Cafra et al v. RLI Insurance Company

Filing 86

ORDER denying 44 Motion for Reconsideration re 40 Order on Motion to Amend/CorrectOrder on Motion to Dismiss for Failure to State a Claim;Order on motion to extend time; granting clarification as stated in the Order; granting 51 Motion to Strike Claims for Attorney's Fees in 45 Amended Complaint. Signed by Judge Elizabeth A. Kovachevich on 8/11/2015. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSEPH L. CAFRA, JR.,
et al.,
Plaintiffs,
v.

CASE NO. 8:14-CV-843-T-17EAJ

RLI INSURANCE COMPANY,
Defendant.

ORDER

This cause is before the Court on:
Dkt. 44
Dkt. 51
Dkt. 53

Amended Motion for Reconsideration or Clarification
Motion to Strike Claims for Attorney’s Fees
Response

I. Dkt. 44 Amended Motion for Reconsideration or Clarification
Plaintiffs seek reconsideration or clarification of the Court’s prior Order (Dkt. 40).
Defendant moved to Dismiss Count II and Count III of the Complaint. Count II is a
claim for declaratory judgment of liability and the total amount of damages, and Count
III is a claim for violation of Sec. 624.155, Florida Statutes. The Court dismissed Count
III.
In Count I of the Complaint, Plaintiffs’ claim is for underinsured motorist benefits.
Plaintiffs allege that the damages arising from the subject accident exceed the policy
limits afforded by Defendant’s policy, as well as all other available coverages, all of
which were made known to Defendant RLI. Plaintiffs allege that Defendant RLI
continues to refuse to pay Plaintiffs underinsured motorist benefits, and seeks judgment

Case No. 8:14-CV-843-T-17EAJ
against Defendant RLI in excess of Fifteen Thousand Dollars, interest, costs, attorney’s
fees, and a jury trial of all triable issues.
In Count II of the Complaint, Plaintiffs seek declaratory judgment to determine
liability and the total amount of damages. The Court granted Defendant’s Motion to
Dismiss in part as to Count II.
Plaintiffs’ damages caused by the subject accident have yet to be determined,
and Defendant’s liability for underinsured motorist benefits has yet to be determined.
To the extent that Count II Plaintiffs seek declaratory judgment as to the damages
caused by the subject accident, and Defendant’s liability for payment of underinsured
motorist benefits, Count II duplicates Count I. At this stage Plaintiffs may plead in the
alternative. Therefore, the Court denied Defendant’s Motion to Dismiss in part.
In Count II of the Complaint, Plaintiffs sought a declaratory judgment finding and
determining liability for the total amount of damages sustained by Plaintiffs as a result
of the subject motor vehicle accident, including interest, attorney’s fees pursuant to
Secs. 624.155, 627.727(10) and/or 627.428, Florida Statutes, costs, any other
appropriate relief, and a jury trial of any triable issues. Sec. 627.727(10) defines “total
damages:
(10) The damages recoverable from an uninsured motorist carrier in an
action brought under s. 624.155 shall include the total amount of the
claimant's damages, including the amount in excess of the policy limits,
any interest on unpaid benefits, reasonable attorney's fees and costs, and
any damages caused by a violation of a law of this state. The total amount
of the claimant's damages is recoverable whether caused by an insurer or
by a third-party tortfeasor.
Since the Court dismissed Count III (statutory bad faith claim), the Court granted
Defendant’s Motion to Dismiss Count II in part, to the extent it is premised on the
unaccrued bad faith claim, i.e. for some amount of damages caused by the third party
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Case No. 8:14-CV-843-T-17EAJ
tortfeasor in excess of the available underinsured motorist benefits or caused by an
insurer.

After consideration, the Court denies the Motion for Reconsideration, and
grants the Motion for Clarification as stated above.

II. Dkt. 51 Motion to Strike Claims for Attorney’s Fees
Defendant RLI Insurance Company requests an Order striking Plaintiffs’ requests
for attorneys fees in Count I, II, III and IV of the Amended Complaint, as Plaintiffs have
not alleged a statutory or contractual basis for the award of attorney’s fees. Defendant
RLI argues that Defendant RLI has not denied coverage (Dkt. 50, Answer, Par. 4), and
since the disputed issues are only non-coverage issues, the award of attorney’s fees is
not appropriate. See Moore v. Allstate Ins. Co.. 570 So.2d 291 (Fla. 1990)(relying on
Sec. 627.727(8), Florida Statutes: Sec. 627.428 does not apply unless coverage is
disputed); State Farm Mut. Auto. Ins. Co. v. Petersen. 85 So.2d 1248 (Fla. 4th DCA
2003); State Farm Mut. Ins. Co. v. Koster. 582 So.2d 735 (Fla. 3d DCA 1991).
Plaintiffs have not filed a response in opposition to the Motion to Strike.

After consideration, the Court grants the Motion to Strike Claims for Attorney’s
Fees in Counts I, II, III and IV of the Amended Complaint.

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Case No. 8:14-CV-843-T-17EAJ
DONE and ORDERED in Chambers in Tampa, Florida on this 11th day of
August, 2015.

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