United States District Court, S.D. Florida
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court for a hearing on
September 25, 2019, on Defendants, Liberty Mutual Insurance
Company (“Liberty Mutual”) and LM General
Insurance Company's (“LM General['s]”)
Motion to Dismiss Amended Complaint with Prejudice [ECF No.
24], filed July 10, 2019. Plaintiff, Lessie Glover, filed an
Opposition to Defendants' Motion to Dismiss [ECF No. 32],
attaching supporting case law as exhibits [ECF Nos. 32-1 to
32-4]. Defendants filed a Reply to Plaintiff's Opposition
[ECF No. 33], to which Plaintiff filed a Surreply in
Opposition [ECF No. 52]. The parties also filed supplemental
authorities. (See [ECF Nos. 53 and 60]). The Court
has carefully considered the parties' written
submissions, the Amended Class Action Complaint [ECF No. 11],
applicable law, and the parties' oral arguments.
brings this putative class action alleging a single breach of
contract claim against both Defendants. (See
generally Am. Compl.). Plaintiff was a named insured on
a LibertyGuard Auto Insurance Policy (“Insurance
Policy”) effective July 25, 2016 through July 25, 2017.
(See id., Ex. A, Insurance Policy [ECF 11-1] 1).
Plaintiff alleges Defendants have a practice of refusing to
pay full Actual Cash Value (“ACV”), including
state and local title transfer and vehicle registration fees,
to first-party total loss insureds like Plaintiff, on
physical damage policies containing comprehensive and
collision coverages. (See Id. ¶ 3).
Defendants' failure to pay full ACV damaged Plaintiff and
members of the proposed Florida class of insureds. (See
Liberty Mutual handles and adjusts insurance claims and is
responsible for policy language and claims adjustments.
(See Id. ¶¶ 8, 11). Illinois-based LM
General is a wholly-owned underwriter of Liberty Mutual,
entirely directed and controlled by Liberty Mutual. (See
Id. ¶¶ 9, 10). Liberty Mutual,
“including by and through LM General[, ]” uses
the same form language in Plaintiff's Insurance Policy as
it does in the policies of all Class Members. (Id.
¶ 14 (alteration added)).
standardized policy language promises, upon the occurrence of
a total loss to an insured vehicle, to pay the ACV of the
insured vehicle to the insured. (See Id. ¶ 15).
In this regard, the Insurance Policy states:
A. Our limit of liability for loss will be the lesser of the:
1. Actual cash value of the stolen or damaged property;
2. Amount necessary to repair or replace the property with
other property of like kind and quality.
However, the most we will pay for loss to any
“non-owned auto” which is a trailer is $500.
B. An adjustment for depreciation and physical condition will
be made in determining actual cash value in the event of a
(Insurance Policy 14). According to Plaintiff, under the
Insurance Policy and applicable state law, ACV equates to the
Full Total Loss Payment (“FTLP”) required to
replace a vehicle, which includes the obligation to pay state
and local fees. (See Id. ¶¶ 1, 17). Such
fees include title transfer fees and tag transfer fees, each
of which is a mandatory fee imposed by the State of Florida.
(See Id. ¶ 17).
alleges the “promise to pay ACV -- unlike a true
Replacement Cost provision, which requires payment of actual
costs incurred and does not allow for deductions for
depreciation or physical condition -- allows for deductions
based on the vehicle's depreciation and condition but
does not require the costs be incurred.” (Id.
¶ 18). The promise to pay ACV is a predictable amount
upon which Defendants and insureds can rely. (See
id.). The ACV of a vehicle is independent from the
amount originally paid, if any, for the total-loss vehicle;
and the amount paid, if any, to replace the total-loss
vehicle. (See id.). Given a vehicle's ACV takes
into account depreciation, condition, and costs reasonably
likely to be incurred in vehicle replacement, the promise to
pay the ACV of a total-loss vehicle is a promise to pay the
FTLP, including underlying adjusted vehicle value, plus sales
tax, plus title transfer fee ($75.25), plus tag transfer fee
($4.60), less any applicable deductible and salvage
retention. (See Id. ¶ 19).
owned a vehicle insured under Defendants' Insurance
Policy and was involved in an accident. (See Id.
¶¶ 20-22). Defendant LM General paid Plaintiff an
amount that did not include title transfer or tag transfer
fees. (See Id. ¶¶ 23-26; Ex. C [ECF No.
11-3]). Title transfer fees and tag transfer fees are
mandatory fees that must be paid to replace any vehicle in
Florida. (See Id. ¶ 27). Defendants,
“pursuant to a standard and uniform business practice,
never pays [sic] insureds FTLP, including title and tag
transfer fees, after a total-loss to an insured vehicle,
notwithstanding its [sic] contractual obligation to do
so.” (Id. ¶ 28). “Defendants
breached its [sic] Insurance Policy with Plaintiff by failing
to pay any amount for title transfer fees and tag transfer
fees when it [sic] paid Plaintiff what it [sic] purported to
be the ACV of the total loss of the Insured Vehicle.”
(Id. ¶ 31).
Amended Complaint contains a single breach-of-contract claim,
alleging Plaintiff “was a party to a contract, the
Insurance Policy, with Defendants.” (Id.
¶ 63). The Insurance Policy shows the insurer is LM
General and not Liberty Mutual. (See Insurance
survive a motion to dismiss [under Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (alteration added) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although
this pleading standard “does not require
‘detailed factual allegations,' . . . it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. (alteration added) (quoting
Twombly, 550 U.S. at 555). Pleadings must contain
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555 (citation
omitted). Indeed, “only a complaint that states a
plausible claim for relief survives a motion to
dismiss.” Iqbal, 556 U.S. at 679 (citing
Twombly, 550 U.S. at 556).
this “plausibility standard, ” a plaintiff must
“plead factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (alteration
added) (citing Twombly, 550 U.S. at 556). “The
mere possibility the defendant acted unlawfully is
insufficient to survive a motion to dismiss.”
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261
(11th Cir. 2009) (citation omitted), abrogated on other
grounds by Mohamad v. Palestinian Auth., 566 U.S. 449
motion to dismiss, a court construes the complaint in the
light most favorable to the plaintiff and accepts its factual
allegations as true. See Brooks v. Blue Cross & Blue
Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.
1997) (citing SEC v. ESM Grp., Inc., 835 F.2d 270,
272 (11th Cir. 1988)). Unsupported allegations and
conclusions of law do not benefit from this favorable
reading. See Iqbal, 556 U.S. at 679 (“While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”);
see also Sinaltrainal, 578 F.3d at 1260
(“[U]nwarranted deductions of fact in a complaint are
not admitted as true for the purpose of testing the
sufficiency of [a] plaintiff's allegations.”
(alterations added; internal quotation marks omitted)
(quoting Aldana v. Del Monte Fresh Produce, N.A.,
Inc., 416 F.3d 1242, 1248 (11th Cir. 2005); other
scope of review on a motion to dismiss under Rule 12(b)(6) is
limited to the four corners of the complaint and the exhibits
attached. See Thaeter v. Palm Beach Cnty. Sheriff's
Office, 449 F.3d 1342, 1352 (11th Cir. 2006) (citation