Cox v. National General Insurance Online, Inc.
Filing
13
ORDER: Defendant National General Insurance Online, Inc.'s Motion to Dismiss or Abate Count II #3 is GRANTED to the extent that Count II of the Complaint is DISMISSED WITHOUT PREJUDICE. Signed by Judge Virginia M. Hernandez Covington on 9/11/2015. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
STEPHEN COX,
Plaintiff,
v.
Case No. 8:15-cv-1924-T-33JSS
NATIONAL GENERAL INSURANCE
ONLINE, INC.,
Defendant.
/
ORDER
This matter comes before the Court pursuant to Defendant
National General Insurance Online, Inc.’s Motion to Dismiss or
Abate Count II, filed in state court on August 3, 2015. (Doc.
# 3).
National General removed the case to this Court based
on the Court’s diversity jurisdiction on August 18, 2015, and
filed a memorandum in support of the Motion to Dismiss or
Abate Count II on August 25, 2015, pursuant to Local Rule
4.02(c), M.D. Fla. (Doc. # 7).
Plaintiff Stephen Cox filed a
Response in Opposition to the Motion on September 8, 2015.
(Doc. # 12).
For the reasons that follow, the Court grants
the Motion by dismissing Count II of the Complaint without
prejudice.
I.
Background
On July 19, 2012, non-party Nancy Jernigan and Plaintiff
Cox were involved in a car crash in Pinellas County, Florida.
(Doc. # 2 at ¶¶ 6-8).
Cox asserts that Jernigan negligently
operated her motor vehicle and that Cox suffered a “serious
and permanent injury.” (Id. at ¶ 9).
Cox also contends that
Jernigan failed to carry adequate bodily injury insurance to
compensate Cox for his injuries. (Id. at ¶ 11).
On July 7,
2015, Cox filed an action against National General seeking
insurance benefits in Count I and claiming bad-faith in Count
II.
As noted, National General removed the action to this
Court and seeks the dismissal or abatement of Count II.
For
the reasons that follow, the Court dismisses Count II without
prejudice.
II.
Legal Standard
On a Rule 12(b)(6), Fed. R. Civ. P., motion to dismiss,
this
Court
accepts
as
true
all
the
allegations
in
the
complaint and construes them in the light most favorable to
the plaintiff.
Jackson v. Bellsouth Telecomms., 372 F.3d
1250, 1262 (11th Cir. 2004).
Further, this Court favors the
plaintiff with all reasonable inferences from the allegations
in the complaint. Stephens v. Dep’t of Health & Human Servs.,
901 F.2d 1571, 1573 (11th Cir. 1990) (“On a motion to dismiss,
the
facts
stated
in
[the]
complaint
and
inferences therefrom are taken as true.”).
Supreme Court explains that:
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all
reasonable
However, the
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted).
In addition, courts are not “bound to
accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Furthermore, “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
III. Analysis
In Count II, Cox asserts a bad-faith claim against
National General for violation of Florida Statute §§ 624.155
and 626.954. (Doc. # 2 at ¶ 17).
Under Florida law, a claim
for
until
bad-faith
does
not
accrue
there
has
been
a
determination of liability and damages in the underlying
contract claim. See Blanchard v. State Farm Mut. Auto. Ins.
Co., 575 So. 2d 1289, 1291 (Fla. 1991).
Cox does not dispute
that his bad-faith claim is prematurely asserted.
Thus, the
only issue before the Court is whether the bad-faith claim
should be abated or dismissed without prejudice. Landmark Am.
3
Ins. Co. v. Studio Imps., Ltd., Inc., 76 So. 3d 963, 964-65
(Fla. 4th DCA 2011)(“The trial court can decide to either
dismiss the bad faith claim without prejudice or abate the
claim
until
the
underlying
breach
of
contract
issue
is
resolved.”).
Courts have not settled on a single course of action for
handling unripe bad-faith claims. Compare Lawton-Davis v.
State Farm Mut. Auto. Ins. Co., No. 6:14-cv-1157-Orl-37GJK,
2014 WL 6674458, at *3-4 (M.D. Fla. Nov. 24, 2014)(abating
bad-faith claim); Gianassi v. State Farm Mut. Auto. Ins. Co.,
60 F. Supp. 3d 1267, 1271, 1273 (M.D. Fla. 2014)(same), with
Mann v. Taylor, No. 5:15-cv-7-RS-GRJ, 2015 WL 500803, at *3
(N.D. Fla. Feb. 5, 2015)(dismissing bad-faith claim without
prejudice); Duke’s Steakhouse, Inc. v. Certain Interested
Underwriters at Lloyd’s London Subscribing to Policy #’s
L10829 & L13105, No. 8:11-cv-1324-T-24EAJ, 2011 WL 4376788, at
*2 (M.D. Fla. September 6, 2011)(same).
Ultimately, the decision of whether to abate or dismiss
without prejudice rests in the sound discretion of the trial
court.
As explained in Vanguard Fire & Casualty Company v.
Golmon, 955 So. 2d 591, 595 (Fla. 1st DCA 2006), “the trial
court has authority to abate the statutory claims, rather than
to dismiss them, if it appears to the court that abatement
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would be in the interest of judicial economy.”
On September 1, 2015, the court in Bele v. 21st Century
Centennial Insurance Company, No. 6:15-cv-526-Orl-40GJK, 2015
WL 5155214 (M.D. Fla. Sept. 1, 2015), persuasively remarked:
[I]n the Court’s view, abating a bad-faith claim,
even it if may be in the interest of judicial
economy, is not the proper route.
Bringing a
premature bad-faith claim is contrary to the
Federal Rules of Civil Procedure. A plaintiff who
has an as-yet unresolved claim for UM benefits is
not “entitled to relief” on its claim for badfaith. Fed. R. Civ. P. 8(a)(2).
Moreover,
depending on the outcome of the UM claim, a
plaintiff may never be entitled to relief on his or
her bad-faith claim.
Thus, it is this Court’s
position that until a bad-faith claim has a factual
basis to support it – i.e., the plaintiff’s claim
for UM benefits has been resolved in the
plaintiff’s favor - such claim is prematurely
brought.
Id. at *2.
Recognizing the split of authority on this matter, this
Court exercises its discretion to dismiss without prejudice
the prematurely filed claim for bad-faith. See also Wells v.
State Farm Mut. Auto. Ins. Co., No. 8:13-cv-2355-T-27AEP, 2014
WL 3819436 (M.D. Fla. Mar. 18, 2014)(“The trend in Florida’s
appellate courts is to dismiss the bad faith claim without
prejudice, rather than abate it, and the weight of authority
from Florida’s District Courts of Appeal and Supreme Court
supports dismissal.”); Great Am. Assurance Co. v. Sanchuk,
5
LLC, No. 8:10-cv-2568-T-33AEP, 2012 U.S. Dist. LEXIS 7477, at
*7 (M.D. Fla. Jan. 23, 2012)(“When 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.”).
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Defendant
National
General
Insurance
Online,
Inc.’s
Motion to Dismiss or Abate Count II (Doc. # 3) is GRANTED to
the extent that Count II of the Complaint is DISMISSED WITHOUT
PREJUDICE.
DONE and ORDERED in Tampa, Florida, this 11th day of
September, 2015.
Copies to:
All Parties of Record
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