United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
SHERIPOLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.
the Court is Florida Realty One, Inc.'s Motion to Dismiss
(Doc. 25), Nationwide Insurance Company of America's
response (Doc. 31), Florida Realty's Motion for Leave to
Reply (Doc. 36), and Nationwide's response (Doc. 37). For
the reasons below, the Court grants the motion to dismiss and
denies the motion for leave to file a reply.
an insurance coverage dispute. Nationwide issued a year-long
“Premier Businessowners” insurance policy to
Florida Realty. (Doc. 1 at 2). Later that year, Janelle
Thompson tripped and fell at a property that Florida Realty
managed and Deborah Schult owned. (Doc. 1 at 2-3). Thompson
then sued Florida Realty and Schult for negligence in state
court. (Doc. 1 at 3). That underlying suit remains ongoing.
(Doc. 21 at 7).
brought this suit to clarify its duty to indemnify Florida
Realty and Schult in the underlying action. (Doc. 1 at 9).
Nationwide claims it has no duty to indemnify those parties,
and it asks this Court for a declaratory judgment to that
end. (Doc. 1 at 9-10). Florida Realty claims this case is not
ripe and moves to dismiss for lack of subject matter
jurisdiction. (Doc. 25).
courts are limited to adjudicating ripe and justiciable
claims. Malowney v. Fed. Collection Deposit Grp.,
193 F.3d 1342, 1346 (11th Cir. 1999). Dismissal is proper
when the case is not ripe because the court lacks subject
matter jurisdiction. Dig. Props., Inc. v. City
of Plantation, 121 F.3d 586, 589 (11th Cir. 1997)
(ripeness “goes to whether [a] district court had
subject matter jurisdiction to hear the case.”
(citations omitted)); see Interstate Fire & Cas. Co.
v. McMurry Constr. Co., Inc., No. 6:16-cv-841-Orl-41TBS,
2017 WL 821746, at *1 (M.D. Fla. Mar. 2, 2017) (“if a
declaratory judgment action fails to meet the Article III
case and controversy requirement-including the requirement
that the action be ripe for review-it must be dismissed for
want of jurisdiction.”). To determine ripeness, courts
look at two factors: (1) “the fitness of the issues for
judicial decision, and [(2)] the hardship to the parties of
withholding court consideration.” Carver Middle
Sch. Gay-Straight All. v. Sch. Bd. of Lake Cty., Fla.,
842 F.3d 1324, 1329 (11th Cir. 2016) (citation omitted).
Ultimately, Article III's “ripeness doctrine
protects federal courts from engaging in speculation or
wasting resources through the review of potential or abstract
disputes.” Dig. Properties, Inc., 121
F.3d at 589. And it “seeks to avoid entangling courts
in the hazards of premature adjudication.” Id.
Realty claims this case is not ripe because the underlying
action is still ongoing. (Doc. 25 at 7-8). The Court agrees.
An “[insurer's] duty to indemnify is not ripe for
adjudication until the underlying lawsuit is resolved.”
Mid-Continent Cas. Co. v. Delacruz Drywall Plastering
& Stucco, Inc., 766 Fed.Appx. 768, 770 (11th Cir.
2019). The reason being: liability always precedes
indemnification. See Safeco Ins. Co. of Ill. v.
Tremblay, No. 2:16-cv-837-FtM-38CM, 2018 WL 3648265, at
*4 (M.D. Fla. Aug. 1, 2018). If Florida Realty and Schult are
not found liable in the underlying action, there are no
damages to indemnify. See Delacruz Drywall,
766 Fed.Appx. at 770-71. Nor are there any questions to
answer on Nationwide's duty to indemnify those parties.
See id. Asking questions about indemnification
before liability is resolved puts the cart before the horse.
See Lee Mem'l Health Sys. v. Lexington Ins.
Co., No. 2:18-cv-617-FtM-38UAM, 2019 WL 2471821, at *2
(M.D. Fla. Apr. 22, 2019). Such questions are faraway,
hypothetical, and unfit for judicial decision. See
id.; Tremblay, 2018 WL 3648265 at *4
(“it is not the function of a United States District
Court to sit in judgment on these nice and intriguing
questions which today may readily be imagined, but may never
in fact come to pass” (citations omitted)).
does Nationwide present any compelling hardship that would
result from the Court withholding a decision. Instead,
Nationwide argues the Court must address the abstention
factors, laid out in Ameritas Variable Life Ins. Co. v.
Roach, 411 F.3d 1328 (11th Cir. 2005), before dismissal.
(Doc. 31 at 4-7). But abstention is not at issue here. When a
district court finds the insurer's duty to indemnify
defendants unripe, it does not need to address the abstention
factors. Delacruz Drywall, 766 Fed.Appx. at 770 n.1.
Nationwide's reliance on Higgins v. State Farm Fire
& Cas. Co., 894 So.2d 5 (2004) is also misplaced.
(Doc. 31 at 3). Higgins addresses the Florida
Declaratory Judgment Act which is not applicable
here. Mid-Continent Cas. Co. v. G.R. Constr.
Mgmt., Inc., 278 F.Supp.3d 1302, 1306 (M.D. Fla. 2017)
(finding Higgins inapplicable to federal Declaratory
Judgment Act cases). The Court thus finds that this case is
not ripe and dismisses the Complaint for lack of subject
Florida Realty moves for leave to file a reply. (Doc. 36).
This motion does not satisfy Local Rule 3.01(c) and is now
moot. “While parties may ask for leave to file a reply,
they must show good cause.” DiRocco v. Victory
Mktg. Agency, LLC, No. 2:15-cv-552-FtM-99CM, 2015 WL
13802200, at *1 (M.D. Fla. Nov. 4, 2015). “The purpose
of a reply brief is to rebut any new law or facts contained
in the opposition's response to a request for relief
before the Court.” Tardif v. People for Ethical
Treatment of Animals, No. 2:09-cv-537-FtM-29SPC, 2011 WL
2729145, at *2 (M.D. Fla. July 13, 2011). Here, Florida
Realty merely recites a generic and unsubstantiated claim
that Nationwide's response contains “new law and/or
fact[.]” (Doc. 32 at 2). The motion lacks merit.
it is now
1. Florida Realty One, Inc.'s Motion to Dismiss (Doc. 25)