Southern-Owners Insurance Company v. MAC Contractors of Florida, LLC et al
Filing
106
OPINION AND ORDER granting in part and denying in part 99 Plaintiff's Motion to Strike Specified Affirmative Defenses. The Motion is denied as to the Second Affirmative Defense and granted as to the Fourth Affirmative Defense without prejudice to filing an amended affirmative defense within FOURTEEN (14) DAYS of this Opinion and Order. Signed by Judge John E. Steele on 12/9/2019. (BLW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SOUTHERN-OWNERS
COMPANY,
INSURANCE
Plaintiff,
v.
Case No:
2:18-cv-21-FtM-99MRM
MAC CONTRACTORS OF FLORIDA,
LLC,
PAUL
S.
DOPPELT,
Trustee of Paul S. Doppelt
Revocable
Trust
dated
12/08/90, and DEBORAH A.
DOPPELT, Trustee of Deborah
A. Doppelt Revocable Trust
dated 12/08/90,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion to
Strike Specified Affirmative Defenses (Doc. #99) filed on October
31, 2019.
Florida,
Defenses.
Plaintiff moves to strike Defendant MAC Contractors of
LLC’s
(MAC)
First,
Second,
and
Fourth
Affirmative
MAC has withdrawn its First Affirmative Defense (Doc.
#101); therefore, only the Second and Fourth Affirmative Defenses
are at issue here.
MAC filed a Response in Opposition (Doc. #102)
on November 14, 2019.
For the reasons set forth below, the Motion
is granted in part and denied in part.
I.
In
this
insurance
coverage
dispute,
plaintiff-insurer
Southern-Owners Insurance Company (Southern-Owners) is currently
proceeding on a Second Amended Complaint, seeking a declaratory
judgment that it has no duty to defend or indemnify defendantinsured MAC Contractors of Florida, LLC (d/b/a KJIMS Construction)
for claims asserted in a state-court lawsuit brought by Paul and
Deborah Doppelt, styled Doppelt et al. v. MAC Contractors of
Florida, LLC d/b/a KJIMS Construction, No. 2016-CA-1530.
#84.)
(Doc.
MAC (d/b/a KJIMS Construction) filed an Amended Answer,
Affirmative Defenses, and Counterclaim seeking a declaration that
Southern-Owners was obligated to defend and indemnify MAC.
#97.)
(Doc.
Plaintiff moves to strike the Second and Fourth Affirmative
Defenses.
(Doc. #99.)
II.
The Federal Rules of Civil Procedure require a defendant to
“affirmatively state any avoidance or affirmative defense.”
R. Civ. P. 8(c).
Fed.
“An affirmative defense is generally a defense
that, if established, requires judgment for the defendant even if
the
plaintiff
evidence.”
Cir.
can
prove
his
case
by
a
preponderance
of
the
Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th
1999).
“insufficient
Pursuant
defense[s]”
requesting, or sua sponte.
to
Rule
from
a
12(f),
courts
pleading
upon
Fed. R. Civ. P. 12(f).
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may
a
strike
motion
so
As this Court has recently discussed on several occasions,
compliance with Rule 8(c) requires a defendant to set forth “some
facts establishing a nexus between the elements of an affirmative
defense and the allegations in the complaint,” so as to provide
the plaintiff fair notice of the grounds upon which the defense
rests.
PK Studios, Inc. v. R.L.R. Invs., LLC, No. 2:15-cv-389-
FTM-99CM, 2016 WL 4529323, at *2 (M.D. Fla. Aug. 30, 2016) (quoting
Daley v. Scott, No: 2:15-cv-269-FtM-29DNF, 2016 WL 3517697, at *3
(M.D. Fla. June 28, 2016)).
Boilerplate pleading – that is, merely
listing the name of the affirmative defense without providing any
supporting facts – is insufficient to satisfy Rule 8(c), because
it does not provide a plaintiff adequate grounds to rebut or
properly litigate the defense.
Grant v. Preferred Research, Inc.,
885 F.2d 795, 797 (11th Cir. 1989); Hassan v. U.S. Postal Serv.,
842 F.2d 260, 263 (11th Cir. 1988)).
III.
Plaintiff
Defenses
only
argues
that
the
Second
offer
bare
bones
and
Fourth
conclusory
allegations,
patently frivolous, and invalid as a matter of law.
that
the
affirmative
defenses
have
provided
Affirmative
are
MAC responds
fair
notice
to
Southern-Owners of its intent to rely upon ambiguity and waiver.
The Second Affirmative Defense states:
As for its Second Affirmative Defense, SOUTHERN-OWNERS
is barred from the relief sought by certain ambiguities
in the policy drafted by SOUTHERN-OWNERS.
Such
- 3 -
ambiguities must be interpreted under governing law in
favor of coverage.
(Doc. #97, p. 4.)
As an affirmative defense, the Second Affirmative Defense is
deficient for failing to allege anything beyond a vague reference
to “certain ambiguities.”
But whether the insurance policy is
ambiguous is an issue of contract interpretation.
This defense
is, in effect, a denial because it alleges defects in plaintiff’s
prima facie case.
See In re Rawson Food Serv., Inc., 846 F.2d
1343, 1349 (11th Cir. 1988) (“A defense which points out a defect
in
the
plaintiff's
defense.”).
prima
facie
case
is
not
an
affirmative
However, when a party incorrectly labels a “negative
averment as an affirmative defense rather than as a specific
denial[,] ... the proper remedy is not [to] strike the claim, but
rather to treat [it] as a specific denial.”
Gonzalez v. Spears
Holdings, Inc., 2009 WL 2391233 (S.D. Fla. July 31, 2009) (citing
Home Mgmt. Solutions, 2007 WL 2412834 at *3)).
Therefore, the
Court will treat defendant’s Second Affirmative Defense as a denial
and will not strike it.
The Fourth Affirmative Defense states:
As for its Fourth Affirmative Defense, KJIMS states that
SOUTHERN-OWNERS has, by its actions and/or omissions,
waived any right to contest coverage.
(Doc.
#97,
p.
5.)
Plaintiff
asserts
that
waiver
is
not
a
recognized legal basis for creating coverage which would not
- 4 -
otherwise exist.
However, in Florida, “[a]s a matter of law,
waiver and estoppel are affirmative defenses that must be pleaded.”
Louie’s Oyster, Inc. v. Villaggio Di Las Olas, Inc., 915 So. 2d
220 (Fla. 4th DCA 2005).
sufficient
factual
basis
However, MAC has not adequately pled a
to
establish
a
plausible
defense.
Therefore, the motion to strike will be granted without prejudice
to filing an amended affirmative defense.
Accordingly, it is hereby
ORDERED:
Plaintiff’s Motion to Strike Specified Affirmative Defenses
(Doc. #99) is GRANTED IN PART AND DENIED IN PART.
The Motion is
denied as to the Second Affirmative Defense and granted as to the
Fourth Affirmative Defense without prejudice to filing an amended
affirmative defense within FOURTEEN (14) DAYS of this Opinion and
Order.
DONE and ORDERED at Fort Myers, Florida, this __9th__ day of
December, 2019.
Copies:
Counsel of Record
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