Dunn v. TZ Insurance Solutions, LLC

Filing 26

OPINION AND ORDER denying 24 Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint; granting Defendant's Alternative Motion to Strike Plaintiff's Punitive Damages Claim. Defendant shall have twenty one (21) days from the entry of this Opinion and Order to file an answer to plaintiff's Second Amended Complaint. Signed by Judge John E. Steele on 10/1/2013. (MAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KIM DUNN, an individual,
Plaintiff,
vs.

Case No.

2:13-cv-292-FtM-29UAM

TZ INSURANCE SOLUTIONS, LLC, a
Delaware
limited
liability
corporation,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss

Plaintiff’s

Second

Amended

Complaint

or,

in

the

alternative, Motion to Strike Plaintiff’s Punitive Damages Claim
(Doc. #24) filed on September 10, 2013. Plaintiff filed a Response
(Doc. #25) on September 11, 2013.
I.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires
that a pleading contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).

Fed. R. Civ. P.

Detailed factual allegations are not required, but “[a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp.

v.

Twombly,

550

U.S.

544,

555

(2007)).

“To

survive

dismissal, ‘the complaint’s allegations must plausibly suggest that

the plaintiff has a right to relief, raising that possibility above
a speculative level; if they do not, the plaintiff’s complaint
should be dismissed.’”

James River Ins. Co. v. Ground Down Eng’g,

Inc., 540 F.3d 1270, 1274 (11th Cir. 2008) (quoting Twombly, 550
U.S. at 555-56).

A claim is plausible when the plaintiff alleges

facts that “allow[] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
U.S. at 678.

Iqbal, 556

The plausibility standard requires that a plaintiff

allege sufficient facts “to raise a reasonable expectation that
discovery will reveal evidence” that supports the plaintiff’s
claim.

Twombly, 550 U.S. at 556; Marsh v. Butler Cnty., Ala., 268

F.3d 1014, 1036 n.16 (11th Cir. 2001).
II.
Plaintiff Kim Dunn filed this action against defendant TZ
Insurance

Solutions,

LLC,

alleging

wrongful

termination

in

violation of the Florida Whistleblower Act, Fla. Stat. § 448.102.
At all relevant times, until his termination on or about April 19,
2012, plaintiff was employed as an insurance salesman by defendant.
(Doc. #20, ¶¶ 6, 29.)

Plaintiff alleges that in order to properly

submit an insurance application, “each applicant must personally
sign an application and ‘e-sign’ their application personally.”
(Id. ¶ 19.)

Despite this requirement, other sales representatives

employed by defendant would e-sign applications on behalf of the
applicant from a workplace computer or a personal cell phone

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without the applicant’s knowledge and/or signature in order to meet
their sales quota.

(Id. ¶ 20.)

A supervisor and an employee were

terminated for such conduct and at least two formal meetings were
conducted to address this behavior.

(Id. ¶ 22.)

Despite the meetings, the practice of e-signing insurance
applications on behalf of the insured continued. Plaintiff clearly
communicated his refusal to engage in such conduct because it would
violate Fla. Stat. § 817.234(1)(a).

(Id. ¶ 27.)

Following his

refusal to engage in the creation, signing, and processing of
fraudulent insurance applications, plaintiff was terminated.

(Id.

¶ 29.)
III.
The Florida Whistleblower Act provides that “[a]n employer may
not take any retaliatory personnel action against an employee
because

the

employee

has

.

.

.

objected

to,

or

refused

to

participate in, any activity, policy, or practice of the employer
which is in violation of a law, rule, or regulation.”
§ 448.102(3).

Fla. Stat.

In order to successfully state a claim under the

Florida Whistleblower Act, a plaintiff “must show that (1) he
engaged in statutorily protected expression; (2) he suffered an
adverse employment action; and (3) there is some causal relation
between the two events.”

Pennington v. City of Huntsville, 261

F.3d 1262, 1266 (11th Cir. 2001) (quoting Olmsted v. Taco Bell
Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)).

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Defendant claims

that plaintiff’s allegations do not support the first element of
the claim.

(Doc. #24, p. 5.)

The Second Amended Complaint alleges that plaintiff refused to
e-sign insurance applications without the consent or signature of
the applicant because it would violate Fla. Stat. § 817.234(1)(a).1
Defendant states that “[i]t would be a drastic leap to conclude
that the e-signing of applications by TZ employees constitutes
insurance fraud.”
that

the

(Doc. #24, p. 6.)

applications

were

signed

In light of the allegations
without

the

knowledge

or

authorization of the applicant, the Court finds that plaintiff has
adequately identified a law that he refused to violate. Therefore,
defendant’s Motion to Dismiss is denied.
IV.
Defendant asserts that plaintiff’s claim for punitive damages
must be stricken because punitive damages are not available under
the Florida Whistleblower Act.
concedes this issue.

(Doc. #24, p. 7.)

(Doc. #25, p. 7.)

1

Plaintiff

Accordingly, defendant’s

Fla. Stat. § 817.234(1)(a)(3) provides that “[a] person
commits insurance fraud punishable as provided in subsection
(a)(11) if that person, with the intent to injure, defraud, or
deceive any insurer . . . [k]nowingly presents, causes to be
presented, or prepares or makes with knowledge or belief that it
will be presented to any insurer, purported insurer, servicing
corporation, insurance broker, or insurance agent, or any employee
or agent thereof, any false, incomplete, or misleading information
or written or oral statement as part of, or in support of, an
application for the issuance of, or the rating of, any insurance
policy, or a health maintenance organization subscriber or provider
contract; or [] [k]nowingly conceals information concerning any
fact material to such application . . . .”
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Motion to Strike Plaintiff’s Punitive Damages Claim is granted.
Accordingly, it is now
ORDERED:
1.

Defendant’s Motion to Dismiss Plaintiff’s Second Amended

Complaint (Doc. #24) is DENIED.
2.

Defendant’s Motion to Strike Plaintiff’s Punitive Damages

Claim (Doc. #24) is GRANTED.
3.

Defendant shall have TWENTY ONE (21) DAYS from the entry

of this Opinion and Order to file an answer to plaintiff’s Second
Amended Complaint.
DONE AND ORDERED at Fort Myers, Florida, this
October, 2013.

Copies:
Counsel of record

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