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Hersey v. Allstate Fire and Casualty Insurance Co.

United States District Court, M.D. Florida, Jacksonville Division

November 2, 2017

CAREN HERSEY, Plaintiff,
v.
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant.

          REPORT AND RECOMMENDATION [1]

          JOEL 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.

         I. Background

         Plaintiff 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.)

         II. Standard

         Under 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.

         In 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”).

         III. Analysis

         The 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.

         A. Count I - UM Benefits Claim

         Under Florida law, “an injured insured may bring a direct action against her own UM carrier without having first resolved a claim against the tortfeasor.”[2] 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.”).

         Count I 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.)

         To recover UM benefits from an insurer, the “insured” must be “legally entitled to recover”[3] damages due to the tortfeasor's “ownership, maintenance, or use” of an “uninsured motor vehicle.”[4] 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 due.”).

         Additionally, 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 ...


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