United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
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
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.
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.
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).
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.).
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.
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.
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).
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 ...