United States District Court, M.D. Florida, Fort Myers Division
MASSEY CONSTRUCTION GROUP, INC., A/A/O DONALD LUKAS, Plaintiff,
HARTFORD INSURANCE COMPANY OF THE MIDWEST, Defendant.
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE
the Court is Hartford Insurance Company's Motion to
Dismiss Counts II and III of Plaintiff Massey Construction
Group, Inc.'s Complaint. (Doc. 9). Massey has
not responded, and the time to do so has passed. For the
below reasons, the Court grants in part and denies in part
an insurance dispute. Hurricane Irma damaged non-party Donald
Lukas' home while Hartford was insuring the property.
(Doc. 4 at 1). Lukas then hired Massey to fix the
damage and assigned his insurance claim with Hartford to
Massey. When Hartford stalled payment, Massey filed a
three-count complaint in state court for breach of contract
(Count I), breach of the implied covenant of good faith and
fair dealing (Count II), and declaratory relief (Count III).
(Doc. 4). Hartford then removed the case to this
Court based on diversity jurisdiction. (Doc. 1). It
now moves to dismiss Counts II and III of the Complaint.
survive a Rule 12(b)(6) motion to dismiss, a complaint must
recite “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). The complaint must
“contain sufficient factual material, accepted as true,
to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is plausible when “the pleaded
factual content allows the court to draw a reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The issue is whether the plaintiff has alleged enough
information to proceed to discovery-not whether the plaintiff
will win his case. Id. at 678-79. And
the-defendant-unlawfully-harmed-me-accusations” are not
enough to proceed to discovery. Id. at 678
(citations omitted). Without more, “labels,
conclusions, and a formulaic recitation of the elements of a
cause of action” are also insufficient. Id. at
679. On the other hand, where the non-moving party fails
to plead facts lending towards a “legally cognizable
right of action, ” dismissal is warranted.
Twombly, 550 U.S. at 556.
Count II: Breach of the Covenant of Good Faith and Fair
Count II, Massey alleges that Hartford breached its good
faith duty to timely process its insurance claim and to pay
the money needed to restore Lukas' home. (Doc. 4 at
5-6). But Hartford moves to dismiss this claim because
Florida law does not recognize a cause of action for breach
of the covenant of good faith and fair dealing. At best,
Hartford argues that Massey's claim is a premature bad
faith claim. The Court agrees.
law does not recognize a claim for breach of the implied
warranty of good faith and fair dealing by an insured against
its insurer based on the insurer's failure to investigate
and assess the insured's claim within a reasonable
period. See QBE Ins. Co. v. Chalfonte Condo.
Apartment Ass'n, Inc., 94 So.3d 541, 547, 549 (Fla.
2012) (holding an insured cannot sue an insurer at common law
for the implied duty of good faith and rejecting the
insured's argument “that its claim for a violation
of the implied warranty of good faith and fair dealing is not
the same as a bad-faith claim by a first party”). Such
claims are statutorily based bad faith claims. See
Fla. Stat. § 624.155; see also Todorovic v.
Hartford Life & Annuity Ins. Co., No.
5:17-cv-157-Oc-30PRL, 2017 WL 1885393, at *1 (M.D. Fla. May
9, 2017) (“The Florida Supreme Court has
explicitly held that first-party claims for breach of the
implied covenant of good faith and fair dealing against an
insurer must be brought under section 624.155, Florida
Statutes.” (citation omitted)).
Massey brings a bad faith claim, it is premature until
Hartford has been found liable on the underlying coverage
dispute. See Novak v. Safeco Ins. Co., 94
F.Supp.3d 1267, 1269 (M.D. Fla. 2015) (“[T]he Florida
courts have held that ‘a cause of action in court for
[bad faith] is premature until there is a determination of
liability and extent of damages owed on the first-party
insurance contract.'” (citation omitted));
Dennis v. Northwestern Mut. Life Ins. Co., No.
3:06-cv-43-J-20MCR, 2006 WL 1000308, at *2 (M.D. Fla. Apr.
14, 2006) (stating Florida law does not allow a party to
“assert a first-party claim for bad faith against an
insurer until the insured has proven liability in her
underlying contractual claim” (citations and footnotes
omitted)). Because there has been no determination of
Hartford's liability, any bad faith claim is premature.
The Court thus dismisses Count II.
Count III: Declaratory Judgment Claim
Count III seeks a declaratory judgment-under Florida law-to
require Hartford to pay Massey's insurance claim.
(Doc. 4 at 6). The Court, however, construes Count
III as seeking relief under the federal Declaratory Judgment
Act because the Florida statute is procedural and does not
confer substantive rights. See Rock Custom
Homes, Inc. v. Am. Zurich Ins. Co., No.
2:19-cv-607-FtM-38NPM, 2019 WL 4477819, at *1 (M.D. Fla.
Sept. 18, 2019) (citations omitted); see also
Global Quest, LLC v. Horizon Yachts Inc., 849 F.3d
1022, 1027 (11th Cir. 2017) (“As a federal court
sitting in diversity jurisdiction, we apply the substantive
law of the forum state, in this case Florida, alongside
federal procedural law.”).
the federal Declaratory Judgment Act, a court “may
declare the rights and other legal relations of any
interested party seeking such declaration, whether or not
further relief is or could be sought.” 28 U.S.C. §
2201; see also Fed.R.Civ.P. 57 (stating “[t]he
existence of another adequate remedy does not preclude a
declaratory judgment that is otherwise appropriate”).
An element for a declaratory judgment action is “the
existence of an ‘actual controversy' between the
parties, a term which holds a similar meaning as the cases
and controversies requirement of Article III to the United
States Constitution.” Blitz Telecom Consulting, LLC
v. Peerless Network, Inc.,151 F.Supp.3d 1294 (M.D. Fla.
2015) (citation omitted). District courts also have
significant discretion in deciding whether to entertain a
declaratory judgment action. SeeSmith v.
Casey,741 F.3d 1236, 1244 (11th Cir. 2014)
(“Since its inception, the Declaratory Judgment Act has
been understood to ...