Blakely v. Safeco Insurance Company of Illinois
Filing
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ORDER granting 9 motion to dismiss Count Three of the Complaint without prejudice. Signed by Judge Roy B. Dalton, Jr. on 6/25/2013. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
GARY C. BLAKELY,
Plaintiff,
v.
Case No. 6:13-cv-796-Orl-37TBS
SAFECO INSURANCE COMPANY OF
ILLINOIS,
Defendant.
ORDER
This cause is before the Court on Defendant’s Motion to Dismiss Count Three of
the Complaint and Memorandum of Law (Doc. 9), filed May 24, 2013. Upon
consideration, the Court hereby grants the motion.
Plaintiff was involved in a motorcycle accident with an underinsured motorist.
(Doc. 2, ¶¶ 5–6.) Defendant, Plaintiff’s insurance carrier, allegedly refused to pay
Plaintiff’s underinsured motorist benefits. (Id. ¶ 4.) Plaintiff brought this suit alleging:
(1) a declaratory judgment action; (2) breach of contract; and (3) a bad faith failure to
settle an insurance claim, in violation of Florida Statutes §§ 624.155 and 626.9541. (Id.
¶¶ 7–28.) Defendant moved to dismiss Count III, arguing that such a bad faith claim
“does not accrue unless and until the underlying action for insurance benefits is
resolved in favor of the insured.” (Doc. 9, p. 1.) The motion is unopposed, as Plaintiff
has failed to respond even after the Court directed him to do so. (See Doc. 12.)
The Court agrees with Defendant that Count III is premature. “[A]n insured’s
underlying first-party action for insurance benefits against the insurer necessarily must
be resolved favorably to the insured before the cause of action for bad faith in
settlement negotiations can accrue.” Blanchard v. State Farm Mut. Auto. Ins. Co.,
575 So. 2d 1289, 1291 (Fla. 1991). Therefore, Defendant’s motion is due to be granted
and Count III is due to be dismissed without prejudice. See Shuck v. Bank of Am., N.A.,
862 So. 2d 20, 24–25 (Fla. 2d DCA 2003) (noting that, in a case in which one of the
“essential elements [of a claim] is contingent upon the occurrence of an event that may
or may not occur,” dismissal without prejudice is the appropriate remedy); see also
Great Am. Assurance Co. v. Sanchuk, LLC, No. 8:10-cv-2568-T-33AEP, 2012 WL
195526, at *7 (M.D. Fla. Jan. 23, 2012) (Covington, J.) (citing Shuck, 862 So. 2d at
24–25) (“[W]hen premature filing of an action cannot be cured by the passing of time—
that is, when the claim is dependent upon the outcome of a separate action—dismissal
without prejudice is preferred.”). If the instant action is resolved in Plaintiff’s favor, then
he may file a separate suit based on the allegations in Count III.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Defendant’s Motion to Dismiss Count Three of the Complaint and
Memorandum of Law (Doc. 9) is GRANTED.
2.
Count III of the Complaint (Doc. 2, ¶¶ 20–28) is DISMISSED WITHOUT
PREJUDICE.
DONE AND ORDERED in Chambers in Orlando, Florida, on June 25, 2013.
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Copies:
Counsel of Record
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