Hauber v. Provident Life and Accident Insurance Company

Filing 23

ORDER denying 18 Defendant's Motion to Dismiss Count II of Plaintiff's Amended Complaint. Signed by Judge James S. Moody, Jr on 11/14/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FREDERICK A. HAUBER,
Plaintiff,
v.

Case No: 8:16-cv-2101-T-30TGW

PROVIDENT LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendant.

ORDER
THIS CAUSE is before the Court on Defendant’s Motion to Dismiss Count II of
Plaintiff's Amended Complaint (Dkt. 18) and Plaintiff's response (Dkt. 21). The Court has
carefully considered these filings, the amended complaint, and the law and concludes that
the motion should be denied.
DISCUSSION
Plaintiff Frederick Hauber acquired a long-term disability insurance policy from
Defendant Provident Life and Accident Insurance Company in 1987. The policy contained
a “total disability” provision, which stated that if Hauber became totally disabled by reason
of a “sickness,” Hauber would be entitled to total disability benefits until his 65th birthday.
If an “injury” caused the total disability, Hauber would receive those same benefits for the
rest of his life.
According to allegations in the amended complaint, Hauber became totally disabled
in a skiing accident in 1999, after which Provident provided Hauber with total disability

benefits in accordance with the policy. After Hauber turned 65, however, according to the
allegations, Provident stopped providing benefits.
The crux of this lawsuit is Hauber’s allegation that an injury, not a sickness, caused
his total disability, and he asks the Court to make such a finding and conclude that
Provident is liable to him for the total disability benefits it has not paid since he turned 65.
Provident moves to dismiss Count II with prejudice. Count II seeks a declaration
that Hauber is totally disabled by reason of an injury and is therefore still entitled to benefits
under the policy. Provident argues for dismissal on the grounds that actions for declaratory
judgment are improper when a plaintiff has an adequate remedy at law. An adequate
remedy at law exists, Provident argues, namely in Count I for breach of contract.
Provident’s assessment of the law on this point is correct. See Bolin v. Story, 225
F.3d 1234, 1242 (11th Cir. 2000). But so too is Hauber’s assertion that the federal rules
permit him to plead alternative causes of action. See Fed. R. Civ. P. 8(d). Both in the
amended complaint and in his response to the motion, Hauber expressly confines Count II
to an alternative basis for recovery in the event the legal basis in Count I proves to be
inadequate. See Amended Complaint, Dkt. 13, p. 5 (“Plaintiff demands entry of a
declaratory judgment addressing Plaintiff’s entitlement to long-term disability insurance
benefits as described above to the extent such rights and obligations are not already
addressed [in] Count I . . . .”).
As this Court has concluded in a previous case, “[a]lthough [Plaintiff] may not
recover under both theories of liability, at this stage, it is premature to dismiss the equitable

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relief claims.” United Surgical Assistants, LLC v. Aetna Life Ins. Co., No. 8:14-cv-211-T30MAP, 2014 WL 5420801, *4 (M.D. Fla. Oct. 22, 2014).
It is ORDERED AND ADJUDGED that:
1.

Defendant’s Motion to Dismiss Count II of Plaintiff’s Amended Complaint
(Dkt. 18) is DENIED.

DONE and ORDERED in Tampa, Florida, this 14th day of November, 2016.

Copies furnished to:
Counsel/Parties of Record

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