Carmody v. State Farm Mutual Automobile Insurance Company

Filing 10

ORDER granting 8 motion to dismiss. Counts II and III of the Plaintiff's Complaint (Doc. 2) are DISMISSED WITHOUT PREJUDICE. Signed by Judge Roy B. Dalton, Jr. on 7/3/2014. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WILLIAM SCOTT CARMODY,
Plaintiff,
v.

Case No. 6:14-cv-830-Orl-37KRS

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
ORDER
This cause is before the Court on the Defendant, State Farm Mutual Automobile
Insurance Company’s Unopposed Motion to Dismiss Counts II and III of Plaintiff’s
Complaint (Doc. 8), filed June 5, 2014.
BACKGROUND
Plaintiff filed this insurance coverage action in state court, and Defendant
removed the action to this Court on May 29, 2014. (Doc. 1.) In his three count
Complaint, Plaintiff alleges that he was “rear-ended” by Jennifer R. Vause on
September 22, 2011 (the “Accident”), and he suffered injuries as a result. (Doc. 2, ¶¶ 2–
4, 18.) Plaintiff further alleges that Ms. Vause “will be unable to fully compensate the
Plaintiff for the losses and damages incurred.” (Id. ¶ 7.) Accordingly, Plaintiff sought
$100,000.00 in uninsured motorist coverage from the Defendant under Policy Number
028708159E (the “Policy”). (Id. ¶¶ 2–4, 16–17, 19; Doc. 1-1, p. 13.) Plaintiff alleges that
Defendant has violated the Policy by failing to “pay uninsured motorist coverage
benefits as requested by Plaintiff.” (Doc. 2, ¶¶ 8–9.) Plaintiff further alleges that on
August 27, 2012, he “submitted a time limit demand” to Defendant, which Defendant did

not accept. (Doc. 2, ¶¶ 20–21, 32–33.) Plaintiff then filed a “Civil Remedy Notice of
Insurer Violations with the Florida Department of Financial Services,” and Defendant did
not remedy the violation within sixty days “as provided by Florida Statutes § 624.155.”
(Id. ¶¶ 22, 25, 35, 37.) Finally, Plaintiff alleges that “if the Defendant had acted fairly and
honestly, and with due regard for the Plaintiff’s interests,” it would have timely settled
Plaintiff’s claim against the Policy. (Id. ¶ 31.)
Plaintiff asserts a breach of contract claim (“Count I”), a claim for declaratory
relief (“Count II”), and a bad faith claim (“Count III”). (Id. ¶¶ 6–42.) On June 5, 2014,
Defendant filed an answer to Count I (Doc. 7), and moved to dismiss Counts II and III.
(Doc. 8.) Pursuant to Local Rule 3.01(b), the deadline for Plaintiff to file his response to
the motion to dismiss was June 22, 2014. As of the date of this Order, Plaintiff still has
not filed a response to the motion; thus, the Court finds that the motion to dismiss is
unopposed and is due to be granted. 1
STANDARDS
When ruling on a motion to dismiss for failure to state a claim, the court must
“accept all factual allegations in the complaint as true.” Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007); see also Jackson v. BellSouth Telecomms., 372
F.3d 1250, 1262 (11th Cir. 2004). With reference only to the non-conclusory and wellpled facts, the Court must determine whether the plaintiff states “a claim to relief that is
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See Cortez v. City of Orlando, Fla., No. 6:13-cv-164-Orl-28TBS, 2013 WL
1821048, at *1 (M.D. Fla. Apr. 30, 2013) (granting motion to dismiss as unopposed);
Patton v. Ocwen Loan Servicing, LLC, No. 6:11-cv-445-Orl-19DAB, 2011 WL 3236026,
at *2 n. 3 (M.D. Fla. July 28, 2011) (“Failure to oppose a motion raises an inference that
the party does not object to the motion.”); see also Gibson v. Techtronic Indus. N.A.,
Inc., No. 8:14-cv-1190-T-27AEP, 2014 WL 2625301, at *2 n. 1 (M.D. Fla. June 12,
2014); Winn Dixie Stores, Inc. v. Aspen Transp., LLC, No. 6:13-cv-791-Orl-31GJK, 2013
WL 4780125, at *3 n. 2 (M.D. Fla. Sept. 5, 2013); Yakan v. Astrue, No. 8:11-cv-2346-T27EAJ, 2012 WL 939813, at *1 n. 1 (M.D. Fla. Mar. 20, 2012).

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plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 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.” Id. at 679.
DISCUSSION
Defendant contends that the Court should dismiss Plaintiff’s declaratory
judgment claim (Count II) because there “is no dispute as to a coverage issue, but
rather issues relating to liability and damages to which Defendant is entitled to present
to a jury for verdict.” (Doc. 8, p. 2 (arguing that Plaintiff improperly seeks “a preemptive
finding on damages”).) Alternatively, Defendant argues that “the Court should decline to
exercise its discretion to entertain” the declaratory judgment claim because it is
“redundant to” the coverage claim in Count I. (Id. at 3.) Defendant’s arguments are
consistent with Florida law, and Plaintiff has submitted no opposition. See Legion Ins.
Co. v. Moore, 846 So. 2d 1183, 1185–87 (Fla. 4th DCA 2003) (affirming dismissal of
uninsured motorist declaratory judgment claim dealing with “critical factual issues”
concerning the accident). Accordingly, Defendant’s motion to dismiss Count II is due to
be granted.
Defendant contends that the Court should dismiss Plaintiff’s statutory bad faith
claim (Count III) as premature because “there has not been a final determination of
liability and the ‘extent of damages owed on the first-party insurance contract.’” (Doc. 8,
at 7 (quoting Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1276 (Fla. 2000).) Further,
Defendants contend that they will be unfairly prejudiced if the Plaintiff “is permitted to
pursue a bad faith claim through discovery and trial in conjunction with” his coverage
claim. (Id. at 9.) Again, the Court finds that Defendant’s motion is due to be granted

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because Defendant’s arguments are consistent with Florida law, and Plaintiff has
submitted no opposition. See Blanchard v. State Farm Mut.l Auto. Ins. Co., 575 So. 2d
1289, 1291 (Fla. 1991) (“[A]n insured’s claim against an uninsured motorist carrier for
failing to settle the claim in good faith does not accrue before the conclusion of the
underlying litigation for the contractual uninsured motorist insurance benefits.”).
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

State Farm Mutual Automobile Insurance Company’s Unopposed Motion
to Dismiss Counts II and III of Plaintiff’s Complaint (Doc. 8) is GRANTED.

2.

Counts II and III of the Plaintiff’s Complaint (Doc. 2) are DISMISSED
WITHOUT PREJUDICE.

DONE AND ORDERED in Chambers in Orlando, Florida, on July 3, 2014.

Copies:
Counsel of Record

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