SFR Services, LLC v. Lexington Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SFR SERVICES, LLC,

Plaintiff,

v. Case No: 2:19-cv-229-FtM-29NPM

LEXINGTON INSURANCE COMPANY,

Defendant.

OPINION AND ORDER

This matter comes before the Court on plaintiff’s Motion for

Partial Summary Judgment, or In The Alternative, To Strike

Defendant’s Affirmative Defenses (Doc. #52), filed on February 28,

2020. Defendant filed a Response (Doc. #56) on March 20, 2020.

Plaintiff filed a renewed Motion (Doc. #97) on October 13, 2020,

to which defendant Responded in Opposition (Doc. #100) on October

27, 2020. For the reasons set forth below, the initial and renewed

Motions are granted in part and denied in part.

I.

Plaintiff SFR Services, LLC (Plaintiff or SFR) filed a

Complaint (Doc. #4) on January 29, 2019 against defendant Lexington

Insurance Company (Defendant or Lexington) in the Circuit Court of

the Twentieth Judicial Circuit in and for Lee County, Florida. On

April 12, 2019, Defendant removed the action to this Court on the

basis of diversity jurisdiction. (Doc. #1.)

In the Complaint, SFR asserts that Lexington breached an

insurance policy (the Policy) issued to its assignor1 Coronado

Condominium Owners Association, Inc. (the insured or Coronado) for

certain real property located in Fort Myers, Florida. (Doc. #4, ¶¶

5, 14-16.) The Complaint alleged that on September 9, 2017, the

insured’s real property sustained storm damage due to Hurricane

Irma; that Coronado reported that damage to Defendant; and that

Lexington failed to pay as required by the Policy, thus breaching

the Policy. (Id., ¶¶ 7-8.)

Defendant filed an Answer to the Complaint which included

nineteen affirmative defenses. (Doc. #39.) Plaintiff moves for

partial summary judgment, or in the alternative, to strike eleven

affirmative defenses (#s 1-4, 6, 8, 9, 12, 13, 16, and 19) due to

lack of legal and factual support. (Doc. #57, p. 1; #Doc. #97, p.

2.) Defendant does not oppose striking affirmative defenses

numbers 9, 12 through 16, and 19, but remains opposed to striking

1 through 4, 6, 8, and 17.2 (Doc. #56, p. 2; Doc. #100, p. 2.)

Accordingly, the Court strikes affirmative defenses numbers 9, 12

1 On September 19, 2018, Coronado Condominium Owners

Association, Inc. executed an Assignment of Insurance Benefits

assigning Coronado’s “rights, benefits, and proceeds” under the

insurance Policy to Plaintiff. (Doc. #4, ¶ 9.)

2 In its Motion, Plaintiff does not identify affirmative

defense seventeen as one of the defenses it seeks to strike. (Doc.

#52.) The Court therefore will not address this affirmative

defense.

through 16, and 19 from the Answer, and will address the remaining

challenged affirmative defenses below.

II.

A. Pleading Standard for Affirmative Defenses

Affirmative defenses are subject to the general pleading

requirements of Rule 8 of the Federal Rules of Civil Procedure.

Daley v. Scott, No. 2:15-cv-269-FtM-29DNF, 2016 U.S. Dist. LEXIS

83735, at *3 (M.D. Fla. June 28, 2016). Rule 8(b)(1)(A) requires

a party to "state in short and plain terms its defenses to each

claim asserted against it," and Rule 8(c) requires a party to

"affirmatively state any avoidance or affirmative defense." Fed.

R. Civ. P. 8(b)(1)(A) and (c). Compliance with Rule 8(c) requires

a defendant to set forth "some facts establishing a nexus between

the elements of an affirmative defense and the allegations in the

complaint," so as to provide the plaintiff fair notice of the

grounds upon which the defense rests. PK Studios, Inc. v. R.L.R.

Invs., LLC, No. 2:15-cv-389-FTM-99CM, 2016 U.S. Dist. LEXIS

116057, at *4-5 (M.D. Fla. Aug. 30, 2016) (quoting Daley, 2016

U.S. Dist. LEXIS 83735, at *7). Pursuant to Federal Rule of Civil

Procedure 12(f), courts may strike "insufficient defense[s]" from

a pleading, either upon a motion or sua sponte. Fed. R. Civ. P.

12(f); PK Studios, Inc., 2016 U.S. Dist. LEXIS 116057, at *4-6.

B. Summary Judgment Standard

Summary judgment is appropriate only when the Court is

satisfied that “there is no genuine dispute as to any material

fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to

find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material”

if it may affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A

court must decide ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’”

Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th

Cir. 2004)(quoting Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). However, “if

reasonable minds might differ on the inferences arising from

undisputed facts, then the court should deny summary judgment.”

St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198

F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir.

1983)(finding summary judgment “may be inappropriate even where

the parties agree on the basic facts, but disagree about the

factual inferences that should be drawn from these facts”)).

These principles are equally applicable when, as here, the

Plaintiff is seeking a partial summary judgment regarding

Defendant’s affirmative defenses. "[O]n a plaintiff's motion for

[partial] summary judgment, the defendant bears the initial burden

of showing that the affirmative defense is applicable." Office of

Thrift Supervision v. Paul, 985 F. Supp. 1465, 1470 (S.D. Fla.

1997) (citing Blue Cross and Blue Shield v. Weitz, 913 F.2d 1544,

1552 (11th Cir. 1990)). To do so, "[t]he defending party must rely

on or submit record evidence in support of the purported

affirmative defenses to create a genuine issue of material fact

preventing the entry of summary judgment." Meth Lab Cleanup, LLC

v. Spaulding Decon, LLC, No. 8:14-CV-3129-T-30TBM, 2015 U.S. Dist.

LEXIS 96259, 2015 WL 4496193, at *7 (M.D. Fla. July 23, 2015)

(citation omitted). It is "[o]nly upon such a showing [that] the

burden shift[s] to [a] plaintiff regarding that affirmative

defense." Paul, 985 F. Supp. at 1470 (citing Weitz, 913 F.2d at

1552 n.13).

III.

With these standards in mind, the Court turns to the six

challenged affirmative defenses.

A. Affirmative Defense One

In its first affirmative defense, Defendant asserts that some

of the damages Plaintiff seeks to recover are not covered under

the Policy. Specifically, Lexington argues that damages caused by

or resulting from any “(1) wear and tear; (2) . . . decay,

deterioration; and (4) . . . cracking” are not covered by the

Policy but are being sought by Plaintiff. (Doc. #39, p. 5; Doc.

#56, p. 5; Doc. #100-1, p. 53.)

Plaintiff argues that this affirmative defense is factually

unsupported and should be stricken. Plaintiff points out that

Defendant’s corporate representative, Mark B. Leventhal, testified

that Defendant relied on two expert reports from JS Held in support

of its affirmative defenses. (Doc. #97-5, pp. 110-111, 113-117.)

Plaintiff argues that these JS Held reports do not definitely state

there is damage attributable to wear and tear, corrosion, decay,

deterioration, or settling. (Doc. #97, p. 7.) Rather, the reports

have minimal conclusions about expansion and shrinking of the hip

and ridge caps at the insured property. (Id.) Further, Plaintiff

asserts that Defendant’s expert Matthew Staffeld confirmed in his

deposition that many alleged conditions listed in the first

affirmative defense were not observed at the property. (Doc. #97,

pp. 7-8; Doc. #97-6, pp. 15-16.)

In support of its first affirmative defense, Defendant argues

that there is evidence that the deteriorating condition of the

roof’s underlayment and wood decking, and the cracked tiles, are

from sources other than Hurricane Irma and are not covered under

the Policy. (Doc. #56, p. 6; Doc. #100, p. 7.) This includes: (1)

multiple pre-Hurricane Irma “Service Work of Fort Lauderdale, LLC”

invoices from 2017, describing repairs made to the insured

property’s six building roofs due to decaying and deteriorating

condition of the membrane/underlayment and rotted plywood (Docs.

##56-3; 56-4; 100-5; 100-6); (2) testimony of the insured’s

corporate representative, William Cox, that Service Works

regularly performed work to repair roof leaks at the insured

property prior to Hurricane Irma (Doc. #100-8, p. 8); and (3) the

November 22, 2019 JS Held Storm-Focused Assessment Report which

points out “multiple examples of faulty inadequate or defective

roof construction in the form of underdriven nails and inadequate

headlap of the tiles” and cracked tile conditions from foot traffic

and golf ball strikes, both of which are unrelated to Hurricane

Irma. (Docs. ##56-5; 100-2.)

The Court finds that Defendant has identified sufficient

facts to support its first affirmative defense. Paul, 985 F. Supp.

at 1468; Meth Lab Cleanup, LLC, 2015 WL 4496193, at *7. The Court

further finds there are material disputed facts as to the origin

of the alleged damage and whether the damage to the insured

property is excluded under the Policy, precluding the grant of

summary judgment. Baby Buddies, Inc., 611 F.3d at 1314.

Plaintiff’s Motion for Partial Summary Judgment or in the

alternative, to Strike Defendant’s first affirmative defense, is

therefore denied.

B. Affirmative Defenses Two, Three and Four

Defendant’s affirmative defenses two, three, and four relate

to the Policy’s Cause of Loss – Special Form. This provision

excludes insurance coverage for any loss or damage caused by or

resulting from any of the following:

c. Faulty, inadequate or defective:

(2) Design, specifications, workmanship, repair,

construction, renovation, remodeling,

grading, compaction;

(3) Materials used in repair, construction,

renovation or remodeling;

(4) Maintenance.

(Doc. #100-1, p. 54; Doc. #39, pp. 5-7; Doc. #56, pp. 7-9.) The

affirmative defenses assert that the portion of plaintiff’s

damages due to faulty or defective conditions are not covered by

the Policy. (Doc. #39, pp. 5-7.)

Plaintiff argues there is no factual support to show any

claimed damages are due to faulty, inadequate, or defective repairs

since Defendant’s November 22, 2019 JS Held report states “repairs

conducted to the field of the roofs appeared to have been

implemented properly.” (Doc. #52, p. 8; Doc. #97, p. 8; Doc. #56-

5, p. 2.) Plaintiff also argues that Defendant’s experts failed to

identify any inadequate or defective materials used in the repair,

construction or remodeling, or inadequate or defective

maintenance. (Doc. #52, p. 8; Doc. #97, pp. 8-9.) In addition,

Plaintiff claims that Defendant’s expert, Mr. Staffeld, confirmed

that many of the alleged conditions listed in the second, third

and fourth affirmative defenses were not observed at the insured

property. (Id.; Doc. #97-6, pp. 20-22.)

Defendant’s position is that the insured property’s excessive

“uplift” condition on the roof, which Plaintiff claims caused

damages during Hurricane Irma, is, in fact, a condition of faulty,

inadequate or defective workmanship or construction, and as such,

is not covered by the Policy. (Doc. #56, p. 7; Doc. #100, p. 7.)

Defendant asserts that a full reading of the November 2019 JS Held

report shows spot repairs were feasible, and could be made tight

and secure with the use of a polyurethane foam adhesive, but that

the “repairs ranged in quality from being readily visible due to

poorly aligned and re-set tiles or poorly broken tiles to locations

where it could not be known whether repairs were accomplished . .

.” (Doc. #56, p. 7; Doc. #56-5, p. 7.) Defendant argues that the

JS Held report also identified faulty construction of the roof,

such as systematically under-driven fasteners (nails) that allowed

for “excessive lift” of more than two inches. (Doc. #56, pp. 6-7;

Doc. #56-5, pp. 5-6.)

Additionally, Defendant argues that Plaintiff’s own expert,

Mr. Joseph Butler, described the pre-Hurricane Irma repairs set

forth in an August 30, 2017 Service Work invoice as “temporary”

and “very much an example of a Band-Aid. Not even the best Band-

Aid I’ve seen in a while.” (Doc. #100-9, pp. 18, 23; Doc. #56, pp.

7-8; Doc. #100, pp. 8-9.) Concerning the feasibility of repairing

even a single roof tile, Mr. Butler stated in his report that:

Any attempt to spot repair a damaged concrete tile . .

. to a pre-loss condition would likely fail due to the

fact the overlying tiles must be externally rotated to

access the existing attachment, and the overlying tile

is rigid. Even if enough axial force could be applied to

the end of the overlying tile to facilitate enough

movement to allow the existing broken tile to be

replaced, the lifting of the overlying tile would not

only jeopardize the attachment of the overlying tile, it

would also result in damage to the moisture barrier due

to rips and tears as the overlying attachment is pulled

from the sheathing.

(Doc. #100-9, p. 50; Doc. #56-7, p. 3; Doc. #56, p. 8.)

Defendant also notes that Mr. Butler criticized the materials

used to repair or maintain the insured property, stating that:

Most of the ones [roof tiles] I found on the roofs, they

took what I would describe as Liquid Nails—a caulk gun

of adhesive—and put adhesive on the joints. The joints

are supposed to move and expand and contract, so that’s

really a bad thing to do. And they just slid it in there.

So they’re not attached with a nail, as they originally

were, or any kind of use of a patty.

I saw other cases they used—tried to do a mortar patty,

and they used, like, Quikrete just right out of a bucket,

and put, like, a blob of concrete. It didn’t attach.

They pick them right up.

(Doc. #100-9, p. 27; Doc. #100, p. 10.) Defendant contends that

Mr. Butler’s statements establish that the numerous pre-Hurricane

Irma spot roof repairs and maintenance performed by Service Works,

and the materials used, were faulty, inadequate or defective, and

caused damage not only at the repair spot, but necessarily caused

collateral damage to multiple overlying roof tiles and the

underlying moisture barrier, none of which is covered by the

Policy. (Doc. #56, pp. 6-9; Doc. #100, pp. 9-11.)

The Court finds genuine issues of fact exist regarding whether

there was inadequate or defective materials used in repairs of the

insured property that pre-dated any damage caused by Hurricane

Irma, and whether the repairs, construction and maintenance of the

property may have been faulty, inadequate or defective. See Scott,

550 U.S. at 380; Meth Lab Cleanup, LLC, 2015 WL 4496193, at *7.

Therefore, Plaintiff’s Motion as to the second, third, and fourth

affirmative defenses is denied.

C. Affirmative Defenses Six

The sixth affirmative defense alleges the insured violated

conditions precedent to recovery under the Policy. (Doc. #39, pp.

9-11; Doc. #56, p. 9.) Specifically, Defendant asserts that the

insured did not satisfy certain pre-loss conditions when it failed

to: (1) provide claim information and documentation; (2) submit a

timely or properly signed sworn proof of loss; and (3) provide

documents needed for the examination under oath (EUO) and appear

on the date of the scheduled EUO. (Doc. #39, pp. 10-11; Doc. #100-

1, pp. 45-46; Doc. #56, pp. 9-10; Doc. #100, pp. 11-15.) Defendant

contends that as Coronado’s assignee, Plaintiff is only entitled

to payment if Coronado has complied with its obligations under the

Policy. Defendant thus claims it owes no further amount on

Plaintiff’s claim due to Coronado’s failure to comply with the

Policy conditions. (Doc. #39, pp. 10-11.)

Plaintiff asserts that this affirmative defense is not well-

founded. Plaintiff argues Defendant has admitted that prior to

Plaintiff filing this suit on January 29, 2019, Defendant had only

made limited document requests to the insured, which did not

prejudice the adjustment of the claim3 (Doc. #52, p. 9); that

Defendant’s January 16, 2019 letter to Plaintiff’s counsel, who

did not represent the insured, is not a valid request for the

3 On July 6, 2020, the Court issued an Opinion and Order

denying Defendant’s Motion for Summary Judgment, finding that: 1)

Plaintiff failed to raise an issue of fact as to whether Defendant

waived its right to request that Coronado produce documents

relevant to the assigned claim; 2) Plaintiff, as assignee of

Coronado, is subject to the Policy’s conditions precedent to filing

suit; 3) Plaintiff failed to file the present lawsuit in accordance

with the Policy’s conditions precedent to suit given that it

initiated the action prior to Defendant’s receipt of the insured’s

sworn proof of loss and requested documents; 4) an insurer must be

prejudiced by the insured’s non-compliance with a post-loss

obligation in order for the insured to be barred from filing suit;

and 5) while no prejudice resulted when Defendant did not obtain

Coronado’s sworn proof of loss, the Court did not have sufficient

information to determine whether Defendant was prejudiced by not

receiving other documents it requested from Coronado on January

16, 2019. (Doc. #93.)

insured to produce documents or proof of loss (Doc. #97, p. 11);

that Defendant was not prejudiced when it failed to receive a sworn

proof of loss from the insured because Defendant has received

Plaintiff’s proof of loss which framed the instant claim (Id., p.

12); and that Defendant was not prejudiced regarding its request

that the insured appear for an EUO, as this was made on March 29,

2019, after Plaintiff filed suit on January 29, 2019. (Id., pp.

11-12.)

Defendant responds that on January 16, 2019, not only did it

send a letter to Plaintiff, but also to Coronado, requesting a

history of repair invoices, board meeting minutes, and other

documents that would provide information about the condition of

the insured property’s roof. (Doc. #100, p. 12.) Defendant states

that it did not receive many of the insured’s records until almost

one year after its initial request, which prejudiced Defendant

because the evidence of roof leaks, installation of non-matching

tiles, and deteriorating roof components would have substantially

affected its investigation. (Id., pp. 13-14.) Consequently,

Defendant argues it was irreversibly prejudiced because it was

unable to investigate the loss and determine the damages that pre-

existed Hurricane Irma and might be excluded under the Policy.

(Id., pp. 14-15.)

While it is undisputed that the insured belatedly produced

requested documentation, the Court finds that reasonable minds may

differ on the inferences to be drawn with respect to whether the

untimely submission prejudiced Defendant by preventing

determination of which damages are attributable to sources other

than Hurricane Irma. This precludes granting Plaintiff’s Motion

as to the sixth affirmative defense. St. Charles Foods, 198 F.3d

at 819. Accordingly, neither summary judgment nor striking the

sixth affirmative defense is appropriate.

D. Affirmative Defense Eight

In its eighth affirmative defense, Defendant points to a

Policy provision which states:

4. Loss Payment

a. In the event of loss or damage covered by this

Coverage Form, at our option, we will either:

(1) Pay the value of the lost or damaged property;

(2) Pay the cost of repairing or replacing the

lost or damaged property, subject to b. below;

(3) Take all or any part of the property at an

agreed or appraised value; or

(4) Repair, rebuild or replace the property with

other property of like kind and quality,

subject to b. below.

(Doc. #100-1, p. 46; Doc. #39, pp. 14-15.) Defendant emphasizes

that the roofs at the insured property already had tiles that did

not match from repairs made prior to Hurricane Irma.4 Because of

4 Defendant notes that the November 22, 2019 JS Held report

states “the tile roof systems as discussed above included

utilization of various colored tiles, some of which matched in

the mis-matched roof tiles, Defendant argues that replacing “the

property with other property of like kind and quality” means the

Policy does not require that the tiles used to repair the roofs

match the other tiles on the building, or that the tiles on

different buildings match the tiles of other buildings at the

insured property. (Doc. #39, p. 15.) Finally, Defendant contends

that under Vazquez v. Citizens Prop. Ins. Corp., 44 Fla. L. Weekly

D2578 (Fla. 3d DCA Oct. 23, 2019), op. withdrawn and substituted

at 45 Fla. L. Weekly D642 (Fla. 3d DCA March 18, 2020), the cost

of matching tiles is not relevant or recoverable when repairs have

not been made such that recovery is for actual cash value only.

Plaintiff argues Defendant’s eighth affirmative defense does

not address matters set forth in the Complaint, but instead

“bafflingly discusses replacing property with ‘like kind and

quality’ and whether the Policy requires installation of matching

tiles.” (Doc. #52, pp. 13-14; Doc. #97, pp. 13-14.) Plaintiff

contends Defendant also waived its assertion that “recovery is for

actual cash value only” when it provided two replacement cost value

estimates, and not actual cost value estimates. (Doc. #52, p. 14;

Doc. #97, p. 14.)

size and configuration[,] and others were slightly larger in size

and did not allow for proper sidelock integration.” (Doc. #56-5,

p. 2; Doc. #56, pp. 11-12; Doc. #100, p. 15.)

Contrary to Plaintiff’s assertion, Defendant argues that the

issue of recoverable repair costs for the insured property’s roofs

and the type of roofing tiles permitted to be used for repairs are

at the heart of this litigation. Defendant notes that Plaintiff

has relied upon Section 706.1.1 of the Florida Building Code—

Existing Buildings that states:

Not more than 25 percent of the total roof area or roof

section of any existing building or structure shall be

repaired, replaced or recovered in any 12 month period

unless the entire existing roofing system or roof

section is replaced to conform to the requirements of

this code.

(Doc. #56, p. 11; Doc. #100, p. 16.) According to Defendant,

Plaintiff’s expert concluded that all but one of the insured

property’s twenty roofs require repairs of more than 25 percent of

the roof area, which has led Plaintiff to seek total replacement

of all the roofs. (Doc. #56, p. 11; Doc. #100, p. 16.) Defendant’s

expert, however, disagrees with this assessment, finding only

between two and four percent of the roofs were damaged by Hurricane

Irma. (Id.) Defendant thus contends that it is possible a jury

will find damages from the repairs are under 25 percent and, if

so, the issue of matching may be raised. Accordingly, Defendant

asserts it has a right to preserve its arguments on this issue.

(Id.)

With respect to waiving its assertion that “recovery is for

actual cash value only,” Defendant asserts no such waiver occurred

when it requested two estimates for repairs, one pursuant to JS

Held’s scope of repairs, and the other with Plaintiff’s scope of

repairs. (Doc. #56, p. 12; Doc. #100, p. 17.) Rather, Defendant

contends it is the function of its adjusters, claims analysts, and

estimators to present the appropriate actual cash value consistent

with the terms and conditions of the Policy. (Id.)

The Court finds that Defendant has established a sufficient

nexus between its eighth affirmative defense and the allegations

of the Complaint, thus providing Plaintiff fair notice of the

grounds upon which the defense rests. PK Studios, Inc., 2016 U.S.

Dist. LEXIS 116057, at *4-5. The Complaint generally alleges that

the “Carrier has refused to pay for all covered damages to the

Insured Property, despite such payment being required by the

Policy” and in doing so, has breached the insurance contract. (Doc.

#4, pp. 2-3.) It is undeniable that “all covered damages” under

the terms of the Policy may relate to numerous conditions of the

insured property, one of which appears to be replacement of damaged

roof tiles. Given that the Policy permits Defendant, at its option,

to repair, rebuild or replace damaged property “with other property

of like kind and quality,” the Court finds this affirmative defense

applies to the Complaint, and more specifically, covered damages.

Therefore, to the extent Plaintiff is requesting the Court strike

Defendant’s eighth affirmative defense for failing to comply with

Rule 8 standards, the Court denies such a request. The Court also

finds that there is a genuine dispute as to material facts

regarding the repair or replacement of the roof tiles, and to what

extent or in what manner this would be covered under the Policy.

Lastly, the Court is unpersuaded by Plaintiff’s argument that

because Defendant provided two replacement cost value estimates,

Defendant waived its assertion that “recovery is for actual cash

value only.” Plaintiff has not cited any supporting authority for

why waiver would be warranted in this case. "A litigant who fails

to press a point by supporting it with pertinent authority, or by

showing why it is sound despite a lack of supporting authority or

in the face of contrary authority, forfeits the point.” Cent.

Transp., LLC v. Glob. Aeroleasing, LLC, No. 1:17-cv-23788-GAYLES,

2020 U.S. Dist. LEXIS 90862, at *14 (S.D. Fla. May 25, 2020)(citing

Pelfresne v. Vill. of Williams Bay, 917 F.2d 1017, 1023 (7th Cir.

1990)). Plaintiff’s Motion for Partial Summary Judgment, or

alternatively, to Strike Defendant’s eighth affirmative defense is

thus denied.

Accordingly, it is now

ORDERED:

1. Plaintiff’s Motion (Doc. #52) and Renewed Motion (Doc. #97)

for Partial Summary Judgment, or in the alternative, to Strike

Defendant’s Affirmative Defenses, are GRANTED as to numbers

9, 12 through 16, and 9, and are DENIED as to numbers 1

through 4, 6, and 8.

2. Defendant’s Affirmative Defenses 9, 12 through 16, and 19 are

STRICKEN from the Answer and Affirmative Defenses.

DONE AND ORDERED at Fort Myers, Florida, this 18th day of

December, 2020.

ff — 2, _ }

JGHH E. STEELE

5 IGOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record