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THE MORGAN LAW GROUP

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.:22-23681-civ-SCOLA

OCEANIA III CONDOMINIUM 

ASSOCIATION, INC.

Plaintiff,

v.

WESTCHESTER SURPLUS LINES 

INSURANCE COMPANY and 

EVEREST INDEMNITY INSURANCE 

COMPANY,

Defendants.

_______________________________/

PLAINTIFF’S RESPONSE TO DEFENDANTS’

JOINT MOTION TO DISMISS THE AMENDED COMPLAINT 

Plaintiff OCEANIA III CONDOMINIUM ASSOCIATION, INC. (the “Association”)

files this Response to the Joint Motion to Dismiss Plaintiff’s Amended Complaint (ECF 

No. 20) (the “Motion”) filed by Defendants WESTCHESTER SURPLUS LINES 

INSURANCE COMPANY (“Westchester”) and Defendant EVEREST INDEMNITY 

INSURANCE COMPANY’S (“Everest”) (collectively, “Defendants”). Defendants demand 

dismissal with prejudice based on the statute of limitations. However, Defendants gloss 

over the unique pre-suit facts and posture that call out for the application of the doctrines 

of equitable tolling and equitable estoppel. Moreover, the Association, following its 

voluntary compliance with the notice provision, should also benefit from the safe-harbor 

protection of section 627.70152(3)(b), Florida Statutes.

The Motion misses the mark and must be denied. The Association, on behalf of its 

hundreds of residents, is eager to prove their claim on the merits and secure a judgment 

for the desperately needed funds that Defendants have denied them for years.

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INTRODUCTION

“[A] main purpose of the statute of limitations is to protect defendants from unfair 

surprise and stale claims.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1078 

(Fla. 2001).1 As explained by the Florida Supreme Court:

As a statute of [limitations], they afford parties needed 

protection against the necessity of defending claims which, 

because of their antiquity, would place the defendant at a 

grave disadvantage. In such cases how resolutely unfair it 

would be to award one who has willfully or carelessly slept on 

his legal rights an opportunity to enforce an unfresh claim 

against a party who is left to shield himself from liability with 

nothing more than tattered or faded memories, misplaced or 

discarded records, and missing or deceased witnesses. 

Indeed, in such circumstances, the quest for truth might elude 

even the wisest court.

Id. (alteration in original) (quoting Nardone v. Reynolds, 333 So.2d 25, 36 (Fla.1976) and 

Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745, 752 (1968)).

The Association’s pleadings have neither caught Defendants by surprise nor 

presented any allegations involving stale claims; rather, this lawsuit is based in whole on 

an insurance claim Defendants investigated for years by way of exhaustive pre-suit 

demands to the Association for documents, inspections, and examinations under oath.

(ECF No. 15, Am. Compl. at ¶¶ 14–33.) Fundamental principles of equity and the unique 

facts of this claim demand denial of the Motion. City of Brooksville v. Hernando County, 

424 So. 2d 846, 848 (Fla. 5th DCA 1982) (“When a defendant has had notice from the 

beginning that the plaintiff sets up and is trying to enforce a claim against it because of 

specified conduct, the reasons for the statute of limitations do not exist , and we are of 

the opinion that a liberal rule should be applied.”).

 

1

In diversity actions, state law on statute of limitations and tolling of the statute of 

limitations controls. Walker v. Armco Steel Corp., 446 U.S. 1978, 1985 (1980).

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FACTS AND BACKGROUND AS PLEADED IN THE AMENDED COMPLAINT

The Association sues Defendants for breach of contract resulting from Defendants’ 

failure to pay the Association funds owed under property insurance policies drafted by 

Defendants that were providing coverage for the Association’s property located at 16485 

Collins Ave., Sunny Isles Beach, FL 33160 in Miami-Dade County, Florida (the 

“Property”) at the time Hurricane Irma damaged the Property. (ECF No. 15, Am. Compl. 

at ¶¶ 1, 5.)

On September 10, 2017, the Property sustained a loss covered under the 

insurance policies as a result of Hurricane Irma (the “Covered Loss”). (ECF No. 15, Am. 

Compl. at ¶ 13.) The Association complied with all post-loss obligations within the policies 

including, but not limited to: (i) proving timely notice to Defendants of the Covered Loss; 

and (ii) protecting the Property from further loss. (ECF No. 15, Am. Compl. at ¶ 14.)

Defendants have failed to pay for the Covered Loss; thus, breaching the terms of the 

insurance policies. (ECF No. 15, Am. Compl. at ¶ 18.)

On August 29, 2022, the Association submitted2 notices of intent under section 

627.70152(3), Florida Statutes, to each Everest (“Everest NOI”) and Westchester 

(“Westchester NOI”). (ECF No. 15, Am. Compl. at ¶¶ 20, 21.) The tenth and final 

business day for Defendants to respond to the NOIs—and the corresponding tenth 

business day of the safe harbor period—fell on September 13, 2022,3 one day after the 

September 12, 2022, statute of limitations date.4

On September 13, 2022, Everest and Westchester sent the Association two (2) 

separate emails attaching letters stating they were timely responses per “Fla. Stat. § 

627.70152.” The responses to the Westchester NOI and Everest NOI were near mirror 

images of each other, demanded re-inspection of the Property, and extended a settlement 

offer pursuant to the notice procedure established by section 627.70152, Florida Statutes.

(ECF No. 15, Am. Compl. at ¶ 22.) Specifically, the responses to the Westchester NOI 

and Everest NOI stated “[n]otwithstanding this and for the purpose of avoiding litigation 

 

2 The Association submitted the Everest NOI and Westchester NOI through the portal on 

the website of Florida’s Chief Financial Officer as required by statute.

3 When calculating the 10-business days please note the Labor Day Holiday.

4 September 10, 2022 was a Saturday thus making the statute of limitations fall on 

Monday September 12, 2022.

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and complying with the requirements of Fla. Stat. § 627.70152, [Everest/Westchester] 

offers to the insured the amount of . . . . Please be advised that [Everest/Westchester] is 

making this offer of settlement only to avoid litigation and because it is required to do so 

under Fla. Stat. § 627.70152, if such statute applies.” (ECF No. 15, Am. Compl. at ¶ 23.)

Neither of Defendants’ responses to their respective NOIs made any statement or 

provided any indication that either Defendant believed or was taking the position that 

section 627.70152 did not apply to either of the insurance policies issued by Defendants.

(ECF No. 15, Am. Compl. at ¶ 26.) Rather, the responses to the Westchester NOI and 

Everest NOI actively employed the procedures and structure of the very statute 

Defendants now argue does not apply to the Association’s claim. (ECF No. 15, Am. 

Compl. at ¶¶ 22–25.)

On September 15, 2022, the Association emailed Defendants’ counsels and was 

informed that Defendants’ third-party administrator, Robbie Arnold, would be coordinating 

the re-inspection of the Property. (ECF No. 15, Am. Compl. at ¶¶ 27, 28.) On September 

16, 2022, and again on September 19, 2022, the Association emailed Mr. Arnold copying 

counsel for Everest and counsel for Westchester. (ECF No. 15, Am. Compl. at ¶ 29.) Mr. 

Arnold never responded. Instead, Everest’s counsel emailed stating “[w]e are working to 

secure dates from our Engineer. Also, have requested a list of areas that we will want to 

access to so that this site inspection can be as efficient as possible. We will revert back 

as soon as possible.” (ECF No. 15, Am. Compl. at ¶¶ 30, 31.) Defendants then, once 

again, went radio silent. (ECF No. 15, Am. Compl. at ¶ 32.)

On October 4, 2022, the Association filed the original Complaint in the 11th Judicial 

Circuit in and for Miami-Dade County, Florida. (ECF No. 1-1, Complaint.) On November 

9, 2022, Westchester removed this lawsuit pursuant to diversity jurisdiction (ECF No. 1)

and, on the same day, Everest filed a Certificate of Non-Objection to Removal. (ECF No. 

9.) On December 7, 2022, the Association filed an Amended Complaint. (ECF No. 15.)

MEMORANDUM OF LAW

I. LEGAL STANDARD.

A court considering a motion to dismiss filed under Rule12(b)(6) must accept all of 

the complaint’s allegations as true, construing them in the light most favorable to the 

plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008); see also Brooks v. 

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Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). A pleading 

must only contain “a short and plain statement of the claim showing that the pleader is 

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

II. LEGAL ANALYSIS.

Defendants’ demand for dismissal with prejudice, pursuant to the statute of 

limitations, must be denied for three (3) reasons. The pre-suit facts, Defendants’ stance 

in this claim and others, and the newly enacted section 627.70152 come together to 

create a legal and factual situation where equitable tolling should be applied to deem this 

lawsuit timely filed by the Association. Defendants’ pre-suit actions, inaction, and 

contradictory positions in other lawsuits should equitably estop Defendants from using 

the statute of limitations as a defense. Additionally, the Association’s voluntary

compliance with the notice procedures of section 627.70152, which serves only for the 

benefit of insurance companies, entitle the Association to the safe harbor protections of 

section 627.70152(3)(b).

A. EQUITABLE ESTOPPEL BARS DEFENDANTS FROM ASSERTING ANY 

STATUTE OF LIMITATIONS DEFENSE.

“The equitable estoppel doctrine has frequently been employed to bar inequitable 

reliance on a statute of limitations.” Alachua v. Cheshire, 603 So.2d 1334, 1337 (Fla. 1st 

DCA 1992) (citing Glus v. Brooklyn Eastern Dist. Term., 359 U.S. 231 (1959)). “Equitable 

estoppel is based on principles of fair play and essential justice and arises when one party 

lulls another party into a disadvantageous legal position.” Morsani, 790 So. 2d at 1076.

Courts have applied the doctrine of equitable estoppel to bar parties from using 

the statute of limitations as a defense. Salcedo, 368 So. 2d at 1339. “Even more 

specifically, such an estoppel may arise because of the applicability of the cited rule which 

precludes the taking of self-contradictory legal positions.” Salcedo, 368 So. 2d at 1339. 

On August 29, 2022, upon receiving their respective NOIs, Defendants were aware 

that the Association had taken the position of complying with section 627.70152. 

However, both Defendants, despite the duties of good faith and fair dealing5 each 

 

5 Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121, 1127 (Fla. 2005) (“The Legislature 

has mandated that insurance companies act in good faith and deal fairly with insureds 

regardless of the nature of the claim presented.”).

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Defendant owes to the Association, stayed silent from August 29 through the running of 

the September 12, 2022, statute of limitations. Defendants completely reversed the 

position they had taken consistently and repeatedly6in numerous state and federal 

courts—i.e., that section 627.70152 applies retroactively—and then sat silent from August 

29 to September 13. This 180-degree reversal by Defendants, which Defendants now 

rely on to seek dismissal, is the type of action that supports the application of equitable 

estoppel. Salcedo, 368 So. 2d at 1337 (applying equitable estoppel to defendant’s statute 

of limitations defense where defendant previously took a position in another lawsuit

inconsistent with its current position in the current action).

On September 13, 2022, one day after the running of the statute of limitations, 

Defendants emailed the Association formal written responses to their NOIs. Defendants 

further engaged in and employed the notice procedures established by section 627.70152 

by extending a settlement offer to the Association and demanding a re-inspection of the 

Property. This type of engagement by defendants in administrative procedures or 

litigation “can waive or be estopped from asserting a statute of limitation.” Olenek v. 

Bennett, 537 So. 2d 160, 161 (Fla. 5th DCA 1989) (ruling party waived and was estopped 

from asserting statute of limitation defense where its attorney accepted service of the 

complaint and agreed to file an answer).

Florida’s Fourth DCA applied the doctrine of equitable estoppel barred a 

defendant’s use of a statute of limitations defense where the defendant “accepted in 

writing [plaintiff]’s demand for arbitration and . . . proceeded to pick arbitrators.” Glantzis 

v. State Auto. Mut. Ins. Co., 573 So. 2d 1049, 1051 (Fla. 4th DCA 1991). The parties 

chose their arbitrators, and, after some time, the parties agreed on a neutral arbitrator on 

the same day as the expiring of the statute of limitations. Glantzis, 573 So. 2d at 1050. 

The defendant then took the position that the running of the statute of limitations barred 

plaintiffs claim in whole and refused to proceed with arbitration. Glantzis, 573 So. 2d at 

1050. Noting that plaintiffs had the option to file suit when they demanded arbitration, the 

Fourth DCA ruled that the defendant’s engagement in the arbitration process, which led 

 

6

(Composite Exhibit A, Motions to Dismiss filed by Defendants in state and federal court 

arguing Section 627.70152 should be applied retroactively and the plaintiffs’ actions 

dismissed for failure to submit a NOI pursuant to Section 627.70152.)

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plaintiffs to forgo their right to file suit, was the type of “gotcha” tactics the courts abhor 

and that call for application of the doctrine of equitable estoppel. Glantzis, 573 So. 2d at 

1051. 

Defendants by participating in the NOI procedures of section 627.70152 engaged 

in the same type of “gotcha” tactics as the defendant in Glantzis. 573 So. 2d at 1051 

(rejecting defendant’s argument that “equitable estoppel does not apply because it never 

made any representations to appellants that they need not observe the statute of 

limitations and there was no affirmative deception on its part”). Just as in Glantzis, the 

Association could have filed its lawsuit on August 29, 2022—well within the September 

12, 2022, statute of limitations—when the Association initiated section 627.70152’s notice 

procedure. Taking a page out of the Glantzis defendant’s playbook, Defendants stayed 

silent from August 29, 2022, through the expiration of the statute of limitations.

B. EQUITABLE TOLLING IS APPROPRIATE, UNDER THE CIRCUMSTANCES, TO 

DEEM THIS ACTION TIMELY FILED.

“The doctrine of equitable tolling was developed to permit under certain 

circumstances the filing of a lawsuit that otherwise would be barred by a limitations 

period.” Machules v. Dept. of Admin., 523 So. 2d 1132, 1133 (Fla. 1988). In determining 

whether to apply equitable tolling, courts weigh any prejudice to the defendants against 

the plaintiff’s right to have its claim decided on the merits. Machules, 523 So. 2d at 1134 

(equitable tolling “does not require active deception or [] misconduct”). “Like the 

application of equitable estoppel in federal courts, the application of equitable tolling has 

been applied in Florida when a plaintiff . . . has in some extraordinary way been prevented 

from asserting his rights.” Cheshire, 603 So.2d at 1337.

On August 29, 2022, the Association faced two—overlapping and possibly 

conflicting statutorily created time bars—the statute of limitations and the section 

627.70152 procedures and corresponding timeframes. Simply put:

OPTION ONE: File the Complaint on August 29, 2022, well within the September 

12, 2022, statute of limitations, but forgo submitting the notice of 

intent required by section 627.70152, Florida Statutes.

OPTION TWO: Submit the NOIs on August 29, 2022, wait for Defendants responses 

to the NOIs with the response deadline falling on September 13, 

2022, one day after the September 12, 2022, statute of limitations.

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Had the Association forgone submitting an NOI, it would have opened itself up to 

a state court motion to dismiss by one or both of the Defendants, which they have up until 

now regularly sought dismissal arguing for the retroactive application of section 

627.70152.7 Unlike Florida federal judges, Florida state courts are still split on whether 

section 627.70152 applies retroactively.8 Losing a motion to dismiss on the basis of 

section 627.70152 would have left the Association out of court and past the statute of 

limitations.9 See Fla. Stat. § 627.70152(5) (emphasis added) (“A court must dismiss 

 

7

(Composite Exhibit A, Motions to Dismiss filed by Defendants in state and federal 

court arguing Section 627.70152 should be applied retroactively and the plaintiffs’ actions 

dismissed for failure to submit a NOI pursuant to Section 627.70152.)

8 See Helmke v. Am. Integrity Ins. Co. of Fla., Case No. 50-2021-CA-010503-XXXXMB, 2022 WL 3273164 (Fla. Cir. Ct. 15th Jud. Cir. Apr. 11, 2022) (dismissing plaintiff’s 

lawsuit for failure to comply with the retroactively applied notice provisions of section 

627.70152); Alen v. Homeowners Choice Prop. & Casualty Ins. Co., Inc., Case No. 50-

2021-CA-010736-XXXX-MB, 2022 WL 3273170 (Fla. Cir. Ct. 15th Jud. Cir. Apr. 4, 2022) 

(same); Tordjman v. Universal Prop. & Casualty Ins. Co., Case No. 50-2021-CA-011044-

XXXX-MB, 2022 WL 2734564 (Fla. Cir. Ct. 15th Jud. Cir. Mar. 24, 2022) (same); Simons 

v. Universal Prop. & Casualty Ins. Co., Case No. 50-2021-CA-009513-XXXX-MB, 2022 

WL 2734551 (Fla. Cir. Ct. 15th Jud. Cir. Mar. 10, 2022) (same); Stokes v. Fla. Peninsula 

Ins. Co, Case No. 50-2021-CA-011402, 2022 WL 2734568 (Fla. Cir. Ct. 15th Jud. Cir. 

Mar. 7, 2022) (same); Maldonado v. Heritage Prop & Cas. Ins. Co., Case No. 21-22075-

CA-01 (Fla. Cir. Ct. 11th Cir. Mar. 1, 2022) (same); Carlson, et al. v. Heritage Prop & 

Casualty Ins. Co., Case No. 50-2021-CA-013368-XXXX-MB, 2022 WL 2734571 (Fla. Cir. 

Ct. 15th Jud. Cir. Feb. 23, 2022) (same); Sanchez v. Universal Prop. & Cas. Ins. Co., 

Case No. 21-18871-CA-01 (Fla. Cir. Ct. 11th Cir. Dec. 30, 2021) (same); Smigiel v. Fam. 

Sec. Ins. Co., Inc., Case No. 50-2021-CA-009409-XXXX-MB (Fla. Cir. Ct. 15th Jud. Cir. 

Oct. 12, 2021) (same); Benji Gibson v. State Farm Fla. Ins. Co., Case No. 21-CC-2547 

(Fla. Cir. Ct. 18th Jud. Cir. Oct. 7, 2021) (same); Cimbalnik v. Am. Integrity Ins. Co. of 

Fla., Case No. 2021-CA-426 (Fla. Cir. Ct. 5th Jud. Cir. Oct. 5, 2021) (same); Sweeney v. 

Sec. First Ins. Co., Case No. 21-CC-0993 (Fla. Cir. Ct. 5th Jud. Cir. Sep 27, 2021) (same).

9 Florida courts finding retroactive application of the statute have ruled subsection 

(5) does not permit a motion to dismiss to be granted with leave to amend or a stay put 

in place until the insured is in compliance with the notice provision; instead, the case must 

be dismissed without prejudice and re-filed following compliance with the notice

provisions of Section 627.70152(3)(a). See Paz v. United Prop. & Caus. Ins. Co., Order 

Vacating The March 11, 2022 Order, Miami-Dade Cir. Ct Case No. 21-18318-CA-01 (11 

Jud. Cir. Ct. Apr. 27, 2022). In Paz the Court found Section 627.70152, Florida Statute 

applied retroactively and granted Defendant’s motion to dismiss Plaintiff Paz’s complaint 

for failure to submit a notice of intent to litigate. See Paz v. United Prop. & Caus. Ins. Co., 

Order Granting Defendant’s Motion to Dismiss Plaintiff’s Complaint, Miami-Dade Cir. Ct 

Case No. 21-18318-CA-01 (11 Jud. Cir. Ct. Mar. 11, 2022). The Court granted the motion 

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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 . . . .”). Making matters worse, 

the safe harbor protection of section 627.70152(3)(b) would not be available to the 

Association as the statute is clear that the safe harbor protection is only available to 

insureds who have submitted an NOI. See Fla. Stat. § 627.70152(3)(b).

On August 29, 2022, the Association submitted the NOIs in compliance with the 

notice provisions of section 627.70152, giving Defendant one more notice of the 

Association’s claim—in addition to the years of the Association’s compliance with 

Defendants’ post-loss demands—and an opportunity to resolve the claim and avoid 

litigation, which is in line with the purpose of statutes of limitation, i.e. “to protect 

defendants from unfair surprise.” Morsani, 790 So. 2d at 1078. Further, Option Two was 

consistent with the pro-retroactive application position Defendants had consistently taken 

in most, if not all, federal and state cases involving section 627.70152. See supra FN 7.

C. THE ASSOCIATION IS ENTITLED TO THE 10-BUSINESS DAY SAFE HARBOR 

PROTECTION OF SECTION 627.70152(3)(b).

The Association voluntarily complied with the notice provisions of section 

627.70152 and a plain reading of the statute makes clear that the Association is entitled 

to the tolling of the statute of limitations. Section 627.70152(3)(b) (“Service of a notice [of 

intent to litigate] tolls the time limits provided in s. 95.11 for 10 business days if such time 

limits will expire before the end of the 10-day notice period.”). Unlike all prior cases 

considering section 627.70152, the Association is not asking to force anyone to take any 

action pursuant to the statute, shoulder any new duty, or be burdened with any new 

obligation due to the retroactive application of the statute. See Rosario v. Scottsdale Ins. 

Co., Case No. 21-civ-24005-SCOLA, 2022 WL 196528 at *1 (S.D. Fla. Jan. 21, 2022) 

(denying motion to dismiss, based on defendant’s arguments that the insureds must 

 

to dismiss with leave to file an amended complaint following compliance with Section 

627.70152(3)(a). Id. Following a subsequent motion from Defendant, the Court entered a 

second order dismissing the action without prejudice acknowledging that Section 

627.70152 strictly mandated dismissal without prejudice for an insured’s noncompliance 

with the statute’s notice of intent to litigate requirement. See Paz v. United Prop. & Caus. 

Ins. Co., Order Vacating the March 11, 2022 Order, Miami-Dade Cir. Ct Case No. 21-

18318-CA-01 (11 Jud. Cir. Ct. Apr. 27, 2022). Copies of the two orders are attached as 

Composite Exhibit B.

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comply with the notice obligations of section 627.70152, due to lack of retroactive 

application of section 627.70152). Rather, the issue is whether the Association, following 

voluntary compliance with the notice provisions of section 627.70152—which serves only 

for the benefit of insurance companies—is entitled to the tolling of subsection (3)(b). See 

Fla. Stat. § 627.70152(3)(b) (stating simply “[s]ervice of a notice tolls the time limits 

provided in s. 95.11. . .”).

Section 627.70152(3)(b) states “[s]ervice of a notice tolls the time limits provided 

in s. 95.11 for 10 business days if such time limits will expire before the end of the 10-day 

notice period.” The notice itself is the personification of a procedural law creating a 

bureaucratic notification procedure where an insurance claimant “provides the 

department with written notice of intent to initiate litigation on a form provided by the 

department.” Fla. Stat. § 627.70152(3)(a). Subsection (3)(a) goes on to provide a list of 

information required to be included in the notice of intent to litigate. Section 

627.70152(3)(a). This notification procedure does not touch on any of the Menendez

factors, it does not “impair[] a vested right, create[] a new obligation, or impose[] a new 

penalty.” Menendez, 35 So. 3d at 877.

WHEREFORE, Plaintiff OCEANIA III CONDOMINIUM ASSOCIATION, INC.

respectfully requests the Court enter an Order denying Defendant WESTCHESTER 

SURPLUS LINES INSURANCE COMPANY and Defendant EVEREST INDEMNITY 

INSURANCE COMPANY’S Joint Motion To Dismiss Plaintiff’s Amended Complaint (ECF 

No. 20) and for such other relief as this Court deems just and proper.

THE MORGAN LAW GROUP

Counsel for the Association

55 Merrick Way, Suite 404

Coral Gables, Florida 33134

Telephone: (305) 569-9900

Facsimile: (305) 569-9900

Primary e-mail: mlg.eservice@morganlawgroup.net

Secondary e-mail: wmccaughan@morganlawgroup.net

Secondary e-mail: jjomarron@morganlawgroup.net

By: /s/ William Power McCaughan Jr.

William P. McCaughan Jr.

Florida Bar No. 41573

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