IN THE CIRCUIT COURT OF THE

20TH JUDICIAL CIRCUIT IN AND FOR

LEE COUNTY, FLORIDA

CASE NO.: 24-CA-005728

BEACHCOMBER CONDOMINIUM
ASSOCIATION, INC.,

Plaintiff,
vs.

CITIZENS PROPERTY INSURANCE

CORPORATION, a Florida Governmental
Entity,

Defendant.
___________________________________/

DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES IN RESPONSE TO

COUNT I OF PLAINTIFF’S AMENDED COMPLAINT

The Defendant, CITIZENS PROPERTY INSURANCE CORPORATION (“Citizens”),

by and through its undersigned counsel, and pursuant to Rule 1.140 of the Florida Rules of Civil

Procedure, hereby files this its Answer and Affirmative Defenses in Response to Count I of

Plaintiff’s Amended Complaint, and states as follows:

1. Citizens admits the allegations contained within Paragraph 1 of Plaintiff’s Amended

Complaint for jurisdictional purposes only, and only to admit that the jurisdictional

amount has been alleged. Citizens denies the remainder of the allegations as well as any

inferences therefrom.

2. Citizens denies the allegations within Paragraph 2 of Plaintiff’s Amended Complaint to

the extent that Citizens is a State of Florida governmental entity, created by the Florida

Legislature to provide property insurance within the State of Florida with its principal

headquarters in Leon County, Florida. Thus, Citizens is a state agency for purposes of the
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Case No.: 24-CA-005728
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home venue privilege. As such, venue is proper only in Leon County where Citizens

maintains its principal headquarters. Lake Cnty. Boys Ranch v. Kearney, 790 So. 2d 602,

603 (Fla. 5th DCA 2001) (citing Carlie v. Game and Fresh Water Comm’n, 354 So. 2d

362 (Fla. 1977). Unless there is a waiver or exception, the home venue privilege is an

absolute right in Florida law. Stovall v. Cooper, 860 So. 2d 5, 7 (Fla. 2d DCA 2002)

(citing Jacksonville Elect. Auth. v. Clay Cnty. Util. Auth., 802 So. 2d 1190, 1192 (Fla. 1st

DCA 2002). For the limited purposes of the instant case, Citizens agrees to waive the

home venue privilege afforded to it as a state agency, and voluntarily submits to venue in

Lee County. Citizens denies the remainder of the allegations as well as any inferences

therefrom.

3. Citizens is without sufficient knowledge as to the allegations contained within Paragraph

3 of Plaintiff’s Amended Complaint and therefore denies same, as well as any inferences

therefrom.

4. Citizens admits the allegations within Paragraph 4 of Plaintiff’s Amended Complaint to

the extent that it is a State of Florida governmental entity created by the Florida

Legislature to provide property insurance within the State of Florida. Citizens denies the

remainder of the allegations as well as any inferences therefrom.

5. Citizens admits the allegations contained within Paragraph 5 of Plaintiff’s Amended

Complaint to the extent that it issued a Commercial Property policy of insurance to the

Plaintiff identified by number 08154754 with effective dates from August 26, 2022 to

August 26, 2023, which provided coverage to the property located at 635 E. Gulf Drive,

Sanibel, FL 33957, pursuant to the terms, conditions, limitations, and exclusions of the
Beachcomber Condominium Association, Inc. v. Citizens
Case No.: 24-CA-005728
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Policy. Citizens denies the remainder of the allegations as well as any inferences

therefrom.

6. Citizens admits the allegations within Paragraph 6 of Plaintiff’s Amended Complaint to

the limited extent that the document attached to the complaint as Exhibit A appears to be

a copy of the subject insurance policy. If true and correct, the document speaks for itself.

Citizens denies the remainder of the allegations as well as any inferences therefrom.

7. Citizens admits the allegations contained within Paragraph 7 of Plaintiff’s Amended

Complaint to the extent that it issued a Commercial Property policy of insurance to the

Plaintiff identified by number 08154754 with effective dates from August 26, 2022 to

August 26, 2023, which provided coverage to the property located at 635 E. Gulf Drive,

Sanibel, FL 33957, pursuant to the terms, conditions, limitations, and exclusions of the

Policy. Citizens denies the remainder of the allegations as well as any inferences

therefrom.

8. Citizens admits the allegations contained within Paragraph 8 of Plaintiff’s Amended

Complaint.

9. Citizens admits the allegations within Paragraph 9 of Plaintiff’s Amended Complaint to

the limited extent that the provision excerpted in the complaint appears to be a copy of

the policy’s appraisal provision. If true and correct, the document speaks for itself.

Citizens denies the remainder of the allegations as well as any inferences therefrom.

10. Citizens admits the allegations contained within Paragraph 10 of Plaintiff’s Amended

Complaint.

11. Citizens admits the allegations contained within Paragraph 11 of Plaintiff’s Amended

Complaint.
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12. Citizens admits the allegations contained within Paragraph 12 of Plaintiff’s Amended

Complaint.

13. Citizens admits the allegations contained within Paragraph 13 of Plaintiff’s Amended

Complaint.

14. Citizens admits the allegations contained within Paragraph 14 of Plaintiff’s Amended

Complaint to the extent that the Insured submitted sworn statement in proof of loss on

May 13, 2024. Citizens denies the remainder of the allegations as well as any inferences

therefrom.

15. Citizens admits the allegations contained within Paragraph 15 of Plaintiff’s Amended

Complaint.

16. Citizens admits the allegations contained within Paragraph 16 of Plaintiff’s Amended

Complaint.

17. Citizens admits the allegations contained within Paragraph 17 of Plaintiff’s Amended

Complaint.

18. Citizens denies the allegations contained within Paragraph 18 of Plaintiff’s Amended

Complaint as well as any inferences therefrom.

19. Citizens admits the allegations contained within Paragraph 19 of Plaintiff’s Amended

Complaint.

20. Citizens admits the allegations contained within Paragraph 20 of Plaintiff’s Amended

Complaint

21. Citizens denies the allegations contained within Paragraph 21 of Plaintiff’s Amended

Complaint as well as any inferences therefrom.

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22. Citizens denies the allegations contained within Paragraph 22 of Plaintiff’s Amended

Complaint as well as any inferences therefrom. Specifically, the Plaintiff and/or its

representatives failed to comply with the following conditions precedent to suit:

a. Fully comply with all terms and conditions of the policy prior to filing suit against

Citizens.

23. Citizens denies the allegations contained within Paragraph 23 of Plaintiff’s Amended

Complaint as well as any inferences therefrom.

24. Citizens denies the allegations contained within Paragraph 24 of Plaintiff’s Amended

Complaint as well as any inferences therefrom.

25. Citizens denies the allegations contained within Paragraph 25 of Plaintiff’s Amended

Complaint as well as any inferences therefrom.

26. Citizens adopts and restates its answers to the preceding allegations contained within

Paragraphs 1 through 25.

27. Citizens admits the allegations contained within Paragraph 27 of Plaintiff’s Amended

Complaint to the extent that the Plaintiff alleges a cause of action for breach of contract.

Citizens denies that it breached the insurance contract and denies Plaintiff’s entitlement

to the relief it requests. Citizens denies the remainder of the allegations as well as any

inferences therefrom.

28. Citizens admits the allegations contained within Paragraph 28 of Plaintiff’s Amended

Complaint.

29. Citizens admits the allegations contained within Paragraph 29 of Plaintiff’s Amended

Complaint.
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30. Citizens denies the allegations contained within Paragraph 30 of Plaintiff’s Amended

Complaint as well as any inferences therefrom.

31. Citizens denies the allegations contained within Paragraph 31 of Plaintiff’s Amended

Complaint as well as any inferences therefrom.

32. Citizens denies the allegations contained within Paragraph 32 of Plaintiff’s Amended

Complaint as well as any inferences therefrom.

33. Citizens denies the allegations contained within Paragraph 33 of Plaintiff’s Amended

Complaint as well as any inferences therefrom.

34. Paragraphs 34 through 56 of Plaintiff’s Amended Complaint are answered via Citizens’

Motion for Partial Summary Judgment, which was filed under separate cover.

35. Any allegations that are not expressly admitted are denied.

WHEREFORE, no interest, costs, or fees are owed because no judgment has been nor

can be entered in favor of Plaintiff on Plaintiff’s Amended Complaint.

AFFIRMATIVE DEFENSES

Citizens pleads the following affirmative defenses to Plaintiff’s Amended Complaint.

Under Florida law, a defendant is entitled to defend its case in two ways: (1) by challenging a

plaintiff’s ability to prove the essential elements of his or her claims, and (2) by asserting

affirmative defenses that seek to justify allegedly improper conduct, rather than to disprove it. In

State v. Cohen, 568 So. 2d 49 (Fla. 1990), the Florida Supreme Court explained the difference

between affirmative defenses and defenses to liability as follows:

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Case No.: 24-CA-005728
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An “affirmative defense” is any defense that assumes the Amended Complaint or

charges to be correct but raises other facts that, if true, would establish a valid
excuse or justification or a right to engage in the conduct in question. An
affirmative defense does not concern itself with elements of the offense at all; it
concedes them.

Id. at 51-52.

The Court explained that defenses that argue “Yes, I did it, but I had a good reason” are

affirmative defenses, while those that simply argue “I did not do it” are not affirmative defenses.

Id.; see also Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992) (explaining that, under

Florida law, “a ‘defense’ is any allegation raised by the defendant that, if true, would defeat or

avoid the plaintiff's cause of action”).

Here, in addition to pleading the following affirmative defenses, Citizens will also defend

by challenging the Plaintiff’s ability to prove the essential elements of its claim. As this case is

brought under a Commercial Property Insurance Policy, the burden of proof is squarely upon the

Plaintiff to prove that the property was damaged by a named peril during the insurance policy's

effective period. See, e.g., Citizens Prop. Ins. Corp. v. Kings Creek S. Condo, Inc., 300 So. 3d

763 (Fla. 3d DCA 2020); Rodrigo v. State Farm Insurance Co., 144 So. 3d 690 (Fla. 4th DCA

2014) (holding that the insured bore burden to prove its loss was caused by a named peril);

Fisher v. Certain Interested Underwriters at Lloyds Subscribing to Contract No. 242/99, 930

So.2d 756, 758 (Fla. 4th DCA 2006) (holding an “all risks” policy protects against all direct

losses except those explicitly excluded from the policy; conversely, a “named perils” policy only

protects against perils explicitly named as included in the policy); Royale Green Condominium

Ass'n, Inc. v. Aspen Specialty Ins. Co., 2009 WL 799429, at *2 (S.D. Fla. 2009) (“If the policy is

a named perils policy, however, the insured has the burden of proving that the damage occurred

by a covered cause.”); Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So.2d 565, 568 (Fla. 2d
Beachcomber Condominium Association, Inc. v. Citizens
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DCA 1984) (contrasting an all-risks policy from a specific peril policy which insures only

against named risks).

In other words, Citizens is saying it did not do anything wrong and the Plaintiff here

cannot meet its burden of proving each of the allegations of the Complaint. Citizens will cross

examine the Plaintiff’s witnesses and call its own witnesses to both challenge the Plaintiff’s

allegations and to introduce or elicit testimony and evidence of causes other than the named

peril. In pleading the following affirmative defenses, Citizens is not intending to shift the burden

of proof imposed upon the Plaintiff to prove that the damages it claims were attributable to a

peril specifically enumerated in its Commercial Property Insurance Policy.

FIRST AFFIRMATIVE DEFENSE

Citizens is entitled to a set-off from any damage adjudicated to be due to Plaintiff, if any,

that Plaintiff has previously received from any other source in satisfaction of the same loss.

Citizens’ right to a set-off includes, but is not limited to, the amount of the Plaintiff’s Hurricane

Deductible.

DEMAND FOR JURY TRIAL

Defendant demands a trial by jury of all issues so triable.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing document has been furnished to Justin M.
Thomas, Esq., Boyle, Leonard & Anderson, P.A., 9111 W. College Pointe Drive, Fort Myers, FL
33919 ([email protected]) on October 29, 2024 via the Florida Electronic Filing
Portal.
s/ Evan A. Zuckerman, Esq.
Evan A. Zuckerman, Esq.
Florida Bar No.: 52974
Attorney for Defendant
VERNIS & BOWLING OF BROWARD, P.A.
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5821 Hollywood Boulevard., First Floor

Hollywood, FL 33021
Tel: (954) 927-5330; Fax: (954) 927-5320
Email: [email protected]