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Dominguez v. Amerisure Mutual Insurance Co.

United States District Court, M.D. Florida, Tampa Division

November 12, 2019

BELKYS GARCIA DOMINGUEZ, Plaintiff,
v.
AMERISURE MUTUAL INSURANCE COMPANY, Defendant.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on consideration of Defendant Amerisure Mutual Insurance Company's Motion to Dismiss, or in the Alternative, Motion to Consolidate, and Motion to Dismiss, or in the Alternative, Unopposed Motion to Abate Plaintiff's Cause of Action for Bad Faith, filed on October 3, 2019. (Doc. # 4). Plaintiff Belkys Garcia Dominguez responded on November 5, 2019. (Doc. # 15). For the reasons that follow, the Motion is granted as set forth below.

         I. Background

         This case arises from a car accident that occurred on May 23, 2017. (Doc. # 1-1 at 1). Dominguez was driving a vehicle owned by her employer, Commercial Pool Cleaners, Inc., in the course of her employment when she was hit by another driver. (Id. at 3, 12). As a result of the accident, Dominguez allegedly suffered severe injuries. (Id. at 3).

         Amerisure had issued Commercial Pool Cleaners a car insurance policy that included underinsured motorist benefits. (Id.). Amerisure disagreed with Commercial Pool Cleaners and Dominguez, however, about the amount of underinsured motorist benefits available under the policy.

         Amerisure thus initiated a declaratory judgment action against Dominguez and Commercial Pool Cleaners in federal court on November 26, 2018; that case remains pending before Judge Bucklew. See Amerisure Mutual Insurance Company v. Commercial Pool Cleaners, Inc. et al, 8:18-cv-2878-T-24AAS (Doc. # 1). There, Amerisure seeks a determination as to whether the policy provides $50, 000 or $1, 000, 000 in underinsured motorist coverage. That determination is necessary because, according to Amerisure, Commercial Pool Cleaners signed a form selecting both $1, 000, 000 and $50, 000 as the underinsured motorist limits. Id. Amerisure voluntarily dismissed its claim against Commercial Pool Cleaners and is now pursuing the declaratory judgment action against Dominguez alone. See Id. at (Doc. ## 13-14).

         Over nine months after the first case was filed, Dominguez initiated this action in state court on September 9, 2019. (Doc. # 1-1). Dominguez's Complaint asserts two counts against Amerisure: an uninsured/underinsured motorist claim (Count I) and a bad faith claim under Florida Statute § 624.155 (Count II). (Id.).

         Amerisure removed the case to this Court on October 2, 2019. (Doc. # 1). Amerisure then filed the instant Motion, seeking to dismiss the case because Dominguez's claims are allegedly compulsory counterclaims that should have been filed in the first action. (Doc. # 4). Alternatively, Amerisure asks that this case be transferred to Judge Bucklew and then consolidated with the first action. (Id.). Amerisure also seeks either dismissal or abatement of Count II for bad faith on the grounds that the claim is premature. (Id.).

         After Dominguez failed to timely respond to the Motion, the Court granted the Motion as unopposed on October 18, 2019, and closed the case. (Doc. # 7). Dominguez then filed a motion for reconsideration on October 28, 2019. (Doc. # 10). The Court granted that motion to the extent the Court reopened the case and reinstated the Motion. (Doc. # 13). Dominguez then filed her response to the Motion on November 5, 2019. (Doc. # 15). The Motion is now ripe for review.

         II. Discussion

         Amerisure contends that this case should be dismissed because Dominguez's claims should have been brought as compulsory counterclaims in the first action. (Doc. # 4 at 2-3). The parties agree that the compulsory counterclaim issue is controlled by Federal Rule of Civil Procedure 13 (Id.; Doc. # 15 at 3).

         Federal Rule of Civil Procedure 13 provides:

A pleading must state as a counterclaim any claim that - at the time of its service - the pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing ...

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