United States District Court, M.D. Florida, Fort Myers Division
MCCOY, UNITED STATES MAGISTRATE JUDGE.
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.
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).
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).
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).
The Motion to Strike Scottsdale's Second Affirmative
Defense (Doc. 102)
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).
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). 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
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
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.
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)).
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