United States District Court, M.D. Florida, Orlando Division
ALLSTATE INSURANCE COMPANY, ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, ALLSTATE INDEMNITY COMPANY and ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiffs,
AUTO GLASS AMERICA, LLC and CHARLES ISALY, Defendants.
E. MENDOZA I UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Defendants' Motion to
Dismiss (“Motion, ” Doc. 22) and Plaintiffs'
Response (Doc. 29). As set forth below, the Motion will be
granted in part and denied in part.
are insurance companies that offer insurance policies for,
among other things, automobiles. (Compl., Doc. 1, at 5).
Through these insurance policies, Plaintiffs allege that they
have contractual relationships with their insured customers.
(Id. at 29). Defendant Auto Glass America, LLC, and
its owner Charles Isaly, are alleged to be in the business of
replacing automobile glass, including replacing damaged
windshields. (Id. at 5).
[law] requires that insurance companies, including
Plaintiffs, cover repair or replacement of damaged
windshields of their insureds who have comprehensive
coverage, [and i]nsureds are not required to pay a deductible
on these claims.” Gov't Emps. Ins. Co. v. Clear
Vision Windshield Repair, L.L.C., No.
6:16-cv-2077-Orl-28TBS, 2017 U.S. Dist. LEXIS 47353, at *2
(M.D. Fla. Mar. 29, 2017) (citing Fla. Stat. §
627.7288); (see also Doc. 1 at 8). The conflict
between these parties results from these windshield
replacements. (Doc. 1 at 2).
claim that Defendants “pressure” Plaintiffs'
insured customers into hiring Defendants for windshield
replacements. (Id.). Defendants then allegedly
obtain an assignment of benefits from Plaintiffs' insured
customers “without the insureds' knowledge or
consent.” (Id. at 4). Defendants, through the
assignment of benefits, allegedly invoice Plaintiffs for the
replacements, in accordance with Florida Statute §
627.7288, which provides that insured customers with
comprehensive coverage do not have to pay for windshield
replacements. (Id. at 2). Plaintiffs claim that
these invoices are for “excessive and unreasonable
amounts.” (Doc. 1 at 2). Plaintiffs assert that a
typical windshield replacement done by other vendors in
Florida cost an average of $350, whereas Defendants'
invoices average $900. (Id. at 4). Plaintiffs also
claim that in some of the replacement situations, windshield
replacement was unnecessary because the damaged windshield
could have been safely repaired at a lower cost.
Plaintiffs have refused to pay Defendants more than what it
believes are “the competitive and prevailing market
rates for windshield replacements.” (Id.). As
a result, Defendants have then purportedly “filed over
1, 400 lawsuits” against Plaintiffs to recover the
“overages”-the difference between the invoice
amount and Plaintiffs' payment. (Id.; see
also Doc. Nos. 15, 16). At the time of the Complaint,
Plaintiffs allege that “[t]he current amount of
overages . . . exceeds $200, 000.” (Doc. 1 at 4). And
Plaintiffs claim that they have “incurred litigation
costs and fees in 2017 and 2018 alone exceeding $400,
000.” (Id. at 5).
filed the instant lawsuit, which asserts claims for tortious
interference, violations of Florida's Deceptive and
Unfair Trade Practices Act (“FDUTPA”), violations
of Florida's Home Solicitation Sales Act
(“FHSSA”), violations of the Federal Trade
Commission's (“FTC”) Rule Concerning
Cooling-off Period for Sales Made at Homes or at Certain
Other Locations (“FTC Rule”), violations of the
Florida Motor Vehicle Repair Act (“FMVRA”), and
unjust enrichment. (See generally Doc. 1).
Plaintiffs seek injunctive and declaratory relief and request
actual damages. (Id.).
move to dismiss the Complaint pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 22 at 1).
Pursuant to Rule 12(b)(1), Defendants assert what they
characterize as a facial attack based on lack of Article III
standing and a factual attack based on abstention grounds.
(Id. at 3). Defendants also move to dismiss pursuant
to Rule 12(b)(6) for failure to state a claim upon which
relief can be granted. (Id. at 2).
to Federal Rule of Civil Procedure 12(b)(1), a party may move
to dismiss the claims against it for “lack of
subject-matter jurisdiction.” “Attacks on subject
matter jurisdiction . . . come in two forms: ‘facial
attacks' and ‘factual attacks.'”
Garcia v. Copenhaver, Bell & Assocs., M.D.'s,
P.A., 104 F.3d 1256, 1260-61 (11th Cir. 1997) (quoting
Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th
Cir. 1990)). “Facial attacks challenge subject matter
jurisdiction based on the allegations in the complaint, and
the district court takes the allegations as true in deciding
whether to grant the motion.” Morrison v. Amway
Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003).
“However, where a defendant raises a factual attack on
subject matter jurisdiction, the district court may consider
extrinsic evidence such as deposition testimony and
affidavits.” Carmichael v. Kellogg, Brown &
Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009).
“When jurisdiction is properly challenged, a plaintiff
has the burden of showing jurisdiction exists.”
Kruse, Inc. v. Aqua Sun Invs., Inc., No.
6:07-cv-1367-Orl-19UAM, 2008 U.S. Dist. LEXIS 7066 (M.D. Fla.
Jan. 31, 2008).
Article III Standing Analysis
III standing is a threshold inquiry, Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 94-95
(1998), so the Court will address it first. In order to bring
a case in federal court, a plaintiff must establish standing
under Article III of the United States Constitution.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 559-60
(1992). To establish Constitutional, or Article III,
standing, a plaintiff must show: “1) that [it]
personally has suffered an actual or prospective injury as a
result of the putatively illegal conduct; 2) that the injury
can be fairly traced to the challenged conduct; and 3) that
the injury is likely to be redressed through court
action.” Saladin v. City of Milledgeville, 812
F.2d 687, 690 (11th Cir. 1987).
assert that Plaintiffs have failed to establish Article III
standing because: Plaintiffs have not demonstrated that any
of their claims fall within coverage of the consumer
protection statutes upon which their claims are based;
Plaintiffs have not established that they have suffered an
injury-in-fact; and Plaintiffs have not shown a causal
connection between the purported injury and the complained of
establish Article III standing, “it is not enough that
a named plaintiff can establish a case or controversy between
himself and the defendant by virtue of having standing as to
just one of many claims he wishes to assert. Rather, each
claim must be analyzed separately.” Griffin v.
Dugger, 823 F.2d 1476, 1483 (11th Cir. 1987). Therefore,
the Court proceeds to look at whether Plaintiffs have
standing to bring each of the ten Counts they have asserted
in the Complaint.
II, III, IV, VII, and VIII-FDUTPA Claims
II, III, IV, VII, and VIII of Plaintiffs' Complaint are
based on alleged violations of FDUTPA. FDUTPA makes illegal
“[u]nfair methods of competition, unconscionable acts
or practices, and unfair or deceptive acts or practices in
the conduct of any trade or commerce.” Fla. Stat.
§ 501.204(1). “FDUTPA authorizes a private cause
of action for actual damages by any ‘person' who
has suffered a loss because of a defendant's violation of
the statute.” State Farm Mut. Auto. Ins. Co. v.
Feijoo, No. 1:18-cv-23329-KMM, 2019 U.S. Dist. LEXIS
93343, at *13 (S.D. Fla. June 3, 2019) (quoting Fla. Stat.
§ 501.211(2)). In 2001, the Florida Legislature amended
FDUTPA's standing provision by replacing the word
‘consumer' with the word ‘person.'
Id. “There is currently a split in authority
regarding whether the 2001 amendment extended FDUTPA to
non-consumers, ” and neither the Florida Supreme Court
nor the Eleventh Circuit has resolved the split. Id.
assert that “Plaintiffs are not consumers involved in
consumer transactions with [Defendants], ” and
therefore are not covered by the protections of FDUTPA. (Doc.
22 at 5). Plaintiffs claim that the FDUTPA is not so limited.
Plaintiffs are correct.
least three of Florida's District Courts of
Appeal have categorically held that “an
entity [i]s not required to be a consumer in order to have
standing to bring a FDUTPA claim.” Feijoo,
2019 U.S. Dist. LEXIS 93343, at *14 (quoting Caribbean
Cruise Line, Inc. v. Better Business Bureau of Palm Beach
Cty., Inc., 169 So.3d 164, 169 (Fla. 4th DCA 2015)
(collecting cases)); see also Envtl. Mfg. Sols., LLC v.
Fluid Grp. Ltd., No. 6:18-cv-156-Orl-40KRS, 2018 U.S.
Dist. LEXIS 131382, at *48-50 (M.D. Fla. May 9, 2018)
(holding same). Absent a clear direction from the Florida
Supreme Court on an issue, this Court is “bound to
follow” decisions of the state's intermediate
appellate courts unless there is some persuasive indication
that the Florida Supreme Court would decide the issue
differently. Nunez v. Geico Gen. Ins. Co., 685 F.3d
1205, 1210 (11th Cir. 2012) (citation omitted). Thus,
Defendants' argument that Plaintiffs, as insurers, cannot
be protected by FDUTPA fails.
arguments also fail regarding injury-in-fact and causal
connection for the FDUTPA claims. An injury-in-fact is
“‘an invasion of a legally protected
interest' that is ‘concrete and particularized'
and ‘actual or imminent, not conjectural or
hypothetical.'” Spokeo, Inc. v. Robins,
136 S.Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S.
at 560). The injury must be “particularized, ”
meaning it “must affect the plaintiff in a personal and
individual way.” Id. (quoting Lujan,
504 U.S. at 560 n.1). Additionally, the injury must be
“concrete, ” meaning “it must actually
exist.” Id. The Supreme Court in
Spokeo emphasized that a plaintiff cannot
“allege a bare procedural violation, divorced from any
concrete harm, and satisfy the injury-in-fact requirement of
Article III.” Id. at 1549.
argue that “the Complaint contains no allegations that
any of [Defendants'] true consumer-customers sustained
any damages, actual or otherwise, or were harmed by
Defendants in any way.” (Doc. 22 at 9). Defendants miss
the point. FDUTPA does not only protect consumers, as
discussed above. Plaintiffs allege that they were
injured by Defendants' actions in the following
ways. Plaintiffs claim that the average invoice
for a windshield replacement done by Defendants is
approximately $900, whereas the average for other glass
vendors in Florida is approximately $350. Plaintiffs refusal
to pay the full invoice amount has resulted in
“overages” that Defendants are seeking from
Plaintiffs, which exceed $200, 000. Plaintiffs also state in
their Complaint that they have incurred litigation costs and
fees resulting from Defendants' lawsuits against
Plaintiffs seeking payment of the overages.
the costs of the instant lawsuit are not a cognizable injury
sufficient to establish standing, Steel Co., 523
U.S. at 107-08, the underlying lawsuits (“over 1,
400” of them, (Doc. 1 at 4)) and associated expenses
“exceeding $400, 000, ” (id. at 5),
represent an actual concrete and particularized
injury-in-fact. Sliwa v. Bright House Networks, LLC,
No. 2:16-cv-235-FtM-29MRM, 2018 U.S. Dist. LEXIS 52509, at *9
(M.D. Fla. Mar. 29, 2018) (holding that “exposure to
liability in [a] lawsuit constitutes a sufficient
injury-in-fact”) (citing Yellow Pages Photos, Inc.
v. Ziplocal, LP, 795 F.3d 1255, 1265 (11th Cir. 2015)).
Plaintiffs have sufficiently alleged that they have been
“expos[ed]” to liability in the underlying
notably, even if the underlying lawsuits were not a
cognizable injury-in-fact, Plaintiffs suggest that some of
the windshield replacements were unnecessary in the first
place and that “at least some of the damaged
windshields could have been properly and safely repaired at a
much lower cost.” (Doc. 1 at 4). Thus, Plaintiffs have
alleged an injury in the form of overpaying for windshield
replacements when they should have only had to pay for lower
these purported injuries are fairly traceable to the alleged
FDUTPA violations. Traceability is a “relatively
modest” burden, Bennett v. Spear, 520 U.S.
154, 171 (1997), and “even harms that flow indirectly
from the action in question can be said to be ‘fairly
traceable' to that action for standing purposes.”
Focus on the Family v. Pinellas Suncoast Transit
Auth., 344 F.3d 1263, 1273 (11th Cir. 2003); see
Lexmark Int'l, Inc. v. Static Control Components,
Inc., 134 S.Ct. 1377, 1391 n. 6 (2014) (“Proximate
causation is not a requirement of Article III standing, which
requires only that the plaintiff's injury be fairly
traceable to the defendant's conduct.”).
purpose of FDUTPA is to “protect the consuming public
and legitimate business enterprises from those who engage in
unfair methods of competition, or unconscionable, deceptive,
or unfair acts or practices in the conduct of any trade or
commerce.” Fla. Stat. § 501.202(2). Plaintiffs
allege that Defendants' actions violated various
provisions of FDUTPA. Plaintiffs then suggest that but for
these actions, Plaintiffs' insured customers would either
not have needed a windshield replacement-and would have only
needed a repair-or would have had their windshield replaced
at a lower cost. Additionally, Plaintiffs allege that but for
these disputes about costs, Defendants would not have sued
Plaintiffs for recovery of underpaid invoices. Thus,
Plaintiffs have established the standing element of
do not challenge the redressability element of standing, but
that element is also met. “[A] favorable decision on
the [FDUTPA] claim[s] will redress the injury to the extent
Plaintiff recovers the monies it paid on the basis of [FDUTPA
violations].” Deere Constr., LLC v. Cemex Constr.
Materials Fla., LLC, 198 F.Supp.3d 1332, 1340 (S.D. Fla.
2016). Plaintiffs have established Article III standing on
the FDUTPA claims, so they will not be dismissed on this
Counts V, VI, and X-Non-FDUTPA Claims
Counts V, VI, and X, Defendants argue that if Plaintiffs lack
standing under FDUTPA, then Plaintiffs also lack standing on
the non-FDUTPA claims because those claims “are all
premised on purported FDUTPA violations.” (Doc. 22 at
10). The Court finds this argument to be an ineffective
attempt at getting these claims dismissed. While Counts VII
and VIII do allege per se violations of FDUTPA as a
result of the alleged non-FDUTPA statutory violations, Counts
V, VI, and X allege stand-alone claims independent of FDUTPA
and are adequately supported by alleged facts and legal
authority. Count V is based on alleged violations of FHSSA
and the FTC Rule, Count VI is based on alleged violations of
FMVRA, and Count X is a common law claim for unjust
enrichment. Defendants even admit that these are
“stand-alone claims, ” (Doc. 22 at 10 n.10, 11,
12), but then fail to provide any argument supporting
dismissal other than the vague assertion that the claims are
premised on FDUTPA violations and therefore should be
dismissed if Plaintiffs lack standing on the FDUTPA claims.
(Doc. 22 at 10 n.10, 11, 12). Regardless, at a minimum,
Plaintiffs have alleged the same injury-in-fact for Counts V,
VI, and X as they have for the FDUTPA claims. And, for
traceability, Plaintiffs allege that if Defendants had not
violated the underlying statutes, then Plaintiffs would not
have suffered these injuries. As with the FDUTPA claims,
Plaintiffs' injuries would be redressed with a payment of
damages for monies lost resulting from the statutory
violations. Accordingly, Plaintiffs have established Article
III standing on the non-FDUTPA claims.