National General Insurance Online, Inc. v. Black et al
Filing
65
ORDER: Defendants Herbert Black and Iris Black's Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted or, in the alternative, Motion for More Definite Statement ( 53 is GRANTED as to all Defendants. Within fourt een (14) days of the date of this Order, National General may either file an amended complaint or seek leave to dismiss this case without prejudice. If no action is taken by National General within fourteen (14) days, the case will be dismissed without prejudice without further notice. Signed by Judge James S. Moody, Jr on 8/24/2015. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
NATIONAL GENERAL INSURANCE
ONLINE, INC., a Missouri corporation,
Plaintiff,
v.
Case No: 5:15-cv-111-Oc-30PRL
HERBERT BLACK, et al.,
Defendants.
________________________________/
ORDER
THIS CAUSE comes before the Court upon Defendants Herbert Black and Iris
Black’s (collectively “the Blacks”) Motion to Dismiss for Failure to State a Claim upon
which Relief can be Granted or, in the alternative, Motion for More Definite Statement
(Doc. 53) and Plaintiff National General Insurance Online, Inc.’s (“National General”)
response in opposition thereto (Doc. 59). The Court, having reviewed the motion and
response, and being otherwise fully advised in the premises, concludes that the Blacks’
motion to dismiss should be granted without prejudice for National General to file an
amended complaint or to refile its action when the claims for which it may be responsible
ripen into justiciable controversies.
BACKGROUND
National General initiated this action on March 5, 2015, seeking declaratory relief
pursuant to 28 U.S.C. § 2201 to determine the rights and liabilities of the parties under an
automobile insurance policy issued by National General to the Blacks. National General
issued the policy to Herbert Black with effective dates of February 28, 2013, through
February 28, 2014. On January 23, 2014, National General sent Herbert Black an offer to
renew the policy, which, if accepted, would extend coverage from February 28, 2014, to
February 28, 2015.
The Blacks reside in Alabama, but typically spend the winter months in Florida.
Peggy Black, the Blacks’ daughter-in-law, was collecting the Blacks’ mail while they were
in Florida in early 2014, and she received the offer of renewal before February 28, 2014.
Iris Black instructed Peggy Black to pay for the renewal by check. Either Peggy Black or
Iris Black sent a check to National General for the renewal that was dated February 27,
2014, and appears to bear the signature of Iris Black. However, National General did not
receive the check before the policy expired on February 28, 2014.
Because it did not receive the check before February 28, 2014, National General
asserts that the policy terminated by its own terms. 1 On March 3, 2014, National General
sent Herbert Black a notice informing him that the policy had lapsed as of February 28,
2014.
On March 15, 2014, Herbert Black was driving his vehicle, previously insured under
the policy issued by National General, on State Road 91 in Sumter County, Florida, when
1
Specifically, the policy provides: “If we offer to renew or continue your policy and you or your
representative do not accept, this policy will automatically terminate at the end of the current policy period.
Failure to pay the required renewal or continuation premium when due shall mean that you have not
accepted our offer.” (Doc. 1, Ex. A).
2
he was involved in a five-vehicle accident. 2 The accident was reported to National General
that same day, and National General denied that insurance coverage was in force under the
policy on that date.
National General received the check sent by Peggy Black or Iris Black on March
20, 2014, and reinstated the Blacks’ policy as of March 20, 2014, with a lapse in coverage
from February 28, 2014, until March 20, 2014. The Blacks have since sought coverage for
the March 15, 2014 accident. And at least some of the other defendants have notified
National General of potential claims against the Blacks arising from the accident. But none
of the potential claimants have yet filed a lawsuit against the Blacks.
In an unusual maneuver, despite that no claims have been formally asserted against
National General, either through the insurance process or legal proceedings, National
General has preemptively filed this action for declaratory relief against the Blacks and all
parties involved in the March 15, 2014 accident to determine whether the policy issued to
the Blacks provides coverage for the accident. Namely, it seeks a declaration that there is
no coverage under the policy for any first- or third-party losses and it would not be required
to indemnify or provide a defense to the Blacks against any potential claims arising from
the accident.
The Blacks seek to dismiss National General’s complaint under Federal Rule of
Civil Procedure 12(b)(6) arguing that National General has not stated a plausible claim for
relief. Namely, the Blacks contend that National General has not established that a case or
2
The remaining defendants were either personally involved in the accident or owned the vehicle
involved in the accident.
3
controversy exists sufficient to support an action for declaratory judgment. The Court
agrees.
DISCUSSION
Cases arising under the Declaratory Judgment Act, 28 U.S.C. § 2201, present unique
jurisdictional questions. The Declaratory Judgment Act provides, in pertinent part: “In a
case of actual controversy within its jurisdiction, . . . any court of the United States, upon
the filing of an appropriate pleading, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be
sought.” 28 U.S.C. § 2201(a) (emphasis added). “[T]he phrase ‘case of actual controversy’
. . . refers to the type of ‘Cases’ and ‘Controversies’ that are justiciable under Article III
[of the Constitution].” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007); see
also Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995)
(“Congress limited federal jurisdiction under the Declaratory Judgment Act to actual
controversies, in statutory recognition of the fact that federal judicial power under Article
III, Section 2 of the United States Constitution extends only to concrete cases or
controversies.” (internal quotation marks omitted)). Thus, “[i]n all cases arising under the
Declaratory Judgment Act, the threshold question is whether a justiciable controversy
exists.” Atlanta Gas Light Co., 68 F.3d at 414 (internal citation omitted).
In determining whether a justiciable controversy exists, a court must consider
“‘whether the facts alleged, under all circumstances, show that there is a substantial
controversy, between parties having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment.’” MedImmune, Inc., 549 U.S. at
4
127 (quoting Md. Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)). But
“[d]eclaratory judgment actions often require courts to face the difficult task of
distinguishing between actual controversies and attempts to obtain advisory opinions on
the basis of hypothetical controversies.”
Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1111 n.12 (10th Cir. 2010) (internal quotation marks
omitted).
In the present action, it is difficult, if not impossible, to determine from National
General’s complaint whether a case or controversy exists as to any of the named
defendants. The Court agrees with National General that a potential claim need not mature
to the level of a lawsuit to qualify as a “substantial controversy” of “sufficient
immediacy.” 3 Rather in the context of an insurance-coverage dispute, when the facts and
circumstances indicate that a claim is likely to be brought, the claim has sufficiently ripened
to warrant declaratory judgment. However, National General has not asserted facts in its
3
In GTE Directories Publishing Corp. v. Trimen America, Inc., 67 F.3d 1563, 1569 (11th Cir.
1995), in dicta, the Eleventh Circuit contemplated that in the context of an insurance-coverage dispute, a
claim may be sufficiently ripe for declaratory judgment even though no suit had yet been filed. See also
Progressive Am. Ins. Co. v. Steele, 15 F. Supp. 3d 1240, 1247 (M.D. Fla. 2014) (finding a justiciable
controversy between an insurer, an insured, and an injured party regarding an underlying claim even though
no tort action had been filed yet); Tower Ins. Co. of N.Y. v. Rainbow Granite & Marble, Inc., No. 10-60052CIV, 2010 WL 1740700, at *2 (S.D. Fla. Apr. 29, 2010) (concluding that where a claim was made under
the policy, an injury was threatened to the insurer which could be traced to a dispute regarding insurance
coverage and therefore a case or controversy existed despite that no action had yet been filed); Icarom, PLC
v. Howard Cnty., 904 F. Supp. 454, 458 (D. Md. 1995) (holding that declaratory judgment regarding
insurance coverage presented a justiciable controversy even though a lawsuit or entry of judgment had not
yet occurred); State Farm Mut. Auto. Ins. Co. v. Sampson, 305 F. Supp. 50, 51 (M.D. Fla. 1969) (holding
that the lack of a pending claim by injured parties did not preclude declaratory judgment because it was
“obvious that suit [was] imminent pending the outcome of th[e] litigation”); but see Md. Cas. Co. v.
Shamblen, No. 2:13-cv-05395, 2014 WL 1276486, at *6 (S.D. W.V. Mar. 27, 2014) (finding that no case
or controversy was presented where no underlying action had been filed and no demand for coverage had
been made); Union Ins. Co. v. Soleil Grp., Inc., 465 F. Supp. 2d 567, 573-75 (D. S.C. 2006) (finding no
justiciable controversy where no underlying suit had been filed because whether the duty to defend arose
depended on the facts alleged in the underlying complaint).
5
complaint that demonstrate that any of the potential claims against it have matured to the
point where the claims are likely to be brought.
National General seeks declaratory judgment as to both potential claims of which it
has been put on notice and any future claims that have not yet arisen. As to the potential
claims of which National General has been put on notice, the mere existence of known
injuries is insufficient to rise to the level of a “substantial controversy” of “immediate
sufficiency” to warrant declaratory judgment. National General must also establish a
dispute regarding coverage, which would require showing, at the very least, that the
claimants with known injuries have sought recompense from the Blacks, and the Blacks
have in turn demanded coverage and defense from National General, which National
General has denied. Cf. Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 1384
(10th Cir. 2011) (recognizing that for a justiciable controversy to exist there must be an
“identifiable specific claim that has arisen above the horizon” and “there must be
disagreement about coverage”).
Similarly, the unknown, hypothetical injuries are even more nebulous and
problematic, and National General essentially seeks an advisory opinion as to these claims.
National General has provided no binding or persuasive authority that would suggest that
this Court may a render a declaratory judgment as to such speculative claims. Thus, a
declaratory judgment as to the unknown, future claims would be premature at this time.
Because it is unclear from the complaint as to which claims have crystalized into
actual disputes at this point, National General has failed to meet its burden in establishing
that a case or controversy exists. Accordingly, the Blacks’ motion to dismiss should be
6
granted as to all named defendants. 4 However, since the complaint alleges that at least
some of the injuries arising from the accident are known to National General and the Blacks
have sought “coverage” under the policy, National General may file an amended complaint
seeking declaratory judgment provided it alleges sufficient facts showing that the claims
have solidified into actual disputes such that a case or controversy exists. If National
General would prefer to dismiss this action until the all claims ripen into justiciable
controversies, National General may seek leave to dismiss the action without prejudice.
CONCLUSION
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1.
Defendants Herbert Black and Iris Black’s Motion to Dismiss for Failure to
State a Claim upon which Relief can be Granted or, in the alternative, Motion for More
Definite Statement (Doc. 53) is GRANTED as to all Defendants.
2.
Within fourteen (14) days of the date of this Order, National General may
either file an amended complaint or seek leave to dismiss this case without prejudice. If
no action is taken by National General within fourteen (14) days, the case will be dismissed
without prejudice without further notice.
4
The Court recognizes that an entry of default has been entered against a number of the defendants
and that the present motion was filed only by the Blacks; but if federal jurisdiction appears doubtful, a sua
sponte inquiry is required. See Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1542 (11th Cir.1993).
Thus, because subject matter jurisdiction is found lacking, dismissal as to all defendants is appropriate.
7
DONE and ORDERED in Tampa, Florida, this 24th day of August, 2015.
Copies furnished to:
Counsel/Parties of Record
S:\OCALA\15-111 Nat'l Gen. Ins. Online, Inc. v. Black.MTD.docx
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?