27 Fla. L. Weekly Supp. 417a
Online Reference: FLWSUPP 2704OCTEInsurance — Property — Coverage — Insured’s action against insurer, which was dismissed for failure to comply with court orders, is not dispositive of action against insurer by assignee of insured — Plaintiff has separate right to prove that damage to property and services it provided are covered under policy — Where insurer met its prima facie burden of proof as to affirmative defense that damage was not a covered loss under policy, and plaintiff generally disputed insurer’s coverage determination but presented no affidavit or evidence supporting that position, summary judgment is entered in favor of insurer
NATIONAL WATER RESTORATION INC a/a/o Jaccene Octeus, Plaintiff(s) / Petitioner(s), v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant(s) / Respondent(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE17023468, Division 52. May 13, 2019. Giuseppina Miranda, Judge. Counsel: Stuart Yanofsky and Hipolita Mata, Insurance Litigation Group, P.A., Miami, for Plaintiff. Michael J. Kranzler, Goldstein Law Group, P.A., Fort Lauderdale, for Defendant.
FINAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE having come to be heard before the Court on May 13, 2019 for consideration of Defendant’s Second Motion for Final Summary Judgment, and the Court having considered the record, having heard counsel and being otherwise advised in the Premises, makes the following findings of fact and conclusions of law:
A. On September 10, 2018 Defendant filed their Motion for Summary Judgment.
B. On September 21, 2018 Defendant noticed their Motion for hearing to occur on December 6, 2018.
C. On December 3, 2018 Plaintiff filed their response to Defendant’s Motion for Summary.
D. Plaintiff’s response did not include an affidavit in opposition to summary judgment.
E. Defendant alleged that summary judgment was warranted because the alleged damage to the property was not a covered loss and the insured’s lawsuit (which was filed in Circuit Court) had been subsequently dismissed on July 25, 2018 as a sanction for failure to comply with the circuit judge’s court orders. (See Broward Circuit Court Case Number CACE 17-9486.)
F. Finding Plaintiff’s arguments compelling during the December 6, 2018 hearing, this Court denied summary judgment (without prejudice) and denied Defendant’s ore tenus motion for leave to amend their Answer and Affirmative Defenses. Defendant was directed to file their written motion to amend for the Court’s consideration. The Court also reset Defendant’s Motion for Final Summary Judgment for hearing on February 12, 2019.
G. Thereafter, the parties entered into an Agreed Order and Defendant filed their amended pleading.
H. On February 12, 2019 this Court again denied Defendant’s Motion for Final Summary Judgment. This denial only applied to Defendant’s argument that the Circuit Court’s dismissal of the insured’s lawsuit was dispositive of the instant case. The Court agrees that Plaintiff clearly has a separate right to prove that the damage to the subject property and the services provided by Plaintiff are covered under the policy of insurance. Plaintiff further argued that discovery was on going and that additional time was necessary to prepare for hearing on the factual issues of whether the damage to the insured’s property was a covered loss. Plaintiff reported that it was awaiting a written report of its expert and that consideration of summary judgment on the facts of the case was premature.
I. To insure that each party named their respective experts and to move this matter to final disposition (by summary judgment and/or trial) this Court entered its Order Setting Jury Trial, Uniform Trial Order Setting Pretrial Deadlines and Related Requirements on February 12, 2019.
J. Pursuant to the trial order, the deadline to complete discovery is May 13, 2019. The Joint Pretrial Stipulation is due on May 23, 2019 and the Pretrial Conference is scheduled for June 14, 2019. Thereafter, the case is on the Court’s jury trial docket.
K. Pursuant to the Uniform Order Setting Pretrial Deadlines, each party named their respective expert witnesses. This Court finds that the parties had sufficient time to participate in discovery. As of the date of the instant Order, this matter is 507 days old.
L. On March 5, 2019 the Defendant filed their Second Motion for Final Summary Judgment asserting that Defendant properly denied insurance coverage associated with the insured’s alleged loss and Plaintiff’s services and that Plaintiff has no evidence to demonstrate that the alleged loss was subject to coverage under the terms, conditions and exclusions of the policy of insurance.
M. Defendant relied on the affidavit of their insurance adjustor attesting to the denial of the insurance claim and the Court finds Defendant has met its prima facie burden of proof as to its first affirmative defense (see paragraph 29 of Defendant Amended Answer and Affirmative Defenses “Not a Covered Loss”).
N. Therefore, the burden shifts to the non-moving party to demonstrate with specific evidence that a triable issue of fact remains. Spradley v. Stick, 662 So. 2d 610 (Fla. 1st DCA 1993). The non-moving party faced with an appropriate summary judgment motion may not rely on bare, conclusory assertions found in the pleadings to create an issue and avoid summary judgment. Id. Instead, the non-moving party must produce counter-evidence establishing a genuine issue of material fact. Bryant v. Shands Teaching Hospital and Clinics, Inc., 479 So. 2d 165, 168 (Fla. 1st DCA 1985); Jones v. Hartford Accident & Indemnity Co., 109 So. 2d 582 (Fla. 1st DCA 1959). It is not enough for the non-moving party to merely assert that an issue does exist. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979).
O. Furthermore, when a party raises affirmative defenses, “the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.” Bunner v. Florida Coast Bank of Coral Springs, N.A., 390 So. 2d 126, 127 (Fla. 4th DCA 1980).
P. Plaintiff generally disputes Defendant’s coverage determination but has no sworn testimony supporting this position. Plaintiff failed to submit any affidavit or evidence in opposition to Defendant’s Second Motion for Final Summary Judgment. Plaintiff has failed to demonstrate the existence of a genuine issue of material fact and has failed to establish the legal insufficiency of Defendant’s affirmative defense.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that:
1. Defendant’s Second Motion for Final Summary Judgment is hereby GRANTED.
2. Final Judgment is entered for Defendant, Citizens Property Insurance Corporation, and against Plaintiff, National Water Restoration Inc. a/a/o Jaccene Octeus.
The Plaintiff shall take nothing by this action and the Defendant shall go hence without day.
3. The Court reserves jurisdiction to consider a timely motion to tax costs and attorney’s fees, as well as any other motion for entitlement to attorney’s fees and costs as is just and proper.
