Preview
Filing # 176373378 E-Filed 06/28/2023 03:53:10 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
MARY WIG,
CASE NO.: 23000594CA
Plaintiff,
CIVIL DIVISION
TARGET CORPORATION.,
Defendant,
PLAINTIFF'S MOTION TO STRIKE DEFENDANT’S
AFFIRMATIVE DEFENSES 1, 2, 3, 5, 6, 7, AND 14 OR, IN THE
ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT
COMES NOW Plaintiff, MARY WIG, by and through the undersigned counsel, and in
accordance with all applicable Florida Rules of Civil Procedure, files this Motion to Strike
Defendant, TARGET CORPORATION’s (“Defendant TARGET”) Affirmative Defenses 1, 2, 3,
5, 6, 7, and 14 or, in the Alternative, Motion for a More Definite Statement, and as grounds
therefore alleges:
1 This case arises out of an incident that occurred on October 5, 2022.
On March 19, 2023, Plaintiff filed the subject lawsuit against Defendant TARGET.
On June 28, 2023, Defendant TARGET filed its Answer and Affirmative Defenses. (See
attached as Exhibit “A”).
Florida Rule of Civil Procedure 1.110(b) requires that a pleading contain “... a short and
plain statement of the ultimate facts showing that the pleader is entitled to relief...”.
Defendant TARGET’s affirmative defenses 1, 2, 3, 5, 6, 7, and 14 are not legally
sufficient, are not alleged with a requisite degree of certainty as required and with
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disregard to the Florida Rules of Civil Procedure and should be stricken from Defendant
TARGET’s Answer.
The Defendant TARGET’s Affirmative Defenses fail to allege any factual basis or legally
sufficient ultimate facts to support said defenses as is required by the Florida Rules of
Civil Procedure. Zito v. Washington Federal Savings and Loan Association of Miami
Beach, 318 So.2d 175, 176 (Fla. 3d DCA 1975); Bliss v. Carmona, 418 So.2d 1017, 1019
(Fla. 3d DCA 1982).
Defendant TARGET’s Ist, 2nd, 3rd, 5th, 6th, and 7th affirmative defense fails to state a
legal defense for failure to set forth sufficient ultimate facts supporting the claim that an
apportionment of damages is appropriate. To assert a Fabre v. Marin, 597 So.2d 883 (Fla
1992) defense, assigning liability to third-parties, Defendant TARGET must plead the
identity of those third parties and Defendant TARGET also “have the burden of presenting
at trial that the non-party’s fault contributed to the accident in order to include the
nonparty’s name on the jury verdict.” Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d
1262, 1264 (Fla. 1996) (citing WR. Grace & Co. — Conn. v. Dougherty, 636 So.2d 746,
748 (Fla. 2d DCA)). Defendant TARGET has failed to do so here.
Defendant TARGET’s Sth, 6th, and 14th affirmative defenses seemingly seeks to
improperly apply House Bill 837 to the subject lawsuit even though the suit was filed
prior to the Florida Legislature passing HB 837.
a. On March 24, 2023, the Florida Legislature passed an omnibus law known as
House Bill 837 (“HB 837”). A copy of HB 837 is attached as Exhibit “B.”
b. HB 837 amended various existing laws and created Florida Statute §768.0427.
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HB 837 provided clear legislative intent regarding the applicability of these new
laws.
HB 837 reads in pertinent part, “Except as otherwise expressly provided in this
act, this act shall apply to causes of action filed after the effective date of this
act.” Section 30 of HB 837 (emphasis added).
Section 6 of HB 837 created Florida Statute §768.0427.
Section 6 of HB 837 does not expressly provide for Florida Statute §768.0427 to
apply to causes of action filed before the effective date of the act.
The instant case was filed on March 19, 2023.
The clear legislative intent was that F.S. §768.0427 would not apply to cases filed
before March 24, 2023, such as this case.
In addition to the clear language of HB 837, the Florida Senates Bill Analysis and
Fiscal Impact Statement (hereinafter “The Senate Fiscal Analysis”) provides
further support that F.S. §768.0427 does not apply to the instant case.
Page 29 of The Senate Fiscal Analysis provides clear guidance regarding the plain
meaning of Section 30 of HB 837.
Section 30 provides that, except as otherwise expressly stated in the bill, the bill applies to all
causes of action filed after the effective date of the bill.
It is important to note that there was a specific amendment to HB 837, which is
noted on page 31 of The Senate Fiscal Analysis, that dealt with the effective date:
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Committee Substitute — Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
The committee substitute makes the following changes:
. Revises the effective date provisions to provide that the:
o Amendment made by the bill reducing the statute of limitations for general
negligence cases from 4 years to 2 years applies prospectively to causes of action
© Bill shall not be construed to impair any right under an existing insurance contract
provisions regarding the delivery of a policy.
It is clear that this March 7th Amendment was adopted to provide that F.S.
§768.0427 does not apply to causes filed on or before March 24, 2023.
Because a “court's purpose in construing a statute is to give effect to legislative
intent, which is the polestar that guides the court in statutory construction,”
Larimore v. State, 2 So. 3d 101, 106 (Fla. 2008), as revised on denial of reh'g
(Jan. 29, 2009), a court would be undertaking a legislative act and violating
separation of powers to give effect to a statute in a manner that is contrary to that
intent. See Tropical Coach Line, Inc. v. Carter, 121 So.2d 779, 782 (Fla.1960)
(holding that the statutory language is binding on the courts and does not permit
courts to reach contrary results through “semantic niceties or speculations.
“When considering whether [a] law has retroactive application, the legislature's
inclusion of an effective date should be considered as evidence rebutting the
retroactive application of that statute.” Brown & Brown, Inc. v. Gelsomino, 262
So. 3d 755, 758 (Fla. 4th DCA 2018).
Here, not only does HB 837 give an effective date in Section 31 being the day the
bill is signed into law, [March 24, 2023], but it goes one step further in Section 30
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to clearly state that the act applies to causes of action filed after the effective
date of the law.
The presumption against retroactive application is a well-established rule of
statutory construction that is appropriate in the absence of an express statement of
legislative intent because,
a presumption against retroactivity will generally coincide with
legislative and public expectations. Requiring clear intent assures
that [the legislature] itself has affirmatively considered the
potential unfairness of retroactive application and determined
that it is an acceptable price to pay for the countervailing
benefits. Such a_ requirement allocates to [the legislature]
responsibility for fundamental policy judgments concerning the
proper temporal reach of statutes, and has the additional virtue of
giving legislators a predictable background rule against which to
legislate.
Fla. Ins. Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc., 67 So. 3d 187, 195
(Fla. 2011)(emphasis added). “Our precedent makes abundantly clear that in
determining the question of retroactivity ofa legislative enactment, the court must
apply the two-prong test- beginning with a search for clear evidence of
legislative intent for retroactivity.” /d at 196.
Gelsomino is particularly instructive on the issue of expressed intent. In that
matter, the Court analyzed two (2) prior amendments to chapter 768 by the
legislature in 2011 and 2006. 262 So. 3d at 758. In finding that the 2011 law
applied retroactively while the 2006 law did not, the Fourth DCA noted the
expressed retroactive intent in the later law versus the 2006 amendment which
contained the following statement: “’[t]his act shall take effect upon becoming a
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law and shall apply to causes of action that accrue on or after the effective date,”
April 26, 2006. Ch. 2006-6, § 2, Laws of Fla.” Jd.
The effective date clause in the law at issue is strikingly similar to this 2006
clause which the courts found expressed clear prospective intent. But the law
here goes one step further: the Legislature expressly declared that the statutory
changes only apply to causes of action filed after the effective date of HB 837.
Because of the unequivocal intent of the Legislature, there is no reason for this
Court to consider whether HB 837’s changes are procedural or substantive.
However, the Plaintiff would point out that the assertion that these changes are
procedural in nature would render such changes unconstitutional as an arrogation
of judicial authority. Any such procedural changes would have to be expressly
approved by the Florida Supreme Court.
In Massey v. David, 979 So. 2d 931 (Fla. 2008), the Supreme Court reviewed
whether a statute setting forth expert witness fees and imposing discovery
requirements for expert witnesses [section 57.071(2), Florida Statutes] was
constitutional. The Court explained that, id. at 936:
Article II, section 3 of the Florida Constitution prohibits
one branch of government from exercising “any powers
appertaining to either of the other branches unless expressly
provided herein.” Art. II, § 3, Fla. Const. Article V, section
2(a) provides this Court with the exclusive authority to
“adopt rules for the practice and procedure in all courts.”
Art. V, § 2(a), Fla. Const. Generally, the Legislature is
empowered to enact substantive law while this Court has
the authority to enact procedural law. See Allen v.
Butterworth, 756 So.2d 52, 59 (Fla.2000).
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u The Court reiterated its test to determine whether a statute is procedural or
substantive in nature, id. at 936-37 (all emphasis by the Court) (citations omitted):
Substantive law has been defined as that part of the law
which creates, defines, and regulates rights, or that part of
the law which courts are established to administer. It
includes those rules and principles which fix and declare
the primary rights of individuals with respect towards their
persons and property. On the other hand, practice and
procedure “encompass the course, form, manner, means,
method, mode, order, process or steps by which a party
enforces substantive rights or obtains redress for their
invasion. ‘Practice and procedure’ may be described as the
machinery of the judicial process as opposed to the product
thereof.” It is the method of conducting litigation involving
rights and corresponding defenses.
v. The Court held that the expert witness statute was a procedural statute that was
unconstitutional because it violated the separation of powers and impermissibly
encroached on the rulemaking authority of the Supreme Court. Jd. at 939-42 The
statute imposed procedural requirements with respect to both the discovery of
expert witnesses and the taxation of expert witness fees.
Here, the Defendant TARGET may frivolously attempt to have the provisions of
HB 837 retroactively govern this case by asserting that the statutory changes with
the enactment of Section 768.0427 are all procedural. The Defendant TARGET
may likely take this position because they know that if substantive in nature,
then the provisions could not, under any circumstances, retroactively apply to a
claim that has already accrued. But in accepting the Defendant TARGET’s
position that these are procedural changes at face value only for purpose of this
issue, the Supreme Court must give its approval to these statutory provisions
before they can be adopted in any case.
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x. Thus, while the Legislature has expressly held that the provisions of HB 837 only
apply to causes of action filed after the March 24, 2023 effective date of the law
[save for the provisions specifically treated differently], to the extent this Court
would still consider whether these provisions govern the causes of action filed on
or before March 24, 2023, the legislative provisions would have to be deemed
unconstitutional as infringing on the rulemaking authority of the Florida Supreme
Court.
As HB 837 and the enactment of Section 768.0427 is inapplicable to the subject
lawsuit, Defendant TARGET’s affirmative defense numbers 5, 6, and 14 must be
stricken.
9. Defenses should be stated with a requisite degree of certainty. See Zito v. Washingtor
Federal Savings and Loan Association of Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975).
"\..[T]he pleader must set forth the facts in such a manner as to reasonably
inform his adversary of what is proposed to be proved in order to provide the
latter with a fair opportunity to meet it and prepare his evidence." Id. at Page
176.
10. Further, the Florida Rules of Judicial Administration, Rule 2.060(d), provides that a
matter should not be pled unless there is good grounds to support it.
11. Florida Rule of Civil Procedure 1.140(h) requires that a Defendant TARGET give proper
notice of each defense that they intend to assert. Specifically, Rule 1.140(h)(1) states:
A party waives all defenses and objections that the party does not present
either by motion under subdivisions (b), (e), or (f) of this rule or, if the party
has made no motion, in a responsive pleading except as provided in
subdivision (h)(2).
12. In the alternative, Plaintiff would move this Court for entry of an Order requiring the
Defendant TARGET to provide a more definite statement regarding the factual basis for
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affirmative defense numbers 1, 2, 3, 5, 6, 7, and 14, so that Plaintiff will be reasonably
informed of what is being asserted in order to avoid speculation.
13 Despite the uncertainty and insufficiencies addressed above of Defendant TARGET’s
affirmative defenses 1, 2, 3, 5, 6, 7, and 14, the Plaintiff denies each and every allegation
contained in Defendant TARGET’s affirmative defenses 1 through 14 and demands strict
proof thereof.
WHEREFORE, Plaintiff respectfully requests that the foregoing motion be granted and
this honorable Court issue an Order striking Defendant TARGET’s affirmative defenses 1, 2, 3,
5, 6, 7, and 14, or in the alternative, requiring Defendant TARGET to provide a more definite
statement as to each affirmative defense and for any other relief this honorable Court deems just
and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
submitted on this 28th day of June, 2023, to: Cristobal A. Casal, Esq. and Yasmine Kirollos, Esq.,
Conroy Simberg, 12730 New Brittany Boulevard, Suite 300 Fort Myers, FL 33907,
eserviceftm@conroysimberg.com, ccasal@conroysimberg.com, ykirollos@conroysimberg.com.
RUBENSTEIN LAW, P.A.
Attorneys for Plaintiff
9130 S Dadeland Blvd
Miami, Florida 33156
Tel: (305) 661-6000
Fax: (305) 670-7555
Email: smarin@rubensteinlaw.com
evillafane@rubensteinlaw.com
eservice@rubensteinlaw.com
By: /s/ Sara K. Marin
SARA K. MARIN, ESQ.
Florida Bar No.: 1010548
Page 9 of9
EXHIBIT A
Filing # 176344488 E-Filed 06/28/2023 01:02:27 PM
2365729
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL
CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA
CASE NO. 23-000594CA
MARY WIG,
Plaintiff,
Vv
TARGET CORPORATION,
Defendant.
/
DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY
TRIAL
COMES NOW the Defendant, Target Corporation, by and through the undersigned
attorneys and files this Answer, Affirmative Defenses, and Demand for Jury Trial in
response to the Complaint filed herein by the Plaintiff, Mary Wig, and would state as
follows:
1 Denied and strict proof is demanded thereof.
2 Without knowledge and therefore denied and strict proof is demanded
thereof.
3 Admitted.
4 Admitted for jurisdictional purposes only.
5 Denied and strict proof is demanded thereof.
COUNT | — NEGLIGENCE CLAIM AGAINST TARGET CORPORATION
Defendant reasserts its responses to paragraphs 1 through 6 as if fully set forth
herein.
CASE NO. 23-000594CA
6 Defendant denies exclusive control but otherwise admits the allegations of
Paragraph 6.
7 Denied and strict proof is demanded thereof.
8 Defendant admits only those duties imposed by law and denies the
allegations in Paragraph 8 to the extent they are an inaccurate statement of law.
9 Denied and strict proof is demanded thereof.
10 Denied and strict proof is demanded thereof.
11 Denied and strict proof is demanded thereof.
12 Denied and strict proof is demanded thereof.
AFFIRMATIVE DEFENSES
First Affirmative Defense
The Complaint, and each and every cause of action alleged therein fails to state
facts sufficient to constitute a cause of action for which relief may be granted.
Second Affirmative Defense
Any negligence that caused or contributed to the injuries of Plaintiff was solely the
result of negligence on the part of third parties and other individuals or entities who may
be discovered through the discovery process, and were not under the care, custody,
control or supervision of Defendant, and therefore, Plaintiff cannot recover against
Defendant.
Third Affirmative Defense
Plaintiff knew, or reasonably should have known, of the potential hazards and
dangers alleged in the Complaint, and is barred from recovery against the Defendant on
the grounds of assumption of risk.
CASE NO. 23-000594CA
Forth Affirmative Defense
Pursuant to Florida Statute Section 768.76, or any other applicable provision, in
the event of any recovery by Plaintiff in this action, the amount awarded to the Plaintiff in
this action must be reduced by any amounts paid to Plaintiff from any collateral source or
benefits.
Fifth Affirmative Defense
Defendant is entitled to all setoffs and limitations of liability pursuant to the doctrine
of comparative fault, including but not limited to the provisions of Florida Statute 768.81.
Sixth Affirmative Defense
Plaintiff was negligent, and otherwise at fault, with regard to the events alleged in
the Complaint, and such negligence and fault is the proximate cause of any liabilities or
damages Plaintiff may incur. Accordingly, Plaintiffs recovery, if any, should be precluded
or reduced in proportion to Plaintiff's own negligence.
Seventh Affirmative Defense
Plaintiff failed to take reasonable steps to reduce Plaintiff's claims, damages,
losses, if any, and that said failure to mitigate Plaintiffs damages bars or reduces any
claims, losses, or damages.
Eight Affirmative Defens
Defendant had no constructive or actual knowledge of the alleged dangerous
condition or defect.
Ninth Affirmative Defense
The condition to which the Plaintiff alleges caused her alleged injury was open and
obvious and she failed to exercise reasonable care on her own behalf by taking proper
precautions to accomplish the task in a reasonable and safe manner.
CASE NO. 23-000594CA
Tenth Affirmative Defense
Plaintiff's recovery for medical damages is limited to only those medical expenses
for which Plaintiff has become liable. Cooperative Leasing, Inc, v. Johnson, 872 So.2nd
956 (Fla. 2d DCA 2004).
Eleventh Affirmative Defense
At the time of the incident alleged in the Complaint, Plaintiff was suffering from pre-
existing conditions, which caused or contributed to the damages the Plaintiff is claiming.
Twelfth Affirmative Defense
Defendant is entitled to a set-off for any amount paid or to be paid to Plaintiff related
to any damages or injuries asserted in the Complaint.
Thirteenth Affirmative Defense
Plaintiff's medical expenses and/or treatment were neither reasonable nor
necessary.
Fourteenth Affirmative Defense
Defendant affirmatively alleges that it is entitled to all of the benefits, defenses and
protections of the Tort Reform Act of 2023 where said Act is applicable.
Reservation of Rights
Defendant reserves the right to amend these affirmative defenses as discovery
proceeds and additional information becomes known.
DEMAND FOR JURY TRIAL
Defendant hereby demands trial by jury on all issues so triable as a matter of right
and law.
CASE NO. 23-000594CA
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy of the foregoing has been served on all Counsel
of Record via the Florida E-Filing Portal this 28'" day of June, 2023.
CONROY SIMBERG
Attorney for Defendant, Target Corporation
12730 New Brittany Boulevard, Suite 300
Fort Myers, FL 33907
Telephone: (239) 337-1101
Facsimile: (239) 334-3383
Primary Email: eserviceftn@conroysimberg.com
Secondary Email: ccasal@conroysimberg.com
By: /s/ Cristobal A. Casal
Cristobal A. Casal, Esquire
Florida Bar No. 0012261
Yasmine Kirollos, Esquire
Florida Bar No. 0110380
EXHIBIT B
FLOR | DA HOUSE O F REPRESENTA T l vVeEsS
ENROLLED
CSICS/HB 837 , Engrossed 1 2023 Legislature
An act relating to civil remedies; amending s. 57.104,
F.S.; creating a rebuttable presumption that a
lodestar fee is a sufficient and reasonable attorney
fee in most civil actions; providing an exception;
creating s. 86.121, F.S.;7 authorizing a court to award
attorney fees in certain declaratory actions;
prohibiting the transfer, assignment, or acquisition
of the right to such attorney fees except by specified
10 persons; providing applicability; amending s. 95.11,
11 F.S.; reducing the statute of limitations for
12 negligence actions; providing applicability of certain
13 provisions to actions involving servicemembers;
14 amending s. 624.155, F.S.; providing standards for bad
15 faith actions; providing for the distribution of
16 proceeds when two or more third-party claims arising
17 out of a single occurrence exceed policy limits;
18 creating s. 624.1552, F.S.; providing for
19 applicability of specified offer of judgement
20 provisions to civil actions involving insurance
21 contracts; creating s. 768.0427, F.S.; providing
22 definitions; providing standards for the admissibility
23 of evidence to prove the cost of damages for medical
24 expenses in certain civil actions; requiring certain
25 disclosures with respect to claims for medical
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26 expenses for treatment rendered under letters of
27 protection; specifying the damages that may be
28 recovered by a claimant for the reasonable and
29 necessary cost of medical care; creating s. 768.0701,
30 F.S.; requiring the trier of fact to consider the
31 fault of certain persons who contribute to an injury;
32 creating s. 768.0706, F.S.;7 providing definitions;
33 providing that the owner or principal operator of a
34 multifamily residential property which substantially
35 implements specified security measures on that
36 property has a presumption against liability for
37 negligence in connection with certain criminal acts
38 that occur on the premises; requiring the Florida
39 Crime Prevention Training Institute of the Department
40 of Legal Affairs to develop a proposed curriculum or
41 best practices for owners or principal operators;
42 providing construction; amending s. 768.81, F.S.;
43 providing that a party in a negligence action who is
44 at fault by a specified amount may not recover damages
45 under a comparative negligence action; providing
46 applicability; repealing ss. 626.9373 and 627.428,
47 F.S., relating to attorney fees awarded against
48 surplus lines insurers and insurers, respectively;
49 amending s. 627.756, F.S.7 providing for the award of
50 costs and attorney fees in certain actions; amending
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51 ss. 475.01, 475.611, 517.191, 624.123, 624.488,
52 627.062, 627.401, 627.441, 627.727, 627.736, and
53 628.6016, F.S.; conforming provisions to changes made
54 by the act; repealing ss. 631.70 and 631.926, F.S.,
55 relating to attorney fees; amending s. 632.638, F.S.;
56 conforming provisions to changes made by the act;
57 providing a directive to the Division of Law Revision;
58 providing applicability and construction; providing an
59 effective date.
60
61 Be It Enacted by the Legislature of the State of Florida:
62 Section 1. Section 57.104, Florida Statutes, is amended to
63 read:
64 57.104 Computation of attorney atterneyst fees.—
65 (1)
act In any action in which attorney atterneyst fees are to
66 be determined or awarded by the court, the court shall consider,
67 among other things, time and labor of any legal assistants who
68 contributed nonclerical, meaningful legal support to the matter
69 involved and who are working under the supervision of an
70 attorney. For purposes of this section "legal assistant" means a
71 person, who under the supervision and direction of a licensed
72 attorney engages in legal research, and case development or
73 planning in relation to modifications or initial proceedings,
74 services, processes, or applications; or who prepares or
75 interprets legal documents or selects, compiles, and uses
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76 technical information from references such as digests,
77 encyclopedias, or practice manuals and analyzes and follows
78 procedural problems that involve independent decisions.
719 (2) In any action in which attorney fees are determined or
80 awarded by the court, there is a_strong presumption that a
81 lodestar fee is sufficient and reasonable. This presumption ma
82 be overcome onl in_a_rare and exceptional circumstance with
83 evidence that competent counsel could not otherwise be retained.
84 Section 2. Section 86.121, Florida Statutes, is created to
85 read:
86 86.121 Attorney fees; actions for declarator relief to
87 determine insurance coverage after total coverage denial of
88 claim.—
89 (1) In_an action brought for declarator relief in state
90 or federal court to determine insurance coverage after the
91 insurer has made a total coverage denial of a claim:
92 (a) Either part is entitled to the summar procedure
93 provided ins. 51.011, and the court shall advance the cause on
94 the calendar.
95 (b) The court shall award reasonable attorne fees to the
96 named_insured, omnibus insured, or named beneficiary under a
97 policy issued b the insurer upon rendition of a declarator
98 judgment in favor of the named insured, omnibus insured, or
99 named beneficiar This right ma not be transferred to,
100 assigned to, or acquired in an other manner b anyone other
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101 than _a named or omnibus insured or a named beneficiar A
102 defense offered b an_insurer pursuant to a reservation of
103 rights does not constitute a coverage denial of a claim. Such
104 fees are limited to those incurred in the action brought under
105 this chapter for declaratory relief to determine coverage of
106 insurance issued under the Florida Insurance Code.
107 (2) This section does not appl to an action arising
108 under a residential or commercial property insurance polic
109 Section 3. Subsections (3), (4), and (10) of section
110 95.11, Florida Statutes, are amended, and subsection (12) is
111 added to that section to read:
112 95.11 Limitations other than for the recovery of real
113 property.—Actions other than for recovery of real property shall
114 be commenced as follows:
115 (3) WITHIN FOUR YEARS .—
116 ¢ + £ ded 3
g g
117 (a)+6}+ An action relating to the determination of
118 paternity, with the time running from the date the child reaches
119 the age of majority
120 (b)+e}+ An action founded on the design, planning, or
121 construction of an improvement to real property, with the time
122 running from the date of actual possession by the owner, the
123 date of the issuance of a certificate of occupancy, the date of
124 abandonment of construction if not completed, or the date of
125 completion of the contract or termination of the contract
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126 between the professional engineer, registered architect, or
127 licensed contractor and his or her employer, whichever date is
128 latest; except that, when the action involves a latent defect,
129 the time runs from the time the defect is discovered or should
130 have been discovered with the exercise of due diligence. In any
131 event, the action must be commenced within 10 years after the
132 date of actual possession by the owner, the date of the issuance
133 of a certificate of occupancy, the date of abandonment of
134 construction if not completed, or the date of completion of the
135 contract or termination of the contract between the professional
136 engineer, registered architect, or licensed contractor and his
137 or her employer, whichever date is latest. However,
138 counterclaims, cross-claims, a
Preview
Filing # 176373378 E-Filed 06/28/2023 03:53:10 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA MARY WIG, CASE NO.: 23000594CA Plaintiff, CIVIL DIVISION TARGET CORPORATION., Defendant, PLAINTIFF'S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES 1, 2, 3, 5, 6, 7, AND 14 OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT COMES NOW Plaintiff, MARY WIG, by and through the undersigned counsel, and in accordance with all applicable Florida Rules of Civil Procedure, files this Motion to Strike Defendant, TARGET CORPORATION’s (“Defendant TARGET”) Affirmative Defenses 1, 2, 3, 5, 6, 7, and 14 or, in the Alternative, Motion for a More Definite Statement, and as grounds therefore alleges: 1 This case arises out of an incident that occurred on October 5, 2022. On March 19, 2023, Plaintiff filed the subject lawsuit against Defendant TARGET. On June 28, 2023, Defendant TARGET filed its Answer and Affirmative Defenses. (See attached as Exhibit “A”). Florida Rule of Civil Procedure 1.110(b) requires that a pleading contain “... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief...”. Defendant TARGET’s affirmative defenses 1, 2, 3, 5, 6, 7, and 14 are not legally sufficient, are not alleged with a requisite degree of certainty as required and with Page 1 of 9 disregard to the Florida Rules of Civil Procedure and should be stricken from Defendant TARGET’s Answer. The Defendant TARGET’s Affirmative Defenses fail to allege any factual basis or legally sufficient ultimate facts to support said defenses as is required by the Florida Rules of Civil Procedure. Zito v. Washington Federal Savings and Loan Association of Miami Beach, 318 So.2d 175, 176 (Fla. 3d DCA 1975); Bliss v. Carmona, 418 So.2d 1017, 1019 (Fla. 3d DCA 1982). Defendant TARGET’s Ist, 2nd, 3rd, 5th, 6th, and 7th affirmative defense fails to state a legal defense for failure to set forth sufficient ultimate facts supporting the claim that an apportionment of damages is appropriate. To assert a Fabre v. Marin, 597 So.2d 883 (Fla 1992) defense, assigning liability to third-parties, Defendant TARGET must plead the identity of those third parties and Defendant TARGET also “have the burden of presenting at trial that the non-party’s fault contributed to the accident in order to include the nonparty’s name on the jury verdict.” Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d 1262, 1264 (Fla. 1996) (citing WR. Grace & Co. — Conn. v. Dougherty, 636 So.2d 746, 748 (Fla. 2d DCA)). Defendant TARGET has failed to do so here. Defendant TARGET’s Sth, 6th, and 14th affirmative defenses seemingly seeks to improperly apply House Bill 837 to the subject lawsuit even though the suit was filed prior to the Florida Legislature passing HB 837. a. On March 24, 2023, the Florida Legislature passed an omnibus law known as House Bill 837 (“HB 837”). A copy of HB 837 is attached as Exhibit “B.” b. HB 837 amended various existing laws and created Florida Statute §768.0427. Page 2 of 9 HB 837 provided clear legislative intent regarding the applicability of these new laws. HB 837 reads in pertinent part, “Except as otherwise expressly provided in this act, this act shall apply to causes of action filed after the effective date of this act.” Section 30 of HB 837 (emphasis added). Section 6 of HB 837 created Florida Statute §768.0427. Section 6 of HB 837 does not expressly provide for Florida Statute §768.0427 to apply to causes of action filed before the effective date of the act. The instant case was filed on March 19, 2023. The clear legislative intent was that F.S. §768.0427 would not apply to cases filed before March 24, 2023, such as this case. In addition to the clear language of HB 837, the Florida Senates Bill Analysis and Fiscal Impact Statement (hereinafter “The Senate Fiscal Analysis”) provides further support that F.S. §768.0427 does not apply to the instant case. Page 29 of The Senate Fiscal Analysis provides clear guidance regarding the plain meaning of Section 30 of HB 837. Section 30 provides that, except as otherwise expressly stated in the bill, the bill applies to all causes of action filed after the effective date of the bill. It is important to note that there was a specific amendment to HB 837, which is noted on page 31 of The Senate Fiscal Analysis, that dealt with the effective date: Page 3 of 9 Committee Substitute — Statement of Substantial Changes: (Summarizing differences between the Committee Substitute and the prior version of the bill.) The committee substitute makes the following changes: . Revises the effective date provisions to provide that the: o Amendment made by the bill reducing the statute of limitations for general negligence cases from 4 years to 2 years applies prospectively to causes of action © Bill shall not be construed to impair any right under an existing insurance contract provisions regarding the delivery of a policy. It is clear that this March 7th Amendment was adopted to provide that F.S. §768.0427 does not apply to causes filed on or before March 24, 2023. Because a “court's purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction,” Larimore v. State, 2 So. 3d 101, 106 (Fla. 2008), as revised on denial of reh'g (Jan. 29, 2009), a court would be undertaking a legislative act and violating separation of powers to give effect to a statute in a manner that is contrary to that intent. See Tropical Coach Line, Inc. v. Carter, 121 So.2d 779, 782 (Fla.1960) (holding that the statutory language is binding on the courts and does not permit courts to reach contrary results through “semantic niceties or speculations. “When considering whether [a] law has retroactive application, the legislature's inclusion of an effective date should be considered as evidence rebutting the retroactive application of that statute.” Brown & Brown, Inc. v. Gelsomino, 262 So. 3d 755, 758 (Fla. 4th DCA 2018). Here, not only does HB 837 give an effective date in Section 31 being the day the bill is signed into law, [March 24, 2023], but it goes one step further in Section 30 Page 4 of 9 to clearly state that the act applies to causes of action filed after the effective date of the law. The presumption against retroactive application is a well-established rule of statutory construction that is appropriate in the absence of an express statement of legislative intent because, a presumption against retroactivity will generally coincide with legislative and public expectations. Requiring clear intent assures that [the legislature] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits. Such a_ requirement allocates to [the legislature] responsibility for fundamental policy judgments concerning the proper temporal reach of statutes, and has the additional virtue of giving legislators a predictable background rule against which to legislate. Fla. Ins. Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc., 67 So. 3d 187, 195 (Fla. 2011)(emphasis added). “Our precedent makes abundantly clear that in determining the question of retroactivity ofa legislative enactment, the court must apply the two-prong test- beginning with a search for clear evidence of legislative intent for retroactivity.” /d at 196. Gelsomino is particularly instructive on the issue of expressed intent. In that matter, the Court analyzed two (2) prior amendments to chapter 768 by the legislature in 2011 and 2006. 262 So. 3d at 758. In finding that the 2011 law applied retroactively while the 2006 law did not, the Fourth DCA noted the expressed retroactive intent in the later law versus the 2006 amendment which contained the following statement: “’[t]his act shall take effect upon becoming a Page 5 of 9 law and shall apply to causes of action that accrue on or after the effective date,” April 26, 2006. Ch. 2006-6, § 2, Laws of Fla.” Jd. The effective date clause in the law at issue is strikingly similar to this 2006 clause which the courts found expressed clear prospective intent. But the law here goes one step further: the Legislature expressly declared that the statutory changes only apply to causes of action filed after the effective date of HB 837. Because of the unequivocal intent of the Legislature, there is no reason for this Court to consider whether HB 837’s changes are procedural or substantive. However, the Plaintiff would point out that the assertion that these changes are procedural in nature would render such changes unconstitutional as an arrogation of judicial authority. Any such procedural changes would have to be expressly approved by the Florida Supreme Court. In Massey v. David, 979 So. 2d 931 (Fla. 2008), the Supreme Court reviewed whether a statute setting forth expert witness fees and imposing discovery requirements for expert witnesses [section 57.071(2), Florida Statutes] was constitutional. The Court explained that, id. at 936: Article II, section 3 of the Florida Constitution prohibits one branch of government from exercising “any powers appertaining to either of the other branches unless expressly provided herein.” Art. II, § 3, Fla. Const. Article V, section 2(a) provides this Court with the exclusive authority to “adopt rules for the practice and procedure in all courts.” Art. V, § 2(a), Fla. Const. Generally, the Legislature is empowered to enact substantive law while this Court has the authority to enact procedural law. See Allen v. Butterworth, 756 So.2d 52, 59 (Fla.2000). Page 6 of 9 u The Court reiterated its test to determine whether a statute is procedural or substantive in nature, id. at 936-37 (all emphasis by the Court) (citations omitted): Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer. It includes those rules and principles which fix and declare the primary rights of individuals with respect towards their persons and property. On the other hand, practice and procedure “encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. ‘Practice and procedure’ may be described as the machinery of the judicial process as opposed to the product thereof.” It is the method of conducting litigation involving rights and corresponding defenses. v. The Court held that the expert witness statute was a procedural statute that was unconstitutional because it violated the separation of powers and impermissibly encroached on the rulemaking authority of the Supreme Court. Jd. at 939-42 The statute imposed procedural requirements with respect to both the discovery of expert witnesses and the taxation of expert witness fees. Here, the Defendant TARGET may frivolously attempt to have the provisions of HB 837 retroactively govern this case by asserting that the statutory changes with the enactment of Section 768.0427 are all procedural. The Defendant TARGET may likely take this position because they know that if substantive in nature, then the provisions could not, under any circumstances, retroactively apply to a claim that has already accrued. But in accepting the Defendant TARGET’s position that these are procedural changes at face value only for purpose of this issue, the Supreme Court must give its approval to these statutory provisions before they can be adopted in any case. Page 7 of 9 x. Thus, while the Legislature has expressly held that the provisions of HB 837 only apply to causes of action filed after the March 24, 2023 effective date of the law [save for the provisions specifically treated differently], to the extent this Court would still consider whether these provisions govern the causes of action filed on or before March 24, 2023, the legislative provisions would have to be deemed unconstitutional as infringing on the rulemaking authority of the Florida Supreme Court. As HB 837 and the enactment of Section 768.0427 is inapplicable to the subject lawsuit, Defendant TARGET’s affirmative defense numbers 5, 6, and 14 must be stricken. 9. Defenses should be stated with a requisite degree of certainty. See Zito v. Washingtor Federal Savings and Loan Association of Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975). "\..[T]he pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence." Id. at Page 176. 10. Further, the Florida Rules of Judicial Administration, Rule 2.060(d), provides that a matter should not be pled unless there is good grounds to support it. 11. Florida Rule of Civil Procedure 1.140(h) requires that a Defendant TARGET give proper notice of each defense that they intend to assert. Specifically, Rule 1.140(h)(1) states: A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2). 12. In the alternative, Plaintiff would move this Court for entry of an Order requiring the Defendant TARGET to provide a more definite statement regarding the factual basis for Page 8 of 9 affirmative defense numbers 1, 2, 3, 5, 6, 7, and 14, so that Plaintiff will be reasonably informed of what is being asserted in order to avoid speculation. 13 Despite the uncertainty and insufficiencies addressed above of Defendant TARGET’s affirmative defenses 1, 2, 3, 5, 6, 7, and 14, the Plaintiff denies each and every allegation contained in Defendant TARGET’s affirmative defenses 1 through 14 and demands strict proof thereof. WHEREFORE, Plaintiff respectfully requests that the foregoing motion be granted and this honorable Court issue an Order striking Defendant TARGET’s affirmative defenses 1, 2, 3, 5, 6, 7, and 14, or in the alternative, requiring Defendant TARGET to provide a more definite statement as to each affirmative defense and for any other relief this honorable Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically submitted on this 28th day of June, 2023, to: Cristobal A. Casal, Esq. and Yasmine Kirollos, Esq., Conroy Simberg, 12730 New Brittany Boulevard, Suite 300 Fort Myers, FL 33907, eserviceftm@conroysimberg.com, ccasal@conroysimberg.com, ykirollos@conroysimberg.com. RUBENSTEIN LAW, P.A. Attorneys for Plaintiff 9130 S Dadeland Blvd Miami, Florida 33156 Tel: (305) 661-6000 Fax: (305) 670-7555 Email: smarin@rubensteinlaw.com evillafane@rubensteinlaw.com eservice@rubensteinlaw.com By: /s/ Sara K. Marin SARA K. MARIN, ESQ. Florida Bar No.: 1010548 Page 9 of9 EXHIBIT A Filing # 176344488 E-Filed 06/28/2023 01:02:27 PM 2365729 IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO. 23-000594CA MARY WIG, Plaintiff, Vv TARGET CORPORATION, Defendant. / DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL COMES NOW the Defendant, Target Corporation, by and through the undersigned attorneys and files this Answer, Affirmative Defenses, and Demand for Jury Trial in response to the Complaint filed herein by the Plaintiff, Mary Wig, and would state as follows: 1 Denied and strict proof is demanded thereof. 2 Without knowledge and therefore denied and strict proof is demanded thereof. 3 Admitted. 4 Admitted for jurisdictional purposes only. 5 Denied and strict proof is demanded thereof. COUNT | — NEGLIGENCE CLAIM AGAINST TARGET CORPORATION Defendant reasserts its responses to paragraphs 1 through 6 as if fully set forth herein. CASE NO. 23-000594CA 6 Defendant denies exclusive control but otherwise admits the allegations of Paragraph 6. 7 Denied and strict proof is demanded thereof. 8 Defendant admits only those duties imposed by law and denies the allegations in Paragraph 8 to the extent they are an inaccurate statement of law. 9 Denied and strict proof is demanded thereof. 10 Denied and strict proof is demanded thereof. 11 Denied and strict proof is demanded thereof. 12 Denied and strict proof is demanded thereof. AFFIRMATIVE DEFENSES First Affirmative Defense The Complaint, and each and every cause of action alleged therein fails to state facts sufficient to constitute a cause of action for which relief may be granted. Second Affirmative Defense Any negligence that caused or contributed to the injuries of Plaintiff was solely the result of negligence on the part of third parties and other individuals or entities who may be discovered through the discovery process, and were not under the care, custody, control or supervision of Defendant, and therefore, Plaintiff cannot recover against Defendant. Third Affirmative Defense Plaintiff knew, or reasonably should have known, of the potential hazards and dangers alleged in the Complaint, and is barred from recovery against the Defendant on the grounds of assumption of risk. CASE NO. 23-000594CA Forth Affirmative Defense Pursuant to Florida Statute Section 768.76, or any other applicable provision, in the event of any recovery by Plaintiff in this action, the amount awarded to the Plaintiff in this action must be reduced by any amounts paid to Plaintiff from any collateral source or benefits. Fifth Affirmative Defense Defendant is entitled to all setoffs and limitations of liability pursuant to the doctrine of comparative fault, including but not limited to the provisions of Florida Statute 768.81. Sixth Affirmative Defense Plaintiff was negligent, and otherwise at fault, with regard to the events alleged in the Complaint, and such negligence and fault is the proximate cause of any liabilities or damages Plaintiff may incur. Accordingly, Plaintiffs recovery, if any, should be precluded or reduced in proportion to Plaintiff's own negligence. Seventh Affirmative Defense Plaintiff failed to take reasonable steps to reduce Plaintiff's claims, damages, losses, if any, and that said failure to mitigate Plaintiffs damages bars or reduces any claims, losses, or damages. Eight Affirmative Defens Defendant had no constructive or actual knowledge of the alleged dangerous condition or defect. Ninth Affirmative Defense The condition to which the Plaintiff alleges caused her alleged injury was open and obvious and she failed to exercise reasonable care on her own behalf by taking proper precautions to accomplish the task in a reasonable and safe manner. CASE NO. 23-000594CA Tenth Affirmative Defense Plaintiff's recovery for medical damages is limited to only those medical expenses for which Plaintiff has become liable. Cooperative Leasing, Inc, v. Johnson, 872 So.2nd 956 (Fla. 2d DCA 2004). Eleventh Affirmative Defense At the time of the incident alleged in the Complaint, Plaintiff was suffering from pre- existing conditions, which caused or contributed to the damages the Plaintiff is claiming. Twelfth Affirmative Defense Defendant is entitled to a set-off for any amount paid or to be paid to Plaintiff related to any damages or injuries asserted in the Complaint. Thirteenth Affirmative Defense Plaintiff's medical expenses and/or treatment were neither reasonable nor necessary. Fourteenth Affirmative Defense Defendant affirmatively alleges that it is entitled to all of the benefits, defenses and protections of the Tort Reform Act of 2023 where said Act is applicable. Reservation of Rights Defendant reserves the right to amend these affirmative defenses as discovery proceeds and additional information becomes known. DEMAND FOR JURY TRIAL Defendant hereby demands trial by jury on all issues so triable as a matter of right and law. CASE NO. 23-000594CA CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing has been served on all Counsel of Record via the Florida E-Filing Portal this 28'" day of June, 2023. CONROY SIMBERG Attorney for Defendant, Target Corporation 12730 New Brittany Boulevard, Suite 300 Fort Myers, FL 33907 Telephone: (239) 337-1101 Facsimile: (239) 334-3383 Primary Email: eserviceftn@conroysimberg.com Secondary Email: ccasal@conroysimberg.com By: /s/ Cristobal A. Casal Cristobal A. Casal, Esquire Florida Bar No. 0012261 Yasmine Kirollos, Esquire Florida Bar No. 0110380 EXHIBIT B FLOR | DA HOUSE O F REPRESENTA T l vVeEsS ENROLLED CSICS/HB 837 , Engrossed 1 2023 Legislature An act relating to civil remedies; amending s. 57.104, F.S.; creating a rebuttable presumption that a lodestar fee is a sufficient and reasonable attorney fee in most civil actions; providing an exception; creating s. 86.121, F.S.;7 authorizing a court to award attorney fees in certain declaratory actions; prohibiting the transfer, assignment, or acquisition of the right to such attorney fees except by specified 10 persons; providing applicability; amending s. 95.11, 11 F.S.; reducing the statute of limitations for 12 negligence actions; providing applicability of certain 13 provisions to actions involving servicemembers; 14 amending s. 624.155, F.S.; providing standards for bad 15 faith actions; providing for the distribution of 16 proceeds when two or more third-party claims arising 17 out of a single occurrence exceed policy limits; 18 creating s. 624.1552, F.S.; providing for 19 applicability of specified offer of judgement 20 provisions to civil actions involving insurance 21 contracts; creating s. 768.0427, F.S.; providing 22 definitions; providing standards for the admissibility 23 of evidence to prove the cost of damages for medical 24 expenses in certain civil actions; requiring certain 25 disclosures with respect to claims for medical Page 1 of 39 CODING: Words stricken are deletions; words underlined are additions. hb0837-04-er FLOR | DA HOUSE O F REPRESENTA T l vVeEsS ENROLLED CSICS/HB 837 , Engrossed 1 2023 Legislature 26 expenses for treatment rendered under letters of 27 protection; specifying the damages that may be 28 recovered by a claimant for the reasonable and 29 necessary cost of medical care; creating s. 768.0701, 30 F.S.; requiring the trier of fact to consider the 31 fault of certain persons who contribute to an injury; 32 creating s. 768.0706, F.S.;7 providing definitions; 33 providing that the owner or principal operator of a 34 multifamily residential property which substantially 35 implements specified security measures on that 36 property has a presumption against liability for 37 negligence in connection with certain criminal acts 38 that occur on the premises; requiring the Florida 39 Crime Prevention Training Institute of the Department 40 of Legal Affairs to develop a proposed curriculum or 41 best practices for owners or principal operators; 42 providing construction; amending s. 768.81, F.S.; 43 providing that a party in a negligence action who is 44 at fault by a specified amount may not recover damages 45 under a comparative negligence action; providing 46 applicability; repealing ss. 626.9373 and 627.428, 47 F.S., relating to attorney fees awarded against 48 surplus lines insurers and insurers, respectively; 49 amending s. 627.756, F.S.7 providing for the award of 50 costs and attorney fees in certain actions; amending Page 2 of 39 CODING: Words stricken are deletions; words underlined are additions. hb0837-04-er FLOR | DA HOUSE O F REPRESENTA T l vVeEsS ENROLLED CSICS/HB 837 , Engrossed 1 2023 Legislature 51 ss. 475.01, 475.611, 517.191, 624.123, 624.488, 52 627.062, 627.401, 627.441, 627.727, 627.736, and 53 628.6016, F.S.; conforming provisions to changes made 54 by the act; repealing ss. 631.70 and 631.926, F.S., 55 relating to attorney fees; amending s. 632.638, F.S.; 56 conforming provisions to changes made by the act; 57 providing a directive to the Division of Law Revision; 58 providing applicability and construction; providing an 59 effective date. 60 61 Be It Enacted by the Legislature of the State of Florida: 62 Section 1. Section 57.104, Florida Statutes, is amended to 63 read: 64 57.104 Computation of attorney atterneyst fees.— 65 (1) act In any action in which attorney atterneyst fees are to 66 be determined or awarded by the court, the court shall consider, 67 among other things, time and labor of any legal assistants who 68 contributed nonclerical, meaningful legal support to the matter 69 involved and who are working under the supervision of an 70 attorney. For purposes of this section "legal assistant" means a 71 person, who under the supervision and direction of a licensed 72 attorney engages in legal research, and case development or 73 planning in relation to modifications or initial proceedings, 74 services, processes, or applications; or who prepares or 75 interprets legal documents or selects, compiles, and uses Page 3 of 39 CODING: Words stricken are deletions; words underlined are additions. hb0837-04-er FLOR | DA HOUSE O F REPRESENTA T l vVeEsS ENROLLED CSICS/HB 837 , Engrossed 1 2023 Legislature 76 technical information from references such as digests, 77 encyclopedias, or practice manuals and analyzes and follows 78 procedural problems that involve independent decisions. 719 (2) In any action in which attorney fees are determined or 80 awarded by the court, there is a_strong presumption that a 81 lodestar fee is sufficient and reasonable. This presumption ma 82 be overcome onl in_a_rare and exceptional circumstance with 83 evidence that competent counsel could not otherwise be retained. 84 Section 2. Section 86.121, Florida Statutes, is created to 85 read: 86 86.121 Attorney fees; actions for declarator relief to 87 determine insurance coverage after total coverage denial of 88 claim.— 89 (1) In_an action brought for declarator relief in state 90 or federal court to determine insurance coverage after the 91 insurer has made a total coverage denial of a claim: 92 (a) Either part is entitled to the summar procedure 93 provided ins. 51.011, and the court shall advance the cause on 94 the calendar. 95 (b) The court shall award reasonable attorne fees to the 96 named_insured, omnibus insured, or named beneficiary under a 97 policy issued b the insurer upon rendition of a declarator 98 judgment in favor of the named insured, omnibus insured, or 99 named beneficiar This right ma not be transferred to, 100 assigned to, or acquired in an other manner b anyone other Page 4 of 39 CODING: Words stricken are deletions; words underlined are additions. hb0837-04-er FLOR | DA HOUSE O F REPRESENTA T l vVeEsS ENROLLED CSICS/HB 837 , Engrossed 1 2023 Legislature 101 than _a named or omnibus insured or a named beneficiar A 102 defense offered b an_insurer pursuant to a reservation of 103 rights does not constitute a coverage denial of a claim. Such 104 fees are limited to those incurred in the action brought under 105 this chapter for declaratory relief to determine coverage of 106 insurance issued under the Florida Insurance Code. 107 (2) This section does not appl to an action arising 108 under a residential or commercial property insurance polic 109 Section 3. Subsections (3), (4), and (10) of section 110 95.11, Florida Statutes, are amended, and subsection (12) is 111 added to that section to read: 112 95.11 Limitations other than for the recovery of real 113 property.—Actions other than for recovery of real property shall 114 be commenced as follows: 115 (3) WITHIN FOUR YEARS .— 116 ¢ + £ ded 3 g g 117 (a)+6}+ An action relating to the determination of 118 paternity, with the time running from the date the child reaches 119 the age of majority 120 (b)+e}+ An action founded on the design, planning, or 121 construction of an improvement to real property, with the time 122 running from the date of actual possession by the owner, the 123 date of the issuance of a certificate of occupancy, the date of 124 abandonment of construction if not completed, or the date of 125 completion of the contract or termination of the contract Page 5 of 39 CODING: Words stricken are deletions; words underlined are additions. hb0837-04-er FLOR | DA HOUSE O F REPRESENTA T l vVeEsS ENROLLED CSICS/HB 837 , Engrossed 1 2023 Legislature 126 between the professional engineer, registered architect, or 127 licensed contractor and his or her employer, whichever date is 128 latest; except that, when the action involves a latent defect, 129 the time runs from the time the defect is discovered or should 130 have been discovered with the exercise of due diligence. In any 131 event, the action must be commenced within 10 years after the 132 date of actual possession by the owner, the date of the issuance 133 of a certificate of occupancy, the date of abandonment of 134 construction if not completed, or the date of completion of the 135 contract or termination of the contract between the professional 136 engineer, registered architect, or licensed contractor and his 137 or her employer, whichever date is latest. However, 138 counterclaims, cross-claims, a