Welsh v. General American Life Insurance Company
Filing
25
ORDER: Defendant General American Life Insurance Company's Motion to Dismiss (Doc. # 16 ) is GRANTED to the extent that Count II of the Complaint is DISMISSED WITHOUT PREJUDICE. Signed by Judge Virginia M. Hernandez Covington on 9/11/2018. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SUSAN WELSH,
8:18-cv-1227-T-33JSS
Plaintiff,
v.
GENERAL AMERICAN LIFE INSURANCE
COMPANY,
Defendant.
__________________________________/
ORDER
This matter comes before the Court pursuant to Defendant
General American Life Insurance Company’s Motion to Dismiss
Count II of the First Amended Complaint, filed on July 23,
2018. (Doc. # 16). General American seeks dismissal of Count
II pursuant to Federal Rules of Civil Procedure 12(b)(1) and
(b)(6) for lack of subject-matter jurisdiction over unripe
claims. Plaintiff Susan Welsh filed a Response in Opposition
to the Motion on August 6, 2018. (Doc. # 24). For the reasons
that follow, the Court grants the Motion and dismisses Count
II without prejudice.
I.
Background
In March of 1987, Welsh obtained a disability income
policy from General American. (Doc. # 6 at ¶ 7). Welsh is a
1
chiropractor
and
used
to
have
a
private
chiropractic
practice. (Id. at ¶ 21). On April 29, 2012, due to cardiac
issues, Welsh underwent mitral valve replacement surgery,
which rendered her disabled and unable to maintain her private
practice. (Id. at ¶¶ 17–21). After Welsh closed her private
practice, she obtained a staff position as a chiropractic
physician at the University of South Florida. (Id. at ¶ 22).
Welsh received a salary that was less than fifty percent of
her average salary earned in the five years prior to her
disability in 2012. (Id.).
Welsh asserts that General American accepted liability
and approved her claim of disability, and that she was
subsequently
paid
disability
benefits
under
the
“Proportionate Income Replacement Rider” in the policy. (Id.
at ¶ 13). However, on March 29, 2016, Welsh was informed by
General American that her future disability benefits were
being denied and that she was to return disability benefits
erroneously paid to her from February 2, 2015, onward. (Doc.
# 6 at ¶ 19).
On May 22, 2018, Welsh filed this action against General
American. (Doc. # 1). Thereafter, on May 30, 2018, she filed
an Amended Complaint to correct deficient jurisdictional
allegations. (Doc. # 6).
Count I alleges “breach of contract
2
by
insurer/action
to
recover
benefits
under
disability
insurance policy.” (Id. at 3). Court II asserts bad faith
conduct. (Id. at 6).
Count II.
General American seeks dismissal of
As explained below, the Court grants the Motion
and dismisses Count II without prejudice.
II.
Legal Standard
A.
Rule 12(b)(1)
Federal
courts
are
courts
of
limited
jurisdiction.
“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously [e]nsure that jurisdiction exists over a case, and
should
itself
raise
the
question
of
subject
matter
jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d
1292, 1299 (11th Cir. 2001).
Motions
to
dismiss
for
lack
of
subject
matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1)
may
attack
jurisdiction
facially
or
factually.
Morrison v. Amway Corp., 323 F.3d 920, 924 n.5
(11th Cir. 2003). When the jurisdictional attack is factual,
the Court may look outside the four corners of the complaint
to determine if jurisdiction exists.
3
Eaton v. Dorchester
Dev., Inc., 692 F.2d 727, 732 (11th Cir. 1982).
attack,
the
presumption
of
truthfulness
In a factual
afforded
to
a
plaintiff under Rule 12(b)(6) does not attach. Scarfo v.
Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999). Because the
very power of the Court to hear the case is at issue in a
Rule 12(b)(1) motion, the Court is free to weigh evidence
outside the complaint. Eaton, 692 F.2d at 732.
B.
Rule 12(b)(6)
On a 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).
this
Court
favors
the
plaintiff
with
all
inferences from the allegations in the complaint.
Further,
reasonable
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 all reasonable inferences therefrom are taken
as true.”).
But, the Supreme Court explains that:
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
4
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, Welsh asserts a bad faith claim against
General American. (Doc. # 6 at ¶ 33). A claim of bad faith
may arise in instances where an insurer is alleged to have
breached its contractual duty of good faith. Continental Cas.
Co. v. City of Jacksonville, 550 F. Supp. 2d 1312, 1335 (M.D.
Fla. 2007). Under Florida law, a claim for bad faith does not
accrue until liability and damages in the underlying contract
claim have been determined. See Blanchard v. State Farm Mut.
Auto Ins. Co., 575 So.2d 1289, 1291 (Fla. 1991). “Before a
policyholder may file a bad-faith lawsuit in which she alleges
that her [insurer] failed to settle a meritorious claim in
good faith, she must first establish that her claim was,
indeed, meritorious.” Bottini v. GEICO, 859 F.3d 987, 993
5
(11th Cir. 2017). Welsh does not dispute that the bad faith
claim has been asserted prematurely and it is, in fact, not
yet ripe. (Doc. # 24 at ¶ 1).
Therefore, the sole issue that this Court must address
is whether the bad-faith claim should be abated or, rather,
dismissed without prejudice. See Landmark Am. Ins. Co. v.
Studio Imps., Ltd., Inc., 76 So.3d 963, 964-5 (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.”). Further,
the decision of whether to abate or dismiss the bad faith
claim without prejudice is ultimately left to the sound
discretion of the trial court. Vanguard Fire & Casualty
Company
v.
Golmon,
955
So.2d
591,
595
(Fla.
1st
DCA
2006)(“[T]he trial court has authority to abate the statutory
claims, rather than to dismiss them, if it appears to the
court that abatement would be in the interest of judicial
economy.”).
Although the possibility of increased judicial economy
is noted, this Court recognizes the trend of Florida courts
in dismissing bad faith claims without prejudice rather than
abating them. See Wells v. State Farm Mut. Auto. Ins. Co.,
No. 8:13-cv-2355-T-27AEP, 2014 WL 3819436 (M.D. Fla. Mar. 18,
6
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.”).
This Court
takes the view that “abating the bad-faith claim, even if it
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 bad-faith.”
Centennial
Ins.
Co.,
No.
Bele v. 21st Century
6:15-cv-526-Orl-40GJK,
2015
WL
courts
of
5155214, at *2 (M.D. Fla. Sept. 1, 2015).
In
addition,
because
federal
courts
are
limited jurisdiction, they are prevented from “adjudicating
cases that are unripe or rest upon contingent future events
that may not occur as anticipated, or indeed may not occur at
all.”
Keenan v. LM Gen. Ins. Co., No. 6:17-cv-1426, 2018 WL
565679, at *2 (M.D. Fla. Jan. 25, 2018).
Considering the
“case and controversy” requirement of Article III of the
United
States
Constitution
and
other
justiciability
considerations, this Court dismisses the bad faith claim
without prejudice.
Accordingly, it is hereby
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ORDERED, ADJUDGED, and DECREED:
Defendant
General
American
Life
Insurance
Company’s
Motion to Dismiss (Doc. # 16) is GRANTED to the extent that
Count II of the Complaint is DISMISSED WITHOUT PREJUDICE.
DONE and ORDERED in Chambers, in Tampa, Florida on this
11th day of September, 2018.
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