Filing # 23494829 E-Filed 02/06/2015 06:32:31 PM

IN THE CIRCUIT COURT OF THE

SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
STEVEN POULOS,
Plaintiff,
Case No.: 11-23833
v.
ALLSTATE INSURANCE COMPANY,
RMK INSURANCE GROUP, INC., and
JOSE KUDJA, individually, and,
REBECCA KUDJA, individually,
Defendants.
______________________________/
ALLSTATE INSURANCE COMPANYS AMENDED
ANSWER, DEFENSES, AND AFFIRMATIVE DEFENSES
TO PLAINTIFFS THIRD AMENDED COMPLAINT
Defendant, Allstate Insurance Company (Allstate), hereby files its Amended Answer,
Defenses, and Affirmative Defenses to Plaintiffs Third Amended Complaint and states as
follows:
1.

For jurisdictional purposes only, Allstate admits that Plaintiff is seeking damages

which exceed the jurisdictional limits of this Court. However, Allstate denies that Plaintiff is
entitled to the recovery of any damages whatsoever from Allstate.
2.

Allstate is without knowledge regarding the residency of Plaintiff. Therefore,

3.

Allstate is an Illinois corporation authorized to do business in Florida. Allstate

denied.

denies that it is a citizen and resident of the State of Florida and denies that its principal place of
business is in St. Petersburg, Florida.

4.

Allstate admits that the RMK Insurance Group, Inc. (RMK) n/k/a RMK

Consulting Group is a Florida corporation doing business in Broward County, Florida. Allstate
is without knowledge of where RMK maintains its principal place of business, and so that
allegation is denied.
5.

Allstate is without knowledge regarding the residency of Jose Kudja. Therefore,

6.

Allstate is without knowledge regarding the residency of Rebecca Kudja.

denied.

Therefore, denied.
7.

Denied. Upon information and belief, Rebecca Kudja was the owner of RMK and

Jose Kudja was a licensed insurance agent for RMK.

8.

Admit.

9.

Admit.

10.

Allstate admits it provides insurance benefits all over the United States and

generally divides the country into regions. Allstate further admits it employs territorial sales
leaders, field sales leaders, and other employees in the regions. Otherwise denied.
11.

Allstate admits it has designated the state of Florida as a region. Otherwise

12.

Admit.

13.

Admit.

14.

Denied.

15.

Allstate admits the activities of Kudja/RMK were subject to written guidelines

denied.

and policies as promulgated by Allstate and were otherwise subject to examination,

investigation, and review by Allstate. Otherwise denied.

16.

Allstate admits it employs territorial sales leaders, field sales leaders, and human

resource personnel in the Florida region. Otherwise denied.

17.

Denied.

18.

Allstate admits a territorial sales leader notified RMK of its termination.

Otherwise denied.
19.

Denied.

20.

Richard Cairns, Mariano Reis, Bill Ayo, Mike Sheely, and Olga Otero were

involved in the process or signed off on the approval of Poulos as an Allstate agent. Otherwise
denied.
21.

Admit.

22.

Allstate admits that a compliance analyst identified documentary anomalies that

he believed indicated that someone at RMK was manipulating credit checks by omitting certain
information or inputting wrong information so Allstates system would return a more favorable
insurance score for a potential insured. If done intentionally this could be for the purpose of
obtaining lower premiums for potential insureds. Otherwise denied.
23.

Admit.

24.

Allstate admits that on January 9, 2009, Allstates analyst recommended that

RMK/Kudja be referred to corporate security for immediate investigation because the analyst
discovered approximately twelve (12) misrated insurance policies that were issued within a three
month period. Otherwise denied.
25.

Allstate admits the compliance analyst wrote in an email that he was worried

RMKs actions may impact Allstates brand. Otherwise denied.

26.

Allstate admits that, in an email, Olga Otero advised the compliance analyst that

the agency was referred to corporate security, and that she had spoken with the corporate security
manager who would ensure the case was given priority. Otherwise denied.
27.

Allstate admits the investigation was not completed by corporate security for

more than one year after the referral. Otherwise denied, including Plaintiffs characterization of
the facts.
28.

A compliance analyst did additional reviews of RMK for falsification of

company documents during a time period of more than one year. This allegation is unclear as to
the person referenced and whether it is referring to the compliance review or the corporate
security investigation, so therefore is otherwise denied.
29.

Allstate admits that the compliance analyst suspected more than 100 insurance

policies were bound by RMK from September 2008 June 2009 and January 2010 March
2010 which involved some falsification of company documents. Otherwise denied.
30.

Denied.

31.

Denied.

32.

Allstate admits the compliance analyst referred to above reviewed only new

business issued by RMK from September 2008 through June 2009 and January 2010 through
March 2010. Otherwise denied.
33.

Allstate admits the compliance analyst also identified changes in the bodily injury

limits of insurance policies and personal information of potential insureds. While some of the
discrepancies may have been due to mistakes or errors, it appeared that RMK engaged in the
activity in order to obtain lower premiums for potential insureds. Otherwise denied, including
Plaintiffs characterization of the facts.

34.

Allstate admits that the compliance analyst continued to examine the activities of

RMK and some employees were given updates about RMKs activities. Allstate further admits
that the compliance analyst updated Olga Otero and, on one occasion, Bill Ayo about RMKs
activities. Otherwise denied, including Plaintiffs characterization of the facts.
35.

Allstate admits that the determination to involuntarily terminate RMK was made

about 18 months after the compliance analyst first began reviewing RMK for compliance issues.
Otherwise denied, including Plaintiffs characterization of the facts.
36.

Allstate admits that, on August 4, 2010, a territorial sales leader, Richard Cairns

personally delivered an involuntary termination letter to Jose Kudja/RMK. Otherwise denied.

37.

Allstate does not know what Plaintiff intends all times material hereto to mean,

but Allstate admits that at different points in time Olga Otero, Bill Ayo, Mike Sheely, Richard
Cairns, and Mariano Reis became aware of the involuntary termination of RMK. Otherwise
denied, including Plaintiffs characterization of the facts.
38.

Allstate admits that Richard Cairns advised Jose Kudja that, pursuant to his

independent contractor agreement with Allstate, Kudja had the option of selling the economic
interest in his book of business or electing to receive a termination payment from Allstate.
Otherwise denied, including Plaintiffs characterization of the facts.
39.

Allstate admits that some Allstate employees, including field sales leaders and

territorial sales leaders, recruit individuals to become Allstate Exclusive Agents. Otherwise
denied.
40.

Allstate admits that some employees are eligible to receive increased

compensation for reaching certain goals, including production goals and appointment plans,

which differ significantly from year to year. Due to such variability and the lack of specificity of
the allegation, it is otherwise denied.
41.

Allstate admits that one of the goals for some Allstate employees in Florida in

2010 was to have a certain number of agents appointed, either as scratch agents or buyers of a
book of business. Otherwise denied.
42.

Denied.

43.

Allstate denies that Poulos was employed on or about June 9, 2010. Otherwise

admitted.
44.

Admit.

45.

Without knowledge, therefore denied.

46.

Denied.

47.

Allstate admits that in August 2010 Poulos met with Laura Kaplan, a field sales

leader in South Florida, and she provided him with a list of four people, including Jose Kudja,
who were selling their books of business. Otherwise denied.
48.

Allstate admits that the involuntary termination of RMK was one of the reasons

why Jose Kudja decided to sell the agencys economic interest in RMKs book of business in
August 2010. Otherwise denied.
49.

Denied.

50.

Denied.

51.

Denied.

52.

This paragraph states a legal conclusion which is incorrect, but for which no

response is required. To the extent a response is required, denied.

53.

Allstate admits it did not disclose to Poulos information referenced in

subparagraphs B, C, and D. Otherwise denied, including the remaining subparagraphs.

54.

Denied.

55.

Denied.

56.

Allstate admits that Plaintiff requested from different Allstate employees: reports

that showed the income of RMK with respect to the Allstate book; the number of policies in nonrenewal status and scheduled for non-renewal; the percentage of 10/20 policies in the book;
whether policies were being cross-sold or poached; and whether there was anything regarding
the agency that would prohibit it from being approved for financing by Allstate Bank. Otherwise
denied.
57.

Denied.

58.

Without knowledge, therefore denied.

59.

Denied.

60.

Denied.

61.

Denied.

62.

Allstate admits that Poulos expressed concerns relating to other agencies servicing

and allegedly poaching policies within the book of business. Otherwise denied.
63.

Allstate admits that on November 22, 2010, Richard Cairns, a territorial sales

leader in Florida, and some other Allstate employees knew that Jose Kudjas independent
contractor agreement with Allstate had been terminated for falsification of company documents.
Otherwise denied, including Plaintiffs characterization of the facts.
64.

Allstate admits that Richard Cairns knew that Kudja had previously given

permission to share reports relating to RMKs book of business. Otherwise denied.

65.

Denied.

66.

Without knowledge, therefore denied.

67.

Denied.

68.

Denied.

69.

Denied.

70.

Denied.

71.

Denied.

72.

Denied.

73.

Denied.

74.

Denied.

75.

Without knowledge, therefore denied.

76.

Allstate adopts its responses to paragraphs 1 through 75.

77.

Denied.

78.

Denied.

79.

Denied.

80.

Denied.

81.

Denied.

82.

Denied.

83.

Allstate adopts its responses to paragraphs 1 through 75.

84.

Denied.

85.

Denied.

86.

Denied.

87.

Denied.

88.

Denied.

89.

Allstate adopts its responses to paragraphs 1 through 75.

90.

Denied.

91.

Denied.

92.

Denied.

93.

Denied.

94.

Counts IV, V, and VI of Plaintiffs Third Amended Complaint, paragraphs 94

through 124, assert claims against other parties and, therefore, no response is required from
Allstate. However, Allstate denies any allegations contained therein regarding Allstate.
95.

Unless admitted herein, Allstate specifically and severally denies each and every

remaining allegation set forth in the Third Amended Complaint, including the ad damnum
clauses, and demands strict proof thereof.
DEFENSES AND AFFIRMATIVE DEFENSES
By way of defenses and/or affirmative defenses, and without assuming the burden of
proof which it would not otherwise have, Allstate states:
1.

Plaintiffs Third Amended Complaint fails to state a cause of action against

Allstate under Florida law. For example, as to Counts I and II, Plaintiff does not specifically
identify Allstates alleged misrepresentations or omissions of material fact, nor the time, place, or
manner in which they were made. Plaintiff also failed to make any allegations of specific,
ultimate facts regarding his alleged damages or that Allstates conduct caused his alleged
damages. For further example, with respect to Count III, Plaintiff does not allege sufficient facts
to support his conclusory allegation that Allstate fostered a position of trust with Poulos or that
Allstate breached a fiduciary duty to Poulos.

2.

Allstate is not liable to Plaintiff for his claimed damages, as such damages were

not proximately or legally caused by Allstate.

3.

Some or all of Plaintiffs claimed damages are too speculative to be recoverable.

4.

There is no causal relation between the alleged conversations described in the

Third Amended Complaint between Plaintiff and various Allstate personnel and Plaintiffs
alleged damages.
5.

Allstate made no fraudulent or negligent misrepresentations to Plaintiff.

6.

Counts I and II of the Third Amended Complaint are barred because Plaintiff did

not and could not have justifiably relied on the alleged misrepresentations of Allstate.
7.

Plaintiff is barred from any possible recovery, and any liability is hereby denied,

because Plaintiff failed to exercise due diligence in the conduct of his own affairs.
8.

In connection with Plaintiffs purchase of the RMK Agencys book of business,

Allstate owed no duty to Plaintiff to disclose any information to Plaintiff about the RMK
Agencys book of business.
9.

Plaintiffs claims are barred, in whole or in part, by his voluntary assumption of

the risk.
10.

Allstate and Plaintiff did not maintain a fiduciary relationship.

11.

Allstate exercised that care and competence which its business requires.

12.

Allstate employees exercised reasonable care and competence in communicating

information to Plaintiff so that it could be understood by him.

13.

Allstate employees exercised reasonable care and competence to ascertain the

facts on which their statements to Plaintiff were based.

10

14.

Plaintiff has failed to take reasonable steps under the circumstances to mitigate its

damages, and any damages awarded to Plaintiff herein should be reduced to the extent they could
have been avoided through such reasonable mitigation efforts.
15.

Plaintiff's claimed damages were the result of and attributable to the negligence,

fault, or other action or conduct of Plaintiff. Such negligence, fault or other action or conduct
bars any recovery by Plaintiff against Allstate. In the alternative, any damages or claims asserted
against Allstate should be barred or proportionately reduced by the negligence, fault, and/or
other action or conduct of the Plaintiff.
16.

Although liability to Plaintiff is expressly denied, any liability found on the part

of Allstate and any damages awarded in favor of Plaintiff are subject to comparative fault under
Florida law, and Allstate cannot be liable for more than its proportionate share of any damages
awarded.
17.

Pursuant to Fabre v. Mann, 623 So. 2d 1182 (Fla. 1993), any damages awarded to

Plaintiff are subject to apportionment by the jury of the total fault of all persons or entities who
contributed to causing the damages, including RMK Insurance Group, Inc., Jose Kudja, Rebecca
Kudja, Vanessa Parent, and John Chaupis.
18.

Allstate is entitled to a setoff for all sums of money by settlement, judgment, or

otherwise that Plaintiff is entitled to, entered into, and/or received from any party or non-party to
this action.
19.

Allstate is entitled to a setoff of the amount equal to any and all payments or

benefits received by Plaintiff from any and all collateral sources.

20.

Plaintiffs claims are barred by the doctrine of unclean hands.

11

21.

Plaintiff has failed to state a proper basis for recovery of punitive damages

pursuant to Florida Statutes Section 768.72(2) or 768.72(3).

22.

Plaintiffs claims for punitive damages are not warranted under applicable law,

and, if imposed, would violate Allstates constitutional rights under the United States
Constitution and the Constitution of the State of Florida, and would be improper under the
common law and public policies of Florida.
23.

Plaintiffs claim for punitive damages cannot be maintained unless the trial is

bifurcated. Any award of punitive damages without bifurcating the trial and after liability on the
merits has been found would violate Allstates due process rights guaranteed by the Fourteenth
Amendment to the United States Constitution and by Floridas Constitution and would be
improper under the common law and public policies of Florida.
24.

Plaintiffs claim for punitive damages cannot be maintained, because an award of

punitive damages would be void for vagueness, both facially and as applied, as a result of,
among other things, the absence of adequate notice of what conduct is subject to punishment, the
absence of adequate notice of what punishment may be imposed, and the absence of a
predetermined limit, such as a maximum multiple of compensatory damages or a maximum on
the amount of punitive damages that a jury may impose, all in violation of the due process clause
of the Fourteenth Amendment to the United States Constitution and by Floridas Constitution,
and the common law and public policies of Florida.
25.

Plaintiffs claims for punitive damages cannot be maintained, because any award

of punitive damages under applicable law would be by a jury that (1) is not provided standards of
sufficient clarity for determining the appropriateness, and the appropriate size, of a punitive
damages award, (2) is not adequately instructed on the limits of punitive damages imposed by

12

the applicable principles of deterrence and punishment, (3) is not expressly prohibited from
awarding punitive damages, or determining the amount of an award of punitive damages, in
whole or in part, on the basis of invidiously discriminatory characteristics, including the
residence, wealth, and corporate status of Allstate, (4) is permitted to award punitive damages
under a standard for determining liability for punitive damages that is vague and arbitrary and
does not define with sufficient clarity the conduct or mental state that makes punitive damages
permissible, and (5) is not subject to adequate trial court and appellate judicial review for
reasonableness and furtherance of legitimate purposes on the basis of objective standards. Any
such verdict would violate Allstates due process rights guaranteed by the Fourteenth
Amendment to the United States Constitution and by the due process and equal protection
provisions of the Florida Constitution, and would be improper under the common law and public
policies of Florida.
26.

Allstate is not liable for punitive damages, because Plaintiff cannot establish,

based on clear and convincing evidence, that any Allstate employee was personally guilty of
intentional misconduct or gross negligence.
27.

Allstate is not liable for punitive damages, because Allstate did not actively or

knowingly participate in any intentional misconduct or gross negligence.

28.

Allstate is not liable for punitive damages, because no officers, directors, or

managers of Allstate knowingly condoned, ratified, or consented to any intentional misconduct

or gross negligence of any Allstate employee.
29.

Allstate is not liable for punitive damages, because Allstate did not engage in

conduct that constituted gross negligence and that contributed to the loss, damages, or injury
alleged by Plaintiff.

13

Allstate expressly reserves all other defenses and affirmative defenses, as well as the right
to amend its Answer to add any additional defenses or affirmative defenses that may become
known during discovery.
WHEREFORE, Defendant, Allstate Insurance Company, demands a trial by jury of all
issues so triable and a judgment in its favor on all charges and allegations set forth in Plaintiffs
Third Amended Complaint.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by e-mail to
Adam

G.

Rabinowitz,

Esquire

at

arabinowitz@broadandcassel.com

and

slbrown@broadandcassel.com (Counsel for Plaintiff) and Sean L. Collin, Esquire and Philip
M. Snyder, Esquire at family_civil@lyonssnyder.com and sean@lyonssnyder.com, (Counsel
for Defendants, RMK Insurance Group, Inc., n/k/a RMK Consulting Group, Jose Kudja and
Rebecca Kudja) this 6th day of February, 2015.

14

s/ Brett M. Carey
LORI J. CALDWELL
Florida Bar No. 0268674
E-mail: lcaldwell@rumberger.com (primary)
E-mail: docketingorlando@rumberger.com and
lcaldwellsecy@rumberger.com (secondary)
BRETT M. CAREY
Florida Bar No. 0091355
E-mail: bcarey@rumberger.com (primary)
E-mail: docketingorlando@rumberger.com and
bcareysecy@rumberger.com (secondary)
RUMBERGER, KIRK & CALDWELL
A Professional Association
Lincoln Plaza, Suite 1400
300 South Orange Avenue (32801)
Post Office Box 1873
Orlando, Florida 32802-1873
Telephone: (407) 872-7300
Telecopier: (407) 841-2133
Attorneys for Defendant, Allstate Insurance Company

7506677.1

15