United States District Court, M.D. Florida, Orlando Division
GOVERNMENT EMPLOYEES INSURANCE CO., GEICO INDEMNITY CO., GEICO GENERAL INSURANCE COMPANY and GEICO CASUALTY CO., Plaintiffs,
CLEAR VISION WINDSHIELD REPAIR, LLC, MY CLEAR VIEW WINDSHIELD REPAIR, INC., DOUGLAS STROH, CENTRAL FLORIDA WINDSHIELD REPAIR, LLC, LIZZETTE LABELL, TRAVIS LABELL, J.C. WINDSHIELD REPAIR, LLC, JEAN CAROUSSO, GDB INDUSTRIES, LLC, GREGORY A. BECHTOLD and JOHN DOE DEFENDANTS 1-10, Defendants.
ANTOON II District Judge.
allege an expansive fraudulent scheme carried out by
Defendant windshield repair companies (Defendants) to defraud
Geico insurance companies (Plaintiffs) by filing thousands of
phony insurance claims for windshield repairs. Plaintiffs
filed several fraud-based claims against Defendants to
recover their losses from the alleged scheme, as well as
claims for declaratory judgment and unjust enrichment.
Defendants filed three motions to dismiss, (Docs. 18, 19, and
20), and Plaintiffs responded. (Doc. 27). For the reasons
stated below, Defendants' motions to dismiss must be
requires that insurance companies, including Plaintiffs,
cover repair or replacement of damaged windshields of their
insureds who have comprehensive coverage. (Compl., Doc. 1,
¶ 37; Fla. Stat. § 627.7288). Insureds are not
required to pay a deductible on these claims. (Compl. ¶
37). Ordinarily, an insured can choose who will perform this
work, and the insured and Plaintiffs communicate to verify
the loss, the nature of the damage, and the identification of
the entity selected to do the repair. (Id.
¶41). An insured can then assign her rights to receive
payment to her preferred windshield repair or replacement
shop, who will then send a claim to Plaintiffs for payment.
(Id., ¶¶ 42, 44). Defendants allegedly manipulated
this process to defraud Plaintiffs.
formed a deal with car dealerships to allow them on the car
dealerships' premises to market their windshield repair
service to the dealership customers. (Id. ¶
73). Through this access, Defendants falsely informed the
insureds that their windshields were chipped or cracked and
offered to repair the chips or cracks at no cost to the
insureds, (Id. ¶ 79). Defendants would
sometimes use a repair kit that contained a liquid that had
no reparative value to "fix" the windshield. (Jd
¶ 80). Other times, Defendants would simply submit
claims without providing services or engaging with insureds.
(Id. ¶ 81). Defendants sometimes sought
assignments from insureds of their right to receive payment
from Plaintiffs and obtained the insureds' signatures
through misrepresentation or forgery. (Id.
¶¶ 83-86). Pursuant to this scheme, Defendants
ultimately submitted fraudulent claims to Plaintiffs totaling
$310, 000.00. (Id. ¶¶ 87-88).
on these allegations, Plaintiffs bring claims under the
Racketeer Influenced and Corrupt Organizations Act (RICO),
the Florida Deceptive and Unfair Trade Practices Act
(FDUTPA), the Florida Civil Remedies for Criminal Practices
Act (FCRCPA), and claims for common law fraud, declaratory
judgment, and unjust enrichment. In response, Defendants
filed three motions to dismiss. In their first motion,
Defendants seek to dismiss the Complaint for lack of
subject-matter jurisdiction under Rule 12(b)(1), claiming
Plaintiffs do not have standing. (Doc. 20). In their second
motion, Defendants seek to dismiss Plaintiffs' RICO,
common law fraud, FDUTPA, FCRCPA, declaratory judgment, and
unjust enrichment claims under Rules 12(b)(6) and 9(b). (Doc.
18). And in their third motion, Defendants seek to dismiss
the Complaint for Plaintiffs' failure to join
indispensable parties under Rule 12(b)(7). (Doc. 19).
Motion to Dismiss under Rule 12(b)(1)
contend that Plaintiffs do not have standing to
"complain that the assignments were obtained through
false pretenses and false misrepresentations to the insureds.
Such a challenge would be the insureds' to make."
(Doc. 20, ¶ 21). Standing is a threshold jurisdictional
question. Stalley ex rel. U.S. v. Orlando Req'l
Healthcare Svs., Inc., 524 F.3d 1229, 1232 (11th Cir.
2008). To demonstrate standing and thus survive a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(1), a
plaintiff must show: (1) an injury-in-fact; (2) a causal
connection between the injury-in-fact and the defendant's
actions; and (3) that the injury will be redressed by a
favorable decision. Shotz v. Cates, 256 F.3d 1077,
1081 (11th Cir. 2001) (citing Luian v. Defenders of
Wildlife. 504 U.S. 555, 560(1992)).
despite Defendants' argument that "[t]he parties to
the contractual assignment are the [only] parties with
standing to complain about the contract, " (Doc. 20
¶21), Plaintiffs have not asserted claims arising from
the contract. Rather, Plaintiffs have shown that they
otherwise have standing: they paid $310, 000.00 in
reimbursements for fraudulent claims; Defendants caused that
injury by engaging in fraudulent practices and then seeking
reimbursement for those practices from Plaintiffs; and their
injury-the wrongful reimbursements-will be redressed by
damages. Defendants' motion to dismiss for lack of
standing must be denied.
Motion to Dismiss under Rule 12(b)(6)
move to dismiss all Counts of the Complaint for failure to
state a claim upon which relief can be granted.
"[a] pleading that states a claim for relief 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). "[D]etailed factual allegations" are not
required, but "[a] pleading that offers labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do.'"
Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly. 550 U.S. 544, 555
(2007)). "To survive a [Rule 12(b)(6)] motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Id. (quoting
Twombly, 550 U.S. at 570). In evaluating a complaint
under this standard, the court must accept all well-pleaded
factual allegations as true and construe them in the light
most favorable to the Plaintiff. Ironworks Local Union 68
v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th
Cir. 2011). The court may consider exhibits attached to a
complaint in ruling on a motion to dismiss. Hoefling v.
City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016).
regard to the allegations of common law fraud, RICO, FDUTPA
and FCRCPA, Defendants additionally argue that the Complaint
lacks the specificity required by Federal Rule of Civil
Procedure 9(b) to "state with particularity the
circumstances constituting allegations of fraud or
mistake." The stringent requirement of Rule 9(b) may be
relaxed "when specific 'factual information [about
the fraud] is peculiarly within the defendants' knowledge
or control, '" Stonecreek-AAA, LLC v. Wells
Fargo Bank N.A., No. 1:12-CV-23850-MGC, 2013 WL 5416970,
at*3 <S.D. Fla. Sept. 26, 2013) (quoting Hill v.
Morehouse Med. Assocs.. Inc.. No. 02-14429, 2003 WL
22019936, at *3 (11th Cir. Aug. 15, 2003)), and "in
appropriate circumstances to aid those alleging prolonged
multi-act schemes, " U.S. ex rel. Clausen v. Lab.
Corp. of Am., 290 F.3d 1301, 1314 n. 25 (11th Cir.
2002). In such a circumstance, plaintiffs are "not
required to provide 'a detailed allegation of all facts
supporting each and every instance of submission of a false
claim'... but the complaint must set forth a
representative sample detailing]... the defendants'
allegedly fraudulent acts, when they occurred, and who
engaged in them." HE 2003 WL 22019936, at *3 ...