United States District Court, M.D. Florida, Fort Myers Division
ALTA MAR CONDOMINIUM ASSOCIATION, INC., as assignee of Soares Da Costa Construction Services, LLC d/b/a SDC Construction Services, LLC and WESTCHESTER SURPLUS LINES INSURANCE COMPANY d/b/a SDC Construction Services, LLC, Plaintiffs,
HARTFORD FIRE INSURANCE COMPANY, AMERICAN HOME ASSURANCE COMPANY, and ILLINOIS NATIONAL INSURANCE COMPANY, Defendants.
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Hartford Fire
Insurance Company's Motion to Dismiss (Doc. #6) filed in
state court on December 5, 2017. After removal, plaintiffs
filed a Response in Opposition (Doc. #21) on June 7, 2018,
and Hartford filed a Reply (Doc. #37) on July 2, 2018. Prior
to removal on the basis of diversity jurisdiction, Hartford
filed the Motion to Dismiss pursuant to Fla. R. Civ. P.
1.140(b)(6), alleging that the Complaint (Doc. #2) fails to
state a claim. For the reasons set forth below, the Motion is
case stems in part from Hartford's failure to defend and
indemnify its insured in an underlying lawsuit entitled
Alta Mar Condo Assoc., Inc. v. Soares Da Costa
Construction Services, LLC, et al., 2015-CA-001996,
filed in the Twentieth Judicial Circuit in and for Lee
County, Florida (the “Underlying Action”). (Doc.
#2.) The Underlying Action involved claims by Alta Mar
Condominium Association, Inc. (“Association”) for
construction defects against SDC Construction Services, LLC,
a general contractor and Structure Stone, a subcontractor.
(Doc. #2, ¶¶ 13-14.) SDC and Structured Stone's
subcontract agreement included an indemnity provision,
requiring that SDC be listed as an additional insured under
Structure Stone's policies of insurance, and requiring
Structure Stone to defend and indemnify SDC. (Id.,
¶ 19.) Hartford was Structure Stone's insurance
company pursuant to a commercial general liability policy,
number 21UENTE2511. (Id., ¶ 45; Exh. J to
failed to defend and indemnify SDC in the Underlying Action.
(Doc. #2, ¶ 47.) As a result, SDC's insurer,
Westchester Surplus Lines Insurance Company undertook the
defense of SDC in the Underlying Action and paid $1, 275, 000
to settle the Association's claims. (Id., ¶
26.) Pursuant to the terms of the settlement agreement, SDC
assigned any and all rights, claims and defenses against the
insurers to the Association. (Id., ¶ 27.)
Association filed this lawsuit and alleges one count for
breach of contract against Hartford (Count III), seeking
reimbursement of attorney's fees and defense costs
incurred in defending SDC against the Association's
claims, and for reimbursement of a portion of the $1, 275,
000 settlement paid by SDC's insurer, Westchester Surplus
Lines Insurance Company. The Association's claims against
Hartford are based on SDC's status as an additional
insured under commercial general liability policies issued by
Hartford to Structure Stone.
elements of a breach of contract cause of action are: (1) a
valid contract, (2) a material breach, and (3) damages.
Havens v. Coast Florida, P.A., 117 So.3d 1179, 1181
(Fla. 2d DCA 2013). Hartford alleges that the Complaint
should be dismissed because plaintiffs can prove no set of
facts to satisfy element two - a material breach. Hartford
states that it had no duty to defend or indemnify SDC because
any additional insured coverage afforded to SDC by Hartford
was in excess to that afforded by Westchester, due to the
Hartford Policies' “other insurance”
provision. In support, Hartford states that the commercial
general liability policy issued by Westchester to SDC
specifies that Westchester would defend SDC in the Underlying
Action and the Court should determine whether the Westchester
and Hartford polices are primary or in excess as to each
other. Hartford argues that in considering dismissal, the
Court may look at the “four corners” of the
Complaint, together with the attached exhibits, which
establish that Hartford did not breach a duty to defend or
indemnify SDC. Plaintiffs respond that the Westchester
insurance policy issued to SDC was not attached to the
Complaint and therefore the Court cannot determine any
priority of coverage based on the Complaint and its exhibits
on a Motion to Dismiss. In its Reply, Hartford concedes that
the Association did not attach a copy of the Westchester
policy to its Complaint and did not provide Hartford with a
copy until after Hartford filed its Motion to Dismiss.
Hartford attaches a copy of the Westchester policy to its
Reply brief as Exhibit A. (Doc. #37-1.)
law provides that federal courts evaluating Rule 12(b)(6)
motions may consider an exhibit in cases in which the
document is central to plaintiff's claim, defendant
attaches the document to its motion to dismiss, and neither
party challenges its authenticity. Financial Sec. Assur.,
Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir.
2007). A plaintiff may be harmed when a court considers
material extraneous to a complaint if plaintiff did not have
notice that the material may be considered. Id. at
1285. “It is within the judge's discretion to
decide whether to consider matters outside of the pleadings
that are presented to the court.” Jones v.
Automobile Ins. Co. of Hartford, Conn., 917 F.2d 1528,
1531-32 (11th Cir. 1990).
because the document was submitted to the Court in reply,
plaintiffs had not had the opportunity to respond to the
document. Notably, the Court is unaware if plaintiffs dispute
the authenticity of the document. Therefore, the Court will
deny the Motion to Dismiss. Whether the insurance policies at
issue show that Hartford was an excess insurer and therefore
had no duty to defend or indemnify plaintiffs is an issue to
be decided on summary judgment with submission of all
evidence for the Court's consideration.
it is hereby
Hartford Fire Insurance Company's Motion to Dismiss (Doc.
#6) is DENIED.