United States District Court, M.D. Florida, Orlando Division
G. BYRON UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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
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.
now moves to dismiss Ciminelli's reformation counterclaim
and to strike Ciminelli's fifth and sixth affirmative
defenses. (Doc. 138).
STANDARD OF REVIEW
complaint (or counterclaim) 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.
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).
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).