The Smokin' Knight, Inc. v. Nautilus Insurance Company

Filing 14

OPINION AND ORDER denying #7 Motion to Dismiss. Signed by Judge John E. Steele on 2/5/2024. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THE SMOKIN’ KNIGHT, INC.,
Plaintiff,
v.

Case No:

2:23-cv-1217-JES-KCD

NAUTILUS INSURANCE COMPANY,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss (Doc. #7) filed on January 2, 2024.
was granted an extension of time to respond.

Plaintiff

(Doc. #13.)

No

response has been filed, the time to respond has expired, and the
Court treats the motion as unopposed.
The one-count Complaint (Doc. #6) asserts a claim for breach
of contract.

Nautilus Insurance Company (Nautilus) issued a

commercial insurance policy (the Policy) to Plaintiff The Smokin’
Knight, Inc. (Knight or Plaintiff) covering certain property in
Port Charlotte, Florida (the Property).

The Property was damaged

by Hurricane Ian, and Knight filed a claim with Nautilus. Nautilus
determined that $36,175.00 was owed under the policy.

Knight

disagreed with the amount, and on November 13, 2023, filed a
Property Insurance Notice of Intent to Initiate Litigation with
the Florida Department of Financial Services.

Nautilus served its

Response, which included a request for mediation as an alternative
dispute resolution pursuant to Fla. Stat. § 627.70152(4)(b). Three
days later, Knight filed suit against Nautilus for failing to pay
for the total-loss damage to its building and property caused by
Hurricane Ian.
and

that

Plaintiff asserts this was an inadequate amount

Nautilus

breached

the

commercial

property

insurance

policy by failing to pay the full amount of damages.
Nautilus now seeks to dismiss the Complaint without prejudice
pursuant to Fed. R. Civ. P. 12(b)(6) arguing “[p]laintiff filed
suit under the Policy prior to engaging in mediation as demanded
in Nautilus’ Response to Plaintiff’s Notice and failed to comply
with

the

pre-suit

requirements

set

forth

in

section

627.70152(4)(b), Fla. Stat. The cause of action is premature and
inappropriate.”

(Doc. #7, ¶ 11.)

Fla. Stat. § 627.70152 applies to “all suits arising under a
residential or commercial property insurance policy, including a
residential or commercial property insurance policy issued by an
eligible surplus lines insurer.”

Fla. Stat. § 627.70152(1).

“As

a condition precedent to filing a suit under a property insurance
policy, a claimant must provide the department with written notice
of

intent

to

department.”

initiate

litigation

on

a

form

Fla. Stat. § 627.70152(3)(a).

provided

by

the

The insurer must

respond in writing within 10 business days, either accepting
coverage, continuing to deny coverage, or asserting the right to

2

reinspect the damaged property.

Fla. Stat. § 627.70152(4)(a).

“If an insurer is responding to a notice provided to the insurer
alleging an act or omission by the insurer other than a denial of
coverage, the insurer must respond by making a settlement offer or
requiring the claimant to participate in appraisal or another
method of alternative dispute resolution…. If the appraisal or
alternative dispute resolution has not been concluded within 90
days after the expiration of the 10-day notice of intent to
initiate litigation specified in subsection (3), the claimant or
claimant's attorney may immediately file suit without providing
the insurer additional notice.”

Fla. Stat. § 627.70152(4)(b).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“In pleading conditions precedent, it suffices to allege generally
that all conditions precedent have occurred or been performed. But
when denying that a condition precedent has occurred or been
performed, a party must do so with particularity.”

Fed. R. Civ.

P. 9(c). The Complaint does not specifically assert that Plaintiff
participated

in

mediation

or

any

other

alternative

dispute

resolution process but does state that “[a]ll conditions precedent

3

to obtaining payment of insurance benefits under the Policy have
been complied with, met, or waived.”

(Doc. #6 at ¶ 10.)

This is

sufficient at this stage of the proceedings to state a plausible
claim as the Court must accept it as true.

See, e.g., Honick v.

Ace Ins. Co. of the Midwest, No. 2:21-CV-637-SPC-NPM, 2021 WL
4804446, at *1 (M.D. Fla. Oct. 14, 2021); Cardelle v. Scottsdale
Ins. Co., No. 21-CV-24062, 2022 WL 196294, at *3 (S.D. Fla. Jan.
21, 2022); O'Kelley v. Lexington Ins. Co., No. 1:22-CV-21218, 2022
WL 17583683, at *3 (S.D. Fla. Sept. 16, 2022); Graves v. Great
Lakes Ins. SE, No. 2:23-CV-373-SPC-KCD, 2023 WL 8004429, at *1
(M.D. Fla. Nov. 17, 2023). Although plaintiff has failed to oppose
the motion, the motion must be denied.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss (Doc. #7) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
February 2024.

Copies: Counsel of record

4

5th

day of