United States District Court, M.D. Florida, Tampa Division
ELIZABETH A. KOVACHEVICH UNITED STATES DISTRICT, JUDGE
Vincent Tifer sues Defendant The New York Life Insurance
Company ("New York Life") for
breach of contract (Count I) and breach of fiduciary duty
(Count II). (Doc. 1-1). New York Life moves to dismiss
Tifer's claim for breach of fiduciary duty. (Doc. 7).
Tifer opposes. (Doc. 8). The Court will grant the motion. The
dismissal will be without prejudice.
is the named insured under an individual disability income
policy issued by New York Life (the
"Policy"). (Doc. 1-1 at 3
¶4). Tifer attached a copy of the Policy to the
complaint. Id. at 9-42. The Policy became effective
December 8, 1994. Id. at 3 ¶5. The Policy's
benefits period ended on December 19, 2018. Id. at 4
31, 1996, Tifer became permanently disabled and thereby
eligible for benefits under the Policy. Id. at 4
¶6. Tifer has paid all premiums and satisfied all other
conditions for eligibility for the full amount of benefits
payable under the Policy. Id. at 4 ¶9. Tifer
began to receive monthly payments under the Policy on August
29, 1996. Id. at 4 ¶7. However, over the life
of the Policy, New York Life failed to pay Tifer all amounts
due and owing to him. Id. at 4 ¶¶l 1,
14-15. In total, Tifer seeks to recover over $1.2 million in
underpaid benefits from New York Life. Id. at 8.
initiated this action by filing a civil complaint against New
York Life in Florida state court on November 16, 2018. (Doc.
1-1 at 3-8). New York Life subsequently removed the action to
this Court on January 7, 2019. (Doc. 1). Tifer doesn't
challenge the Court's subject matter jurisdiction, and
the Court is satisfied it properly exercises diversity
jurisdiction over the action pursuant to 28 U.S.C. §
York Life filed its motion to dismiss on January 24, 2019.
(Doc. 7). By the motion, New York life requests the Court
issue an order dismissing only Tifer's claim for breach
of fiduciary duty. Id. As grounds, New York Life
argues Florida law doesn't recognize a fiduciary duty
from an insurer to a first-party insured. Id. Tifer
disagrees and counters that, although New York Life
"correctly state[s] the general rule, there are
exceptions, and the question of whether an insurer owes a
fiduciary duty to a first-party insured is an issue of
fact" not susceptible to determination on a motion to
dismiss. (Doc. 8 at 2).
requires complaints to contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief." Fed.R.Civ.P. 8(a)(2). Rule 12 permits a
district court to dismiss a complaint for "failure to
state a claim upon which relief can be granted."
Fed.R.Civ.P. 12(b)(6). To avoid dismissal, a plaintiff must
state a claim 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 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." Iqbal 556 U.S. at
678. The district court must accept all factual allegations
in the complaint as true but doesn't credit "mere
conclusory statements" or "[t]hreadbare recitals of
the elements of a cause of action." Id.
Additionally, dismissal is warranted under Rule 12(b)(6) if,
assuming the truth of the complaint's factual
allegations, a dispositive legal issue precludes relief.
Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).
state a claim for breach of fiduciary duty, a plaintiff must
allege facts, accepted as true, that allow the Court to draw
the reasonable inference that: (1) the defendant owed a
fiduciary duty to the plaintiff; (2) the defendant breached
that duty; and (3) the plaintiff suffered damages proximately
caused by the defendant's breach. See Gracey v.
Eaker, 837 So.2d 348, 353 (Fla. 2002). Multiple judges
in this District, carefully considering pertinent Florida
precedent, have concluded, seemingly without exception, that
Florida common law recognizes no fiduciary relation
between a first-party insured and his insurer. See,
e.g.. Drilling Consultants, Inc. v. First Montauk
Sec. Corp., 806 F.Supp.2d 1228, 1238 (M.D. Fla. 2011)
(Merryday, J.) ("Florida law typically recognizes no
fiduciary relation between an insurer and an insured.");
Grandrimo v. Parkcrest Harbour Island Condo. Ass'n,
Inc., No. 8:10-cv-964-JDW-MAP, 2011 WL 550579, at *4
(M.D. Fla. Feb. 9, 2011) (Whittemore, J.) ("[I]nsurers
have no common law fiduciary duty to an insured making claims
under a first-party insurance contract"); Hogan v.
Provident Life & Ace. Ins. Co., No.
6:08-cv-1897-PCF-KRS, 2009 WL 2169850, at *4 (M.D. Fla. July
20, 2009) (Fawsett, J.) ("As explained by Florida's
Supreme Court, [a common law breach of fiduciary duty] claim
is the equivalent of a common law bad faith claim, and
Florida does not recognize a common law first-party bad faith
cause of action because there is no fiduciary relationship
between an insurer and an insured in this context.")
(citing Time Ins. Co. v. Burger, 712 So.2d 389, 391
one judge in this District, in a more recent decision, found
this view of Florida's jurisprudence on fiduciary
relations between insurers and their first-party insureds to
be "oversimplified." Asokan v. Am. Gen. Life
Ins. Co., 302 F.Supp.3d 1303, 1316 (M.D. Fla. 2017)
(Byron, J.) (citing Berges v. Infinity Ins., 896
So.2d 665, 672 (Fla. 2004) ("It has long been the law of
this State that an insurer owes a duty of good faith to its
insured.")). In Asokan, Judge Byron rejected
arguments similar to those levied by New York Life here and
declined the defendant-insurer's invitation to grant
summary judgment in its favor on the plaintiff-insured's
breach of fiduciary duty claim in the first-party context.
Id. at 1316-17. Judge Byron explained that "a
fiduciary relationship will exist between" a first-party
insured and his insurer "where there is a special
relation of trust and confidence between the parties."
Id. at 1317 (citing Tiara Condo. Ass'n, Inc.
v. Marsh. USA. Inc., 991 F.Supp.2d 1271, 1281 (S.D. Fla.
2014) (Huley, J.) ("[W]hen an insurance broker
encourages and engages in a 'special relationship'
with its client, [it triggers] an enhanced duty of care to
advise the client about the coverage."); 14 Couch on
Ins. § 198:7 ("The relationship between the parties
determines the extent of the duties owed to the
insured.")). "Relevant factors that aid in the
determination of whether a 'special relationship'
exists include the extent of the insurance company's
involvement in the client's decision to purchase
insurance, and whether the insurance company held itself out
as having expertise in the field and the insured relied upon
that expertise." Id. (citing Am. K-9
Detection Servs., Inc. v. Rutherford Intl Inc., No.
6:14-cv-1988-RBD-TBS, 2016 WL 2744958, at *13 (M.D. Fla. May
11, 2016) (Dalton, J.)). In the end, Judge Byron concluded
that whether the insurer owed a fiduciary duty to its insured
"is a question of fact for the jury" and denied the
insurer's motion for summary judgment. Id.
assuming, without deciding, that Asokan correctly
states the law on an insurer's common law fiduciary duty
to a first-party insured,  Count II of Tifer's complaint is
nonetheless due to be dismissed. Tifer's complaint
contains no factual allegations that would permit the Court
to reasonably infer the existence of a "special
relationship" between Tifer and New York Life. To be
sure, Tifer fails to allege facts concerning the extent of
New York Life's involvement in his decision to purchase
disability income insurance coverage, and whether New York
Life held itself out as having expertise in the field, and,
moreover, that Tifer relied upon that expertise in making his
decision to purchase coverage. In the response to the motion
to dismiss, Tifer attempts to expound upon New York
Life's expertise, Tifer's own reliance on the same,
and other facts surrounding Tifer's purchase of
disability income insurance coverage from and his relations
with New York Life. (Doc. 8 at 6-7). Whether these assertions
- again, assuming a common law fiduciary duty between an
insurer and a first-party insured even exists under Florida
law - would move Tifer's allegations across the line from
implausible to plausible is of no moment, however, because a
plaintiff cannot amend his complaint through a response to a
motion to dismiss. Grandrimo, 2011 WL 550579, at *5.
Therefore, Tifer fails to state a claim upon which relief can
be granted, and the Court will dismiss Count II of