Filing# 229443415 E-Filed 08/14/2025 02:18:04 PM
`IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT,
`IN AND FOR BROWARD COUNTY, FLORIDA
`CASE NO.: CACE-24-007556
`ELOY HERNANDEZ,
`Plaintiff,
`V
`SCOTTSDALE INSURANCE COMPANY,
`Defendant.
`i
`SCOTTSDALE'S MOTION FOR FINAL SUMMARY JUDGMENT
`Defendant, SCOTTSDALE INSURANCE COMPANY (hereinafter"Scottsdale'
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`or
`"Defendant"),by and throughundersignedcounsel,and pursuant to Fla. R. Civ. P. 1.510, files its
`Motion for Final Summary Judgment, statingas follows:
`I. Introduction
`The Plaintiff filed this action seeking property insurance benefits for damages allegedly
`caused by Hurricane Ian on September 28, 2022 to property located at 6420 Meade Street,
`Hollywood, FL 33024 (the"Property").Scottsdale was first notified of the claim on October 30,
`2023,397 days after the loss. This notice is late as a matter of law. Plaintiff's failure to promptly
`report the loss creates a presumption ofprejudiceto Scottsdale that Plaintiff is unable to rebut.
`Additionally,not only has the Plaintiff failed to rebut the presumption of prejudice,
`Plaintiff has failed to provide any expert opinions regardingthe cause of the allegeddamage.
`Plaintiff failed to disclose any experts in accordance with the Court's disclosure requirementsand
`deadlines. Without expert testimony,the Plaintiff is unable to prove causation and thus is unable
`to meet its burden of proof.
`*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/14/2025 02:18:03 PM.****
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`There is no material disputedquestionsof fact on these issues and Scottsdale is entitled to
`final summary judgment as to these issues as a matter of law.
`II. Scottsdale's Statement of Undisputed Material Facts
`1. Scottsdale issued to Eloy Herndanez ("Hernandez" or "Insured")Surplus Lines
`policyno. HOS1880113, effective July 31, 2022 through July31, 2023 (the"Policy")which
`affords certain coverage for certain property at 6420 Meade Street,Hollywood, FL 33024 (the
`"Property").See declaration of Cindy Sarver dated August 13,2025, attached as Exhibit 1,which
`attaches the Policyas Exhibit A thereto.
`2. The Policycontains the followinglanguagerequiringprompt notice:
`SECTION I - CONDITIONS
`C. Duties After Loss
`In case of a loss to a covered property, we have no duty to provide coverage under
`this policyif the failure to comply with the following duties is prejudicialto us.
`These duties must be performed either by you, an "insured" seeking coverage, or a
`representativeof either:
`(1) Give prompt notice to us or our agent, except that a claim,
`supplementalclaim or reopened claim for loss or damage caused by
`hurricane or other windstorm must be given to us in accordance with
`the terms of this Policywithin three years after the hurricane first
`made landfall or a windstorm other than hurricane caused the
`covered damage. (Supplementalclaim or reopened claim means an
`additional claim for recovery from us for losses from the same
`hurricane or other windstorm which we have previously adjusted
`pursuant to the initial claim.)
`This provision concerning time for submission of a claim,
`supplementalclaim or reopenedclaim does not affect any limitation
`for legalaction againstus as provided in this Policyunder the Suit
`Against Us Condition, includingany amendment to that condition.
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`(4) Protect the property from further damage. If repairsto the property
`are required,you must:
`a. Make reasonable and necessary repairs to protect the
`property;
`b. Keep an accurate record of repairexpenses;
`(5) Cooperate with us in the investigationof a claim;
`See Exhibit 1,Exhibit A, at pgs. 19 and 42.
`3 The Policy contains the following language related to notice of a claim to
`Scottsdale:
`CLAIM REPORTING INFORMATION
`Your insurance policyhas been placedwith a Nationwide@ insurance company.
`..
`To report a claim, you may contact us 24 hours a day,7 days a week, by calling1 -
`800-423-7675 or via our website at www.nationwideexcessandsurplus.com.
`HOW TO REPORT A CLAIM
`Call 1-800-423-7675 or visit our website at
`www.nationwideexcessandsurplus.com....
`Please refer to your policyfor specificclaim reporting requirements.
`See Exhibit 1,Exhibit A, at pg. 6.
`4. The Policy's"Duties In the Event of Loss or Damage" section requiresprompt
`notice of the loss to Scottsdale. See Exhibit 1, Exhibit A, atpg. 19; Exhibit 1 atf 10.
`6. The Policy'sClaim Reporting Information states "How to Report a Claim" and lists
`"Call 1-800-423-7675 or visit our website at www.nationwideexcessandsurplus.com." See Exhibit
`1,Exhibit A, at pg. 6.
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`7. The Plaintiffallegeshe incurred damages as a result ofHurricane Ian on September
`22,2022. See Exhibit 2, Depositionof PlaintiffEloyHernandez, pg. 9, lines 9-18.
`8 The Property incurred loss or damage on September 10, 2017. See Exhibit 2, pg.
`9, lines 13-25 at Request 1.
`9- While the Plaintiffis unable to state the exact date he discovered the issues,Plaintiff
`testified that the roof started leakingsignificantlyafter Hurricane Ian. Exhibit 2, pg. 10, line 1 -
`pg. 11, line 6.
`10. The Plaintiff admits he did not provide notice to Scottsdale until October 30,2023.
`Exhibit 2, pg. 11, lines 8-15.
`11. Plaintiff did not promptlyreport the claim because 1)"insurance companies take a
`long time to pay the claim"; and 2) "ifyou make a claim the insurance premium goes up, which is
`something I didn't want to happen..."Exhibit 2, pg. 11, line 17 - pg. 12, line 3.
`12. Instead of reportingthe claim to Scottsdale,Plaintiff initiallyintended to perform
`all necessary repairshimself. However, once he realized the full cost of the necessary repairs,he
`decided to report the claim to Scottsdale. Exhibit 2, pg. 13, lines 3-20.
`13. Instead of promptly reportingthe claim to Scottsdale,Plaintiff hired a public
`adjustingcompany on September 5,2023. See Exhibit 3; and Exhibit 2, pg. 16, line 12 - pg. 17,
`line 14.
`14. Plaintiff made repairsto the interior of the Property prior to hiring the public
`adjustingcompany and, more importantly, priorto notifyingScottsdale ofthe allegedloss. Exhibit
`2, pg. 18, line 16 -pg. 19, line 5.
`15. Plaintiffreplacedsections of sheetrock with new sheetrock himself. Exhibit 2, pg.
`19, line 6 - pg. 20, line 4.
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`16. Plaintiff admits that a friend replacedshinglesand a flat portionof the roofing
`system. Exhibit 2, pg. 28, line 6-11.
`17. Plaintiff further admits that the roof work was performed after Hurricane Ian.
`Exhibit 2, pg. 28, line 12-14.
`18. While the Plaintiff is unable to state exactlywhen the roof work was performed,
`the work was clearlyperformed priorto Scottsdale having the opportunityto inspectthe property
`as photostaken by the field adjustershow the completedroof work on November 14, 2023. See
`photographs attached as Exhibit 4.
`19. Plaintiff's "friend",who performed the above-mentioned roof work, is not a
`licensed roof and is no longeravailable to be deposed or questionedas he moved back to Mexico.
`Exhibit 2, pg. 30, line 6-11.
`20. Plaintiff also removed various sections of soffit priorto Scottsdale's opportunityto
`inspectthe property on November 14, 2023. See photographs attached as Exhibit 4; and Exhibit
`2, pg. 33, line 2-22.
`22. Additionally,the Plaintiff was in the process of installingan entirelynew addition
`to the back of the home around the time he first gave notice to Scottsdale. See photographs
`attached as Exhibit 4; and Exhibit 2, pg. 34, line 12-16.
`21. Plaintiff is not aware of any photographsthe repairedareas taken priorto Plaintiff
`making the repairs.Exhibit 2, pg. 34, line 2-7.
`22. Plaintiff did not obtain any permitsto perform any ofthe aforementioned work on
`the home. Exhibit 2, pg. 34, line 8-16.
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`23. In the year after Hurricane Ian to the date of Ms. Huguet's inspection,the roof has
`been subjectto various environmental conditions and effects as part of the normal and daily
`exterior exposure the buildingroofwas subjectto.
`24. The delayed action for inspectingand investigatingthe conditions of the roof
`immediately after the passage of Hurricane Ian had a significant impactin the assessment and
`determination of the conditions of the roof by Scottsdale. See Exhibit 1 at 7 15.
`25. Had prompt notice been providedby the Plaintiff,Scottsdale would have been able
`to draw better conclusions regardingthe loss and would have been able to draw those conclusions
`more easily giventhe passage of time. See Exhibit 1 at 7 16.
`26. On November 29,2023, Scottsdale denied coverage to the Plaintiff. See Exhibit 1
`atll17.
`29. This lawsuit was filed on May 30,2024.
`30. On February 12, 2025, this Court entered its Uniform Trial Order. The Order
`requiresthat partiesdisclose their expert witnesses at least ninety (90)days priorto the Calendar
`Call set for October 6,2025. This means that Plaintiff's expert witnesses were requiredto be
`disclosed by Tuesday, July8,2025. To date,the Plaintiffhas yet to disclose any expert witnesses
`in support of his claim.
`II. Argument and Legal Authority
`A. Summary Judgment Standard
`A movant for summary judgment has the initial burden of demonstratingthe nonexistence
`of any genuine issue of material fact. Landers v. Milton, 370 So. 2d 368 (Fla.1979). Summary
`judgment is designed to test the sufficiencyof the evidence to determine if there is sufficient
`evidence at issue to justifya trial or formal hearing on the issues raised in the pleadings.The
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`Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006).A court may enter summary judgment "ifthe
`pleadings,depositions,answers to interrogatories,admissions, affidavits,and other materials
`would be admissible in evidence on file show that there is no genuine issue as to any material fact
`and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510.
`The Florida Supreme Court's ruling,effective May 1, 2021, alignedFlorida's summary
`judgment standard with that of the federal summary judgment standard. In re Amends. to Fla.
`Rule of Civ. Pro. 1.510, 309 So. 3d 192, 192 (Fla. 2020).In pertinentpart, the Florida Supreme
`Court changed the followinglanguage FRCP 1.510(a)"A party may move for summaryjudgment,
`identifyingeach claim or defense-or the part of each claim or defense-on which summary
`judgment is sought.The court shall grant summary judgment if the movant shows that there is no
`genuine disputeas to any material fact and the movant is entitled to judgment as a matter of law.
`The court shall state on the record the reasons for grantingor denying the motion. The summary
`judgment standard provided for in this rule shall be construed and appliedin accordance with the
`federal summary judgment standard." Id.
`B. Law on Policy Interpretation
`Insurance policyinterpretationis a questionof law for the Court, which must construe it in
`a reasonable, practical,sensible and justmanner. First Profk.Ins. Co., Inc. v. McKinney, 973 So.
`2d 510 (Fla.1st DCA 2008).Absent ambiguity,the court must givefull effect to the terms ofthe
`policythrough its plainmeaning. Arias v. Afirmative Ins. Co., 944 So. 2d 1195, 1197 (Fla.4th
`DCA 2006).The failure to define a word or phrasein the contract does not create ambiguity.Itnor
`Corp. v. Markel Int'l Ins. Co., Ltd, 981 So. 2d 661 (Fla.3d DCA 2008). The court must give
`undefined words or phrases their everyday meanings, reading them in lightof the skill and
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`experienceof ordinary people. Sieglev. ProgressiveCons. Ins. Co.,7%% So. 2d 355,359-60 (Fla.
`4th DCA 2001).
`C. Plaintiff Failed to Provide Timely Notice to Scottsdale, Resulting in Prejudice
`to Scottsdale
`1. Notice was Late to Scottsdale as a Matter of Law
`The Policy contains the following language requiringprompt notice of the claim to
`Scottsdale:
`SECTION I - CONDITIONS
`C. Duties After Loss
`In case of a loss to a covered property, we have no duty to provide coverage under
`this policyif the failure to comply with the following duties is prejudicialto us.
`These duties must be performed either by you, an "insured" seekingcoverage, or a
`representativeof either:
`(1) Give prompt notice to us or our agent, except that a claim,
`supplemental claim or reopened claim for loss or damage caused by
`hurricane or other windstorm must be given to us in accordance with
`the terms of this Policywithin three years after the hurricane first
`made landfall or a windstorm other than hurricane caused the
`covered damage. (Supplementalclaim or reopened claim means an
`additional claim for recovery from us for losses from the same
`hurricane or other windstorm which we have previously adjusted
`pursuant to the initial claim.)
`This provision concerning time for submission of a claim,
`supplementalclaim or reopened claim does not affect any limitation
`for legalaction againstus as provided in this Policyunder the Suit
`AgainstUs Condition,includingany amendment to that condition.
`See Exhibit 1, Exhibit A, at pg. 19. The Policy defines "You" as the Plaintiff,and "us" as
`Scottsdale. Further,the Policycontains an endorsement which informs the Plaintiffhow to report
`a claim to Scottsdale:
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`CLAIM REPORTING INFORMATION
`Your insurance policy has been placed with a Nationwide@ insurance
`company....
`To report a claim, you may contact us 24 hours a day, 7 days a week, by
`calling 1-800-423-7675 or via our website at
`www.nationwideexcessandsurplus.com.
`HOW TO REPORT A CLAIM
`Call 1-800-423-7675 or visit our website at
`www.nationwideexcessandsurplus.com....
`Please refer to your policyfor specificclaim reporting requirements.
`See Exhibit 1, Exhibit A, at pg. 6.
`"[T]he purpose of policyprovisions requiringprompt notice 'is to enable the insurer to
`evaluate its rightsand liabilities,to afford it an opportunityto make a timely investigation,and to
`prevent fraud and impositionupon it.
`,,.
`PDQ Coolidge Formad, LLC v. Landmark Am. Ins. Co.,
`566 F. App'x 845, 847 (llth Cir. 2014). Under Florida law, "the failure of an insured to give a
`timelynotice ofloss in contravention of a policyprovisionis a legalbasis for the denial ofrecovery
`under the policy."Lehdield v. LibertyMut. Fire Ins. Co., 396 F. Supp. 3d 1178, 1182 (S.D.Fla.
`2019). Notice that is so late that no reasonable jurycould find it timelydoes not constitute prompt
`notice as a matter of law.
`Florida courts have interpreted"prompt" differentlywhen the damage is caused by a
`known event, such as a hurricane,or when the insured was on-site when readilyapparent problems
`developed. For example, in 1500 Coral Towers Condominium Association, Inc. v. Citizens
`PropertyInsurance Corporation,112 So. 3d 541 (Fla.3d DCA 2013),Coral Towers admitted that
`it had some knowledge of damage to the complex within a month after Hurricane Wilma, and that
`some repairswere made to the roof;however, no insurance claim was made until five years later
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`on June 29, 2010. Under these circumstances,the court found there was "no factual disputethat
`Coral Towers failed to give timelynotice of the loss." Id at 543. See also Ro-Ma Holdings #4,
`LLC v. Scottsdale Ins., 2021 U.S. Dist. LEXIS 75860 (S.D.Fla. 2021) (fourteen-monthdelay in
`reportingdamages caused by Hurricane Irma does not constitute prompt notice as a matter of law,
`as it is so late that no reasonable jury could find it timely);Ramirez v. Scottsdale Insurance
`Company, SlipCopy, 2021 WL 5050184 (S.D. Fla. 2021)(20 month delay in reportingdamages
`caused by Hurricane Irma is unreasonable as a matter of law);PDQ CoolidgeFormad, LLC, 566
`Fed. Appx. 845 (6-month delay in reporting damages caused by Tropical Storm Fay is
`unreasonable as a matter of law).
`Here, it isundisputedthat Scottsdale was first notified of the claim on October 30,2023.
`See Exhibit 1; and Exhibit 2, pg. 11, lines 8-15. However, Plaintiff incurred damages as a result
`of Hurricane Ian on September 28,2022, and was aware of the loss or damage followingthe
`Hurricane. See Exhibit 2, pg. 10, line 1 - pg. 11, line 6. Notice of the claim to Scottsdale first
`came 367 days after Hurricane Ian. This Notice is late as a matter of law.
`While the Plaintiff will no doubt attempt to argue that the Scottsdale Conditions language
`includes the reporting requirementthat notice be given within three (3)years of a hurricane,this
`languagehas been consistentlyheld to only set an outside time periodfor which a claim is barred
`as a matter of law, not an extension of the prompt notice requirement.See Navarro v. Citizens
`Prop. Ins. Corp.,353 So.3d 1276, 1280 (Fla.3rdDCA 2023). In SecurityFirst Ins. Co. v. Fisca,
`387 So.3d 313 (Fla.4?
`ith
`DCA 2024),the Fourth District Court of Appeal faced this exact issue and
`stated:
`The policyfurther stated that the insureds were requiredto give notice of a
`"hurricane loss" within three years of the hurricane making landfall. The
`Viscas gave notice of their claim within that three-yearwindow, but that
`fact is not dispositiveto our prompt notice analysis.
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`Florida courts have held that such policylanguagesets an outer limit for an
`insured to give notice of a hurricane loss but does not establish a
`presumption that notice is timelyif given inside that three-yearwindow. In
`other words, as the three-yearwindow runs, the insured's duty to provide
`prompt notice to the insurer is unaffected. See Navarro v. Citizens Prop.
`Ins. Corp.,353 So.3d 1276, 1280 (Fla.3rdDCA 2023) (holdingthat a similar
`policyterm, when read togetherwith the policy'sprompt notice provision,
`required"the insured to file any hurricane-related claim within three years
`of the storm, and, for viable claims, act swiftly upon discovering
`damages.").
`Id at n. 1;See also Delgado v. LibertyMut. Fire Ins. Co., 1011WL 17420673, n. 1 (Fla.Cir. Ct.,
`9th Jud- Cir.,decided December 2,2022) (holding that the three-yearlanguage merely sets an
`outside limit and that "[i]ncountless decisions since 2011, many cited in this order,courts have
`concluded that notice givenless than 3 years after a windstorm was not prompt.").
`It is undisputed that Plaintiff' s notice in the instant action was late as a matter of law.
`2. Scottsdale was Prejudiced by Late Notice as a Matter of Law
`Under Florida law, there is a presumption of prejudiceto the insurer if a claim is not
`reportedpromptly. Yacht Club on the Intracoastal Condo. Ass'n v. Lexington Ins. Co.,599 Fed.
`Appx. 875 (llthCir. 2015). The burden is "on the insured to show lack of prejudicewhere the
`insurer has been deprivedof the opportunityto investigatethe facts." Bankers Ins. Co. v. Macias,
`475 So.2d 1216, 1218 (Fla. 1985).Prejudiceis properlyresolved on summary judgment where an
`insured fails to present sufficient evidence to rebut the presumption.PDQ CoolidgeFormad LLC,
`566 Fed. App. at 849.
`In PDQ CoolidgeFormad LLC, the Eleventh Circuit providesthat an insured may submit
`evidence showing an issue ofmaterial fact as to:
`(a) whether better conclusions could have been drawn without the delay in
`providingnotice,(b)whether those conclusions could have beendrawn more easily,
`(c)whether the repairsto the affected areas that took place in the interim would
`complicatean evaluation of the extent of the damage or [theinsured's]efforts to
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`mitigateits damages, or (d) whether an investigationconducted immediately
`followingthe occurrence would not have disclosed anythingmateriallydifferent
`from that disclosed by the delayedinvestigation.
`Id. at 849. However, here, the Plaintiff has failed to provide any record evidence to rebut this
`presumption of prejudice.
`Scottsdale was not able to first inspectthe Property until it did so through independent
`adjusterGigi Huguet on November 14, 2023, over a year after Hurricane Ian. See Exhibit 1.
`Plaintiff made repairsto the interior of the Property priorto notifyingScottsdale of the alleged
`loss. Exhibit 2, pg. 18, line 16 - pg. 19, line 5. Indeed, Plaintiff replaced entire sections of
`sheetrock with new sheetrock himself. Exhibit 2, pg. 19, line 6 - pg. 20, line 4.
`Plaintiff also admits that a friend replaced shinglesand a flat portionofthe roofingsystem.
`Exhibit 2, pg. 28, line 6-11. This roofwork was performed after Hurricane Ian. Exhibit 2, pg. 28,
`line 12-14. While the Plaintiff is unable to state exactlywhen the roof work was performed,the
`work was clearlyperformed priorto Scottsdale having the opportunityto inspectthe property as
`photos taken by the field adjustershow the completed roof work on November 14, 2023. See
`photographsattached as Exhibit 4. Importantly,Plaintiff' s friend who performed the roof work is
`no longerwithin the jurisdictionof the United States and Plaintiff has no contact information for
`said friend. Thus, Scottsdale is unable to depose and/or otherwise questionPlaintiff's "friend".
`Scottsdale has providedtestimonythat "had prompt notice been providedby the Plaintiff,
`Scottsdale would have been able to draw better conclusions regardingthe loss and would have
`been able to draw those conclusions more easily giventhe passage of time." See Exhibit 1. The
`delayed action for inspectingand investigatingthe conditions of the roof immediately after the
`passage of Hurricane Ian had a significantimpact in the assessment and determination of the
`conditions ofthe roofby Scottsdale. See Exhibit 1 atf 15.
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`As such, there is no fact issue as to whether Scottsdale was prejudicedby late notice. It
`clearlywas, and the Plaintiff has failed to overcome the presumption of prejudice.Scottsdale is
`entitled to summary judgment on its affirmative defense that notice of the claim to Scottsdale was
`late and prejudicedScottsdale.
`D. Plaintiff Lacks Expert Witness Support for his Claims
`In order to prove causation in hurricane damage case, plaintiffsmust support their position
`with expert testimony.See Marna Jo's, Inc. v. SpartaIns. Co., 2018 WL 3412974, n. 8 (S.D.Fla.,
`decided June 11, 2018), citingSmall v. Amgen, Inc.,1018 WL 501354 at *3 (llthCir.,decided
`jan. 11, 1018),and Chapman v. Procter & Gamble Distrib.,LLC, 766 F.3d 1296, 1316 (llthCir.
`2014) (applyingFlorida law and affirmingthe district court's decision on summary judgment
`where plaintiffsexpert failed to meet the Daubert standard and the plaintiffhadno other expert to
`testifyas to causation);see also 4539 Pinetree LLC v. Certain Underwriters at Lloyd'sLondon,
`2024 WL 6068338 (S.D. Fla.,decided July 19, 2024) (holdingthat plaintiff'sfailure to property
`disclose expert witness justified grantingof summaryjudgment in favor ofinsurer)."It is a known
`fact in cases such as this that expert witnesses are essential to establish the extent of damage caused
`by a windstorm." -Youngv. Lexington Ins. Co., 269 F.R.D. 692 (S.D.Fla. 2010);and Porben v.
`Alain *ecialo' Ins. Co., 546 F.Supp.3d 1325, 1330 (S.D.Fla. 2021) ("[ilninsurance coverage
`disputessuch as this,it is well-settled that expert evidence is generallynecessary to establish the
`cause and scope of damage.").
`Here, not a single pieceof evidence besides the Plaintiff's own statements and Complaint
`supports the Plaintiff's claims that the Propertywas damaged by Hurricane Ian. Plaintiff' s expert
`witness disclosures were due July 8,2025. However, Plaintiffhas yet to disclose any such experts.
`Present evidence is devoid of a singlestatement or report from anyone qualifiedto testifyas to
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`causation in support of Plaintiff's claims. It is the Plaintiff's burden to prove a covered cause of
`loss. S.O. Beach Corp. v. Great Am. Ins. Co. ofNew York, 305 F.Supp.3d 1359, 1364 (S.D.Fla.
`2018). and Bray & GillespiePlaza, LLC v. Lexington Ins. Co., 2010 WL 11623659 at *4 (M.D.
`Fla.,decided Feb. 10, 2010) ("itis [theinsured's]burden to prove that the hurricane... caused
`damage over and above the deductible.").Here, due to the lack of expert witness testimony,it is
`undisputedthat the Plaintiff fails to carry this burden.
`WHEREFORE, Defendant Scottsdale Insurance Company respectfullyrequests that this
`Court grant its Motion for Final Summary Judgment.
`Dated: August 14,2025 Respectfullysubmitted,
`KAUFMAN DOLOWICH, LLP
`/si Brett A. Smith
`Brett A. Smith, Esq.
`Fla. Bar No. 89236
`E-Mail: bsmith@kaufmandolowich.com
`One Financial Plaza
`100 S.E. Third Avenue, Suite 1500
`Ft. Lauderdale, Florida 33394
`Tel: (954)302-2360
`Facsimile: (888)464-7982
`Counsel for Scottsdale Insurance Company
`CERTIFICATE OF SERVICE
`I HEREBY CERTIFY that the foregoing document was filed on this 14 day of August,
`2025, utilizingthe Florida Courts E-FilingPortal,which sends a notice of electronic filingto all
`counsel of record.
`/si Brett A. Smith
`Brett A. Smith, Esq.
`Fla. Bar No. 89236
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`EXHIBIT "1
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`IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT,
`IN AND FOR BROWARD COUNTY, FLORIDA
`CASE NO.: CACE-24-007556
`ELOY HERNANDEZ,
`Plaintiff,
`V.
`SCOTTSDALE INSURANCE COMPANY,
`Defendant.
`1
`DECLARATION,UNDER PENALTY OF PERJURY, OF CINDY SARVER
`Cindy Sarver declares and testifies as follows:
`1. My name is CINDY SARVER, and I am over 18 years of age and legallycompetent to
`make this Declaration. The matters set forth in this Declaration are based upon my personal
`knowledge.
`2. I am a Claims Consultant for Nationwide Mutual, authorized to handle claims on behalfof
`Scottsdale Insurance Company ("Scottsdale").
`3. This declaration is based upon personalknowledge, a review of files which are routinely
`made and maintained in the ordinary course of business and prepared by agents or
`employees with personal knowledge of their contents at or near the events they records. I
`have personalknowledge of Scottsdale's record keeping procedures.
`4. Scottsdale issued to the Plaintiff SurplusLines PolicyNo. HOS1880113 ("The Policy").
`A true and correct copy of the Policyis attached as Exhibit "A".
`5. Upon report ofthe loss it was assignedclaim number 02151363.
`6. The Policydoes not providecoverage for wear, tear or deterioration.
`7. The Policydoes not providecoverage for inadequaterepairs.
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`8. The Policydoes not providecoverage for loss to covered property arisingout ofor resulting
`from "existingdamage" as this phraseis defined in the Policy.
`9. The Policy does not provide coverage for any loss or damage arisingfrom mold.
`10. The Policyrequiresprompt notice of loss.
`11. On October 30,2023, Scottsdale was first notified ofthis claim via an email and letter from
`Property LitigationGroup. The letter from Property LitigationGroup first notified
`Scottsdale of Plaintiff's claim for damages to its property located at 6420 Meade Street,
`Hollywood, FL 33024 (the"Property'D,367 days after the allegeddate ofloss of September
`28,2022.
`12. Scottsdale could not inspectthe subjectproperty in the condition it was in at or nearthe
`date of loss.
`13. In fact, Scottsdale assignedfield adjuster GigiHuguetto inspectthe property. Ms. Huguet
`inspectedthe property on November 14, 2023. During her inspection,Plaintiff told Ms.
`Huguet that he had alreadymade repairsto the interior ceilingofthe Property.Ms. Huguet
`noted areas of priorpatchingto the ceiling.Thus, the property was not in the condition it
`was in at or near the date of loss and repairs had already been made by the Plaintiff.
`14. Ms. Huguet further indicated that a tarp installed by the Plaintiff was not installed correctly
`and was not properlyprotectingthe roofor interior,potentially allowingadditional damage
`to the Property.
`15. Additionally,photographsfrom the November 14,2023 inspection performedon behalfof
`Scottsdale show that at the time Plaintiff provided notice to Scottsdale,Plaintiff was in the
`process of adding a new addition to the home. This included replacingportions of the
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`roofingsystem priorto notifyingScottsdale of the claim. The referenced photographsare
`attached to Scottsdale's Motion for Final Summary Judgment.
`16. The delay in inspectingand investigatingthe conditions of the roof immediately after the
`passage of Hurricane Ian had a significantimpact on the assessment and determination of
`the conditions ofthe roof by Scottsdale.
`17. Had prompt notice been providedby the Plaintiff,Scottsdale would have been able to draw
`better conclusions regardingthe loss and would have beenable to draw those conclusions
`more easilygiven the passage of time.
`18. On November 29, 2023, Scottsdale denied coverage to the Plaintiff.
`19. The Plaintiff has presentedan estimate of claimed damages to Scottsdale for the claim in
`the amount of $48,887.76of which at least $21,000 is associated with replacementof the
`roof at the Propertyand another approximately$22,000 for allegedinterior repairs.
`PURUSANT TO SECTION 92.525, FLORIDA STATUTES, UNDER PELATIES OF
`PERJURY, I DECLARE THAT I HAVE READ THE FOREGOING DECLARATION
`AND THAT THE FACTS STATED IN IT ARE TRUE AND THAT I EXECUTED THIS
`DECLARATION ON 13 OF k>Buer 2025.
`CmZ&,Gwu?ze-
`Cindy Sarv@Claims Specialistfor Scottsdale
`AUGUST 1312025
`Date
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`EXHIBIT "2'
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`Page 1
`IN THE CIRCUIT COURT OF THE 17TH
`JUDICIAL CIRCUIT IN AND FOR BROWARD
`COUNTY, FLORIDA
`Case No.: CACE-24-007556
`Eloy Hernandez,
`Plaintiff,
`VS.
`Scottsdale Insurance Company,
`Defendant.
`------------------------------- ---l
`VIDEOCONFERENCE DEPOSITION
`OF
`ELOY HERNANDEZ
`Tuesday, July 8, 2025
`10:03 a.m. to 11:35 a.m.
`Reporter by:
`Sonnia Martinez, Court Reporter
`Notary Public, State of Florida
`Andres Messulam, Spanish interpreter
`Magna Legal Services
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`Page 2
`1 APPEARANCES:
`2 ON BEHALF OF THE PLAINTIFF:
`3 PLG Damage Attorneys, PLLC
`2750 Southwest 145th Avenue
`4 Suite 509
`Miramar, Florida 33027-4241
`5 By: Adrien Glezil, Esquire
`aglezil@plglawyersfl.com
`6
`ON BEHALF OF THE DEFENDANT:
`7
`Kaufman Dolowich LLP
`8 301 East Pine Street
`Suite 1150
`9 Orlando, Florida 32801-2741
`By: Brett A. Smith, Esquire
`10 bsmith@kdvlaw.com
`11
`12 INDEX
`13 Witness: Eloy Hernandez
`14 Direct Cross
`15 By Mr. Smith 4
`16 By Mr. Glezil 37
`17
`18 EXHIBITS
`19 Defendant's
`20 No. 1 Page 16 No. 2 Page 21
`21 No. 3 Page 24 No. 4 Page 27
`22 No. 5 Page 27 No. 6 Page 31
`23
`24
`25
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`1 (Andres Messulam was duly sworn to interpret
`2 all questions asked and answers given to the
`3 best of his ability.)
`4 Thereupon:
`5 Eloy Hernandez,
`6 was called as a witness, and after being first
`7 duly sworn, was examined and testified under
`8 oath as follows:
`9 DIRECT EXAMINATION
`10 BY MR. SMITH:
`11 Q. Good morning, sir.
`12 My name is Brett Smith. I represent
`13 Scottsdale Insurance Company.
`14 Could you please state your name for
`15 the record.
`16 A. Eloy Vasilio Hernandez.
`17 Q. And Mr. Hernandez, have you ever
`18 given a deposition before?
`19 A. No.
`20 Q. I'm going to go through, very
`21 quickly, some ground rules just so we stay on
`22 the same page and, hopefully, make this as
`23 efficient as possible. Okay?
`24 The first is, if at any point you
`25 need to take a break -- I don't think we'11 be
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`Page 4
`1 here that long, but if you need to stop and
`2 take a break, please just let me know and we
`3 will stop and take a break. Okay?
`4 A. Okay.
`5 Q. The only thing I would ask is, is if
`6 I have asked you a question before we take the
`7 break, that you please respond to that
`8 question before we break. Is that okay?
`9 A. Okay.
`10 Q. If you don't know the answer to a
`11 question that I ask, I don't know is a perfect
`12 response. I don't want you to guess.
`13 So in a typical conversation we may
`14 say, I don't know, or we may try to guess. I
`15 don't want you to guess here. I know we're
`16 trying to keep a clean record. So if you
`17 don't know just let me know that. Is that
`18 okay?
`19 A. Okay.
`20 Q. Also, if you don't understand a
`21 question that I ask, again, I don't want you
`22 to guess. Just let me know that you don't
`23 understand it and I will try and rephrase it.
`24 Okay?
`25 A. Okay.
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`Page 5
`1 Q. You've done a great job of it so far.
`2 Obviously, we have an interpreter here with us
`3 today, I would just ask that when I ask a
`4 question, you then allow the interpreter to
`5 interpret that question, and then you can
`6 respond from there. That prevents us from
`7 talking over each other. Okay?
`8 A. Okay.
`9 Q. Okay. What is your date of birth?
`10 A. 10/19/1975.
`11 Q. And what's your current address?
`12 A. 6420 Meade, M-E-A-D-E, Street
`13 Hollywood, Florida 33024.
`14 Q. How long have you lived at that
`15 address?
`16 A. About 28 years.
`17 Q. And do you own that property?
`18 A. Yes.
`19 Q. Is there any kind of mortgage on the
`20 property?
`21 A. Yes.
`22 Q. Who holds that mortgage?
`23 A. PHH Mortgage.
`24 Q. Are you originally from Florida?
`25 A. No, I was born in Cuba.
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`Page 6
`1 Q. How long have you lived in Florida?
`2 A. Since I arrived in 1995, so around
`3 30 years.
`4 Q. Are you currently employed?
`5 A. Yes.
`6 Q. Who do you work for?
`7 A. FEC. It's a railroad company called
`8 FEC.
`9 Q. Okay. And what kind of work do you
`10 do for that company?
`11 A. I'm a truck driver. I own a truck
`12 an