The Landings Yacht, Golf and Tennis Club, Inc. v. Swiss Re Corporate Solutions America Insurance Corporation et al

Filing 36

ORDERED: Defendants' Motion for Judgment on the Pleadings (Doc. 22) is GRANTED in part. Plaintiff's claims as to Defendant Swiss Re Corporate Solutions America Insurance Corporation are DISMISSED with prejudice. The Clerk is DIRECTE D to enter judgment for Swiss and against Landings as to Landings' claims against Swiss and terminate Swiss from the docket. The remainder of Defendants' Motion for Judgment on the Pleadings (Doc. 22) is DENIED. Signed by Judge Sheri Polster Chappell on 11/21/2022. (AEH)

Case 2:22-cv-00459-SPC-NPM Document 36 Filed 11/21/22 Page 1 of 8 PageID 465

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THE LANDINGS YACHT, GOLF
AND TENNIS CLUB, INC.,
Plaintiff,
v.

Case No.: 2:22-cv-459-SPC-NPM

SWISS RE CORPORATE
SOLUTIONS AMERICA
INSURANCE CORPORATION and
PELEUS INSURANCE
COMPANY,
Defendants.
/
OPINION AND ORDER1
Before the Court is Defendants’ Swiss Re Corporate Solutions America
Insurance Corporation’s (“Swiss”) and Peleus Insurance Company’s (“Peleus”)
(collectively “Insurance Companies”) Motion for Judgment on the Pleadings
(Doc. 22) and Plaintiff The Landings Yacht, Golf, and Tennis Club, Inc.’s
(“Landings”) response in opposition (Doc. 23). The Motion is ripe for review.

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BACKGROUND
This is a breach of contract dispute about insurance policy coverage. In
2019, two insurance companies—Peleus and North American Capacity
Insurance Company (“NAC”)—issued an insurance policy (“Policy”) to
Landings. The Policy covered funds transfer fraud. In 2021, two unauthorized
withdrawals occurred. First, four unauthorized users took money from
Landings’ bank account (“Account”). Second, unauthorized users, through a
payroll company (“Paychex”), requested and received money from the Account.
Landings alleges that Paychex purported to act on behalf of and impersonated
Landings.
Landings sought Policy coverage for the unauthorized withdrawals. The
Insurance Companies denied.

As a result, Landings sued for breach of

contract. Now, the Insurance Companies seek judgment on the pleadings
arguing that Landings includes an improper party (Swiss) and fails to state a
claim upon which relief can be granted because it fails to plead funds transfer
fraud under the Policy.
LEGAL STANDARD
“After the pleadings are closed—but early enough not to delay trial—a
party may move for judgment on the pleadings.”

Fed. R. Civ. P. 12(c).

“Judgment on the pleadings is appropriate where there are no material facts
in dispute and the moving party is entitled to judgment as a matter of law.”
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Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001). “If a
comparison of the averments in the competing pleadings reveals a material
dispute of fact, judgment on the pleadings must be denied.” Perez v. Wells
Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014). To decide whether judgment
is appropriate, courts generally accept all material facts alleged by the nonmoving party as true and view them most favorable to the nonmoving party.
Id.
A party may move for judgment on the pleadings because of a failure to
state a claim upon which relief can be granted. Fed. R. Civ. P. 12(h)(2); Abaza
v. Publix Supermarkets, Inc., No. 8:16-cv-386-T-23TBM, 2016 WL 3126731, at
*1 (M.D. Fla. June 3, 2016). Such a motion is “governed by the same standard
as a Rule 12(b)(6) motion to dismiss.” Guarino v. Wyeth LLC, 823 F. Supp. 2d
1289, 1291 (M.D. Fla. 2011). To survive a Rule 12(b)(6) motion, the “complaint
must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(cleaned up). A facially plausible claim allows a “court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
DISCUSSION
The Court will first address Swiss’ argument that it is not a proper party
to the action and then turn to whether the allegations are sufficient.

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A. Swiss Should not be a Party.
Swiss argues the Amended Complaint improperly lists Swiss as a
Defendant. Only NAC and Peleus issued Landings’ Policy. Swiss did not issue
the Policy. In rebuttal, Landings does not argue Swiss is the proper party.
Instead, Landings asserts that NAC is not an active entity in Florida, and it
should not be required to “navigate a very confusing web of corporate parents,
subsidiaries, and affiliates, and determine who is who[.]” Landings cites no
legal authority to support this proposition.
As the party asserting the claim, Landings is required to name the
proper parties to the action. See Eller v. Ben Tzer Yul, No. 4:06-CV028, 2006
WL 3734162, at *2 (N.D. Ga. Dec. 14, 2006). Swiss says it is not the proper
party and Landings has failed to convince the Court it is. Landings’ rebuttal
that there is a confusing web of corporations does not prevail. Landings cites
no legal authority for its apparent assumption that, in the event of a confusing
corporate web, it need not plead the proper party. And Swiss represents it told
Landings the proper party to sue. Whether Landings is required to conduct a
simple Google search to locate a party, as seems to be the case with NAC, or if
it had to navigate a more confusing web of entities, Landings must conduct
this inquiry—not the Court nor the parties it sues. If Landings has some legal
authority to argue otherwise, it should have provided it to the Court, which it
has not. See Chavez v. Sec’y, Florida Dep’t of Corr., 647 F.3d 1057, 1061 (11th
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Cir. 2011) (internal quotes omitted) (“ . . . judges are not like pigs, hunting for
truffles buried in briefs [.]”). So, even accepting all material facts alleged by
Landings as true and viewing them in the light most favorable to Landings,
Landings does not state a claim upon which relief can be granted as to Swiss
because Swiss is not a proper party. The Court thus grants Defendants’ Motion
for Judgment on the Pleadings to the extent that it dismisses the case against
Swiss.
Landings asserts, with no legal support, that piecemeal judgments such
as this are inappropriate. 2 Landings is incorrect. Fed. R. Civ. P. 54(b) permits
partial judgments in some cases. The Court conducts a two-part analysis to
determine whether to grant such a judgment: (1) if the judgment is both “final”
and a “judgment”; and (2) if there is no “just reason for delay” in certifying it
as final. Lloyd Noland Found, Inc. v. Tenet Health Care Corp., 483 F.3d 773,
777-78 (11th Cir. 2007). Both elements are present here. Dismissing Swiss
with prejudice equates to a judgment. Because Swiss should not have been a
party in the first place, the Court finds no just reason for delay in certifying
the judgment. Judgment for Swiss is appropriate.
B. The Amended Complaint States a Claim for Breach of Contract.

The only case Landings cites to, Affordable Aerial Photography, Inc. v. Abdelsayed, Case
No. 21-81331, 2022 WL 1124795, at *4 (S.D. Fla. Apr. 15, 2022), does not support Landings’
position on the judgement at issue as to Swiss. That case discusses partial judgments for
parts of a claim. Here, granting Swiss’ Motion would not equate to a partial judgment for an
element of a claim, but would be a complete and final judgment of all claims against Swiss.
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The Insurance Companies allege Landings’ Amended Complaint fails to
state facts that, if taken as true and in the light most favorable to Landings,
show a funds transfer fraud covered by the Policy occurred.

The Court

disagrees. The Court begins by discussing the policy language. The Court then
reviews the sufficiency of the allegations for the first and second set of
withdrawals.
When “a policy provision is clear and unambiguous, it should be enforced
according to its terms.” Garcia v. Fed. Ins., 969 So. 2d 288, 291 (Fla. 2007)
(citation omitted). Under the Policy’s specific coverage provision, there must
have been fraudulent instructions to transfer money from Landings’ Account.
Coverage exists only if the “instruction purports to have been transmitted [or
issued] by the Insured and impersonates [the Insured] or [its] vendors,
business partners, or clients[.]” (Doc. 22 at 7). Where relevant, the “Insured”
is defined as Landings or a subsidiary. (Doc. 19 at 41). With the Policy
language in mind, the Court discusses the allegations.
The allegations about the first set of withdrawals are sufficient.
Landings alleges the unauthorized users directed withdrawals from the
Account and “purported to be” Landings. The Complaint further says four
unauthorized users during a specific period stole an identified sum from the
Account. At this stage, this is enough.

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The allegations about the second set of withdrawals are also sufficient.
Like with the first set of withdrawals, Landings alleges that additional
unauthorized

users,

via

Paychex,

made

unauthorized

requests

for

withdrawals. Contrary to the Insurance Companies’ arguments, Landings
alleges that Paychex impersonated one of its vendors.

The Complaint

sufficiently alleges that Paychex “ . . . impersonate[d] [Landings’] vendors,
business partners, or clients[.]”
While the Insurance Companies argue Landings’ allegations are legal
conclusions, the Court finds they are factual allegations the Court must accept
under the 12(c) standard and view in the light most favorable to Landings.3
E.g., Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 485 (11th Cir. 2015). At this
stage, detailed pleadings are not required, and Landings need not state its
claim with particularity. E.g., Iqbal, 556 U.S. at 678.
One final note. This Court has previously, in another case, warned
Landings about carefully following the typographic requirements in our local
rules. M.D. Fla. R. 1.08. Once again, Landings fails to adhere to the Court’s
instruction. Any future filings that do not explicitly conform to the local rules
will be stricken.

Although the Insurance Companies ask the Court to strike, in the alternative, all the
allegations relating to the Paychex withdrawals, it does not provide any support, and the
Court does not see any basis, to strike such allegations. Accordingly, the Court does not
address this any further.
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Accordingly, it is now
ORDERED:
1. Defendants’ Motion for Judgment on the Pleadings (Doc. 22) is
GRANTED in part. Plaintiff’s claims as to Defendant Swiss Re
Corporate

Solutions

America

Insurance

Corporation

are

DISMISSED with prejudice.
2. The Clerk is DIRECTED to enter judgment for Swiss and against
Landings as to Landings’ claims against Swiss and terminate
Swiss from the docket.
3. The remainder of Defendants’ Motion for Judgment on the
Pleadings (Doc. 22) is DENIED.
DONE and ORDERED in Fort Myers, Florida on November 21, 2022.

Copies: All Parties of Record

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