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O'Connor v. Geico Indemnity Co.

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

November 10, 2017

KEVIN PAUL O'CONNOR, Plaintiff,
v.
GEICO INDEMNITY COMPANY, Defendant.

          ORDER

          JAMES D. WHITTEMORE United States District Judge

         BEFORE THE COURT are Defendant's Motion to Dismiss Counts I and II of Plaintiffs Complaint with Prejudice (Dkt. 5) and Plaintiffs Motion to Abate Counts I and II (Dkt. 12). Both motions are opposed. (Dkts. 11, 14). Upon consideration, Defendant's motion to dismiss (Dkt. 5) is GRANTED in part and Plaintiffs motion to abate (Dkt. 12) is DENIED.

         This case arises from an auto negligence lawsuit filed by Plaintiff against Defendant's insured. (Complaint, Dkt. 2 at ¶ 10). The insurance policy provides, in pertinent part:

ADDITIONAL PAYMENTS WE WILL MAKE UNDER THE LIABILITY COVERAGES
1. All investigative and legal costs incurred by us[.]
4. We will upon request by an insured, provide reimbursement for the following items.
(c) All reasonable costs incurred by an insured at our request.

(Florida Family Automobile Insurance Policy, Dkt. 2 at p. 15). The index of the policy lists "Legal Expenses and Court Costs" as items that are covered under the Additional Payments Section. (Id. at p. 13). A Supplemental Final Judgment for Attorney's Fees and Costs was entered against Defendant's insured and in favor of Plaintiff pursuant to Florida's offer of judgment statute, FLA. Stat. § 768.79. (Supplemental Final Judgment, Dkt. 2 at p. 32). Defendant appealed the Supplemental Final Judgment, and that appeal is pending. (Notice of Appeal, Dkt. 5-1).

         Plaintiffs Complaint against Defendant in this case asserts claims for declaratory judgment (Count I), breach of contract (Count II), and common law bad faith (Count III). (Complaint, Dkt. 2). Counts I and II assert that the insurance policy requires Defendant to pay the Supplemental Final Judgment entered against its insured. (Id. at ¶¶ 16, 21). Defendant removed the case to this Court based on diversity jurisdiction. (Notice of Removal, Dkt. 1). It moves to dismiss Counts I and II on the grounds that they are not ripe and the unambiguous language of the policy does not obligate it to pay the Supplemental Final Judgment. (Dkt. 5). In response to Defendant's motion to dismiss, Plaintiff admits that his claims are not yet ripe because of the pending appeal, but argues that the claims should be abated, rather than dismissed. (Dkt. 11). Plaintiff also filed the separate motion to abate Counts I and II. (Dkt. 12). Defendant opposes abatement, arguing that the proper remedy for Plaintiffs unripe claims is dismissal without prejudice. (Dkt. 14, p. 3 n.l).

         Because Defendant's ripeness argument presents a jurisdictional question, it shall be addressed first.[1] "In diversity actions, the federal court must apply the substantive law of the state in which it sits, 'except in matters governed by the Federal Constitution or by act of Congress.' " Trailer Bridge, Inc. v. Illinois Nat'l Ins. Co., 657 F.3d 1135, 1141 (11th Cir. 2011) (per curiam) (quoting Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). "[R]ipeness originate[s] from the Constitution's Article III requirement that the jurisdiction of the federal courts be limited to actual cases and controversies." Elend v. Basham, 471 F.3d 1199, 1204-05 (11th Cir. 2006) (citing Flast v. Cohen, 392 U.S. 83, 94-101 (1968)).

         "If a claim is not ripe, the district court lacks jurisdiction to issue a ruling on the merits and therefore must dismiss that claim without prejudice." Serpentfoot v. Rome City Comm 'n, 322 Fed.Appx. 801, 805 (11th Cir. 2009) (per curiam) (citing Georgia Advocacy Office, Inc. v. Camp, 172 F.3d 1294, 1299 (11th Cir. 1999)). "A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300 (1998) (quotation marks omitted). Plaintiff acknowledges that his declaratory judgment and breach of contract claims are contingent on the Florida appellate court affirming the Supplemental Final Judgment, an event that may not occur as anticipated because the appellate court could reverse the judgment.[2] Counts I and II, therefore, must be dismissed without prej udice to Plaintiff to refile his declaratory judgment and breach of contract claims after he prevails in Defendant's appeal of the Supplemental Final Judgment.

         Accordingly, Defendant's Motion to Dismiss Counts I and II of Plaintiff s Complaint with Prejudice (Dkt. 5) is GRANTED part and Plaintiffs Motion to Abate Counts I and II of Plaintiffs Complaint (Dkt. 12) is DENIED. Counts I and II of Plaintiff s Complaint (Dkt. 2) are DISMISSED without prejudice.

         DONE ...


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