United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
N. Scola, Jr. United States District Judge.
matter is before the Court on the Defendants' joint
motion to dismiss filed by Companion Property and Casualty
Insurance Co. (“Companion”) and Clarendon
National Insurance Company's (“Clarendon”).
After review of the parties submissions, the record, and the
applicable case law, the Court grants in part and
denies in part the Defendants' joint motion to
dismiss. (ECF No. 29).
suit arises from an insurance coverage dispute that was
removed from state court. Plaintiffs sued to collect on a
judgment for $358, 848.93 entered against Douglass Roofing,
Inc. and in favor of PZP Investments. Douglass Roofing, Inc.
is insured by the Defendants. In their second amended
complaint, the Plaintiffs Consuelo Zapata and PZP Investments
set forth one count for declaratory judgment, requesting that
the Court declare (a) the insurance policy is valid and
enforceable and (b) that the Plaintiffs' claims are
covered under the policy. (ECF No. 22 at ¶ 22.)
Defendants move to dismiss the Plaintiffs' claims for
lost revenue due to loss of tenants because they are not
covered under the policy, and they move to dismiss the
Plaintiff Consuelo Zapata's claims because her claims are
barred by § 627.4136, Florida Statutes.
considering a motion to dismiss, filed under Federal Rule of
Civil Procedure 12(b)(6), must accept all of the
complaint's allegations as true, construing them in the
light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
Although a pleading need only contain a short and plain
statement of the claim showing that the pleader is entitled
to relief, a plaintiff must nevertheless articulate
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “But where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (quoting Fed.R.Civ.P. 8(a)(2)) (internal punctuation
omitted). A court must dismiss a plaintiff's claims if
she fails to nudge her “claims across the line from
conceivable to plausible.” Twombly, 550 U.S.
Consuelo Zapata is not a proper plaintiff.
Florida law, a non-insured third party can sue an insurer
when that person has “first obtain[ed] a settlement or
verdict against a person who is an insured under the terms of
such policy for a cause of action which is covered by such a
policy.” Fla. Stat. § 627.4136; see also,
Southern Owners Ins. Co. v. Mathieu, 67 So.3d 1156,
1158 (Fla. 2d DCA 2011) (party who is not an insured cannot
sue the insurer until it obtains a settlement with or verdict
against the insured). Zapata and PZP Investments seek to
collect on a judgment entered against Douglass Roofing, Inc.
from its insurers, the Defendants. The state court judgment
at issue was entered in favor of PZP Investments, and Zapata
was not a party in the state court case. As Zapata has not
secured a judgment against the insured, he is not a proper
plaintiff in this case.
Plaintiffs argue that because Consuelo Zapata is the sole
shareholder of PZP Investments, the entity that secured the
judgment against the insured, he is a proper plaintiff with a
“legal and equitable interest in the money
judgment.” (ECF No. 43 at 3.) Plaintiff's rely on
Hutson v. Fulgham Industries, Inc. for this
proposition. (Id. at 5.) Hutson is an
Eleventh Circuit opinion applying Alabama law and
interpreting Alabama's corporate survival statute. 869
F.2d 1457, 1460-61 (11th Cir. 1989). It is thus inapplicable
to this case because Alabama's corporate survival statute
does not apply. Moreover, under Florida law, a shareholder
cannot generally sue “in the shareholder's name for
injuries to a corporation unless there is a special duty
between the wrongdoer and the shareholder, and the
shareholder has suffered an injury separate and distinct from
that suffered by other shareholders.” Braun v.
Buyers Choice Morg. Corp. ex rel. McAloon, 851 So.2d
199, 203 (Fla. 4th DCA 2003); see also, Dinuro
Investments, LLC v. Camacho, 141 So.3d 731, 739-40 (Fla.
3d DCA 2014). That the corporation is dissolved is irrelevant
to this analysis. See Braun, 851 So.2d at 203
(corporation at issue was administratively dissolved prior to
suit). Instead, “dissolution of a corporation does
not…prevent commencement of a proceeding by or against
the corporation in its corporate name.” Fla. Stat.
§ 607.1405; Braun, 851 So.2d at 203 (a
dissolved corporation “continues its existence for the
purposes of winding up and liquidating its business affairs
and that dissolution does not prevent suits by or against the
corporation in its corporate name”).
Whether the Plaintiffs' lost revenue claims are covered
under the policy cannot be determined at the motion to
Defendants argue that Plaintiffs' claim regarding
“lost revenue as a result of loss of tenants”
cannot be recovered under the policy because this lost
revenue is not considered “property damage.” (ECF
No. 29 at 7.) Although Defendants' argument may
ultimately be correct, this issue cannot be resolved at the
motion to dismiss stage because it involves interpreting the
extent of the policy's coverage, and “[c]ontract
interpretation is typically inappropriate at the motion to
dismiss stage.” Alhassid v. Bank of America,
N.A., 60 F.Supp.3d 1302 (S.D. Fla. 2014) (Bloom, J.);
see also, Geter v. Galardi S. Enterprises,
Inc., 43 F.Supp.3d 1322, 1328 (S.D. Fla. 2014)
(Altonaga, J.) (“[T]he Court may not engage in contract
interpretation at the motion to dismiss stage, as these
arguments are more appropriate for summary judgment.”)
(citations omitted); Larach v. Standard Chartered Bank
Int'l (Americas) Ltd., 724 F.Supp.2d 1228, 1239
(S.D. Fla. 2010) (Moreno, J.) (denying motion to dismiss
because plaintiff had “sufficiently alleged the
required elements for claims of breach of contract” and
the differing interpretations of the contract were not yet
ripe for ruling).
all of the Defendants' caselaw on the issue of
interpreting the contractual term “property
damage” was at the summary judgment stage. See
Mid-Continent Cas. Co. v. C-D Jones & Co., 2013 WL
12081104, *1 (N.D. Fla. Aug. 6, 2013) (resolving
plaintiff's second motion for summary judgment); Key
Custom Homes, Inc. v. Mid-Continent Casualty Company,
450 F.Supp.2d 1311, 1312 (M.D. Fla. 2006) (resolving the
parties' cross motions for summary judgment);
American States Ins. Co. v. Pioneer Elec. Co., 85
F.Supp.2d 1337, 1338 (S.D. Fla. 2000) (Moore, J.) (omnibus
order addressing four different motions for summary
judgment); Mid-Continent Cas. ...