United States District Court, M.D. Florida, Jacksonville Division
GREAT AMERICAN ASSURANCE COMPANY, a foreign corporation, Plaintiff,
RIDE SOLUTIONS, INC. and JUSTIN WILLIAMSON, Defendants/Third Party Plaintiff BROWN AND RIDING INSURANCE SERVICES, INC. Third Party Defendant
TIMOTHY J. CORRIGAN United States District Judge.
third party insurance coverage dispute is before the Court on
Third Party Defendant Brown & Riding Insurance Services,
Inc.'s (“B&R”) Motion to Dismiss or Stay
Third Party Plaintiff's Third Party Complaint (Docs. 20,
33), to which Third Party Plaintiff Justin Williamson
responded (Doc. 21), and to which B&R replied (Doc.
September 9, 2014, Williamson, a driver for Defendant Ride
Solutions, Inc., suffered various injuries when a St. Johns
County School District bus struck his vehicle. (Doc. 29
¶ 18). Ride Solutions is a member of a not-for-profit
self-insurance fund called Florida Insurance Trust
(“FIT”), which pools and spreads the liabilities
of its group members. (Doc. 21 at 2). FIT does not provide
direct sales, but instead uses independent agents.
(Id.). B&R is the independent agent responsible
for procuring insurance coverage for Ride Solutions. After
the accident, Williamson made a claim for uninsured motorist
coverage under a Great American Alliance Insurance Company
policy issued to Ride Solutions, which provided coverage from
June 1, 2013 to June 1, 2014. (Doc. 29-1).
American denied Williamson's claim, alleging that the
policy lapsed prior to his accident and the subsequent
extension policy excluded his accident as a known loss.
Thereafter, Great American filed this declaratory judgment
action, alleging that it offered to extend its policy for an
additional thirty days from August 30, 2014 twice, but that
B&R failed to respond to the offers. (Doc. 29
¶¶ 13-16). Williamson filed a third party complaint
against B&R for negligence and breach of fiduciary duty
relating to its discussions with Great American regarding the
policy extensions. (Doc. 36). Now, B&R moves to dismiss
the third party complaint on the grounds that it is premature
and fails to state a cause of action in Count II (breach of
fiduciary duty). (Doc. 20).
STANDARD OF REVIEW
reviewing a motion to dismiss under Rule 12(b)(6), Fed. R.
Civ. P., the Court must view the allegations in the light
most favorable to the plaintiff and accept the allegations of
the complaint as true. Speaker v. U.S. Dep't of
Health & Human Servs., 623 F.3d 1371, 1379 (11th
Cir. 2010). To avoid dismissal, a complaint must contain
sufficient factual allegations to “state a claim to
relief that is plausible on its face” and “raise
a right to relief above the speculative level.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitle[ment] to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555
(alteration in original) (citations and quotation marks
moves to dismiss (or stay) Williamson's third party
complaint as premature because the Court has not yet ruled on
the underlying declaratory judgment action and decided
whether Great American owes Ride Solutions coverage. (Doc. 20
at 7). Further, the Court has yet to determine whether
Williamson is entitled to coverage under the
uninsured/underinsured motorist provision of the Great
American policy. If the Court decides that Great American
owes Williamson coverage, then he would have no claims
against insurance agent B&R.
Florida law, an insured's cause of action against an
agent for negligence does not accrue until the proceedings
against the insurer are final.” Looney v.
Protective Life Ins. Co., No. 8:07-CV-1020T-17TBM, 2007
WL 2669190, at *4 (M.D. Fla. Sept. 6, 2007) (citing
Blumberg v. USAA Casualty Ins. Co., 790 So.2d 1061
(Fla. 2001)). “The theory is that an insured claiming
that he is entitled to insurance coverage is judicially
estopped from simultaneously claiming a lack of coverage
against the agent that procured the policy on his
behalf.” Pebb Cleveland, LLC v. Fireman's Fund
Ins. Co., No. 14-81496-CIV, 2015 WL 328247, at *2 (S.D.
Fla. Jan. 23, 2015).
Williamson alleges in his Counterclaim to the underlying
action that he is entitled to coverage under the Great
American policy. (Doc. 36 at 8-11 ¶¶ 1-21). If he
is successful, then he is covered under the policy and will
have suffered no damages due to any alleged negligence of
B&R. Conversely, if he loses the case against Great
American, then he will have suffered damages and may file a
lawsuit against B&R.
Williamson claims to have already suffered damages in the
form of having to defend against Great American's
declaratory judgment action (Doc. 21 at 5), he cites no case
law supporting this proposition. See Looney, 2007 WL
2669190 at 4 (“Plaintiff has not incurred damages until
the breach of contract suit with Protective Life is settled.
. . . If she is not awarded the $500, 000.00, then she has
suffered damages and may, at that time, initiate action
against the agent.”). In addition, he provides no
support for the proposition that the alleged inextricable
nature of the claims in the main and third party actions
mandates that B&R's motion be denied.(Id. at
5-7). Finally, although Williamson contends that a dismissal
or stay would risk inconsistent verdicts, other courts faced
with similar arguments have found otherwise. See
Looney, 2007 WL 2669190, at *4 (“[Plaintiff]
raises a valid concern regarding the possibility of
inconsistent decisions between separate juries. However, as
in Blumberg, Plaintiff cannot make a claim for the
negligence of her agent in allowing a contract to lapse while
simultaneously claiming she is covered under that
contract.”). “When the mere passage of time is
insufficient to cure the premature element of the action, as
in this case, dismissal without prejudice is
appropriate.” Fourth Tee, LLC v. Axis Surplus Ins.
Co., No. 8:12-CV-1249-T-17TGW, 2013 WL 593951, at *2
(M.D. Fla. Feb. 15, 2013).