State Farm Fire & Casualty Company v. Ross

Filing 45

OPINION AND ORDER denying 34 motion to dismiss. Defendant shall file an answer and any defenses to the Third Amended Complaint within 14 days of this Opinion and Order. Signed by Judge John E. Steele on 8/11/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STATE FARM FIRE AND CASUALTY
COMPANY, individually and as
assignee of Ian Mise,
Plaintiff,
v.

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

KEN ROSS,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss Plaintiff's Third Amended Complaint (Doc. #34)
filed on March 3, 2017.

Plaintiff filed a Response and, in the

Alternative, Motion to Substitute the Plaintiff Party In Interest
(Doc. #35) on March 17, 2017. 1
In the Third Amended Complaint, State Farm Fire and Casualty
Company (State Farm), both individually and as assignee of the
insured Ian Mise (Mise or insured), seeks indemnity from Ken Ross
(Ross).
4.)

Ross is alleged to be a citizen of Canada.

(Doc. #33, ¶

On February 22, 2013, an accident occurred in Lee County,

1

On February 3, 2017, the Court granted leave to amend and
the opportunity for plaintiff to substitute itself as the assignee
of Ian Mise. (Doc. #32.) The Third Amended Complaint adds that
State Farm Fire and Casualty Company is now suing individually and
as assignee of Ian Mise.
Therefore, the alternative relief is
moot.

Florida, resulting in Juan Amador-Sabio, also identified as Manuel
Adrian Amador Sabio (Sabio), 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.

State

Farm settled Mise’s vicarious liability for the negligence of Ross
up to the Policy limit.

State Farm seeks indemnity from Ross,

both individually and as assignee of Ian Ross, in the amount of
$961,696.00 USD as compensatory damages, representing the amount
tendered at settlement in Florida.
State Farm issued the subject insurance policy to Mise in
Ontario,

Canada,

and

Automobile Policy.

the

policy

is

identified

as

an

Ontario

(Doc. #33, ¶ 8; Doc. #33-1, Exh. A.)

The

Policy includes personal liability umbrella coverage in the amount
of $1 million in Canadian dollars.

(Doc. #33, ¶ 9.)

The Policy

itself states that it was issued in the course of State Farm’s
insurance

business

in

Companies Act (Canada).

Canada

for

purposes

of

the

Insurance

(Doc. #33-1, Exh. A.)

Defendant argues that State Farm cannot state a claim against
Ross because the attached Memorandum of Settlement and the Final
Release of All Claims and Assignment so that the payment of the
policy limit in the amount of $961,696.00 USD resulted in a release
of all claims against both Ross and Mise.

Ross further argues

under Florida law that State Farm is precluded from suing Ross as

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its own insured, that he did not waive the anti-subrogation rule,
and that no exceptions apply.

Defendant argues in passing that

it is the law of Ontario, Canada that applies, and plaintiff
suggests that the issue is beyond the scope of the motion to
dismiss.
Florida follows the rule of lex loci contractus, such that
the law of where the contract was executed governs rights and
liabilities of the parties in determining insurance coverage.
State Farm Mut. Auto. Ins. Co. v. Roach, 945 So. 2d 1160, 1163
(Fla. 2006).
the

place

Factors no longer considered by Florida courts are

where

the

contract

was

negotiated,

the

place

of

performance, the location of the subject matter of the contract,
and the domicile or residence of the parties.

Liberty Mut. Ins.

Co. v. Festival Fun Parks, LLC, No. 12-62212-CIV, 2013 WL 4496511,
at *2 (S.D. Fla. Aug. 22, 2013) (noting that the significant
relationships test no longer applies) (citation omitted).

Under

a narrowly construed public policy exception, Florida law will
control only when the State has a paramount public policy interest
in

the

application

of

its

own

law,

a

Florida

citizen

needs

protection, and the insured provided the insurer with reasonable
notice of a permanent change of address “such that the insurance
risk would thereafter be ‘centered in Florida’.”

State Farm Mut.

Auto. Ins. Co. v. Duckworth, 648 F.3d 1216, 1218 (11th Cir. 2011).

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This exception does not appear to apply as all three prongs must
be

satisfied,

id.

(citing

Roach

at

1167),

and

they

are

not

satisfied under the facts of this case.
As alleged in the Third Amended Complaint, the Policy was
entered into with the insured in Canada, appears to have been
delivered to an address in Canada, and it is identified as an
Ontario Automobile Policy.
contrary

to

plaintiff’s

Canadian law clearly governs, and

position,

the

Court

finds

that

the

applicable law must be established before any dispositive motions
can be considered.

As defendant’s arguments are based on the

assumption that Florida law applies, the motion to dismiss will be
denied.
Accordingly, it is hereby
ORDERED:
Defendant’s

Motion

to

Dismiss

Complaint (Doc. #34) is DENIED.

Plaintiff's

Third

Amended

Defendant shall file an answer

and any defenses to the Third Amended Complaint within FOURTEEN
(14) DAYS of this Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2017.

Copies:

Counsel of Record

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11th

day