United States District Court, M.D. Florida, Jacksonville Division
REPORT AND RECOMMENDATION 
B. TOOMEY UNITED STATES MAGISTRATE JUDGE
THIS CAUSE is before the Court on Defendant
Allstate Fire and Casualty Insurance Company's Motion to
Dismiss Plaintiff's Complaint (“Motion”)
(Doc. 3) and Plaintiff's Response thereto (Doc. 10). The
Motion was referred to the undersigned for a report and
recommendation regarding an appropriate resolution. (Doc.
13.) The Complaint and Demand for Jury Trial
(“Complaint”) (Doc. 2) sets forth one count for
contractual uninsured motorist (“UM”) benefits
(Count I) and one count for statutory bad faith damages
(Count II). For the reasons set forth herein, the undersigned
respectfully RECOMMENDS that the Motion be
GRANTED to the extent that: Count
I be DISMISSED without prejudice to
filing an amended complaint that omits the allegations
sounding in breach of contract and declaratory relief;
Count II be DISMISSED without
prejudice to refiling in a separate action, if
appropriate, after the UM benefits claim is resolved; and
Plaintiff be given fourteen days from the Court's order
on this Report and Recommendation to file an amended
complaint in accordance herewith.
alleges that on or about December 19, 2013 she was in a motor
vehicle accident with an uninsured or underinsured motorist.
(Doc. 2 at 2.) As a result of the accident, Plaintiff
suffered “serious and permanent injuries.”
(Id.) At the time of the accident, Plaintiff had an
insurance policy issued by Defendant, which included UM
coverage up to $100, 000. (Id.) Plaintiff also
alleges that Defendant “is obligated to provide the
Plaintiff . . . with [UM] benefits under the terms of the
automobile policy[, ]” that Defendant “has failed
to honor its above-referenced contract of insurance with
Plaintiff . . .[, ] and has failed to acknowledge or settle
the Plaintiff's claim for benefits for the policy of
insurance for which is now due and remains unpaid, all to the
damage of the Plaintiff . . . .” (Id. at 3.)
Federal Rule of Civil Procedure 12(b)(6), the Court must
determine whether the Complaint sets forth sufficient factual
allegations to establish a claim upon which relief can be
granted. In evaluating whether Plaintiff has stated a claim,
the Court must determine whether the Complaint satisfies
Federal Rule of Civil Procedure 8(a)(2), which requires that
a pleading contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). To satisfy this standard, a complaint
must contain sufficient factual allegations to state a claim
for relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
ruling on a motion to dismiss under Rule 12(b)(6), a court
must construe the complaint in the light most favorable to
the plaintiff and accept all well-pled factual allegations as
true. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252,
1260 (11th Cir. 2009). Although the Court must accept
well-pled facts as true, it is not required to accept
Plaintiff's legal conclusions. Iqbal, 556 U.S.
at 678 (noting “the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions”). “Similarly,
unwarranted deductions of fact in a complaint are not
admitted as true for the purpose of testing the sufficiency
of plaintiff's allegations.” Sinaltrainal,
578 F.3d at 1260 (stating that in evaluating the sufficiency
of a plaintiff's pleadings, a court is “not
required to draw plaintiff's inference”) (internal
citation and quotations omitted); see also Iqbal,
556 U.S. at 681 (stating conclusory allegations are
“not entitled to be assumed true”).
undersigned recommends that Count I be dismissed without
prejudice to Plaintiff filing an amended complaint that omits
the breach of contract and declaratory relief allegations
from her UM benefits claim. As explained further below, these
allegations are irrelevant to Plaintiff's claim for UM
benefits and they confuse Plaintiff's basis for recovery.
In addition, the undersigned recommends that the bad faith
claim in Count II be dismissed without prejudice to refiling
in a separate action if and when that claim becomes ripe.
Count I - UM Benefits Claim
Florida law, “an injured insured may bring a direct
action against her own UM carrier without having first
resolved a claim against the tortfeasor.” Neff v. Prop.
& Cas. Ins. Co. of Hartford, 133 So.3d 530, 532
(Fla. Dist. Ct. App. 2013). In such a case, “the
insured's UM carrier stands in the shoes of the uninsured
motorist.” Diaz-Hernandez v. State Farm Fire &
Cas. Co., 19 So.3d 996, 999 (Fla. Dist. Ct. App. 2009).
Thus, a claim for UM benefits against the insurer “is
not an action for the breach of a contract of insurance. An
action to recover UM benefits is based on a contract, but it
has its underpinnings in tort liability.” Mercury
Ins. Co. of Fla. v. Moreta, 957 So.2d 1242, 1251 (Fla.
Dist. Ct. App. 2007) (internal citations and quotation marks
omitted). See also Woodall v. Travelers Indem. Co.,
699 So.2d 1361, 1363 n.5 (Fla. 1997) (stating that a claim
for UM benefits is not a breach of contract action because it
“is predicated upon the cause of action against the
tortfeasor”); Geico Gen. Ins. Co. v. Graci,
849 So.2d 1196, 1199 (Fla. Dist. Ct. App. 2003) (“[The
plaintiff's] action against [the insurer] . . . is an
action filed pursuant to the contract. A cursory examination
reveals that it is for the purpose of having a determination
made of the amount of compensatory damages, if any, to which
[the plaintiff] is entitled under the policy. The gravamen of
the action, therefore, is the same as that which the insured
has against the underinsured third party tortfeasor for
damages for bodily injuries.”).
of the Complaint is titled “UM Claim, ” but it
contains allegations sounding in breach of contract.
Specifically, in paragraph 14, Plaintiff alleges that
Defendant “is obligated to provide the Plaintiff . . .
with uninsured/underinsured motorist benefits under the terms
of the automobile policy.” (Doc. 2 at 3.) In paragraph
15, Plaintiff asserts that Defendant “has failed to
honor its above-referenced contract of insurance with
Plaintiff . . . and has failed to acknowledge or settle the
Plaintiff's claim for benefits for the policy of
insurance for which is now due and remains unpaid, all to the
damage of the Plaintiff . . . .” (Id.) In her
Response, Plaintiff states that she is not attempting to
assert a breach of contract action. (See Doc. 10 at
3.) Plaintiff concedes that the allegations contained in
paragraph 15 are not necessary to plead a claim for UM
benefits, but argues that the allegations contained in
paragraph 14 are. (Id.)
recover UM benefits from an insurer, the
“insured” must be “legally entitled to
recover” damages due to the tortfeasor's
“ownership, maintenance, or use” of an
“uninsured motor vehicle.” Fla. Stat. §
627.727(1); Woodard v. Pa. Nat. Mut. Ins. Co., 534
So.2d 716, 718 (Fla. Dist. Ct. App. 1988) (“The law of
Florida is well established that [u]nder every [UM] policy
issued in Florida, an insured is entitled to [UM] benefits
where (1) he has been injured by an uninsured motor vehicle
and (2) he is legally entitled to recover from the operator
of the uninsured motor vehicle.”) (internal citations
and quotation marks omitted). Thus, the allegations contained
in paragraphs 14 and 15 are not relevant to Plaintiff's
UM benefits claim and they confuse Plaintiff's theory of
recovery. See generally State Farm Mut. Auto. Ins. Co. v.
Revuelta, 901 So.2d 377, 379 (Fla. Dist. Ct. App. 2005)
(“The issue here was driver negligence, not bad faith
for failing to pay the Revueltas' uninsured benefits.
Length of time paying premiums has no relevance to driver
negligence.”). Indeed, whether Defendant is obligated
to provide Plaintiff with UM benefits has yet to be decided.
See Graci, 849 So.2d at 1199 (“An
insurer's refusal to meet an insured's demand for
payment under a policy is not a breach if no payment is then
Plaintiff's request in paragraph 12 that the Court
“determine that she is entitled to said [UM] coverage
pursuant to Florida Statute 627.727 . . . in the event
[Defendant] denies the same” appears to be a request
for declaratory relief. However, the Complaint does not set
forth a separate count for a declaratory judgment, Plaintiff
does not request declaratory relief in her demand for relief,
and Plaintiff states in her Response that paragraph 12
“is not an ...