United States District Court, S.D. Florida
TAMIAMI CONDOMINIUM WAREHOUSE PLAZA ASSOCIATION, INC., Plaintiff,
MARKEL AMERICAN INSURANCE COMPANY, Defendant.
ORDER GRANTING MOTION TO DISMISS COUNT II OF AMENDED
SMITH, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Defendant Markel American
Insurance Company's (“Defendant”) Motion to
Dismiss Count II of the First Amended Complaint
(“Motion to Dismiss”) (ECF No. 22), filed on May
29, 2019. Plaintiff Tamiami Condominium Warehouse Plaza
Association, Inc. (“Plaintiff”) filed its
Response on June 12, 2019 (ECF No. 26). Defendant filed its
Reply on June 19, 2019 (ECF No. 28). The Court has carefully
reviewed the Motion to Dismiss, the Response, the Reply, all
supporting and opposing submissions, and the record as a
whole. For the reasons set forth below, Defendant's
Motion to Remand (ECF No. 22) is GRANTED.
BACKGROUND This case involves an insurance coverage
dispute relating to damages from Hurricane Irma to
Plaintiff's properties located in Miami, Florida (the
“Property”). The Property was covered by
Plaintiff's insurance policy with Defendant (the
“Policy”), which was in effect on September 10,
2017, when Irma made landfall on South Florida and caused
damage to the Property. Plaintiff filed a claim with
Defendant under the Policy to recoup those damages. After
satisfying its obligations under the Policy, Plaintiff
contends that Defendant failed to pay the total amount of the
damages that were caused by the hurricane.
originally filed its complaint in state court, in the
Eleventh Judicial Circuit Court in and for Miami-Dade County,
on February 13, 2019 (ECF No. 1-2). The case was removed to
this Court on April 5, 2019 (ECF No. 1). Plaintiff filed an
Amended Complaint on May 16, 2019 (ECF No. 18). The Amended
Complaint brings two counts against Defendant alleging breach
of contract (Count I) and seeking a declaration of rights
(Count II). Both counts arise from the same set of factual
29, 2019, Defendant filed an Answer to the Amended Complaint
(ECF No. 21), and then the present Motion to Dismiss (ECF No.
22) on the same day. The Motion to Dismiss seeks dismissal of
Count II only. Defendant argues that the declaratory relief
sought in Count II is duplicative of Plaintiff's breach
of contract claim in Count I, and thus must be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6).
12(b)(6) motion to dismiss tests the sufficiency of the
complaint against the legal standard set forth in Rule 8:
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). To survive a motion to dismiss, a plaintiff must
plead sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The Court's
consideration is limited to the allegations in the complaint.
GSW, Inc. v. Long Cty., 999 F.2d 1508, 1510 (11th
Cir. 1993). All factual allegations are accepted as true and
all reasonable inferences are drawn in the plaintiff's
favor. Speaker v. U.S. Dep't of Health & Human
Servs. Ctrs. For Disease Control & Prevention, 623
F.3d 1371, 1379 (11th Cir. 2010).
initial matter, the Court notes that Defendant's Motion
to Dismiss (ECF No. 22) was filed after its Answer to the
Amended Complaint (ECF No. 21). Under the unambiguous,
mandatory language of Rule 12(b), a motion to dismiss must be
made before an answer is filed. Courts have strictly
followed the use of the word “before” in Rule
12(b), and have found motions to dismiss untimely when they
were filed after or even contemporaneously with an answer.
See Walker v. Mead, No. 6:13-CV-1894-ORL-36, 2014 WL
2778162, at *3 (M.D. Fla. June 18, 2014) (collecting cases).
Even where the answer is only partial and references the
subsequent motion to dismiss, as is here, the Rule
requires that all Rule 12(b) motions be filed prior to a
responsive pleading. See Alilin v. State Farm Mut. Auto.
Ins. Co., No. 6:14-CV-1183-ORL, 2014 WL 7734262, at *3
(M.D. Fla. Jan. 30, 2014). As a result, “the proper
rule for challenging a complaint after an answer has been
filed is a motion for judgment on the pleadings, ”
under Rule 12(c). Williams v. Specialized Loan Servicing
LLC, No. 1:16-CV-0638-RWS-LTW, 2017 WL 2903350, at *2
(N.D.Ga. Jan. 3, 2017), report and recommendation
adopted, No. 1:16-CV-0638-RWS-LTW, 2017 WL 3000037
(N.D.Ga. Feb. 22, 2017). Under Rule 12(c) and (h)(2)(B),
defendants who have answered a complaint may still challenge
a plaintiff's pleadings on the basis that they fail to
state a claim upon which relief may be granted. A Rule 12(c)
motion for judgment on the pleadings is governed by the same
standard as a Rule 12(b)(6) motion to dismiss. Hawthorne
v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.
1998); Grossman v. Nationsbank, N.A., 225 F.3d 1228,
1231 (11th Cir. 2000). Accordingly, because there is no
substantive difference between motions filed under Rule
12(b)(6) and Rule 12(c), the Court will address the arguments
made in Defendant's Motion to Dismiss as though they had
been properly raised in a motion for judgment on the
to the merits, Defendant contends that Count II for
declaratory relief is duplicative of, and is subsumed within,
Count I, and should be dismissed. In a claim for declaratory
relief, the court may declare the rights and other legal
relations of any interested party in the case of an actual
controversy within its jurisdiction. 28 U.S.C. § 2201.
Florida Statute Section 86.021 provides for a declaration of
rights or status where a party to an agreement is in doubt as
to his or her rights. City of Hollywood v. Fla. Power
& Light, Co., 624 So.2d 285 (Fla. 4th DCA 1993). The
only relevant inquiry in ascertaining whether the complaint
states a claim for declaratory relief is whether or not the
plaintiff is entitled to a declaration of rights. Tobon
v. Am. Sec. Ins. Co., No. 06-61912-Civ, 2007 WL 1796250,
at *2 (S.D. Fla. June 20, 2007).“[A] trial court should
not entertain an action for declaratory judgment on issues
which are properly raised in other counts of the pleadings
and already before the court, through which the plaintiff
will be able to secure full, adequate and complete
relief.” Fernando Grinberg Tr. Success Int.
Properties LLC v. Scottsdale Ins. Co., No. 10-20448-CIV,
2010 WL 2510662, at *1 (S.D. Fla. June 21, 2010).
of the Amended Complaint for breach of contract alleges that
Defendant failed to pay the total amount of damages that were
caused by Hurricane Irma and due to Plaintiff under the
Policy (ECF No. 18 at ¶ 17) (“Defendant failed to
pay the total amount of the damages that proximately resulted
from, and that were caused by, the Loss.”). Count II
seeks declaratory relief based on Plaintiff's doubts as
to whether its claim for damages is fully covered under the
Policy, and alleges a dispute between the parties as to
whether the Policy provides coverage of the loss
(id. at ¶¶ 29, 30). Specifically,
Plaintiff seeks a declaration as to whether Defendant waived
certain conditions precedent and subsequent to coverage as
required by the Policy; whether Defendant breached a material
term of the Policy; whether Defendant has a lawful basis to
dispute coverage for losses/damages; and whether Defendant is
estopped from disputing coverage (id. at ¶
31(a)-(e)). Both counts incorporate by reference all general
allegations of the complaint (id. at ¶¶
1-18), and both counts seek attorney fees and costs.
issues raised in Plaintiff's declaratory relief count
will necessarily be resolved upon adjudication of the breach
of contract count-that is, whether Defendant breached the
terms of the Policy by failing to pay the total amount of
damages that Plaintiff alleges it is entitled to. Plaintiff
can obtain full, adequate, and complete relief through its
breach of contract claim, rendering its petition for
declaratory relief redundant. Other courts in this district
dealing with the same issue have come to the same conclusion.
See, e.g., Fernando, 2010 WL 2510662, at *2
(dismissing declaratory relief count where the relief sought
was available through breach of contract claim); ABC
Univ. Shops, LLC v. Scottsdale Ins. Co., 18-60562-CIV,
2018 WL 3672265, at *3 (S.D. Fla. July 24, 2018) (same);
Trianon Condo. Ass'n, Inc. v. QBE Ins. Corp.,
741 F.Supp.2d 1327, 1332-33 (S.D. Fla. 2010) (same);
Ministerio Evangelistico Int'l v. United Specialty
Ins. Co., No. 16-25313-CIV, 2017 WL 1363344, at *2 (S.D.
Fla. Apr. 5, 2017) (“A petition seeking a declaratory
judgment that alleges breach of duties and obligations under
the terms of a contract and asks the court to declare those
terms breached is nothing more than a petition claiming
breach of contract.”). Though Plaintiff relies on
Ocean's 11 Bar & Grill, Inc. v. Indemnity
Insurance Corporation of DC, 2011 WL 3843931, at *2
(S.D. Fla. Aug. 26, 2011) for the proposition that a
declaratory relief count can coexist alongside a breach of
contract count, that case is distinguishable because there
the court found that the declaratory relief count sought
injunctive relief that was unavailable in the breach of
contract count. Moreover, Plaintiffs other cited cases,
Higgins v. State Farm Fire & Casualty Company,
894 So.2d 5 (Fla. 2004) and Heritage Prop. & Casualty
Insurance Company v. Romanach, 224 So.3d 262 (Fla. 3d
DCA 2017), discuss only whether an insurance carrier had
stated a claim for declaratory relief, without reference to a
breach of contract claim.
Plaintiffs claim for declaratory relief is subsumed within
its breach of contract claim, it is accordingly
ORDERED AND ADJUDGED that Defendant's
Motion to Dismiss Count II of the First Amended Complaint
(“Motion to Dismiss”) (ECF No. 22) is
GRANTED. Count II of the Amended Complaint
is DISMISSED WITH PREJUDICE.