Florez et al v. First Community Insurance Company
Filing
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ORDERED: Defendants Motion to Dismiss (Doc. 8) is GRANTED and this action is DISMISSED without prejudice as unripe. The Clerk is DIRECTED to deny any pending motions as moot, terminate and deadlines, and close the case. Signed by Judge Sheri Polster Chappell on 10/24/2024. (AEH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
HUGO FLOREZ and GRACE
FLOREZ,
Plaintiffs,
v.
Case No.: 2:24-cv-841-SPC-NPM
FIRST COMMUNITY
INSURANCE COMPANY,
Defendant.
/
OPINION AND ORDER
Before the Court is Defendant’s Motion to Dismiss (Doc. 8). Plaintiffs
failed to timely respond, even after the Court ordered them to show cause why
the motion should not be treated as unopposed (Doc. 17). The Court thus treats
the motion as unopposed and grants it for the below reasons.
This is a flood insurance case. Plaintiffs sue Defendant for breach of
contract because Defendant allegedly failed “to pay sufficient funds to Plaintiff
to restore the covered property to its pre-loss condition.” (Doc. 4 ¶ 18). In
response, Defendant moves to dismiss under Rule 12(b)(1). Defendant argues
that because it has not yet issued a written denial Plaintiffs’ claim is unripe
and the Court lacks subject-matter jurisdiction over this action.
Defendant issued a National Flood Insurance Program Standard Flood
Insurance Policy (SFIP) to Plaintiff. Regarding when a policyholder may sue,
the SFIP provides:
You may not sue us to recover money under this policy
unless you have complied with all the requirements of the
policy. If you do sue, you must start the suit within
one year after the date of the written denial of all or
part of the claim. . . . This requirement applies to any
claim that you may have under this policy and to any
dispute that you may have arising out of the handling of
any claim under the policy.
SFIP, art. VII(O) (emphasis added). Courts have held that an insured must
strictly comply with the SFIP terms. See Sanz v. U.S. Sec. Ins. Co., 328 F.3d
1314, 1318 (11th Cir. 2003) (“We agree with our sister circuits and conclude
that the insured must adhere strictly to the requirements of the standard
federal flood insurance policy before any monetary claim can be awarded
against the government.”). And, at bottom, a suit alleging a breach of the SFIP
is not ripe until the insurer issues a written denial. See Burkhalter v. Hartford
Underwriters Ins. Co., No. 17-CV-01086-BAJ-SDJ, 2021 WL 3121209, at *5
(M.D. La. July 22, 2021).
Defendant provides a declaration from a Flood-Claims Manager stating
that Defendant did not issue a written denial to Plaintiffs before they filed suit.
(Doc. 12-1 ¶ 7). The Court may consider the declaration at this stage to resolve
Defendant’s factual attack on subject-matter jurisdiction and the ripeness of
the claim. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)
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(“Factual attacks . . . challenge the existence of subject matter jurisdiction in
fact, irrespective of the pleadings, and matters outside the pleadings, such as
testimony and affidavits, are considered.”) (cleaned up). And Plaintiffs offer
nothing to rebut Defendant’s declaration. So, the Court finds that Defendant
has not issued a written denial and must dismiss this action as unripe.
Accordingly, it is now
ORDERED:
1. Defendants Motion to Dismiss (Doc. 8) is GRANTED and this action
is DISMISSED without prejudice as unripe.
2. The Clerk is DIRECTED to deny any pending motions as moot,
terminate and deadlines, and close the case.
DONE and ORDERED in Fort Myers, Florida on October 24, 2024.
Copies: All Parties of Record
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