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State Farm Fire and Casualty Co. v. Ross

United States District Court, M.D. Florida, Fort Myers Division

February 3, 2017

STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff,
v.
KEN ROSS, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE, SEINOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on defendant's[1] Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. #25) filed on August 26, 2016. Plaintiff filed a Response and, in the Alternative, Motion to Substitute the Plaintiff Party In Interest (Doc. #28) on September 16, 2016.

         I.

         In the Second Amended Complaint (Doc. #20), State Farm Fire and Casualty Company (State Farm) seeks indemnity from Ken Ross (Ross). State Farm issued an insurance policy to Ian Mise (Mise or insured) in Ontario, Canada. Under the State Farm Personal Liability Umbrella Policy (Doc. #20-1), Mise is covered for personal liability up to $1 million (CAD). On February 22, 2013, an accident occurred in Lee County, Florida, resulting in Juan Amador-Sabio (Sabio)[2] filing suit against Mise for vicarious liability as the owner of the vehicle, and against Ross for negligence as the driver of the vehicle owned by Ian Mise. At the time, Ross was insured by Belairdirect (Belair) under his own vehicle policy.

         On October 25, 2013, State Farm attended mediation for both claims arising from the accident, and tendered $961, 696.00 USD to Sabio on behalf of Mise for his vicarious liability. Pursuant to a Memorandum of Settlement (Doc. #20-2), State Farm agreed to pay the policy limits, and another insurer agreed to pay an additional $288, 304.00. Belair did not contribute to the settlement, and the Memorandum of Settlement notes a continuing priority dispute between State Farm and Belair.[3] This Memorandum of Settlement was signed by counsel for State Farm, and by counsel for both Mise and Ross.

         In the Second Amended Complaint, State Farm alleges that Ross expressly agreed in the Memorandum of Settlement to preserve State Farm's right to seek indemnity. State Farm also alleges:

31. State Farm is also entitled to indemnity from Ken Ross, but solely seeks indemnity from Mr. Ross to the extent that it is available through Mr. Ross's insurer Belair.
32. Because State Farm is solely seeking indemnity from Belair, Ken Ross suffers no prejudice from this indemnity claim.

(Doc. #20, p. 4.) Belair is not named as a defendant, and State Farm seeks judgment against Ross individually for $961, 696.00 USD as compensatory damages.

         II.

         Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. at 555. See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         III.

         The Court finds that the Second Amended Complaint fails to state a claim against Ross as currently pled. State Farm refers to defendant as both Belair and Ross[4] interchangeably, but Belair is not a party to this suit. Only Ken Ross is named as a defendant in the Second Amended Complaint. Allegations that indemnity is sought against Belair does not state a claim against Ross. The motion to dismiss will be granted to the extent that plaintiff will be permitted to amend as State Farm deems appropriate.

         State Farm also seeks to substitute itself as the assignee of Mise, State Farm's insured, to the extent that the anti-subrogation rule may prevent State Farm from bringing a direct claim against Ross, the negligent party. As the Court is ...


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