26
Fla. L. Weekly Fed. D57aTop of Form
Fla. L. Weekly Fed. D57aTop of Form
Insurance
— Uninsured motorist — Bad faith failure to settle — Count asserting claim
for UM benefits against insurer is ambiguous and must be clarified where it is
unclear whether insured is attempting to assert a claim “pursuant to” insurance
contract for a determination of entitlement to and amount of damages, or a
claim for breach of contract for failure to pay benefits currently owed, or
both — Count asserting bad faith claim against insurer is premature where
claim for contractual UM benefits is unresolved — Dismissal without prejudice,
rather than abatement, is appropriate under circumstances — Count requesting
declaratory judgment as to damages arising from accident dismissed, as there is
no current and definite controversy before the court
— Uninsured motorist — Bad faith failure to settle — Count asserting claim
for UM benefits against insurer is ambiguous and must be clarified where it is
unclear whether insured is attempting to assert a claim “pursuant to” insurance
contract for a determination of entitlement to and amount of damages, or a
claim for breach of contract for failure to pay benefits currently owed, or
both — Count asserting bad faith claim against insurer is premature where
claim for contractual UM benefits is unresolved — Dismissal without prejudice,
rather than abatement, is appropriate under circumstances — Count requesting
declaratory judgment as to damages arising from accident dismissed, as there is
no current and definite controversy before the court
LAURA
MANN, Plaintiff, v. STEVEN GREGORY TAYLOR, and ALLSTATE INSURANCE COMPANY,
Defendants. U.S. District Court, Northern District of Florida, Panama City
Division. Case No. 5:15-cv-7-RS-GRJ. February 5, 2015. Richard Smoak, Judge.
MANN, Plaintiff, v. STEVEN GREGORY TAYLOR, and ALLSTATE INSURANCE COMPANY,
Defendants. U.S. District Court, Northern District of Florida, Panama City
Division. Case No. 5:15-cv-7-RS-GRJ. February 5, 2015. Richard Smoak, Judge.
ORDER
Before
me are Defendant Allstate Insurance Company’s Amended Motion to Dismiss Counts
II, III, and IV of Plaintiff’s Complaint (Doc. 6) and Plaintiff’s Response to
Allstate’s Amended Motion to Dismiss Counts II, III, and IV.
me are Defendant Allstate Insurance Company’s Amended Motion to Dismiss Counts
II, III, and IV of Plaintiff’s Complaint (Doc. 6) and Plaintiff’s Response to
Allstate’s Amended Motion to Dismiss Counts II, III, and IV.
Plaintiff
Laura Mann suffered injuries in a car accident allegedly caused by Defendant
Steven Gregory Taylor. She sued Taylor for negligence and also sued her
insurer, Allstate, claiming uninsured motorist benefits, failure to settle in
good faith, and a declaratory judgment. Allstate moves to dismiss her
complaint.
Laura Mann suffered injuries in a car accident allegedly caused by Defendant
Steven Gregory Taylor. She sued Taylor for negligence and also sued her
insurer, Allstate, claiming uninsured motorist benefits, failure to settle in
good faith, and a declaratory judgment. Allstate moves to dismiss her
complaint.
After
review, I find (1) that Mann’s claim for uninsured motorist benefits is
ambiguous and must be clarified; (2) that Mann’s claim for failure to settle in
good faith is premature and should be dismissed without prejudice; and (3) that
Mann’s claim for a declaratory judgment is improper and must be denied.
Allstate’s motion is therefore granted.
review, I find (1) that Mann’s claim for uninsured motorist benefits is
ambiguous and must be clarified; (2) that Mann’s claim for failure to settle in
good faith is premature and should be dismissed without prejudice; and (3) that
Mann’s claim for a declaratory judgment is improper and must be denied.
Allstate’s motion is therefore granted.
I. STANDARD
OF REVIEW
OF REVIEW
To
overcome a motion to dismiss, a plaintiff must allege sufficient facts to state
a claim for relief that is plausible on its face. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) [20 Fla. L. Weekly Fed. S267a]. Granting a motion
to dismiss is appropriate if it is clear that no relief could be granted under
any set of facts that could be proven consistent with the allegations of the
complaint. Hishon v. King & Spalding, 467 U.S. 69, 104 S. Ct. 2229,
2232 (1984). I must construe all allegations in the complaint as true and in
the light most favorable to the plaintiff. Shands Teaching Hosp. and
Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir. 2000)
(citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir.
1999)).
overcome a motion to dismiss, a plaintiff must allege sufficient facts to state
a claim for relief that is plausible on its face. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) [20 Fla. L. Weekly Fed. S267a]. Granting a motion
to dismiss is appropriate if it is clear that no relief could be granted under
any set of facts that could be proven consistent with the allegations of the
complaint. Hishon v. King & Spalding, 467 U.S. 69, 104 S. Ct. 2229,
2232 (1984). I must construe all allegations in the complaint as true and in
the light most favorable to the plaintiff. Shands Teaching Hosp. and
Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir. 2000)
(citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir.
1999)).
II.
BACKGROUND
BACKGROUND
The
facts alleged in the complaint appear straightforward.
facts alleged in the complaint appear straightforward.
Plaintiff
Laura Mann alleges that on August 16, 2012, she was involved in a car accident
negligently caused by Defendant Steven Gregory Taylor. (Doc. 1-1 at 2). Mann
also alleges that her insurer, Allstate, did not pay her the uninsured motorist
(“UM”) benefits that she is entitled to on account of the accident. (Id. at
3).
Laura Mann alleges that on August 16, 2012, she was involved in a car accident
negligently caused by Defendant Steven Gregory Taylor. (Doc. 1-1 at 2). Mann
also alleges that her insurer, Allstate, did not pay her the uninsured motorist
(“UM”) benefits that she is entitled to on account of the accident. (Id. at
3).
Mann
filed suit against Taylor and Allstate in state court. She sues Taylor for
negligence (Count I) and Allstate for uninsured motorist benefits (Count II),
for failure to settle her claim in good faith in violation of Fla. Stat. §
624.166 (Count III), and for a declaratory judgment determining the liability,
causation, and amount of damages suffered in her accident (Count IV).
filed suit against Taylor and Allstate in state court. She sues Taylor for
negligence (Count I) and Allstate for uninsured motorist benefits (Count II),
for failure to settle her claim in good faith in violation of Fla. Stat. §
624.166 (Count III), and for a declaratory judgment determining the liability,
causation, and amount of damages suffered in her accident (Count IV).
Defendants
properly removed to this court on the basis of diversity jurisdiction. Allstate
now moves to dismiss the claims against it — Counts II, III, and IV — or to
strike certain claims and allegations in the complaint.
properly removed to this court on the basis of diversity jurisdiction. Allstate
now moves to dismiss the claims against it — Counts II, III, and IV — or to
strike certain claims and allegations in the complaint.
III.
ANALYSIS
ANALYSIS
a.
Uninsured Motorist Benefits (Count II)
Uninsured Motorist Benefits (Count II)
Allstate
argues that Mann’s UM benefits claim should be denied for failure to state a
claim, or in the alternative, to strike two paragraphs from the complaint.
argues that Mann’s UM benefits claim should be denied for failure to state a
claim, or in the alternative, to strike two paragraphs from the complaint.
An
injured insured may bring a direct action against her own UM carrier without
having first resolved a claim against the tortfeasor. Neff v. Prop. &
Cas. Ins. Co. of Hartford, 133 So. 3d 530, 532 (Fla. 2d DCA 2013) [38 Fla.
L. Weekly D2455c]. However, such actions are typically brought as actions “on
the insurance contract to determine their entitlement to and amount of
damages.” Curtis v. Tower Hill Prime Ins. Co., No. 2D13-689, 2015 WL
159254, at *2 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D209a]. These actions are
not actions for a breach of contract; rather, they are actions “filed pursuant
to the contract.” Geico Gen. Ins. Co. v. Graci, 849 So. 2d 1196, 1199
(Fla. 4th DCA 2003) [28 Fla. L. Weekly D1710a]. See also Mercury Ins. Co. of
Florida v. Moreta, 957 So. 2d 1242, 1252 (Fla. Dist. Ct. App. 2007) [32
Fla. L. Weekly D1146b] (finding that it was improper in an action for
determination of damages to argue to the jury that insurer breached the
contract).
injured insured may bring a direct action against her own UM carrier without
having first resolved a claim against the tortfeasor. Neff v. Prop. &
Cas. Ins. Co. of Hartford, 133 So. 3d 530, 532 (Fla. 2d DCA 2013) [38 Fla.
L. Weekly D2455c]. However, such actions are typically brought as actions “on
the insurance contract to determine their entitlement to and amount of
damages.” Curtis v. Tower Hill Prime Ins. Co., No. 2D13-689, 2015 WL
159254, at *2 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D209a]. These actions are
not actions for a breach of contract; rather, they are actions “filed pursuant
to the contract.” Geico Gen. Ins. Co. v. Graci, 849 So. 2d 1196, 1199
(Fla. 4th DCA 2003) [28 Fla. L. Weekly D1710a]. See also Mercury Ins. Co. of
Florida v. Moreta, 957 So. 2d 1242, 1252 (Fla. Dist. Ct. App. 2007) [32
Fla. L. Weekly D1146b] (finding that it was improper in an action for
determination of damages to argue to the jury that insurer breached the
contract).
Allstate
concedes that an action to determine entitlement and damages would be properly
before this court, (Doc. 6 at 6), but argues that the complaint should be
dismissed because Mann does not allege any breach of the contract, since
Allstate is not obliged to make any payments until entitlement to and amount of
damages have been determined.
concedes that an action to determine entitlement and damages would be properly
before this court, (Doc. 6 at 6), but argues that the complaint should be
dismissed because Mann does not allege any breach of the contract, since
Allstate is not obliged to make any payments until entitlement to and amount of
damages have been determined.
It
is not clear, however, what cause of action Mann is attempting to assert in
Count II. The claim is titled “Uninsured Motorist Benefits,” but it contains
allegations that Allstate “refused to honor its contractual obligations.” (Doc.
1-1 at 3). Further, in its Memorandum of Law, Mann relies on Neff — a
case that dealt with a determination claim — but also specifically argues that
its allegations of breach of contract are proper and should not be struck from
the record. (Doc. 9 at 2, 4). Mann also admits that Allstate has not denied
coverage. (Id. at 11).
is not clear, however, what cause of action Mann is attempting to assert in
Count II. The claim is titled “Uninsured Motorist Benefits,” but it contains
allegations that Allstate “refused to honor its contractual obligations.” (Doc.
1-1 at 3). Further, in its Memorandum of Law, Mann relies on Neff — a
case that dealt with a determination claim — but also specifically argues that
its allegations of breach of contract are proper and should not be struck from
the record. (Doc. 9 at 2, 4). Mann also admits that Allstate has not denied
coverage. (Id. at 11).
It
thus appears ambiguous whether Mann is attempting to assert a claim “pursuant
to” the contract for a determination of entitlement to and amount of damages,
or a claim for breach of contract for failure to pay benefits which it is
currently owed, or both. If it is only a claim pursuant to the contract, it is
unclear why Mann would allege that Allstate has not honored its contractual
obligations.
thus appears ambiguous whether Mann is attempting to assert a claim “pursuant
to” the contract for a determination of entitlement to and amount of damages,
or a claim for breach of contract for failure to pay benefits which it is
currently owed, or both. If it is only a claim pursuant to the contract, it is
unclear why Mann would allege that Allstate has not honored its contractual
obligations.
Count
II is therefore not pled sufficiently and clearly enough to put Allstate “on
notice as to the nature of the claim against [it] and the relief sought.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 574, 127 S. Ct. 1955, 1976, 167 L. Ed.
2d 929 (2007) [20 Fla. L. Weekly Fed. S267a]. It is dismissed with leave to amend
to more clearly state what cause(s) of action Mann intends to bring against
Allstate.
II is therefore not pled sufficiently and clearly enough to put Allstate “on
notice as to the nature of the claim against [it] and the relief sought.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 574, 127 S. Ct. 1955, 1976, 167 L. Ed.
2d 929 (2007) [20 Fla. L. Weekly Fed. S267a]. It is dismissed with leave to amend
to more clearly state what cause(s) of action Mann intends to bring against
Allstate.
Mann
should also take this opportunity to remove her request for attorneys’ fees in
Count II, which she admits is improper.
should also take this opportunity to remove her request for attorneys’ fees in
Count II, which she admits is improper.
b.
Failure to Settle in Good Faith (Count III)
Failure to Settle in Good Faith (Count III)
Allstate
next argues that Mann’s bad faith claim should be dismissed as premature,
dismissed for failure to state a claim, and dismissed for failure to comply
with administrative prerequisites. Mann concedes that the claim is premature,
but argues that the proper remedy is abatement, rather than dismissal. Because
the claim is undisputedly premature, there is no reason to address any motion
to dismiss it on any other ground at this time.
next argues that Mann’s bad faith claim should be dismissed as premature,
dismissed for failure to state a claim, and dismissed for failure to comply
with administrative prerequisites. Mann concedes that the claim is premature,
but argues that the proper remedy is abatement, rather than dismissal. Because
the claim is undisputedly premature, there is no reason to address any motion
to dismiss it on any other ground at this time.
An
insured’s claim against an uninsured motorist carrier for failing to settle the
claim in good faith does not accrue before the conclusion of the underlying
litigation for the contractual uninsured motorist insurance benefits. Blanchard
v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289, 1291 (Fla. 1991). When
a plaintiff does not and cannot allege that there has been a final
determination of both the insurer’s liability and the amount of damages owed by
the insurer, the plaintiff’s bad faith claim is premature and should be either
dismissed without prejudice or abated. State Farm Mut. Auto. Ins. Co. v.
O’Hearn, 975 So. 2d 633, 635-36 (Fla. 2d DCA 2008) [33 Fla. L. Weekly
D708a]. The decision of whether to abate or dismiss without prejudice rests in
the sound discretion of the trial court. Shapiro v. Gov’t Employees Ins. Co.,
No. 14-CIV-62792, 2015 WL 127897, at *2 (S.D. Fla. Jan. 8, 2015) [26 Fla. L.
Weekly Fed. D34a], citing Vanguard Fire & Cas. Co. v. Golmon, 955
So.2d 591, 595 (Fla. 1st DCA 2006).
insured’s claim against an uninsured motorist carrier for failing to settle the
claim in good faith does not accrue before the conclusion of the underlying
litigation for the contractual uninsured motorist insurance benefits. Blanchard
v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289, 1291 (Fla. 1991). When
a plaintiff does not and cannot allege that there has been a final
determination of both the insurer’s liability and the amount of damages owed by
the insurer, the plaintiff’s bad faith claim is premature and should be either
dismissed without prejudice or abated. State Farm Mut. Auto. Ins. Co. v.
O’Hearn, 975 So. 2d 633, 635-36 (Fla. 2d DCA 2008) [33 Fla. L. Weekly
D708a]. The decision of whether to abate or dismiss without prejudice rests in
the sound discretion of the trial court. Shapiro v. Gov’t Employees Ins. Co.,
No. 14-CIV-62792, 2015 WL 127897, at *2 (S.D. Fla. Jan. 8, 2015) [26 Fla. L.
Weekly Fed. D34a], citing Vanguard Fire & Cas. Co. v. Golmon, 955
So.2d 591, 595 (Fla. 1st DCA 2006).
Courts
deciding procedurally similar claims have recently both dismissed and abated
them. See, e.g., Lawton-Davis v. State Farm Mut. Auto. Ins. Co.,
No. 6:14-CV-1157-ORL-37, 2014 WL 6674458, at *3 (M.D. Fla. Nov. 24, 2014) [26
Fla. L. Weekly Fed. D50a] (abating); Gianassi v. State Farm Mut. Auto. Ins.
Co., No. 6:14-CV-1078-ORL-31, 2014 WL 4999443, at *3 (M.D. Fla. Oct. 7,
2014) (abating); Duke’s Steakhouse, Inc. v. Certain Interested Underwriters
at Lloyd’s London Subscribing to Policy Nos. L10829 & L13105, No.
8:11-CV-1324-T-24EAJ, 2011 WL 4376788, at *2 (M.D. Fla. Sept. 6, 2011)
(dismissing); Wells v. State Farm Mut. Auto. Ins. Co., No.
8:13-CV-02355-T-27, 2014 WL 3819436, at *1 (M.D. Fla. Mar. 18, 2014)
(dismissing).
deciding procedurally similar claims have recently both dismissed and abated
them. See, e.g., Lawton-Davis v. State Farm Mut. Auto. Ins. Co.,
No. 6:14-CV-1157-ORL-37, 2014 WL 6674458, at *3 (M.D. Fla. Nov. 24, 2014) [26
Fla. L. Weekly Fed. D50a] (abating); Gianassi v. State Farm Mut. Auto. Ins.
Co., No. 6:14-CV-1078-ORL-31, 2014 WL 4999443, at *3 (M.D. Fla. Oct. 7,
2014) (abating); Duke’s Steakhouse, Inc. v. Certain Interested Underwriters
at Lloyd’s London Subscribing to Policy Nos. L10829 & L13105, No.
8:11-CV-1324-T-24EAJ, 2011 WL 4376788, at *2 (M.D. Fla. Sept. 6, 2011)
(dismissing); Wells v. State Farm Mut. Auto. Ins. Co., No.
8:13-CV-02355-T-27, 2014 WL 3819436, at *1 (M.D. Fla. Mar. 18, 2014)
(dismissing).
In
the exercise of my discretion, I choose to dismiss, rather than abate, the
claim. In order to conserve judicial resources, Mann has leave to amend her
Complaint to add such a claim within 90 days after the claim ripens, if it
ripens at all.
the exercise of my discretion, I choose to dismiss, rather than abate, the
claim. In order to conserve judicial resources, Mann has leave to amend her
Complaint to add such a claim within 90 days after the claim ripens, if it
ripens at all.
c.
Declaratory Judgment (Count IV)
Declaratory Judgment (Count IV)
Allstate
next argues that Mann’s request for a declaratory judgment as to damages arising
from the accident should be dismissed, because there is not a current case or
controversy. Mann counters that a declaratory judgment would conserve a great
amount of judicial resources in a future bad-faith action, if such action
eventually accrues. The parties seem to agree that the declaratory judgment
would only serve the purpose of aiding in a future bad-faith action, which may
or may not eventually arise.
next argues that Mann’s request for a declaratory judgment as to damages arising
from the accident should be dismissed, because there is not a current case or
controversy. Mann counters that a declaratory judgment would conserve a great
amount of judicial resources in a future bad-faith action, if such action
eventually accrues. The parties seem to agree that the declaratory judgment
would only serve the purpose of aiding in a future bad-faith action, which may
or may not eventually arise.
Several
courts have recently addressed this exact issue. A majority have found that
declaratory judgment is not appropriate. See, e.g., Gianassi, 2014 WL
4999443, at *4; Lawton-Davis, 2014 WL 6674458, at *3; Smith v. 21st
Century Centennial Ins. Co., No. 8:14-V-2531-T-26TBM, 2014 WL 5474591, at
*1 (M.D. Fla. Oct. 29, 2014) [25 Fla. L. Weekly Fed. D52a]; Dela Cruz v.
Progressive Select Ins. Co., No. 8:14-CV-2717-T-30TGW, 2014 WL 6705414, at
*2 (M.D. Fla. Nov. 26, 2014); Shapiro v. Gov’t Employees Ins. Co., No.
14-CIV-62792, 2015 WL 127897, at *3 (S.D. Fla. Jan. 8, 2015) [26 Fla. L. Weekly
Fed. D34a].
courts have recently addressed this exact issue. A majority have found that
declaratory judgment is not appropriate. See, e.g., Gianassi, 2014 WL
4999443, at *4; Lawton-Davis, 2014 WL 6674458, at *3; Smith v. 21st
Century Centennial Ins. Co., No. 8:14-V-2531-T-26TBM, 2014 WL 5474591, at
*1 (M.D. Fla. Oct. 29, 2014) [25 Fla. L. Weekly Fed. D52a]; Dela Cruz v.
Progressive Select Ins. Co., No. 8:14-CV-2717-T-30TGW, 2014 WL 6705414, at
*2 (M.D. Fla. Nov. 26, 2014); Shapiro v. Gov’t Employees Ins. Co., No.
14-CIV-62792, 2015 WL 127897, at *3 (S.D. Fla. Jan. 8, 2015) [26 Fla. L. Weekly
Fed. D34a].
A
minority, however, have found that a declaratory judgment action is appropriate
in an effort to conserve judicial resources. See, e.g., Pici v. 21st Century
Centennial Ins. Co., No. 8:14-CV-1835-T-36TGW, 2015 WL 404250, at *2 (M.D.
Fla. Jan. 8, 2015); Leuty v. State Farm Mut. Auto. Ins. Co., 2014 U.S.
Dist. LEXIS 166046 (M.D. Fla. June 16, 2014).
minority, however, have found that a declaratory judgment action is appropriate
in an effort to conserve judicial resources. See, e.g., Pici v. 21st Century
Centennial Ins. Co., No. 8:14-CV-1835-T-36TGW, 2015 WL 404250, at *2 (M.D.
Fla. Jan. 8, 2015); Leuty v. State Farm Mut. Auto. Ins. Co., 2014 U.S.
Dist. LEXIS 166046 (M.D. Fla. June 16, 2014).
I
agree with the majority of courts to address the issue and the well-reasoned
opinion of the Gianassi court that the claim for declaratory judgment
should be dismissed. There is no current and definite controversy before the
court, as the bad faith claim may not ever accrue. Furthermore, even if a
declaration as to damages were made, that would not finally resolve a future
bad faith claim.
agree with the majority of courts to address the issue and the well-reasoned
opinion of the Gianassi court that the claim for declaratory judgment
should be dismissed. There is no current and definite controversy before the
court, as the bad faith claim may not ever accrue. Furthermore, even if a
declaration as to damages were made, that would not finally resolve a future
bad faith claim.
Mann’s
claim for declaratory judgment is therefore dismissed. As Mann cannot possibly
plead any set of facts to cure the defects in the claim, the dismissal comes
with prejudice.
claim for declaratory judgment is therefore dismissed. As Mann cannot possibly
plead any set of facts to cure the defects in the claim, the dismissal comes
with prejudice.
IV.
CONCLUSION
CONCLUSION
After
review, I find that Plaintiff’s Complaint must be dismissed on all counts. Count
II is ambiguous and must be clarified; Count III is premature; and Count IV
fails to state a claim upon which relief may be granted.
review, I find that Plaintiff’s Complaint must be dismissed on all counts. Count
II is ambiguous and must be clarified; Count III is premature; and Count IV
fails to state a claim upon which relief may be granted.
The
relief requested in Defendant Allstate Insurance Company’s Amended Motion to
Dismiss Counts II, III, and IV of Plaintiff’s Complaint (Doc. 6) is GRANTED.
Count II is DISMISSED WITHOUT PREJUDICE, with leave to amend not later than
February 20, 2015. Count III is DISMISSED WITHOUT PREJUDICE, with leave to
amend the complaint within 90 days after the claim ripens. Count IV is
DISMISSED WITH PREJUDICE.
relief requested in Defendant Allstate Insurance Company’s Amended Motion to
Dismiss Counts II, III, and IV of Plaintiff’s Complaint (Doc. 6) is GRANTED.
Count II is DISMISSED WITHOUT PREJUDICE, with leave to amend not later than
February 20, 2015. Count III is DISMISSED WITHOUT PREJUDICE, with leave to
amend the complaint within 90 days after the claim ripens. Count IV is
DISMISSED WITH PREJUDICE.
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