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Evanston Insurance Co. v. William Kramer & Associates, LLC

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

December 10, 2019

EVANSTON INSURANCE COMPANY, Plaintiff,
v.
WILLIAM KRAMER & ASSOCIATES, LLC, Defendant.

          ORDER GRANTING “DEFENDANT WILLIAM KRAMER & ASSOCIATES, LLC'S RENEWED MOTION TO DISMISS THE COMPLAINT”

          TOM BARBER UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on “Defendant William Kramer & Associates, LLC's Renewed Motion to Dismiss the Complaint” filed by counsel on August 6, 2019. (Doc. # 37). Plaintiff filed a response in opposition on September 10, 2019 (Doc. # 47) and Defendant filed a reply on September 30, 2019. (Doc. #51). The Court held a hearing on this matter on November 13, 2019, and directed the parties to file memoranda addressing several issues. See (Doc. ## 66, 68, 69).[1] Upon review of the motion, response, memoranda, court file, and record, the Court finds as follows:

         Factual Background[2]

         Plaintiff, Evanston Insurance Company, is the successor by merger to Essex Insurance Company (collectively “Plaintiff”). (Doc. # 1 at ¶ 1). In June 2005, IDM Management, Inc. purchased insurance policies for a property it owned and managed in Broward County, Florida - The Villas at Lauderhill. (Id. at ¶¶ 6-7). Plaintiff was one of the excess insurers on the coverage plan. (Id.).

         In October 2005, Hurricane Wilma struck the Florida coast and caused substantial damage to The Villas. (Id. at ¶ 10). Plaintiff hired Defendant, William Kramer & Associates, LLC, to investigate and adjust the claim for hurricane damage to the property. (Id. at ¶¶ 11-12). Defendant was also hired by Aspen Specialty Insurance Company - another insurer of the same property - to investigate and adjust the claim. (Id. at ¶ 13). In April 2006, Defendant sent checks for payment under Aspen's initial coverage policy, including one to non-party Intervest & Brodsky & Associates (“Intervest”) - a mortgagee of the property. (Id. at ¶¶ 14-15). However, after Aspen's initial coverage was exhausted, Defendant did not advise Plaintiff of Intervest's interest in the property. (Id. at ¶ 19). As a result, Plaintiff did not pay Intervest. (Id. at ¶ 20).

         In December 2010, Plaintiff was sued by Intervest because Intervest, as a mortgagee of the property, possessed a legal interest in Plaintiff's payments made under its policy. (Id. at ¶ 21; Doc. # 67-1). As part of its complaint, Intervest included a copy of the mortgage that Defendant negligently failed to identify. (Doc. # 67-1). However, Plaintiff claims it discovered for the first time, on August 30, 2012, that Defendant knew about Intervest's mortgagee status. (Doc. # 1 at ¶ 24).

         Procedural Background

         On October 22, 2013, Plaintiff filed a one-count negligence complaint against Defendant in the United States District Court for the District of Connecticut. On post-trial motion, the Connecticut Court ruled that the claim was time-barred by the Connecticut statute of limitations, and entered judgment in favor of Defendant. See Essex Ins. Co. v. William Kramer & Associates., LLC, Case No. 3:13-cv-1537, 2016 WL 3198190, at *19 (D. Conn. 2016). On June 16, 2016, Plaintiff appealed to the United States Court of Appeals for the Second Circuit. (Doc. # 37).

         On August 15, 2016, while the Second Circuit appeal was pending, Plaintiff filed a nearly-identical complaint with this Court as a back-up plan in case its appeal in the Second Circuit was unsuccessful. (Doc. ## 1, 37-4). On December 20, 2016, Judge Kovachevich stayed this case pending a ruling from the Second Circuit. (Doc. # 21). On June 11, 2019, the Second Circuit affirmed the judgment of the District of Connecticut. Evanston Ins. Co. v. William Kramer & Associates, LLC, 925 F.3d 604, 604 (2d Cir. 2019). On July 17, 2019, following notice of the Second Circuit's ruling, this case was re-opened. (Doc. # 35).

         Legal Standard

         A motion to dismiss for failure to state a claim tests the legal sufficiency of a plaintiff's complaint. Fla. Action Comm. v. Seminole Cty, 212 F.Supp.3d 1213, 1223 (M.D. Fla. 2016). At a minimum, a complaint must include “a short and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010). The Court may only consider the facial sufficiency of the complaint, must accept all well-pleaded factual allegations as true, and is required to interpret the complaint “in the light most favorable to the [p]laintiff.” See Rickman v. Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D. Fla. 1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Where it appears on the face of the complaint that a plaintiff can prove “no set of facts in support of his claim” that would entitle him to relief, the complaint may be dismissed with prejudice. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Twombly, 550 U.S. at 562-63.

         Granting a motion to dismiss “on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred.” Doe v. St. John's Episcopal Parish Day Sch., 997 F.Supp.2d 1279, 1284 (M.D. Fla. 2014) (quoting Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir. 2005)); La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

         Analysis

         Defendant argues that this case should be dismissed because it is barred by both Connecticut's and Florida's statutes of limitations. Plaintiff contends that the Court should apply Florida's longer statute of limitations and find that its claim is timely. Upon review, the Court finds that, even if it were to apply the Florida statute of ...


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