Moss v. Geico Indemnity Company

Filing 56

ORDER granting 45 Motion to strike GEICO's second affirmative defense with ten days leave to amend. Signed by Magistrate Judge Thomas B. Smith on 3/15/2012. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ELEANOR C. MOSS, as Personal
Representative of the Estate of Roy L. Moss,
deceased,
Plaintiff,
v.

Case No. 5:10-cv-104-Oc-10TBS

GEICO INDEMNITY COMPANY,
Defendant.
______________________________________
ORDER
Pending before the Court are Plaintiff’s Motion to Strike and/or in the
Alternative, Motion for More Definite Statement as to GEICO’s Amended Second
Affirmative Defense (Doc. 45) and GEICO’s Response to Plaintiff’s Motion to Strike
and/or in the Alternative, Motion for More Definite Statement as to GEICO’s Second
Affirmative Defense (Doc. 51). For the following reasons, Plaintiff’s motion is due to
be GRANTED.
Plaintiff filed this bad faith claim against insurer, GEICO Indemnity Company
(“GEICO”), following an excess verdict in a state court under-insured motorist action.
(Doc. 2). The case was removed to this Court based upon diversity jurisdiction. (Doc.
1). GEICO’s Answer and Affirmative Defenses to Plaintiff’s Amended Complaint (Doc.
37), included the following defense:
As its Second Affirmative Defense, GEICO states that the Plaintiff’s
claim is governed by § 624.155, Florida Statutes, and that GEICO
is entitled to all protections afforded to GEICO by that statute.
On motion of Plaintiff (Doc. 39), this Court ordered GEICO to provide a more

definite statement of this affirmative defense (Doc. 41). GEICO has restated its
Second Affirmative Defense which now says:
As its Second Affirmative Defense, GEICO states that the Plaintiff’s
claim is governed by § 624.155, Florida Statutes, and that GEICO
is entitled to the following protections afforded to GEICO by that
statute:
a. To the extent that Plaintiff’s Civil Remedy Notice failed
to comply with the requirements of Florida Statute § 624.155,
Plaintiff failed to fulfill a condition precedent to the present action.
b. To the extent that the allegations set forth in Plaintiff’s
Amended Complaint are broader than the allegations set forth in
Plaintiff’s Civil Remedy Notice, Plaintiff fails to fulfill a condition
precedent to the present action.
c. The provisions of Florida Statute § 624.155 regarding
punitive damages apply to the present action. There is no basis for
punitive damages to be sought or awarded.
d. To the extent that Plaintiff’s allegations do not
constitute bad faith as defined by Florida Statute § 624.155 and
Florida law, Plaintiff’s Amended Complaint fails to state a cause of
action.
e. To the extent that Plaintiff alleges damages in her
Amended Complaint that are not allowed by Florida Statute §
624.155, Plaintiff’s Amended Complaint fails to state a cause of
action.
Plaintiff’s current motion asks the Court to strike GEICO’s Second
Affirmative Defense or in the alternative, require GEICO to provide a further, more
definite statement of this defense.
“An affirmative defense is generally a defense that, if established, requires
judgment for the defendant even if the plaintiff can prove his case by a
preponderance of the evidence.” Wright v. Southland Corp., 187 F.3d 1287, 1303

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(11th Cir. 1999). “In determining whether a particular argument is an affirmative
defense, courts consider ‘the logical relationship between the defense and the
cause of action,’ and the likelihood that the plaintiff will be unfairly surprised if the
defense does not appear in the pleadings.” Hassan v. U.S. Postal Serv., 842 F.2d
260, 263 (11th Cir. 1988)(quoting Ingraham v. United States, 808 F.2d 1075, 1079
(5th Cir. 1987)).
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, “the court
may order stricken from any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” In practice, “a motion to strike will
usually be denied, unless, the allegations have no possible relation to the
controversy and may cause prejudice to one of the parties.” Bartram, LLC v.
Landmark American Ins. Co., 2010 WL 4736830 at * 1 (N.D. Fla.). “An affirmative
defense will only be stricken . . . if the defense is ‘insufficient as a matter of law.’”
Microsoft Corp. v. Jesse’s Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D.
Fla. 2002)(quoting Anchor Hocking Corp. v. Jacksonville Elec. Auth., 419 F.Supp.
992, 1000 (M.D. Fla. 1976)). “A defense is insufficient as a matter of law only if: (1)
on the face of the pleadings, it is patently frivolous, or (2) it is clearly invalid as a
matter of law.” Id. “To the extent that a defense puts into issue relevant and
substantial legal and factual questions, it is ‘sufficient’ and may survive a motion to
strike, particularly when there is no showing of prejudice to the movant.” Reyher v.
Trans World Airlines, Inc., 881 F.Supp. 574, 576 (M.D. Fla. 1995) citing Augustus v.
Board of Public Instruction, 306 F.2d 862, 868 (5th Cir. 1962).

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Although the issue has yet to be decided by the Eleventh Circuit Court of
Appeal, Plaintiff contends that the pleading standard established in Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic
Corp. v. Twombly, 550 U.S. 554, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) should
apply to affirmative defenses. GEICO disagrees. The Court finds it can decide
Plaintiff’s motion without reaching this issue.
The first deficiency in GEICO’s second affirmative defense is its statement
that § 624.155 Florida Statutes governs Plaintiff’s claim and that GEICO enjoys the
protections afforded by the statute. This is a legal argument; not an affirmative
defense. Next, GEICO’s second affirmative defense is devoid of any factual
allegations to support its legal conclusions. As pled, GEICO’s second affirmative
defense fails to give Plaintiff notice of the grounds of the defense and is likely to
lead to surprise and undue prejudice. Third, each subpart of GEICO’s second
affirmative defense begins with the words “[t]o the extent.” Absent specifics, which
GEICO has not supplied, it is impossible to know whether any part of the second
affirmative defense applies in this case. Fourth, “when denying that a condition
precedent has occurred or been performed, a party must do so with particularity.”
Fed. R. Civ. P. 9(c). GEICO fails to plead subparagraphs “a” and “b” with the
necessary particularity. Finally, subparagraphs “c” and “e” of GEICO’s second
affirmative defense are statements of law; not affirmative defenses.
Therefore, it is now
ORDERED:

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1. Plaintiff’s Motion to Strike and/or in the Alternative, Motion for More
Definite Statement as to GEICO’s Amended Second Affirmative Defense (Doc. 45)
is GRANTED and GEICO’s second affirmative defense is STRICKEN.
2. GEICO has ten days from the rendition of this Order within to further
amend its second affirmative defense if, consistent with counsels’ obligations under
Rule 11 Fed. R. Civ. P., GEICO can allege specific failures by Plaintiff to comply
with § 624.155 Florida Statutes, which put at issue relevant legal and factual
matters.
DONE AND ORDERED in Ocala, Florida on March 15, 2012.

Copies to all Counsel

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