Great American Assurance Company v. Ride Solutions, Inc. et al

Filing 46

ORDER granting 20 & 33 Third Party Defendant Brown & Riding's Motion to Dismiss or Stay Third Party Plaintiff's Third Party Complaint. Third Party Plaintiff Williamson's 36 Third Party Complaint is DISMISSED without prejudice. Signed by Judge Timothy J. Corrigan on 1/9/2017. (SEJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GREAT AMERICAN ASSURANCE
COMPANY, a foreign corporation,
Plaintiff,
v.

Case No. 3:16-cv-372-J-32JBT

RIDE SOLUTIONS, INC. and JUSTIN
WILLIAMSON,
Defendants/Third Party
Plaintiff
BROWN AND RIDING
INSURANCE SERVICES, INC.
Third Party Defendant
ORDER
This third party insurance coverage dispute is before the Court on Third Party
Defendant Brown & Riding Insurance Services, Inc.’s (“B&R”) Motion to Dismiss or
Stay Third Party Plaintiff’s Third Party Complaint (Docs. 20, 33), to which Third Party
Plaintiff Justin Williamson responded (Doc. 21), and to which B&R replied (Doc. 25).1
I.

BACKGROUND
On September 9, 2014, Williamson, a driver for Defendant Ride Solutions, Inc.,

suffered various injuries when a St. Johns County School District bus struck his
The operative Third Party Complaint was filed on October 4, 2016 (Doc. 36).
As the parties confirmed in their joint notice (Doc. 43), it has not changed from the
previous third party complaints filed at Docs. 15 and 30. Therefore, B&R’s original
motion to dismiss (Doc. 20), which it adopted in its second motion to dismiss (Doc. 33),
Williamson’s response (Doc. 21), and B&R’s reply (Doc. 25) are ripe for review.
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vehicle. (Doc. 29 ¶ 18). Ride Solutions is a member of a not-for-profit self-insurance
fund called Florida Insurance Trust (“FIT”), which pools and spreads the liabilities of
its group members. (Doc. 21 at 2). FIT does not provide direct sales, but instead uses
independent agents. (Id.). B&R is the independent agent responsible for procuring
insurance coverage for Ride Solutions. After the accident, Williamson made a claim
for uninsured motorist coverage under a Great American Alliance Insurance Company
policy issued to Ride Solutions, which provided coverage from June 1, 2013 to June 1,
2014. (Doc. 29-1).
Great American denied Williamson’s claim, alleging that the policy lapsed prior
to his accident and the subsequent extension policy excluded his accident as a known
loss. Thereafter, Great American filed this declaratory judgment action, alleging that
it offered to extend its policy for an additional thirty days from August 30, 2014 twice,
but that B&R failed to respond to the offers. (Doc. 29 ¶¶ 13-16). Williamson filed a
third party complaint against B&R for negligence and breach of fiduciary duty relating
to its discussions with Great American regarding the policy extensions. (Doc. 36). Now,
B&R moves to dismiss the third party complaint on the grounds that it is premature
and fails to state a cause of action in Count II (breach of fiduciary duty). (Doc. 20).
II.

STANDARD OF REVIEW
When reviewing a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the

Court must view the allegations in the light most favorable to the plaintiff and accept
the allegations of the complaint as true. Speaker v. U.S. Dep’t of Health & Human
Servs., 623 F.3d 1371, 1379 (11th Cir. 2010). To avoid dismissal, a complaint must
contain sufficient factual allegations to “state a claim to relief that is plausible on its
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face” and “raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of
his entitle[ment] to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
(alteration in original) (citations and quotation marks omitted).
III.

ANALYSIS
B&R moves to dismiss (or stay) Williamson’s third party complaint as

premature because the Court has not yet ruled on the underlying declaratory
judgment action and decided whether Great American owes Ride Solutions coverage.
(Doc. 20 at 7). Further, the Court has yet to determine whether Williamson is entitled
to coverage under the uninsured/underinsured motorist provision of the Great
American policy. If the Court decides that Great American owes Williamson coverage,
then he would have no claims against insurance agent B&R.
“Under Florida law, an insured’s cause of action against an agent for negligence
does not accrue until the proceedings against the insurer are final.” Looney v.
Protective Life Ins. Co., No. 8:07-CV-1020T-17TBM, 2007 WL 2669190, at *4 (M.D.
Fla. Sept. 6, 2007) (citing Blumberg v. USAA Casualty Ins. Co., 790 So. 2d 1061 (Fla.
2001)). “The theory is that an insured claiming that he is entitled to insurance
coverage is judicially estopped from simultaneously claiming a lack of coverage against
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the agent that procured the policy on his behalf.” Pebb Cleveland, LLC v. Fireman’s
Fund Ins. Co., No. 14-81496-CIV, 2015 WL 328247, at *2 (S.D. Fla. Jan. 23, 2015).
Here, Williamson alleges in his Counterclaim to the underlying action that he
is entitled to coverage under the Great American policy. (Doc. 36 at 8-11 ¶¶ 1-21). If
he is successful, then he is covered under the policy and will have suffered no damages
due to any alleged negligence of B&R. Conversely, if he loses the case against Great
American, then he will have suffered damages and may file a lawsuit against B&R.
Although Williamson claims to have already suffered damages in the form of
having to defend against Great American’s declaratory judgment action (Doc. 21 at 5),
he cites no case law supporting this proposition. See Looney, 2007 WL 2669190 at 4
(“Plaintiff has not incurred damages until the breach of contract suit with Protective
Life is settled. . . . If she is not awarded the $500,000.00, then she has suffered
damages and may, at that time, initiate action against the agent.”). In addition, he
provides no support for the proposition that the alleged inextricable nature of the
claims in the main and third party actions mandates that B&R’s motion be denied.2
(Id. at 5-7). Finally, although Williamson contends that a dismissal or stay would risk
inconsistent verdicts, other courts faced with similar arguments have found otherwise.

Williamson cites a case in the Commercial Division of the Circuit Court of the
Seventeenth Judicial Circuit in and for Broward County, SW Global Inc. v. Pacific Ins.
Co., Ltd., et. al., Case No. 10-39671 CA 07, in which he argues that the trial court faced
the identical issues as those present in this case and denied the motion to dismiss or
stay. (Doc. 21 at 7). However, the judge in that case simply denied the motion in a oneword order, with no analysis of the ruling. (Doc. 21-5). The Court gives little to no
weight to SW Global, in light of the complete lack of analysis, as well as the persuasive
authority presented by B&R.
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See Looney, 2007 WL 2669190, at *4 (“[Plaintiff] raises a valid concern regarding the
possibility of inconsistent decisions between separate juries. However, as in Blumberg,
Plaintiff cannot make a claim for the negligence of her agent in allowing a contract to
lapse while simultaneously claiming she is covered under that contract.”). “When the
mere passage of time is insufficient to cure the premature element of the action, as in
this case, dismissal without prejudice is appropriate.” 3 Fourth Tee, LLC v. Axis
Surplus Ins. Co., No. 8:12-CV-1249-T-17TGW, 2013 WL 593951, at *2 (M.D. Fla. Feb.
15, 2013).
Accordingly, it is hereby
ORDERED:
1.

Third Party Defendant Brown & Riding Insurance Services, Inc.’s

(“B&R”) Motion to Dismiss or Stay Third Party Plaintiff’s Third Party Complaint
(Docs. 20, 33) is GRANTED to the extent stated herein.
2.

Third Party Plaintiff Williamson’s Third Party Complaint (Doc. 36) is

DISMISSED without prejudice.
DONE AND ORDERED in Jacksonville, Florida the 9th day of January, 2017.

sj
Because the Court finds that dismissal without prejudice is appropriate, it
will defer ruling on whether Williamson has stated a viable claim for breach of
fiduciary duty against B&R.
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Copies:
Counsel of record

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