Szabo v. Federal Insurance Company
Filing
35
ORDER denying 4 Defendant's Motion to Dismiss; denying 4 Defendant's Motion for Judgment on the Pleadings. Signed by Judge Virginia M. Hernandez Covington on 8/31/2011. (CR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JULIUS J. SZABO,
Plaintiff,
v.
Case No.: 8:10-cv-02167-T-33MAP
FEDERAL INSURANCE COMPANY,
Defendant.
________________________________/
ORDER
This cause comes before the Court pursuant to Defendant
Federal Insurance Company’s Motion to Dismiss or for Judgment
on the Pleadings, filed on September 28, 2010.
On
March
10,
2011,
Plaintiff
Julius
J.
(Doc. # 4).
Szabo
filed
a
Memorandum of Law in Opposition to Defendant’s Motion to
Dismiss or for Judgment on the Pleadings.
(Doc. # 17).
For
the reasons set forth below, the motion is denied.
I.
Background
This is an insurance breach of contract action. (Doc. #
2 at 1).
Julius J. Szabo is a resident of Tarpon Springs,
Florida.
Id.
Federal Insurance Company is an insurance
company that issued an insurance policy to Szabo covering
Szabo’s residence.
Id.
Szabo asserts that on or about November 21, 2008, his
1
personal property, amounting to approximately $89,000, was
taken from his residence “by either theft, conversion, or
mysterious[] disappear[ance].” Id. at 2. Szabo contends that
the insurance policy was fully effective at the time of the
incident.
Id. at 1-2.
Szabo alleges that he immediately
reported the loss to the Tarpon Springs Police Department,
timely notified Federal Insurance Company of the loss, filed
the requested documentation, and has cooperated with Federal
Insurance Company’s investigation of the claim.
Id. at 2.
Szabo contends that this loss is within the scope of
coverage
of
the
insurance
policy.
Id.
at
1.
Federal
Insurance Company has not paid or denied Szabo’s claim, which
Szabo contends is a breach of the insurance policy.
Id. at 2.
Federal Insurance Company moves the Court to dismiss this
action with prejudice or enter judgment on the pleadings in
its favor on the basis that Szabo has failed to: (1) comply
with Florida Rule of Civil Procedure 1.070(j); and (2) plead
compliance with a condition under the insurance policy, thus
breaching a “no action” clause, by failing to submit to an
Examination Under Oath. (Doc. # 4 at 5).
The Court addresses
each issue in turn.
II.
Standard of Review
As a preliminary matter, the Court notes that Federal
2
Insurance Company filed its motion as a motion to dismiss or
for judgment on the pleadings.
Id. at 1.
Federal Insurance
Company appears to have filed its answer either before or
simultaneously with its motion.
(See Docs. ## 3-4).
“Under
the unambiguous, mandatory language of Rule 12(b), a motion to
dismiss must be made before an answer is filed.”
Brisk v.
Miami Beach, 709 F. Supp. 1146, 1147 (S.D. Fla. 1989); see
also
Hogan
v.
Provident
Life
&
Accident
Ins.
Co.,
No.
6:08-cv-1897-Orl-19KRS, 2009 WL 2169850, at *3 (M.D. Fla. July
20, 2009) (“A motion to dismiss for failure to state a claim
brought under Federal Rule of Civil Procedure 12(b)(6) ‘must
be made before pleading.’”).
Accordingly,
Federal
Insurance
Company’s
motion
is
properly construed as a motion for judgment on the pleadings.
See Hallberg v. Pasco County, No. 95-1354-CIV-T-17A, 1996 WL
153673, at *2 (M.D. Fla. Mar. 18, 1996)(“Defendants filed
their motion to dismiss simultaneously with their answer. ...
Defendants' motions to dismiss were not filed before the
answer and are therefore not Rule 12(b)(6) motions to dismiss.
Once the Defendants filed the answer . . . the Court assumes
that the pending motions were either filed as motions for
judgment on the pleadings or pursuant to Rule 12(c).”); Hogan,
2009 WL 2169850, at *3 (“A court should construe a post-answer
3
motion brought under Rule 12(b)(6) as a motion for judgment on
the pleadings brought under Rule 12(c).”).
A motion under Rule 12(c) seeks judgment on the pleadings
and is brought “[a]fter the pleadings are closed–but early
enough
not
to
delay
trial.”
Fed.
R.
Civ.
P.
12(c).
“‘Judgment on the pleadings is proper when no issues of
material fact exist, and the moving party is entitled to
judgment as a matter of law based on the substance of the
pleadings and any judicially noticed facts.’”
Cunningham v.
Dist. Attorney's Office, 592 F.3d 1237, 1255 (11th Cir.
2010)(quoting Andrx Pharm., Inc. v. Elan Corp., 421 F.3d 1227,
1232-33 (11th Cir. 2005))..
A motion for judgment on the pleadings is governed by the
same standard as a Rule 12(b)(6) motion to dismiss.
See
Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th
Cir. 1998).
When considering such a motion, the Court must
“accept the facts alleged in the complaint as true and draw
all inferences that favor the nonmovant.” Bankers Ins. Co. v.
Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 137
F.3d 1293, 1295 (11th Cir. 1998).
If it is clear that the plaintiff would not be entitled
to
relief
under
any
set
of
facts
that
could
be
proved
consistent with the allegations, the court should dismiss the
4
complaint.
As with a motion to dismiss, the “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.”
Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (abrogating Conley v. Gibson, 355 U.S.
41, 45-46 (1957)).
Nor need the Court accept unsupported
conclusions of law or of mixed law and fact in the complaint.
Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n.16 (11th
Cir. 2001) (en banc).
III. Analysis
A.
Compliance with Florida Rule of Civil Procedure
1.070(j)
Federal Insurance Company urges the Court to dismiss the
instant action because Szabo has failed to comply with Florida
Rule of Civil Procedure 1.070(j), which provides:
Summons; Time Limit.
If service of the initial
process and initial pleading is not made upon a
defendant within 120 days after filing of the
initial pleading directed to that defendant the
court, on its own initiative after notice or on
motion, shall direct that service be effected
within a specified time or shall dismiss the action
without prejudice or drop that defendant as a
party; provided that if the plaintiff shows good
cause or excusable neglect for the failure, the
court shall extend the time for service for an
appropriate period.
When a motion for leave to
amend with the attached proposed amended complaint
is filed, the 120-day period for service of amended
complaints on the new party or parties shall begin
upon the entry of an order granting leave to amend.
A dismissal under this subdivision shall not be
considered a voluntary dismissal or operate as an
5
adjudication on the merits under rule 1.420(a)(1).
Fla. R. Civ. P. 1.070(j).
Federal Insurance Company alleges that the complaint was
originally filed in the Circuit Court of Pinellas County and
the summons issued on March 13, 2010, but that the summons was
not served on the Chief Financial Officer of the State of
Florida until September 7, 2010, and not transmitted to
Federal Insurance Company until September 9, 2010.
at 1-2).
(Doc. # 4
This, Federal Insurance Company argues, runs afoul
of the 120-day time limit set forth in Florida Rule of Civil
Procedure 1.070(j).
Id. at 2.
The Court notes that Federal Insurance Company relies on
factual allegations that it does not support with documentary
evidence and fall outside of the pleadings.
If, on a motion
under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56.
Fed. R. Civ. P. 12(d).
“However, a motion to dismiss should
only be treated as one for summary judgment if the record is
fully developed and the non-moving party was given adequate
notice of the court's decision.”
Jozwiak v. Stryker Corp.,
No. 6:09-cv-1985-Orl-19GJK, 2010 WL 743834, at *4 (M.D. Fla.
Feb. 26, 2010) (citations omitted); see Fed. R. Civ. P. 12(d).
6
The Court has broad discretion to choose whether to
convert the motion for judgment on the pleadings to a motion
for summary judgment under Rule 56.
Hagerman v. Cobb County,
Ga., No. 1:06-CV-02246-JEC, 2008 WL 839803, at *3 (N.D. Ga.
Mar. 28, 2008); 5C Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 1371, at 273 (3d ed. 2004).
Given the nascent record in the case at bar, the Court
declines to treat the instant motion as one for summary
judgment.
Thus, to preserve this motion as “a motion for
judgment on the pleadings under Rule 12(c), the court must
rely upon the matters included in the complaint and the
answer.”
Wilkins, Jr. v. Global Credit & Collection Corp.,
No. 4:10-CV-00318, 2011 WL 833999, at *2 (N.D. Fla. Mar. 4,
2011); see Fed. R. Civ. P. 7(a).
Because Federal Insurance Company references factual
allegations that are disputed by Szabo and fall outside of the
pleadings, they are properly excluded from consideration.
Accordingly, Federal Insurance Company’s motion with respect
to Rule 1.070(j) is denied.1
1
Even assuming, arguendo, that Federal Insurance
Company’s allegations are correct, the Court notes that it
retains the discretion to determine whether the failure to
timely effect service within the time limits imposed by
Florida Rule of Civil Procedure 1.070(j) warrants dismissal.
See Johnson v. Sheriff of Orange County Fla., No.
7
B.
Submission to an Examination Under Oath and Breach
of the Insurance Policy’s “No Action” Clause
Federal Insurance Company moves the Court for a judgment
on the pleadings in its favor on the grounds that Szabo has
failed to “plead compliance with a condition precedent to
recovery under the policy” by failing to “submit[] to an
Examination Under Oath . . . as required by the policy.”
(Doc. # 4 at 3, 5).
It further contends that this failure
breaches the insurance policy’s “no action” clause. Id. at 4.
The relevant provision of the insurance policy describing
the Examination Under Oath provides:
Your duties after a loss
If you have a loss this policy may cover, you must
perform these duties:
...
Examination under oath.
We have the right to
examine separately under oath as often as we may
6:10-cv-1007-Orl-31GJK, 2010 WL 2869523, at *1 (M.D. Fla. July
19, 2010) (“If a plaintiff shows good cause or excusable
neglect for failure to make timely service, the court must
extend the time for service . . . .
However, [even] if
neither good cause nor excusable neglect is shown, the trial
court . . . is left to exercise its discretion.”); Greif v.
Jupiter Med. Ctr., Inc., No. 08-80070-CIV, 2008 WL 2705436, at
*3 (S.D. Fla. July 9, 2008) (refusing to dismiss a case for
failing to timely effect service as required by Rule 1.070(j)
despite the absence of good cause or excusable neglect because
the court found “no prejudice to Defendants that warrants
dismissal.”); Yparrea v. Twin Cities Wholesale, Inc., No.
3:10cv104/RV/EMT, 2010 WL 1994064, at *2 (N.D. Fla. May 17,
2010).
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reasonably require you, family members and any
other members of your household and have them
subscribe the same. We may also ask you to give us
a
signed
description
of
the
circumstances
surrounding a loss and your interest in it, and to
produce all records and documents we request and
permit us to make copies.
(Doc. # 2 at 77-78).
Similarly, the “no action” clause provides:
Legal action against us
You agree not to bring legal action against us
unless you have first complied with all conditions
of this policy. You also agree to bring any action
against us within five years after a loss occurs,
but not until 30 days after proof of loss has been
filed and the amount of loss has been determined.
Id. at 78.
After a careful examination of the record, the Court
finds
that
there
is
sufficiently
conflicting
information
regarding the Examination Under Oath to preclude a judgment on
the pleadings. Federal Insurance Company fails to support its
(See Doc. # 4 at
allegations with any documentary evidence.
3).
In contrast, Szabo maintains that he has sufficiently
pled compliance with conditions precedent to recovery.
(Doc.
# 17 at 3).
Szabo alleges that he “never refused to submit to an
Examination
Under
Oath”
and
that
“it
was
scheduled
and
attended within (5) days of filing the Complaint in state
court.
. . . .
[T]he EUO began at 9:41 a.m. and ended at
9
1:40 p.m., consisting of 162 transcribed pages . . . .”
at 4-5.
Id.
Szabo, however, goes on to assert that he “never
refused to submit to an Examination Under Oath, but after more
than one year of investigation, and FEDERAL’S incessant and
insatiable requests for more and more investigative statements
and documentation, he desired to retain the services of an
attorney” in any Examination Under Oath.
Id. at 6.
Given the Court’s mandate to “accept the facts alleged in
the complaint as true and draw all inferences that favor the
nonmovant,”
Bankers Ins. Co., 137 F.3d at 1295, the Court
determines that these discrepancies render a judgment on the
pleadings inappropriate.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant's Motion to Dismiss or for Judgment on the
Pleadings (Doc. # 4) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 31st
day of August, 2011.
Copies: All Counsel of Record
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