Pici v. 21st Century Centennial Insurance Company

Filing 25

ORDER denying 6 motion to dismiss. Count II of Plaintiff's Complaint (Doc. 2) shall be ABATED pending adjudication of Count I, during which time the Court will not permit any discovery, pleadings, motions, or other matters directed to Count II. After adjudication of Count I, the parties may move the Court to lift the abatement as to Count II. Signed by Judge Charlene Edwards Honeywell on 1/8/2015. (AEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TERESA L PICI,
Plaintiff,
v.

Case No: 8:14-cv-1835-T-36TGW

21ST CENTURY CENTENNIAL
INSURANCE COMPANY,
Defendant.
___________________________________/
ORDER
This matter comes before the Court upon the Defendant's Motion to Dismiss (Doc. 6), and
the Plaintiff’s Response thereto (Doc. 11). In the motion, Defendant states that Counts II and III
are premature until the underlying action for insurer liability is resolved and should be dismissed.
The Court, having considered the motion and being fully advised in the premises, will deny
Defendant's Motion to Dismiss.
I.

Background
As alleged in the Complaint, on or about October 6, 2012, an unidentified driver was

operating a Ford SUV motor vehicle traveling northbound on I-75 (SR93A), at or near the
intersection of Fowler Avenue, in Hillsborough County, Florida. Doc. 2 at ¶ 5. On the same day,
Plaintiff, TERESA L. PICI (“Pici”), was a restrained passenger in a 2012 Honda motor vehicle.
Id. at ¶ 6. The Ford SUV collided with the Honda that Pici was riding in. Id. at ¶ 7. As a result of
the collision, allegedly caused by the negligent operation of the Ford SUV motor vehicle, Pici
suffered serious and permanent injuries. Id. at ¶ 8. The unidentified driver failed to carry adequate
bodily injury insurance to compensate Pici for her injuries. Id. at ¶ 10.

At all times material hereto, there was in full force and effect a policy of automobile
liability insurance, Policy Number 0001334617, containing uninsured/underinsured motorist
coverage, issued and delivered by Defendant, 21ST CENTURY CENTENNIAL INSURANCE
COMPANY (“21st Century”) in Pasco County, Florida to cover Pici’s injuries and damages
caused by the motor vehicle collision. Id. at ¶ 11. Notice of the subject accident was promptly
furnished by the Plaintiff to the Defendant, and the Plaintiff has complied with all conditions
precedent prior to the institution of this action or the same have otherwise already occurred. Id. at
¶ 13. Pici alleges that 21st Century breached its duty of good faith by failing to make good faith
attempts to settle her claim. Id. at ¶ 19.
Plaintiff filed a three-count complaint in state court alleging a cause of action for an
uninsured/underinsured motorist claim (Count I), a cause of action for bad faith claims handling
based upon Fla. Stat. § 624.155 (Count II), and a claim for declaratory judgment (Count III). See
Doc. 2. Defendant removed that Complaint to this Court on July 30, 2014, asserting diversity
jurisdiction pursuant to 28 U.S.C. § 1332. See Doc. 1. In its motion to dismiss, Defendant argues
that Counts II and III are premature until the underlying action for liability is resolved. Plaintiff
concedes that Count II is premature, but requests that it be “abated” rather than dismissed. As to
Count III, Plaintiff argues that this count is not premature because it seeks declaratory relief.
II.

Standard of Review
To survive a motion to dismiss, a pleading must include a “short and plain statement of the

claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)
(quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of
a cause of action are not sufficient. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain
sufficient factual matter, which, if accepted as true, would “state a claim to relief that is plausible
2

on its face.” Id. (quoting Twombly, 550 U.S. at 570). “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. (citation omitted). The court, however, is not
bound to accept as true a legal conclusion labeled as a “factual allegation” in the complaint. Id.
Therefore, “only a complaint that states a plausible claim for relief survives a motion to dismiss.”
Id. (citation omitted).
III.

Discussion
A.

Count II

As previously stated, Plaintiff concedes that Count II, for bad faith claims handling based
upon Fla. Stat. § 624.155, is premature. Plaintiff argues, however, that Count II be abated rather
than dismissed.
Under similar circumstances, courts have found abatement the preferred remedy
to dismissal. See, e.g., Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 527
F. Supp. 2d 1355, 1367 (M.D. Fla. 2007); O'Rourke v. Provident Life & Accident
Ins. Co., 48 F. Supp. 2d 1383, 1385 (S.D. Fla. 1999). "Rooted in notions of
judicial economy, the doctrine of abatement offers courts an opportunity to
maintain a narrow focus on matters currently at issue, while preserving
premature issues for future review if and when such issues ripen." O'Rourke, 48
F. Supp. 2d at 1385.
Palma Vista Condo. Ass'n v. Nationwide Mut. Fire Ins. Co., Case No. 8:09-cv-155-T-27EAJ, 2009
WL 2956923, 1 (M.D. Fla. June 10, 2009). Thus, Count II will be abated pending adjudication of
Count I.
B.

Count III

With regard to Count III, which seeks a declaratory judgment, Defendant argues that it
does not present a case or controversy and, therefore, is not within this Court’s jurisdiction under
Article III of the U.S. constitution.

3

Plaintiff argues that Count III should not be dismissed or abated because it is ripe and will
hasten resolution of Count II. Plaintiff relies solely on an order issued by District Judge Mary S.
Scriven in Leuty v. State Farm Mutual Automobile Ins. Co., Case Number 8:13-cv-3038-T35MAP. Judge Scriven’s reasoning, while not binding on this court, is persuasive. “A resolution
of Plaintiff’s declaratory judgment claim will allow the Court to enter a judgment, if any, that can
declare Plaintiff’s damages, including any amount in excess of the policy limits. This
determination is an element of Plaintiff’s bad faith claim.” Id. at Doc. 16, p. 9-10. Thus, Judge
Scriven did not dismiss the declaratory judgment claim.
Here, 21st Century claims that Count III is not based on a live controversy because it asks
the court to determine damages in a speculative bad faith case which may not even arise. This
misinterprets the relief requested in Count III. Rather than seeking a determination of how much
Plaintiff would be entitled to in a bad faith action, Count III asks for a declaration of the total
amount of damages suffered by Plaintiff as a result of the accident. Certainly the amount of these
damages is in dispute, and represents an active controversy, between the parties. The declaratory
judgment would be helpful if a bad faith action follows, but not determinative of the bad faith
action. Thus, this Court will not dismiss Count III.
ORDERED:
1.

Defendant's Motion to Dismiss (Doc. 6) is DENIED.

2.

Count II of Plaintiff's Complaint (Doc. 2) shall be ABATED pending adjudication

of Count I, during which time the Court will not permit any discovery, pleadings, motions, or other
matters directed to Count II. After adjudication of Count I, the parties may move the Court to lift
the abatement as to Count II.

4

DONE AND ORDERED in Tampa, Florida on January 8, 2015.

Copies to:
Counsel of Record and Unrepresented Parties, if any

5