8582376.1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

SARA VILLAMAR, 

Plaintiff, 

v. CASE NO.: 1:22-cv-23181-KMW 

Lexington INSURANCE COMPANY, 

Defendant. 

__________________________________/ 

DEFENDANT’S § 627.70152(5) MOTION TO DISMISS FOR FAILURE TO STATE A 

CLAIM, INCORPORATED MOTION FOR JUDICIAL NOTICE, MOTION FOR FEES, 

AND MOTION TO STRIKE IMPROPER PRAYER FOR STATUTORY FEES 

COMES NOW the Defendant, Lexington Insurance Company (“Lexington” or 

“Defendant”), by and through undersigned counsel, and pursuant to Fed. R. Civ. P. 12(b)(6), 

hereby moves this Court to dismiss the Complaint filed by Plaintiff, SARA VILLAMAR 

(“Plaintiff”), without prejudice, as required by Fla. Stat. § 627.70152(5) because Plaintiff’s claim 

is undergoing appraisal. In support thereof, Lexington states as follows: 

1. This lawsuit arises from a claim for insurance proceeds for alleged damages to 

certain real property located at 3485 N. Meridian Avenue Miami Beach, Florida 33140 

(“Property”) from a windstorm reported to have occurred on April 11, 2021 (“date of loss”). 

2. Plaintiff alleges Lexington breached the insurance contract by because it “failed to 

indemnify” Plaintiff for the loss by paying $12,858.50. See Exhibit A. 

3. Lexington demanded appraisal of Plaintiff’s insurance claim pre-suit. 

4. As Lexington argues below, Plaintiff’s breach of contract action is premature and 

in direct contravention of explicit Florida statutory law because appraisal is ongoing. 

5. Lexington contends Fla. Stat. § 627.70152(5) mandates dismissal of Plaintiff’s 

Complaint until the appraisal process has concluded or the allotted time period expires. 

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FACTS 

6. Plaintiff alleges “all conditions precedent to the filing of this lawsuit have occurred, 

have been waived or have been performed.” See Exhibit A at ¶5. 

7. However, Plaintiff does not allege she complied with the requirements of Fla. Stat. 

§ 627.70152, and, indeed, Plaintiff did not comply with the requirements of Fla. Stat. § 627.70152 

by filing suit prior to the expiration of the 90-day period afforded by the statute for the completion 

of the appraisal process. 

8. On July 20, 2022 Plaintiff’s attorney, Carlos Santi, Esq. of Property & Casualty 

Law Group, furnished Lexington with a Notice of Intent to Litigate filed with the Florida 

Department of Financial Services. See Exhibit B, Notice of Intent to Litigate.

9. On August 3, 2022, in compliance with Fla. Stat. § 627.70152(4), Lexington timely 

furnished its response to Plaintiff’s Notice of Intent to Litigate, noting the statutory deficiencies 

therein and requesting the parties participate in appraisal. See Exhibit C, Lexington’s August 3, 

2022 Response to Plaintiff’s July 20, 2022 Notice of Intent to Litigate.

10. On August 5, 2022, the office of Plaintiff’s Counsel responded to Lexington’s 

appraisal demand via e-mail by naming their appraiser, Santos Leal. See Exhibit D, Email from 

office of Plaintiff’s Counsel to Lexington naming appraiser. 

11. Plaintiff filed the instant action on August 11, 2022, prior to the expiration of the 

90-day period to complete the appraisal process prescribed by the statute. See Exhibit A.

12. At the time of the filing of this Motion to Dismiss, the appraisal process has not 

concluded. 

13. As such, Lexington moves this Court to dismiss Plaintiff’s Complaint as premature 

and requests that this Court award Lexington attorneys’ fees pursuant to Fla. Stat. § 627.70152. 

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MEMORANDUM OF LAW 

14. Section 627.70152(3) of the Florida Statutes provides as follows: 

Notice. – 

(a) As a condition precedent to filing a suit under a property insurance policy, a 

claimant must provide the department with written notice of intent to initiate 

litigation on a form provided by the department. Such notice must be given at least 

10 business days before filing suit under the policy, but may not be given before 

the insurer has made a determination of coverage under s. 627.70131. Notice to the 

insurer must be provided by the department to the e- mail address designated by the 

insurer under s. 624.422. 

15. Defendant hereby requests this Court take judicial notice of the Notice of Intent to 

Initiate Litigation bearing Filing No. 45797, which was filed with the Florida Department of 

Financial Services against Lexington Insurance Company on July 20, 2022 by Plaintiff’s attorney, 

Carlos Santi, Esq. of Property & Casualty Law Group. See Exhibit B, Notice of Intent to Litigate. 

16. This Court may lawfully take notice of these records because they are “not subject 

to reasonable dispute” and the Court is “capable of accurate and ready determination by resort to 

sources whose accuracy could not reasonably be questioned.” Fed. R. Evid. 201(b); see also

Universal Express, Inc. v. U.S. SEC, 177 F. App’x. 52, 53 (11th Cir. 2006) (per curiam) (citations 

omitted). The Florida Department of Financial Services, a subdivision of the office of Florida’s 

Chief Financial Officer, maintains these public records and their accuracy may be readily 

determined by visiting https://piitil.myfloridacfo.gov/SearchNotice and searching the records 

using Plaintiff’s name, the claim number in the Complaint, and the filing number provided above. 

17. Pursuant to Fla. Stat. §627.70152(4), an insurer must respond to a Notice of Intent 

to Litigate within 10 days with a settlement offer or requiring the claimant to participate in 

appraisal or another method of alternative dispute resolution: 

(4) INSURER DUTIES.—An insurer...must respond in writing within 10 

business days after receiving the notice specified in subsection (3). 

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*** 

(b) If an insurer is responding to a notice provided to the insurer alleging an act 

or omission by the insurer other than a denial of coverage, the insurer must respond 

by making a settlement offer or requiring the claimant to participate in appraisal or 

another method of alternative dispute resolution. The time limits provided in s. 

95.11 are tolled as long as appraisal or other alternative dispute resolution is 

ongoing if such time limits expire during the appraisal process or dispute resolution 

process. If the appraisal or alternative dispute resolution has not been concluded 

within 90 days after the expiration of the 10-day notice of intent to initiate litigation 

specified in subsection (3), the claimant or claimant’s attorney may immediately 

file suit without providing the insurer additional notice. 

18. Consistent with binding law in the Eleventh Circuit Court of Appeals, this Court 

may also consider Lexington’s response to Plaintiff’s Notice of Intent on a motion to dismiss 

because the response is central to Plaintiff’s claim alleging she complied with all conditions 

precedent to filing suit. See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing Horsley 

v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). Specifically, the Day and Horsley Courts opined 

how “[T]he court may consider a document attached to a motion to dismiss without converting the 

motion into one for summary judgment if the attached document is (1) central to the plaintiff’s 

claim and (2) undisputed. In this context, ‘undisputed’ means the authenticity of the document is 

not challenged.” Id. Absent a claim Lexington’s response attached hereto is not authentic, its 

contents may be properly considered on a motion to dismiss.1

19. Here, Lexington’s response to Plaintiff’s Notice of Intent to Litigate and the 

subsequent pre-suit communications between Plaintiff and Lexington are central to the Complaint 

because the Complaint alleges Plaintiff’s compliance with all conditions precedent prior to 

1Further precedent supports Lexington’s argument that the response to Plaintiff’s NOI may be properly considered 

on a Motion to Dismiss. “[A] document need not be physically attached to a pleading to be incorporated by 

reference into it; if the document’s contents are alleged in a complaint and no party questions those contents, [the 

court] may consider such a document provided it meets the centrality requirement imposed in Horsley.” Id; see 

also Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (citing Horsley) (“[A] document 

outside the four corners of the complaint may still be considered if it is central to the plaintiff’s claims and is 

undisputed in terms of authenticity.”) See also Fla. Stat. § 627.70152(5) (requiring dismissal of claimant’s suit 

when action is commenced prior to expiration of 90-day alternative resolution period). 

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Plaintiff’s filing of this lawsuit. See Exhibit A at ¶5. However, the pre-suit communications 

demonstrate that Plaintiff did not comply with all conditions precedent to filing suit because 

Plaintiff begun to participate in the appraisal process and then filed suit in violation of Florida law. 

20. Lexington’s response and the pre-suit communications between the parties 

document Plaintiff’s participation in the appraisal process, triggering the provision in Fla. Stat. § 

627.70152(4)(b) and affording the parties “90 days after the expiration of the 10-day notice of 

intent to initiate litigation” to complete appraisal before Plaintiff may file suit. In other words, 

Plaintiff was prohibited by Fla. Stat. § 627.70152(4)(b) from filing suit until either 1) November 

1, 2022, or 2) once the appraisal process concluded, whichever came first. Instead, Plaintiff filed 

suit on August 11, 2022. See Exhibit A.

21. Fla. Stat. § 627.70152(5) requires a court to dismiss a suit filed within the 90 days 

allocated by Fla. Stat. § 627.70152(4) when an insurer responds to the claimant by requesting the 

claimant participate in appraisal or another method of alternative dispute resolution: 

(5) DISMISSAL OF SUIT.—A court must dismiss without prejudice any 

claimant’s suit relating to a claim for which a notice of intent to initiate litigation 

was not given as required by this section or if such suit is commenced before the 

expiration of any time period provided under subsection (4), as applicable. 

22. Before Plaintiff is permitted to proceed with any action against Lexington, she must 

first fully comply with Fla. Stat. § 627.70152 and allege full compliance with said statute in any 

subsequent proceedings. See Art Deco 1924 v. Scottsdale Ins. Co., No. 21-62212-CIV-MORE, 

2022 U.S. Dist. LEXIS 41999, at *4 (S.D. Fla. Mar. 9, 2022) (holding Fla. Stat. § 627.70152 is a 

procedural law which applies retroactively as it “concerns the means and methods to apply and 

enforce . . . duties and rights” rather than a substantive law that “prescribes duties and rights.”) 

(quoting Alamo Rent-A Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). Under Florida 

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law, such a statute is subject to strict construction. Aetna Cas. & Sur. Co. v. Buck, 594 So. 2d 280, 

281 (Fla. 1992). 

CONCLUSION 

23. Lacking compliance with the alternative dispute resolution provisions of Fla. Stat. 

§ 627.70152 by filing this lawsuit prior to the completion of the appraisal process, Plaintiff’s suit 

is premature, and must be dismissed without prejudice. Lacking an allegation by Plaintiff of 

compliance with the alternative dispute resolution provisions set forth at § 627.70152 of the Florida 

Statutes, Plaintiff’s suit must be dismissed for failure to state a claim, pursuant to Rule 12(b)(6) of 

the Federal Rules of Civil Procedure. Moreover, Plaintiff filed the instant action on August 11, 

2022, prior to the expiration of the 90-day period to complete the appraisal process prescribed by 

the statute. See Exhibit A. Appraisal has not been completed at this time. 

24. In the case of Ludwig v. Family Sec. Ins. Co., Inc., Case No. 56 2021 CA 001381 

(Fla. 19th Cir., St. Lucie Co., Oct. 15, 2021), the Court dismissed plaintiffs’ suit for failure to 

comply with section 627.70152 of the Florida Statutes, writing, in part, as follows: 

The Plaintiff’s argument that § 627.70152(3) Fla. Stat. (2021), cannot apply to an 

insurance policy issued prior to July 1, 2021 is misplaced. Unlike § 627.7152 Fla. 

Stat. (2019), which changes the requirements of an assignment agreement, which, 

if retroactively applied, would nullify any previous assignment agreements that did 

not comply, § 627.70152(3) Fla. Stat. (2021) does not alter prior agreements, it 

simply adds a condition precedent to filing of a lawsuit. 

See Composite Exhibit E, Ludwig Order. 

25. Similarly, in the case of Smigiel v. Family Sec. Ins. Co., Inc., Case No. 50- 2021-

CA-9409 (Fla. 15th Cir., Palm Beach Co., Oct. 12, 2021), the Court dismissed plaintiffs’ suit for 

failure to comply with section 627.70152 of the Florida Statutes, writing, in part, as follows: 

The lawsuit was filed after July 1, 2021, the effective date of § 627.70152, Fla. 

Stat., which mandates that Plaintiffs provide the Department of Financial Services 

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with a Notice of Intent to Initiate Litigation at least 10 business days prior to filing 

suit against Defendant. 

Plaintiffs failed to provide the statutorily required Notice of Intent to Initiate 

Litigation, and Plaintiffs failed to plead compliance with this statutory requirement. 

*** 

In the instant case, Plaintiffs have been unable to identify any substantive right that 

has been infringed upon by the Notice of Intent to Initiate Litigation required by § 

627.70152, Fla. Stat. 

*** 

Therefore, based upon a plain reading of § 627.70152, Fla. Stat., and the controlling 

case law, Plaintiffs’ Amended Complaint is hereby Dismissed without Prejudice 

because the Notice requirement of § 627.70152, Fla. Stat. was not met. 

See Composite Exhibit E, Smigiel Order. 

26. The Court in Gibson v. State Farm Florida Ins. Co., Case No. 2021-CC-002547 

(Fla. 18th Cir., Seminole Co., Oct. 8, 2021) granted the defendant’s motion to dismiss plaintiff’s 

Amended Complaint, without prejudice, for “failure to comply with Fla. Stat. § 627.70152(3)(a).” 

See Composite Exhibit E, Gibson Order. 

27. The Court in Cimbalnik v. American Integrity Ins. Co. of Florida, Case No. 2021-

CA-426 (Fla. 5th Cir., Sumter Co., Oct. 6, 2021), granted the insurer’s motion to dismiss Amended 

Complaint, writing, in part, as follows: 

In the Motion to Dismiss, Defendant asserts Plaintiff’s Amended Complaint failed 

to assert she complied with section 627.70152, Florida Statutes.... 

*** 

The Court notes Plaintiffs filed this case after the effective date of § 627.70152 on 

July 1, 2021 requiring written notice of intent to initiate litigation to the Department 

of Financial Services. As noted by Defendant, Plaintiff’s Amended Complaint & 

Demand for Jury Trial did not include a statement that she complied with section 

627.70152, Florida Statutes. 

*** 

Defendant’s Motion to Dismiss is GRANTED. 

See Composite Exhibit E, Cimbalnik Order.

28. The Court in Sweeney v. Security First Ins. Co., Case No. 21-CC-0993 (5th Cir., 

Marion Co., Sept. 30, 2021), dismissed plaintiff’s Amended Complaint, without prejudice, “for 

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failure to comply with the pre-suit requirements imposed by Section 627.70152(5), of the Florida 

Statutes,” and “to allow Plaintiff the opportunity to comply with the requirements of Section 

627.70152(3), of the Florida Statutes. See Composite Exhibit E, Sweeney Order.

29. Plaintiff’s suit against Lexington must be dismissed without prejudice, pursuant to 

§ 627.70152(4) and (5) of the Florida Statutes (2021), and pursuant to Rule 12(b)(6) of the Federal 

Rules of Civil Procedure. Plaintiff’s compliance with the pre-suit requirements of § 627.70152 

remains impossible while this suit remains pending, meaning any action on Plaintiff’s behalf will 

not suffice to defeat the within Motion to Dismiss. “[T]he right of a plaintiff to recover must be 

measured by the facts as they existed when the suit was instituted.” Progressive Exp. Ins. v. 

McGrath Community Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2d DCA 2005). 

LEXINGTON’S MOTION FOR ATTORNEYS’ FEES 

30. In tandem with its Motion to Dismiss, Lexington further moves this Court to award 

it reasonable attorney fees pursuant to Fla. Stat. § 627.70152(8)(b), which states: 

In a suit arising under a residential or commercial property insurance policy not 

brought by an assignee, if a court dismisses a claimant’s suit pursuant to subsection 

(5), the court may not award to the claimant any incurred attorney fees for services 

rendered before the dismissal of the suit. When a claimant’s suit is dismissed 

pursuant to subsection (5), the court may award to the insurer reasonable attorney 

fees and costs associated with securing the dismissal. 

31. Lexington’s argument by way of its Motion for Attorneys’ Fees is twofold. 

32. First, in accordance with Fla. Stat. § 627.70152(8)(b), Lexington respectfully 

moves this Court to award reasonable attorneys’ fees and costs associated with securing the 

dismissal of this action (e.g., Lexington respectfully submits to this Honorable Court dismissal is 

proper at this juncture of the litigation). 

33. Second, upon dismissal of Plaintiff’s Complaint, Lexington additionally requests 

this Court deny Plaintiff any award of attorneys’ fees incurred for services rendered before the 

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dismissal of the suit pursuant to Fla. Stat.§ 627.70152(8)(b) (i.e., the court may not award to the 

claimant any incurred attorney fees for services rendered before the dismissal of the suit). 

CONCLUSION 

Due to the foregoing legal deficiencies in Plaintiff’s cause of action, Lexington respectfully 

requests this Honorable Court dismiss the Complaint in its entirety for all the reasons stated herein, 

with Plaintiff taking nothing by way of her Complaint. 

WHEREFORE, Lexington Insurance Company respectfully request this Honorable Court: 

a. GRANT its Motion to Dismiss for Plaintiff’s premature filing of this suit during the presuit appraisal process as prohibited by Fla. Stat. § 627.70152; 

b. GRANT its Motion to Dismiss for Plaintiff’s failure to strictly comply with conditions 

precedent for bringing a civil action against insurer in accordance with §627.07152; 

c. GRANT Lexington’s Motion for reasonable attorneys’ fees and costs and award Lexington 

the reasonable attorneys’ fees associated with securing the dismissal of this action pursuant 

to Fla. Stat. § 627.70152(8)(b); 

d. GRANT Lexington’s Motion for reasonable attorneys’ fees and costs and, in turn, DENY

Plaintiff any award of attorneys’ fees incurred for services rendered before the dismissal 

of the suit pursuant to Fla. Stat. § 627.70152(8)(b), and; 

e. GRANT any other relief this Honorable Court deems just and proper. 

Respectfully submitted, 

CLAUSEN MILLER P.C. 

By: /s/ Erick Rodriguez 

IRENE THALER, ESQ., FBN: 88288 

ERICK RODRIGUEZ, ESQ., FBN: 1022247 

4830 West Kennedy Blvd., Suite 600 

Tampa, Florida 33609 

Phone: (813) 519-1027 

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ithaler@clausen.com 

erodriguez@clausen.com 

rgomez@clausen.com

ylyles@clausen.com

Counsel for Defendant 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with the 

Clerk of the Court via CM/ECF on this 6th day of October, 2022. I also certify that the foregoing 

document is being served this day on all counsel of record: 

Carlos Santi, Esq. 

Property & Casualty Law Group 

csanti@pclawgroup.com 

 

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