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Evanston Insurance Co. v. Republic Properties, Inc.

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

December 4, 2017

EVANSTON INSURANCE COMPANY, Plaintiff,
v.
REPUBLIC PROPERTIES, INC., CIMINELLI REAL ESTATE SERVICES OF FLORIDA, LLC, COREY STANELY, JR., LAURETTE MUNIZ-MARCHA, ELIZABETH GARCIA, JESSICA CAMACHO and VICTORIA LEE CANELLAS, Defendants/Third Party Plaintiff, JAMES RIVER INSURANCE COMPANY and DIMAGGIO'S ULTRA LOUNGE CORP., Third Party Defendants.

          ORDER

          PAUL G. BYRON UNITED STATES DISTRICT JUDGE

         This cause comes before the Court without oral argument on Plaintiff Evanston Insurance Company's Motion to Dismiss Ciminelli Real Estate Services of Florida, LLC's Counterclaim and to Strike Ciminelli's Fifth and Sixth Affirmative Defenses (Doc. 138), filed August 31, 2017; and Defendant, Ciminelli's Memorandum of Law in Opposition (Doc. 141), filed September 13, 2017. The parties have completed their briefing and the Court is otherwise fully advised on the premises. Upon consideration, the motion is denied.

         I. BACKGROUND [1]

         Plaintiff, Evanston Insurance Company (“Evanston”), brings this action pursuant to the Declaratory Judgment Act to resolve an insurance coverage. At all relevant times, Defendant, Republic Properties, Inc. (“Republic”), owned real property located at 7432 Universal Boulevard in Orlando, Florida (the “Subject Property” or “building 7432”). In 2002, Republic hired Defendant, Ciminelli Real Estate Services of Florida, LLC (“Ciminelli”), as its property manager with respect to real property described as “Republic Square”, which included the Subject Property. Republic leased the Subject Property to DiMaggio's Ultra Lounge Corp. (“DiMaggio's”), who used the property to operate a nightclub.

         Evanston issued two commercial general liability insurance policies to Republic covering the Subject Property; one policy covered the Subject Property for the policy period of January 23, 2015 to January 23, 2016 (the 2015-2016 Policy”), and the other policy covered the Subject Property for the policy period of January 23, 2016 to January 23, 2017 (the “2016-2017 Policy) (collectively, the “Policies”). The Policies require Evanston to defend and indemnify Republic for covered bodily injuries or property damage. Because of its engagement as Republic's property manager, Ciminelli apparently qualifies as an additional insured under the Policies.

         At approximately 1:00 a.m. on February 7, 2016, a shooting incident occurred at the nightclub operated at the Subject Property that resulted in the death of two individuals and injuries to several others. Some of those who suffered injuries have submitted claims to Republic or have sued Republic to recover for their injuries. On or about June 8, 2016, Corey Stanley, Jr. filed suit in state court against Republic, Ciminelli, and DiMaggio's for injuries allegedly suffered in a separate shooting incident at the Subject Property nightclub in October 2015. Evanston advised Republic and Ciminelli that it would investigate these claims and lawsuits subject to a reservation of rights.

         In the operative complaint, Evanston alleged that Republic provided false information when it applied for the Policies. Specifically, Republic described the Subject Property as a vacant building in its applications with Evanston, when in fact the Subject Property was being operated as a nightclub. Because the Policies only provide coverage for the operations specified in the application for insurance-that is, for a vacant building-Evanston contends that it owes no duty to defend or indemnify Republic or Ciminelli against any of the claims or lawsuits arising out of the February 7, 2016 or October 2015 shooting incidents, when the Subject Property was being operated as a nightclub. Evanston therefore initiated this lawsuit seeking a declaratory judgment stating as much.

         Along with its Answer, Ciminelli brought a counterclaim seeking reformation of the Policies based on mutual mistake. (Doc. 129). Ciminelli alleges that “[d]ue to mutual mistakes caused by scrivener's error and/or inadvertence”, the properties insured under the Policies were misidentified, whereby the Subject Property was mistakenly designated “vacant”. (Doc. 129, ¶¶ 14-17). Therefore, Ciminelli seeks to reform the Policies to reflect that the Subject Property was not vacant.

         Evanston now moves to dismiss Ciminelli's reformation counterclaim and to strike Ciminelli's fifth and sixth affirmative defenses. (Doc. 138).

         II. STANDARD OF REVIEW

         A complaint (or counterclaim)[2] must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1). Thus, in order to survive a motion to dismiss made pursuant to Rule 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         Though a complaint need not contain detailed factual allegations, mere legal conclusions or recitation of the elements of a claim are not enough. Twombly, 550 U.S. at 555. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Courts must also view the complaint in the light most favorable to the plaintiff and must resolve any doubts as to the sufficiency of the complaint in the plaintiff's favor. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994) (per curiam).

         At the motion to dismiss stage, district courts must generally constrain their review to the “four corners of the complaint.” Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). A “document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.” Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005).

         III. ...


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