United States District Court, M.D. Florida, Tampa Division
ORDER GRANTING “DEFENDANT WILLIAM KRAMER &
ASSOCIATES, LLC'S RENEWED MOTION TO DISMISS THE
BARBER UNITED STATES DISTRICT JUDGE.
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). Upon review of the motion, response,
memoranda, court file, and record, the Court finds as
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
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).
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).
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).
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).
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
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).
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 ...