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Scottsdale Insurance Co. v. Pushing Daizies, Inc.

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

August 28, 2017

SCOTTSDALE INSURANCE COMPANY, Plaintiff,
v.
PUSHING DAIZIES, INC., DAVID PEREZ, KADDIAMY BARUH, ESTELLA WILSON and CITY OF FORT MYERS, Defendants.

          ORDER

          MAC R. MCCOY, UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is the City of Fort Myers' (“City”) Motion to Strike Scottsdale Insurance Company's (“Scottsdale”) Second Affirmative Defense (Doc. 102) filed on June 14, 2017. Scottsdale filed a Response in Opposition to the City's Motion to Strike (Doc. 109) on July 5, 2017. This matter is ripe for review.

         I. Background

         Scottsdale originally brought this action on August 2, 2016. (Doc. 1). Scottsdale's original Complaint sought a declaratory judgment related to an insurance policy it issued to Defendant Pushing Daizies, Inc. (“Daizies”). (Id. at 17). Scottsdale alleges Daizies was the organizer of the so-called “Zombicon” event in Fort Myers, Florida. (Id. at ¶ 12). Scottsdale alleges that an intentional shooting occurred at the event. (Id.). Individuals claiming to have been shot at the event sued Daizies. (Id. at ¶ 13). Scottsdale defended Daizies under a reservation of rights. (Id.). Scottsdale alleges that the insurance policy had an Assault and/or Battery Exclusion Endorsement. (Id. at ¶ 14). Scottsdale's original Complaint requested the Court to declare that there is no coverage to Daizies related to claims from the Zombicon event based upon the insurance policy's Assault and/or Battery Exclusion Endorsement. (Id. at 16-17).

         On March, 3, 2017, the City filed an Unopposed Motion to Intervene as Defendant (Doc. 67), asserting an “interest in the subject matter of the action because this case involves the scope of coverage of an insurance policy to which the City is an additional insured, ” (id. at 10). On March 13, 2017, the Court granted the City's Unopposed Motion to Intervene as Defendant. (Doc. 70). On April 19, 2017, the Court granted Scottsdale's Unopposed Motion for Leave to File Second Amended Complaint for Declaratory Judgment (Doc. 71). (Doc. 83). Scottsdale's Second Amended Complaint for Declaratory Judgment (Doc. 85) was entered the same day. In pertinent part, Scottsdale's Second Amended Complaint requests judgment declaring that the insurance policy does not afford insurance coverage to Daizies or the City for the claims related to the Zombicon event. (Doc. 85 at 14).

         On May 3, 2017, the City filed its Answer, Defenses, Counterclaims, and Demand for Jury Trial (Doc. 90). As the Counter-Plaintiff, the City asserts three counterclaims against Scottsdale related to the insurance policy: Count I is Breach of Contract (Duty to Defend); Count II is Breach of Contract (Duty to Indemnify); and Count III is Declaratory Relief. (Doc. 90 at 15-18). As the Counter-Defendant, Scottsdale filed its Answer and Affirmative Defenses (Doc 100) on May 24, 2017, asserting four affirmative defenses, (id. at 5-10).

         II. The Motion to Strike Scottsdale's Second Affirmative Defense (Doc. 102)

         In its Motion, the City seeks to strike Scottsdale's Second Affirmative Defense. (Doc. 102 at 3). This affirmative defense cites to the subject insurance policy and its policy definitions, (Doc. 100 at 6-8), and then states “[t]o the extent that a covered ‘occurrence' as defined under the Policy has not occurred, the Policy affords no coverage for the subject claims made and damages sought against Daizies and the City, ” (id. at 8). The City argues that Scottsdale's Second Affirmative it as a “conclusory allegation” without factual support. (Doc. 102 at 3). Specifically, the City argues that “Scottsdale's Second Affirmative Defense does no more than cut and paste large sections of the Policy (including numerous defined terms, exclusion, and conditions) and then simply allege that coverage does not apply if an ‘occurrence' has not ‘occurred.'” (Id. at 1).

         In support of its arguments, the City notes that there is a “debate regarding whether the Twombly/Iqbal pleading standard applies to affirmative defenses.” (Id. at 2 n.1).[1] The City contends that this Court has held that the Twombly/Iqbal standard applies to affirmative defenses. (Id. (citing e.g., Merrill v. Dyck-O'Neal, Inc., No. 2:15-cv-232-FTM-38, 2015 WL 4496101, at *1 (M.D. Fla. July 23, 2015)). Nonetheless, the City argues that “even cases declining to apply the Twombly/Iqbal standard require an affirmative defense to provide the opposing party with sufficient notice to meet the defense at trial.” (Id. (citing Heath v. Deans Food T.G. Lee, No. 6:14-cv-2023-ORL-28, 2015 WL 1524083, at *1 (M.D. Fla. Apr. 2, 2015)). Here, the City contends that Scottsdale's Second Affirmative Defense “provides no explanation whatsoever for its legal conclusion that an ‘occurrence' has not occurred.” (Id.). Thus, the City argues that the defense does not provide it with sufficient notice to respond. (Id.). Accordingly, the City contends that the Second Affirmative Defense fails to satisfy Rule 8 of the Federal Rules of Civil Procedure and, therefore, should be stricken. (Id.).

         In response, Scottsdale argues that its Second Affirmative Defense satisfies Rule 8 and, thus, is sufficient as a matter of law. (Doc. 109 at 2). Specifically, Scottsdale argues that “several decisions in the Middle District of Florida have noted that the majority of federal courts refuse to apply the Twombly/Iqbal pleading standard to affirmative defenses.” (Id. at 3 (citing Heath, 2015 WL 1524083 at *1)). Thus, Scottsdale argues that “there is no requirement under Florida law that an insurer plead in an affirmative defense specific facts demonstrating exactly how a policy provision applies, particularly when discovery has not been completed.” (Id.).

         Moreover, Scottsdale states that its “Second Affirmative Defense quotes the Policy's relevant insuring agreement and ‘occurrence' definition, as well as various terms and definitions within the relevant insuring agreement, and simply asserts that the Policy does not afford coverage in the absence of an ‘occurrence.'” (Id. at 3-4). As a result, Scottsdale contends that “[t]he defense complies with Fed.R.Civ.P. 8 in that it is set forth in short and plain terms and adequately places the City on notice of the issue to be litigated (i.e. whether an “occurrence” took place in order to trigger the Policy's insuring agreement). (Id. at 4 (citing Core Constr. Servs. SE, Inc. v. Amerisure Ins. Co., No. 6:12-cv-836-Orl-36KRS, 2012 WL 12904335, at *2-3 (M.D. Fla. Oct. 5, 2012))). Accordingly, Scottsdale argues that the Motion to Strike should be denied. (Id.).

         III. Legal Standards

         Fed. R. Civ. P. 8(c) governs Affirmative Defenses, stating that “[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense.” “An affirmative defense is generally a defense that, if established, requires judgment for the defendant even if the plaintiff can prove his case by a preponderance of the evidence.” Williamceau v. Dyck-O'Neal, Inc., No. 2:16-cv-855-FTM-29CM, 2017 WL 2544872, at *1 (M.D. Fla. June 13, 2017) (Steele, J.) (quoting Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th Cir. 1999)).

         A court may strike “from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Nonetheless, “[a] motion to strike is a drastic remedy, which is disfavored by the courts.” Thompson v. Kindred Nursing Centers E., LLC, 211 F.Supp.2d 1345, 1348 (M.D. Fla. 2002) (internal quotations and citations omitted). Motions to strike “will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Id. (citations omitted). An affirmative defense will be stricken if it is insufficient as a matter of law. Herman v. SeaWorld Parks & Entm't, Inc., No. 8:14-cv-3028-T-35EAJ, 2015 WL 12859432, at *2 (M.D. Fla. June 16, 2015) (citing Anchor Hocking Corp. v. Jacksonville Elec. Auth., 419 F.Supp. 992, 1000 (M.D. Fla. 1976)). “A defense is insufficient as a matter of law if (1) on ...


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