United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE United States District Judge
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.
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
ADDITIONAL PAYMENTS WE WILL MAKE UNDER THE LIABILITY
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
(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).
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).
Defendant's ripeness argument presents a jurisdictional
question, it shall be addressed first. "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)).
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. 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.
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