United States District Court, M.D. Florida, Tampa Division
S. MOODY. JR. UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court upon Defendant's Motion to
Dismiss Count II (Dkt. 5) and Plaintiff's Response in
Opposition (Dkt. 10). The Court, having reviewed the motion,
response, and being otherwise advised in the premises,
concludes that the motion should be denied.
Diocese of Saint Petersburg, Inc. filed the instant action
against Defendant National Union Fire Insurance Company of
Pittsburgh, Pa. to collect on a default judgment Plaintiff
obtained against Defendant's insured, Unisource
Administrators, Inc. Plaintiff is a religious organization
that oversees the activities of hundreds of
religiously-affiliated organizations, including schools and
churches. One of Plaintiff's responsibilities in
overseeing these organizations is to ensure that each
organization is properly insured for workers'
compensation. Plaintiff contracted with Unisource to perform
claims adjusting of all of Plaintiff's workers'
compensation claims. Unisource's responsibilities
included coordinating coverage with Plaintiff's excess
carrier for workers' compensation claims in excess of
Plaintiff's self-insured retention level of $250, 000. At
all material times, Defendant provided “Miscellaneous
Professional Liability” insurance coverage to Unisource
and Plaintiff was the Certificate Holder.
alleges that Unisource breached its obligation to notify
Plaintiff's excess carrier of a workers' compensation
claim filed by Randi Fisher, a former employee of Plaintiff.
In 2015, Plaintiff filed a lawsuit against Unisource in state
court for damages Plaintiff incurred as a result of
Unisource's breach of contract and negligence associated
with Fisher's claim. Because Defendant was
Unisource's insurer during the relevant time, Plaintiff
notified Defendant on several occasions of its claim against
Unisource. Plaintiff also repeatedly requested that Defendant
provide it with a copy of the insurance policy and other
information required by Florida Statute §
627.4137. Defendant never responded to any of
January 5, 2017, Plaintiff obtained a Final Judgment after
Default against Unisource in the amount of $388, 510.70.
Plaintiff then filed this action against Defendant, asserting
two claims: (1) a breach of contract claim and (2) a claim of
“violation of Florida statute § 627.4137.”
Defendant moves to dismiss only the claim asserted under
§ 627.4137 for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Defendant
argues that Florida does not recognize a private cause of
action for a violation of this particular section. At this
stage, the Court disagrees and concludes that Plaintiff may
proceed with this claim.
Rule of Civil Procedure 12(b)(6) allows a complaint to be
dismissed for failure to state a claim upon which relief can
be granted. When reviewing a motion to dismiss, a court must
accept all factual allegations contained in the complaint as
true, and view the facts in a light most favorable to the
plaintiff. See Erickson v. Pardus, 551 U.S. 89,
93-94 (2007). However, unlike factual allegations,
conclusions in a pleading “are not entitled to the
assumption of truth.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1950 (2009). On the contrary, legal conclusions
“must be supported by factual allegations.”
Id. Indeed, “conclusory allegations,
unwarranted factual deductions or legal conclusions
masquerading as facts will not prevent dismissal.”
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185
(11th Cir. 2003).
motion to dismiss seeks to dismiss Plaintiff's claim for
violation of Fla.
§ 627.4137 based on the premise that such a private
right of action does not exist under Florida law. Under
§ 627.4137, which is titled “Disclosure of certain
(1) Each insurer which does or may provide liability
insurance coverage to pay all or a portion of any claim which
might be made shall provide, within 30 days of the written
request of the claimant, a statement, under oath, of a
corporate officer or the insurer's claims manager or
superintendent setting forth the following information with
regard to each known policy of insurance, including excess or
(a) The name of the insurer.
(b) The name of each ...