United States District Court, M.D. Florida, Fort Myers Division
AMERICAN COASTAL INSURANCE COMPANY, FEDNAT INSURANCE COMPANY and DENISE TALT, a Florida corporation, as subrogee of Eagle Ridge Condominium Association, Inc., Plaintiffs,
ELECTROLUX HOME PRODUCTS, INC., Defendant.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court is Defendant Electrolux Home Products, Inc.'s
Motion to Dismiss the Second Amended Complaint (Doc. 49) and
Plaintiffs FedNat Insurance Company and American Coastal
Insurance Company's Responses in Opposition (Doc. 53;
Doc. 51). For the following reasons, the Motion is granted
with leave to amend.
a products liability case stemming from a fire allegedly
caused by Electrolux's electric ranges. The Court
recounts the factual background as pled in Plaintiff's
Second Amended Complaint, which it must take as true to
decide whether the Second Amended Complaint states a
plausible claim. See Chandler v. Sec'y Fla.
Dep't of Transp., 695 F.3d 1194, 1198-99 (11th Cir.
2012). Talt purchased an electric range manufactured by
Electrolux in early 2013. (Doc. 48 at 4). Over three years
later, while it was on self-cleaning mode, the range caught
fire in Talt's apartment in the Eagle Ridge Condominiums.
(Doc. 48 at 4). The fire spread to a surrounding unit owned
by the Leutz family and areas owned by the Eagle Ridge
Condominium Association. (Doc. 48 at 4).
Ridge's insurer, American Coastal Insurance Company
(ACIC), paid Eagle Ridge $49, 533.33 for repairs. (Doc. 48 at
6). Talt's insurer, FedNat, paid Talt $60, 088.34 for
repairs. (Doc. 48 at 6). And the Leutz family's insurer,
also FedNat, paid the Leutzes $27, 344.15 for repairs. (Doc.
48 at 7). Both insurance companies sue Electrolux to recover
the amount they paid to the insured parties, claiming that
they are subrogated to the rights of their insureds. (Doc. 48
at 5-7). Talt sues on her own behalf for $85, 301.37 in
unspecified “additional losses.” (Doc. 48 at 7).
Electrolux moves to dismiss FedNat from this case for lack of
standing and to dismiss Count III brought by ACIC under
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court must accept all factual
allegations as true and view them in a light most favorable
to the plaintiff. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). This consideration is limited “to the
pleadings and exhibits attached thereto[.]”
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000) (quotations omitted). However, a complaint
listing mere “labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 554,
555 (2008). Likewise, “[f]actual allegations that are
merely consistent with a defendant's liability” are
insufficient. Chaparro v. Carnival Corp, 693 F.3d
1333, 1337 (11th Cir. 2012) (internal quotations and
citations omitted). And the allegations must not force the
court to speculate or operate on mere suspicion.
Twombly, 550 U.S. at 555. In contrast, the Court
will not dismiss a complaint where the Plaintiff pleads facts
that make the claim facially plausible. See
Twombly, 550 U.S. at 570. A claim is facially
plausible when the court can draw a reasonable inference,
based on the facts pleaded, that the opposing party is liable
for the alleged misconduct. See Iqbal, 556
U.S. at 678. This plausibility standard requires “more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (internal quotation marks
omitted) (citing Twombly, 550 U.S. at 557). Thus,
when the complaint contains “well-pleaded allegations,
a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief.” Iqbal, 556 U.S. at 679.
I, strict products liability, is brought on behalf of all
Plaintiffs. Count II, breach of implied warranty of
merchantability, is brought on behalf of FedNat and Talt
only. Count III, failure to warn, is brought on behalf of all
FedNat's Standing (all counts)
First Amended Complaint, FedNat alleged that it had standing
to sue as subrogee of Talt and the Leutzes “by virtue
of” making contractual insurance payments. (Doc. 40 at
6). In response to Electrolux's previous motion to
dismiss, the Court examined the law of contractual and
equitable subrogation, explaining that FedNat could not be
subrogated to Talt or the Leutzes solely by making these
payments. (Doc. 47 at 4-6).
if FedNat was alleging contractual subrogation, it must
allege that there was a subrogation agreement between itself
and its insureds. (Doc. 47 at 4).
the Second Amended Complaint perpetuates the same problems.
The subrogation paragraphs of the Second Amended Complaint
read almost identically to the first, adding only two
sentences. CompareDoc. 40 at ¶¶ 33, 35
withDoc. 48 at ¶¶ 33, 35. After claiming,
again, that FedNat is subrogated to Talt and the Leutzes
“by virtue of” their payments, the Second Amended
Complaint adds: “[a] true and correct copy of the Talt
Subrogation Assignment is attached hereto as Exhibit E”
and “the Leutz Subrogation Assignment is attached
hereto as Exhibit F.” (Doc. 48 at 6, 7; Doc. 48-5 (Talt
subrogation agreement); Doc. 48-6 (Leutz subrogation
agreement)). But the Talt and Leutz subrogation agreements
are dated and signed August 2, 2019 and July 30, 2019,
respectively - several months after the first complaint was
filed in this case. (Doc. 48-5; Doc. 48-6; seeDoc.
1). Electrolux argues that the recency of the subrogation
agreements is fatal to FedNat's claims of standing. (Doc.
49 at 4-5). The Court agrees.
is assessed at the time a suit is originally filed. Davis
v. FEC, 554 U.S. 724, 734 (2008). A subrogee acquires
standing to sue through subrogation. SeeDixie
Nat'l Bank v. Emp'rs Commercial Union Ins. Co.,463 So.2d 1147, 1151 (Fla. 1985). There are there are two
forms of subrogation - contractual and equitable. Dade
Cty. Sch. Bd. v. Radio Station Wqba, 731 So.2d 638, 646
(Fla. 1999). Thus, to show standing, FedNat must allege it
was contractually or equitably subrogated to Talt and ...