United States District Court, M.D. Florida, Tampa Division
CHARLENE EDWARDS HONEYWELL, UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon Defendant Government
Employee Insurance Company's Motion to Dismiss (Doc. 4),
Plaintiff's response in opposition (Doc. 13), Defendant
USAA Casualty Insurance Company's Motion to Dismiss (Doc.
5), and Plaintiff's response in opposition (Doc. 14). In
the motions, Defendants argue that the claims fail to state a
cause of action and should be dismissed. The Court, having
considered the motions and being fully advised in the
premises, will deny Defendant Government Employee Insurance
Company's Motion to Dismiss and Defendant USAA Casualty
Insurance Company's Motion to Dismiss.
STATEMENT OF FACTS
October 23, 2015, Plaintiff Mark Yencarelli was involved in a
motor vehicle accident. Doc. 2 at ¶ 8. Vasco Jackson
negligently operated or maintained his 1998 Buick motor
vehicle so that it collided with another vehicle, in which
Plaintiff was a passenger. Id. at ¶ 8-9.
Plaintiff has suffered permanent injuries. Id. at
¶ 10. The vehicle operated by Vasco Jackson was an
uninsured/underinsured motor vehicle under the terms and
conditions of the insurance contract issued by the Defendant
USAA Casualty Insurance Company (“USAA CIC”).
Id. at ¶ 13. Plaintiff also had uninsured
motorist coverage through the Government Employees Insurance
Company (“GEICO”) at the time of the accident.
Id. at ¶ 19.
24, 2017, Plaintiff filed suit against USAA CIC and GEICO for
breach of contract and statutory bad faith under Florida
Statutes § 624.155 in state court. Doc. 2. On August 25,
2015, USAA CIC removed the case to this court based on
diversity jurisdiction. Doc. 1. The Court has subject matter
jurisdiction over this matter.
survive a motion to dismiss, a pleading must include a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P.
8(a)(2)). Labels, conclusions and formulaic recitations of
the elements of a cause of action are not sufficient.
Id. (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Furthermore, mere naked assertions
are not sufficient. Id. A complaint must contain
sufficient factual matter, which, if accepted as true, would
“state a claim to relief that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “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.” Id. (citation
omitted). The court, however, is not bound to accept as true
a legal conclusion stated as a “factual
allegation” in the complaint. Id.
CIC argues that the Court should dismiss Counts I and III for
failure to attach a copy of the subject insurance policies.
Although the state court rules in Florida require plaintiffs
to attach “[a]ll bonds, notes, bills of exchange,
contracts, accounts, or documents upon which action may be
brought or defense made, ” Fla. R.Civ.P. 1.130(a); the
same does not apply in federal court. See Twombly,
127 S.Ct. at 1964-65 (“[A] complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations”). It is adequate for Plaintiff to allege
that a contract exists, without attaching the contract to the
complaint in federal court. Manicini Enterprises, Inc. v.
Am. Exp. Co., 236 F.R.D. 695, 698 (S.D. Fla. 2006)
(holding that plaintiff's failure to attach purported
written contracts to complaint asserting breach of express
contract did not warrant dismissal for failure to state a
claim); Gulf Coast Produce, Inc. v. American Growers,
Inc., No. 07-80633-Civ, 2008 WL 660100, at * 2 (S.D.
Fla. Mar.7, 2008) (holding that it is unnecessary to attach
the contract to the complaint to allege a claim for breach of
contract). Accordingly, USAA CIC's Motion will be denied
on this basis.
CIC also argues that the Court should dismiss Plaintiff's
Complaint as a shotgun pleading. See Doc. 5 at 4.
USAA CIC argues that the Complaint improperly incorporates
all preceding paragraphs into each count; and with two
defendants this structure makes it difficult to respond to
the Complaint. The Court agrees that generally shotgun
pleadings impede the administration of its duties. See
PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598
F.3d 802, 806 n. 4 (11th Cir. 2010). And “[a] complaint
that fails to articulate claims with sufficient clarity to
allow the defendant to frame a responsive pleading
constitutes a ‘shotgun pleading.'”
Lampkin-Asam v. Volusia County School Bd., 261
Fed.Appx. 274, 277 (11th Cir. 2008) (citation omitted). This
includes a complaint that is “disjointed, repetitive,
disorganized and barely comprehensible.” Id.
at 276. When faced with such a pleading, a court should
strike the complaint and instruct plaintiff to file a more
definite statement. See Davis v. Coca-Cola Bottling Co.
Consolidated, 516 F.3d 955, 984 (11th Cir. 2008).
this case, Counts I and III are against Defendant USAA CIC
only. See Doc. 2 at 4, 7. And Counts II, III, and IV
specifically state that the Plaintiff adopts and realleges
all prior material paragraphs as if fully set forth
herein. Doc. 1 at ¶16, 23, 34. Overall, Plaintiff's
Complaint meets the general pleading requirements in federal
court. Rule 8 requires “a short and plain statement of
the claim showing that the pleader is entitled to
relief[.]” Fed.R.Civ.P. 8(a)(2); Ashcroft, 556
U.S. at 677-78. And Rule 10 requires that each claim be
“limited as far as practicable to a single set of
circumstances, ” and each claim founded on a separate
transaction or occurrence be stated in a separate count or
defense if doing so would promote clarity. Fed.R.Civ.P.
10(b). Plaintiff has complied with these rules in this
Complaint. Accordingly, USAA CIC's Motion will be denied
on this basis.
USAA CIC argues that the statutory bad faith action against
it should be dismissed as premature because it was filed
before the resolution of the underlying action. Doc. 4 at 2.
GEICO's Motion argues the same. See Doc. 4.
GEICO argues that dismissal is the appropriate remedy because
Plaintiff has no legitimate basis to assert a statutory bad
faith claim against GEICO in the same action as the
uninsured/underinsured motorist claim. Id. at 2-3.
And, GEICO argues, Plaintiff's sole purpose in combining
the claims was to defeat removal of the bad faith claim to
federal court on the basis of diversity
jurisdiction. Id. Plaintiff agrees that the
statutory bad faith claims are premature, but argues that
abatement is the appropriate remedy. The Court agrees with
CIC and GEICO are correct that the statutory bad faith
actions are premature because Plaintiff has filed its
underlying first-party actions simultaneously with its bad
faith actions. See Blanchard v. State Farm Mut. Auto Ins.
Co., 575 So.2d 1289, 1291 (Fla. 1991). As noted in
An insured's underlying first-party action for insurance
benefits against the insurer must be resolved favorably to
the insured before the cause of action for bad faith in
settlement negotiations can accrue. It follows that an
insured's claim against an uninsured motorist carrier for
failing to settle the claim in good faith does not accrue
before the ...