State Farm Fire & Casualty Company v. Ross

Filing 32

OPINION AND ORDER granting 25 Motion to Dismiss for Failure to State a Claim and the 20 Second Amended Complaint is dismissed without prejudice to filing a Third Amended Complaint within 14 days; denying as moot 28 Motion to Substitute Party. See Opinion and Order for details. Signed by Judge John E. Steele on 2/3/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STATE FARM FIRE AND CASUALTY
COMPANY,
Plaintiff,
v.

Case No: 2:15-cv-790-FtM-29MRM

KEN ROSS,
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant’s 1 Motion to
Dismiss Plaintiff's Second Amended Complaint (Doc. #25) filed on
August

26,

2016.

Plaintiff

filed

a

Response

and,

in

the

Alternative, Motion to Substitute the Plaintiff Party In Interest
(Doc. #28) on September 16, 2016.
I.
In the Second Amended Complaint (Doc. #20), State Farm Fire
and Casualty Company (State Farm) seeks indemnity from Ken Ross
(Ross).

State Farm issued an insurance policy to Ian Mise (Mise

or insured) in Ontario, Canada.

Under the State Farm Personal

Liability

#20-1),

1

Umbrella

Policy

(Doc.

Mise

is

covered

for

Plaintiff refers to “Belair’s Motion to Dismiss”, however
the defendant in this case and the filer of the motion is Ken Ross.
(Doc. #28, p. 13.)

personal liability up to $1 million (CAD).

On February 22, 2013,

an accident occurred in Lee County, Florida, resulting in Juan
Amador-Sabio

(Sabio) 2 filing

suit

against

Mise

for

vicarious

liability as the owner of the vehicle, and against Ross for
negligence as the driver of the vehicle owned by Ian Mise.

At the

time, Ross was insured by Belairdirect (Belair) under his own
vehicle policy.
On October 25, 2013, State Farm attended mediation for both
claims arising from the accident, and tendered $961,696.00 USD to
Sabio on behalf of Mise for his vicarious liability.

Pursuant to

a Memorandum of Settlement (Doc. #20-2), State Farm agreed to pay
the policy limits, and another insurer agreed to pay an additional
$288,304.00.
Memorandum

of

Belair did not contribute to the settlement, and the
Settlement

notes

between State Farm and Belair. 3

a

continuing

priority

dispute

This Memorandum of Settlement was

2

Sabio is also identified as Manuel Adrian Amador Sabio in
the attached Final Release of All Claims & Assignment (Doc. #22).
3

A hand-written paragraph states as follows:
There was a priority dispute [between] State
Farm Fire & Casualty Company & Belair
Insurance Company with respect to the payment
by State Farm Fire & Casualty in this
settlement.
State Farm Fire & Casualty
Company is in no way waiving its right to file
any action to resolve the dispute as to
priority and which insurer was required to

- 2 -

signed by counsel for State Farm, and by counsel for both Mise and
Ross.
In the Second Amended Complaint, State Farm alleges that Ross
expressly agreed in the Memorandum of Settlement to preserve State
Farm’s right to seek indemnity.

State Farm also alleges:

31. State Farm is also entitled to indemnity
from Ken Ross, but solely seeks indemnity from
Mr. Ross to the extent that it is available
through Mr. Ross’s insurer Belair.
32. Because State Farm is solely seeking
indemnity from Belair, Ken Ross suffers no
prejudice from this indemnity claim.
(Doc. #20, p. 4.)

Belair is not named as a defendant, and State

Farm seeks judgment against Ross individually for $961,696.00 USD
as compensatory damages.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing

make the settlement payment to the plaintiff
pursuant to any contract of insurance. State
Farm can pursue any action or proceeding
[illegible] for the amount paid to plaintiff
by State Farm. . . . State Farm Fire & Casualty
Company is without prejudice to pursue any
unjust enrichment claim or other claim against
Belair Insurance Company.
(Doc. #20-2, p. 1) (emphasis added). State Farm states that it
is trying to obtain the original copy, or clarification from the
mediator as to the illegible portion. (Doc. #28, p. 11 n.2.)

- 3 -

that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

accusation.”

an

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
III.
The Court finds that the Second Amended Complaint fails to
state a claim against Ross as currently pled.

State Farm refers

to defendant as both Belair and Ross 4 interchangeably, but Belair
is not a party to this suit.

Only Ken Ross is named as a defendant

in the Second Amended Complaint.

Allegations that indemnity is

sought against Belair does not state a claim against Ross.

4

The

State Farm references Ross as acting “through an attorney
appointed by Belair”, and states that “State Farm seeks indemnity
solely from Belair and for the exact amount that is due under
Belair’s policy, and also becuae [sic] Ken Ross has already
recognized State Farm’s right to indemnity, Ken Ross will not be
prejudiced in any way by State Farm’s indemnity claim.”
(Doc.
#28, pp. 11, 13.)

- 4 -

motion to dismiss will be granted to the extent that plaintiff
will be permitted to amend as State Farm deems appropriate.
State Farm also seeks to substitute itself as the assignee of
Mise, State Farm’s insured, to the extent that the anti-subrogation
rule may prevent State Farm from bringing a direct claim against
Ross, the negligent party.

As the Court is permitting plaintiff

the opportunity to amend, the motion will be denied as moot.
Accordingly, it is hereby
ORDERED:
1. Defendant’s Motion to Dismiss Plaintiff's Second Amended
Complaint (Doc. #25) is GRANTED and the Second Amended
Complaint (Doc. #20) is dismissed without prejudice to
filing a Third Amended Complaint within FOURTEEN (14) DAYS
of this Opinion and Order.
2. Plaintiff’s Motion to Substitute the Plaintiff Party In
Interest (Doc. #28) is DENIED as moot.
DONE and ORDERED at Fort Myers, Florida, this
February, 2017.

Copies:
Counsel of Record

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3rd

day of