by Defendant. 8. As of the date of the filing of this lawsuit, Defendant has failed to: (i)acknowledge coverage for the Loss; and/or (ii) acknowledge that payment of insurance proceeds for the Loss will be forthcoming; and/or (iii) issue payment in full of insurance proceeds for the Loss to Plaintiff. 9. Jurisdiction and venue of this matter are proper in the Circuit Court for Orange County, Florida. COUNT I-BREACH OF CONTRACT AGAINST DEFENDANT 10. Plaintiff does hereby repeat and re-allege Paragraphs 1 through 9 above and incorporates the same by reference herein. 11. Plaintiff is a named Insured under the insurance policy of the Plaintiff (the Plaintiff s Policy described above) and said policy was in full force and effect as to the Plaintiff at all times material to this Complaint, including when Plaintiff s Property was damaged as described above. 12. Plaintiff has either complied with all conditions precedent to filing this lawsuit and Plaintiff isentitled to recover under Plaintiff s Policy or any such conditions has been waived. 13. Defendant's refusal to: (i) acknowledge coverage for the Loss; and/or (ii) acknowledge that payment of insurance proceeds for the Loss will be forthcoming; and/or (iii) issue payment in full of insurance proceeds for the Loss to Plaintiff, constitutes a breach of contract. 14. Plaintiff has been damaged as a result of Defendant's breach in the form of unpaid insurance proceeds, interest, costs, and attorney's fees. 15. Plaintiff has been and remains fully prepared to comply with all of the obligations pursuant to the aforesaid contract of insurance. 16. As a result of Defendant's aforementioned breach of contract, it has become necessary that Plaintiff retain the services of the undersigned attorneys pursuant to Fla. Stat. § 627.428 or Fla. Stat. § 626.9373. Plaintiff is obligated to pay a reasonable fee for the undersigned attorneysservices in bringing this action, plus necessary costs. 17. Plaintiff is entitled to recover attorney's fees and costs pursuant to Fla. Stat. § 627.428 or Fla. Stat. § 626.9373. WHEREFORE, the Plaintiff, Oasis Realty Investments LLC, by and through the undersigned counsel, demands judgment against Defendant, CERTAIN UNDERWRITERS AT LLOYD'S LONDON, for all unpaid bills with interest on any overdue payments, costs, attorney fees pursuant to Fla. Stat. § 627.428 or Fla. Stat. § 626.9373, and for all other remedies the Court sees fitto grant, and the Plaintiff demands trial by jury. COUNT II-DECLARATORY RELIEF AGAINST DEFENDANT 18. Plaintiff realleges paragraphs 1 through 9 above and incorporates the same by reference herein. 19. Under the terms of the subject Plaintiff s Policy, Defendant insured against direct, physical loss to the Plaintiff s Property. There are however a number of exclusions which the Defendant is relying upon to deny coverage for the Loss. 20. Under the terms and provisions of the Plaintiff s Policy, Plaintiff sLoss appears to be covered for the property damage sustained; however, Defendant denied coverage for the Loss and/or asserted in its claim denial letter that certain portions of Plaintiff s Loss were not covered under the Plaintiff s Policy due to various policy exclusion(s)/exception(s) (such ambiguous provisions are incorporated herein by reference) and/or did not agree to the pricing. 21. As a result of Defendant's assertions of applicable policy exclusion(s)/exception(s) and Defendant's apparent belief that the entire and/or a part of the Loss is not covered based upon its interpretation of the Plaintiff s Policy and/or the pricing issues, Plaintiff is in doubt as to Plaintiff entitlement to coverage under the Plaintiff s Policy and/or as to the Defendant's denial. 22. Plaintiff believes that the Loss is covered and that Plaintiff s estimate is accurate and compensable; however, Defendant disagrees. Consequently, the parties can only resolve their differences when coverage is determined by this Court. 23. Plaintiff is uncertain as to the existence or non-existence of Plaintiff s rights to coverage under the Plaintiff s Policy and has an actual, practical and present need for a declaration by the court as to Plaintiff s rights under the Plaintiff s Policy. Consequently, Plaintiff seeks relief from uncertainty and insecurity with respect to Plaintiff s rights and legal relations with Defendant under the Plaintiff s Policy. See Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5 (Fla. 2004); Lutz v. Protective Life Ins. Co., 951 So.2d 884 (Fla. 4th DCA 2007); Jossfolk v. United Property & Cas. Ins. Co., 110 So.3d 110) (Fla. 4th DCA 2013) (permittink declaratory ludknient in a first party property insurance action); Certain Interested Underwriters At Lloyd's London v. Pitu, Inc., 95 So.3d 290 (Fla. 3rd DCA 2012) (permittink both breach of contract and declaratory ludynent in a first party property insurance action) (Emphasis added). 24. As a direct and proximate result of the foregoing conflicting positions of the parties, there is an actual bona-fide controversy between the parties that requires judicial interpretations as to whether there has been a covered Loss. Accordingly, Plaintiff seeks a declaration as to Plaintiff s rights relative to coverage of the Loss under the Plaintiff s Policy and Florida law. 25. The purpose of this declaratory decree action is to obtain a judicial interpretation of the Plaintiff s Policy, as it relates to the facts involved herein, which will determine that there has been a covered Loss and as to the pricing. Without such a declaratory decree, Plaintiff is unable to obtain insurance benefits under the Plaintiff s Policy. 26. Pursuant to Fla. Stat. § 86.011, this Court has jurisdiction to declare the applicable rights, status, and other equitable or legal relations between the parties as to the existence, or nonexistence of any right; or any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. 27. Pursuant to Fla. Stat. § 86.021, Plaintiff is in doubt as to Plaintiff s rights and status under the Plaintiff s Policy. Therefore, Plaintiff may have this Court determine Plaintiff s questions concerning the construction or validity arising under said Policy and Plaintiff can obtain a declaration of Plaintiff s rights, status, or legal relations thereunder. 28. Pursuant to Fla. Stat. § 86.051, this Court is not limited nor restricted from exercising its general declaratory relief powers conferred by Fla. Stat. § 86.01 as related to Plaintiff s request for declaratory relief in this action. Additionally, this Court may even render its decision in this matter by way of anticipation with respect to any act not yet done or any event which has not yet happened. 29. Pursuant to Florida Stat. § 86.101, in response to Plaintiff s request for declaratory relief, this Court's decision is to be rendered for purposes of settling and affording Plaintiff relief from its insecurity and uncertainty with respect to Plaintiff s rights, status and other equitable or legal relations and the declaratory relief statute is to be liberally administered and construed. (Emphasis added). See also Olive v. Maas, 811 So.2d 644, 648 (Fla. 2002); C.A.T, LLC v.Island Developers, Ltd, 827 So.2d 373,375 (Fla. 3d DCA 2002); National Rifle Assin of America v. City of South Miami, 812 So.2d 504 (Fla. 3d DCA 2002); State Farm Fire and Cas. Co. v. Higgins, 788 So.2d 992, 999 (Fla. 4th DCA 2001); X Corp. v. Y Person, 622 So.2d 1098 (Fla. 2d DCA 1993). 30. Plaintiff s disagreement(s) with Defendant concerning coverage under the Plaintiff s Policy is a proper subject for a declaratory judgment. See Transportation Cas. Inc. Co. v. Soil Tech. Distributors, Inc., 966 So.2d 8, 9 (Fla. 4th DCA 2007); Effort Enterprises of Florida, Inc. v. Lexington Ins. Co., 666 So.2d 930, 931 (Fla. 4th DCA 1995); Tindall v. Allstate Ins. Co., 472 So.2d 1291, 1292 (Fla. 2d DCA 1985); Tavares v. Allstate, 342 So.2d 551 (Fla. 3d DCA 1977); Perez v. State Auto. Ins. Assin., 270 So.2d 377 (Fla. 3d DCA 1972). 31. Plaintiff has the right to proceed with itsdeclaratory relief action and such action should not be impermissibly foreclosed. See Effort Enterprises of Florida. Inc. v. Lexington Ins. Co., 666 So.2d 930, 932 (Fla. 4th DCA 1995); Floyd v. Guardian Life Ins. Co. Of America, 415 So.2d 103, 105 (Fla. 3d DCA 1982). 32. All conditions precedent to the filing of this action have been complied with, met or otherwise waived. 33. As a direct and proximate result of Defendant's conduct, Plaintiff has been obligated to retain undersigned counsel to bring this action and, pursuant to Fla. Stat. §§ 86.011, 626.9373, 627.428, and 57.041, and others, undersigned counsel is entitled to attorneysfees in this matter to be paid by the Defendant. WHEREFORE, Plaintiff, Oasis Realty Investments LLC, prays this Honorable Court takes jurisdiction of this matter and declares the parties' rights and duties under the Plaintiff s Policy, and takes the following actions, including but not limited to: a. entering an order holding that Defendant, CERTAIN UNDERWRITERS AT LLOYD'S LONDON, is in breach of the insurance contract pursuant to the terms and conditions of the Plaintiff s Policy and awarding damages therefrom, thereby also waiving further policy compliance on the part of Plaintiff; b. entering an order holding that since Defendant previously acknowledged to an unagreed amount under the Plaintiff s Policy relative to the Loss, that conditions precedent are waived and/or provide a declaration regarding the insured's specific requirements, so Plaintiff can comply with same, without Plaintiff being in violation of the Plaintiff s Policy (and abating this action pending such compliance); c. entering an order declaring that the Plaintiff is in compliance with the Plaintiff s Policy, and has complied with all conditions precedent thereunder or same were waived by the conduct of Defendant; d. entering an order declaring that Plaintiff s Loss is the result of direct, physical loss to the Plaintiff s Property; e. order full disclosure of all documents and allow full and liberal discovery of all facts that may lead to admissible evidence relevant to the determination herein, including but not limited to, production of the complete insurance policy, and a complete copy of the written materials in the possession of the Defendant that would shed light on the issues involved herein; f. determine applicable law, including the provisions of Florida Statutes that apply to the policy and to the parties; g. declare each policy provision not in conformity with Florida law be amended to comply with Florida law; h. declare that any ambiguities in the statute or policy be construed in favor of insurance coverage; i. declare that the statutes and policy provisions be construed strictly and most strongly against the insurer, and liberally in favor of the insured, so as to effect the dominant purpose of indemnity or payment to the insured; .i. declare that the Plaintiff sPolicy provides coverage for the Loss submitted by the Plaintiff; k. declare that the Plaintiff is entitled to a claim for attorneysfees, costs and prejudgment interest against Defendant under Fla. Stat. §§ 86.011, 626.9373, 627.428, and 57.041 and determine amounts thereunder; 1. determine and declare any other material matters pertaining to the respective rights and responsibilities under the policy, as needed to do complete justice in this case; and m. awarding any and all other equitable relief this court deems just and proper, and granting a trial by jury of all issues triable as of a right by a jury. Plaintiff, Oasis Realty Investments LLC, further demands trial by jury of all issues so triable in accordance with Florida Statutes, Chapter 86, as well as for entry ofjudgment for Plaintiff as to all issues raised in this declaratory action, and against Defendant, CERTAIN UNDERWRITERS AT LLOYD'S LONDON, for insurance proceeds, attorneys' fees, and costs pursuant to Fla. Stat. §§ 86.011, 626.9373, 627.428, and 57.041. Respectfully submitted by: Is/ Clayton Kuhn Is/ Benjamin W. Raslavich CLAYTON T. KUHN, ESQ. BENJAMIN W. RASLAVICH, ESQ. Florida Bar No.: 97982 Florida Bar No.: 0102808 KUHN RASLAVICH, P.A. KUHN RASLAVICH, P.A. 2110 West Platt Street 2110 West Platt Street Tampa, FL 33606 Tampa, FL 33606 Telephone: (813) 422-7782 Telephone: (813) 422 — 7782 Facsimile: (813) 422-7783 Facsimile: (813) 422 — 7783 clay@thekrfirm.com ben@thekrfirm.com Counsel for Plaintiff Counsel for Plaintiff CERTIFICATE OF SERVICE I DO HEREBY CERTIFY that a true and correct copy of this document will be served on the Defendant along with the Summons in this action. DATED: March 8,2021 Is/ Clayton Kuhn Isl Benjamin W. Raslavich CLAYTON T. KUHN, ESQ. BENJAMIN W. RASLAVICH, ESQ. Florida Bar No.: 97982 Florida Bar No.: 0102808 KUHN RASLAVICH, P.A. KUHN RASLAVICH, P.A. 2110 West Platt Street 2110 West Platt Street Tampa, FL 33606 Tampa, FL 33606 Telephone: (813) 422-7782 Telephone: (813) 422 — 7782 Facsimile: (813) 422-7783 Facsimile: (813) 422 — 7783 clay@thekrfirm.com ben@thekrfirm.com Counsel for Plaintiff Counsel for Plaintiff Crawford U.S. PROPERTY & CASUALTY Larry Milburn ManagingDirector Mid-Atlantic Region February 15, 2021 Trust Public Adjusters 6900 Tavistock Lake Blvd Ste # 400 Orlando, FL 32827 RE: Policy #: TMASDW261534 Insured: Oasis Realty Investments LLC Date of Loss: April 20, 2020 (reported 11/20/2020) Our File #: 3697190 Dear Trust Public Adjusters: Crawford & Company, U.S. Property & Casualty is the independent adjusting firm hired on behalf of your clients insurance carrier, Certain Underwriters at Lloyd's, London to investigate a hail claim at 7438 Restful St, Winter Park, FL, 32792, US, under the above captioned policy number. Your clients policy is subject to, among others, DP-0001 (07/88) Basic Dwelling Form $130,000 dwelling, no Personal Property and a $2,500.00 Named Storm Deductible. Upon receipt of this assignment we traveled to the loss location to inspect the property and investigate the claim. Our investigation revealed no damage from wind or hail to the insured property. The property is in disarray, there is wear tear and deterioration as well as extensive termite damage present. Water damage noted to skylight opening. There is water damage throughout the home that is long term and not from one isolated storm and not created from wind or hail. The property is unfinished in many areas. The carpeting is old and is worn. The subflooring issoft to walk on. Several patches on the shingled roof noted and sunken decking noted but not from one incident and not from win or hail but from wear tear and deterioration. Philadelphia, PAAllentown, PA Scranton, PAWilliamsport, PA Reading, PA Harrisburg, PAAltoona, PA PA * * * * * * * * * Erie, Pittsburgh, PA Atlantic City, NJ * Newark, DE *Wilmington, DE Dover, DE * * * * * * * Camden, NJ Trenton, NJ Mahwah, NJ 1405 N. Cedar Crest Boulevard — Suite 100 Allentown, PA18104 TEL 866-641-7922 FAX 866-286-3711 Email— tri-state@us.crawco.com www.crawfordandcompany.com 1of3 On behalf of Certain Underwriters at Lloyd's, London we have been instructed to advise you that upon completion of our investigation they find they will be unable to assist you with any settlement for the claim as there was no wind or hail damage. There was no damage found from wind or hail; therefore no covered peril as outlined in the following policy language(s): Please note that your policy is a named perils policy and covers the following perils only. SECTION I — PERILS INSURED AGAINST We insure for direct physical loss to the property described in Coverage's A, B and C caused by any of the following perils unless the loss is excluded in section 1— Exclusions. 1A. Fire or Lightning 1B. Internal Explosion, 2. Windstorm Or Hail This peril does not include loss: a. to the inside of a building or the property contained in a building caused by rain, snow, sleet, sand or dust unless the direct force of wind or hail damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening; or b. to the following property when outside the building: (1) awnings, signs, radio or television antennas or aerials including lead-in wiring, masts or towers; or (2) canoes and rowboats. 3. Explosion 4. Riot Or Civil Commotion 5. Aircraft 6. Vehicles 7. Smoke 8. Volcanic Eruption 9. Vandalism or Malicious Mischief By stating the above reason why your claim isnot covered under the policy provisions, Certain Underwriters at Lloyd's, London does not waive any other rights or defenses which they may have. Certain Underwriters at Lloyd's, London regrets that they must decline payment for any claim resulting from this occurrence. If you feel that there are additional facts that should be considered then please advise me in writing. If you believe your claim is wrongfully denied or you are aggrieved by our decision, you have the right to a review by the Florida Office of Insurance Regulation. You can file your complaint by phone at 1-877-693-5236, online at www.floir.com, or by email Consumer. Services 2of 3 myfloridacfo.com. Under Florida law, you have five (5) years from the date of the accident to file a civil action for bodily injury or property damage against the parties at interest, afterwards, any claim will be time barred Sincerely, CRAWFORD & COMPANY Lynn Rothenhausler Property Claims Adjuster 951-395-0747 CC: Loss Restorations, LLC 11018 Grand Pines Circle, #1211 Orlando, FL 32821 3of 3 

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