ALLEN et al v. USAA CASUALTY INSURANCE COMPANY

Filing 72

ORDER granting 20 Motion to Dismiss. Signed by CHIEF JUDGE M CASEY RODGERS on March 30, 2014. (aow)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

JAMES R. ALLEN and DIANE Z. ALLEN,
individually and on behalf of all others
similarly situated, et al.
Plaintiffs,
v.

Lead Case No.: 3:13cv143-MCR/CJK
Case No. 3:13cv582-MCR/CJK

UNITED SERVICES AUTOMOBILE
ASSOCIATION, et al.,
Defendants,
_______________________________/
ORDER
Plaintiffs James R. Allen and Diane Z. Allen (“the Allens”) have filed a putative class
action against their insurer, Defendant United Services Automobile Association (“USAA”)
claiming that USAA increased their homeowner’s law and ordinance insurance coverage
without a written selection, in violation of Fla. Stat. § 627.7011(2), and they seek monetary
damages for breach of contract as well as declaratory and injunctive relief.1 USAA has
filed a Motion to Dismiss, arguing that the statute does not provide a private cause of
action and the Allens have otherwise failed to state a cause of action.2 The Court heard

1

Invoking this Court’s diversity jurisdiction, the First Am ended Com plaint alleges that Plaintiffs are
residents of Florida, USAA is a citizen of Texas, and that dam ages in excess of $5,000,000 are at issue. See
28 U.S.C. § 1332(d).
2

Also pending before the Court is USAA's request to bifurcate discovery (doc. 27) and the Plaintiffs'
Motion for Class Certification (doc. 33). Additionally, by Order dated Decem ber 10, 2013, this case was
consolidated with Schall v. USAA Cas. Ins. Co., No. 3:13cv582-MCR/CJK (N.D. Fla.), in which the sam e
claim s have been raised. All proceedings related to the Schall case have been stayed pending a ruling on
USAA’s pending m otion to dism iss in this case.
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oral argument on the motion, and now, having fully and carefully considered the matter,
rules as follows.
Background
Since 1993, Florida law has required insurers who issue homeowner’s insurance to
offer a policy providing replacement costs including law and ordinance coverage, which
covers the additional costs necessarily incurred in repairing a damaged building to bring
it into compliance with new laws and ordinances that were not in effect when it was
originally built.3 See Fla. Stat. § 627.7011. This law requires insurers to offer a choice
between (a) a policy providing for replacement costs, rather than actual cash value, but not
including the costs necessary to comply with new laws and ordinances and (b) a policy
providing for replacement costs and also including the costs necessary to comply with new
laws and ordinances. Fla. Stat. § 627.7011(1)(a),(b). Additionally, the law provides that
an insurer may also offer a guaranteed replacement cost policy. See id. Under the 2003
version of the statute, the insurer could offer law and ordinance coverage limited to 25
percent of the dwelling limit, and since October 1, 2005, the statute has provided that the
law and ordinance coverage “may be limited to either 25 percent or 50 percent of the
dwelling limit, as selected by the policyholder,” and the insurer must offer both limits. Fla.
Stat. § 627.7011(1)(b). Additionally, “[u]nless the insurer obtains the policyholder’s written
refusal of the policies or endorsements specified in subsection (1), any policy covering the
dwelling is deemed to include the law and ordinance coverage limited to 25 percent of the
dwelling limit.”4 Fla. Stat. § 627.7011(2).
The Allens own and reside on property in Pensacola, Florida, for which they have
purchased homeowner’s insurance from USAA. They have renewed the policy each year
3

This statute was designed to counter the problem s that arose from policy exclusions of the
additional costs associated with m eeting current construction standards when rebuilding a dam aged hom e,
which often left insureds with insufficient coverage.
4

It is alleged in the First Am ended Com plaint that legislative history referring to the am endm ent was
intended to “[C]larif[y] that if a property insurer does not obtain a written rejection from the policyholder for law
and ordinance coverage, the policy is deem ed to include such coverage lim ited to 25 percent of the dwelling
(and not the alternative 50 percent lim it that m ust also be offered).” (Doc. 7, at ¶ 14.)
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since 2002.

From March 3, 2002, through March 3, 2006, their policy included

replacement cost coverage plus additional law and ordinance coverage limited to 25
percent of the Coverage A (dwelling) limit of liability. Since 2006, each renewed policy has
automatically included replacement cost coverage plus additional law and ordinance
coverage limited to 50 percent of the Coverage A (dwelling) limit of liability, which the
Allens did not expressly request. USAA charged an increased premium for the 50 percent
law and ordinance coverage in the renewal policies, but each renewal policy included a
form on which the Allens could make an express, written selection of coverage limited to
25 percent, or 50 percent, or could reject law and ordinance coverage altogether. The form
expressly stated that it was not necessary to return the form if the policyholder did not want
to make any changes to the policy.5 The Allens never returned the form and instead paid
the increased premiums year after year.
According to the Allens, since at least 2008, USAA has been violating state law by
automatically renewing their law and ordinance coverage at 50 percent of their dwelling
limit without their written request or authorization, citing Fla. Stat. § 627.7011(1) and (2).
The Allens request declaratory and injunctive relief to end this practice and also allege that
USAA’s violation of the statute amounts to a breach of contract, arguing the statute is
incorporated into their contracts of insurance by operation of law and that damages
resulted from their having to pay increased premiums.6 USAA moves to dismiss the First
Amended Complaint for failure to state a claim.
Discussion
A federal court sitting in diversity generally applies federal procedural law and the
5

The Allens’ policies, which include this form , are attached to the Am ended Com plaint. The form
included the following statem ents: "If you don't want to m ake changes, there is no need to return this notice;"
"rejection m ust be in writing for changes to apply to this coverage;" and "Florida law requires that we obtain
your signature if you want to change your Building Ordinance or Law coverage lim it, or if you want to reject
the additional coverage entirely."
6

The Allens further allege, on inform ation and belief, that “when policyholders inquired about the
increase in the law and ordinance coverage, they were told the increase was the result of a new Florida law
m andating that insurers increase law and ordinance coverage to 50 percent of the dwelling coverage.” (Doc.
4, at 4 ¶ 17). No claim of fraud is asserted, however.
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substantive law of the state in which it sits. Esfeld v. Costa Crociere, S.P.A., 289 F.3d
1300, 1306 (11th Cir. 2002) (applying Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).
Accordingly, the Court applies federal procedural law and Florida substantive law to the
issues in this case.
Courts evaluate the sufficiency of a complaint under Federal Rule of Civil Procedure
8(a), which requires in pertinent part “a short and plain statement of the claim showing that
the pleader is entitled to relief.” A motion pursuant to Rule 12(b)(6) seeks dismissal of the
complaint for “failure to state a claim upon which relief can be granted.” In considering this
motion, the Court accepts all factual allegations of the complaint as true and construes
them in the light most favorable to the plaintiff. See Mills v. Foremost Ins. Co., 511 F.3d
1300, 1303 (11th Cir. 2008). The allegations of the complaint must “state a claim to relief
that is plausible on its face” when viewed in this manner. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Further, the allegations in the complaint must set forth enough facts “to raise
a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). Legal conclusions must be supported by factual allegations, and the tenet that
allegations of the complaint must be accepted as true does not apply to legal conclusions.
See Iqbal, 556 U.S. at 678; Chandler v. Secretary of Fla. Dept. of Transp., 695 F.3d 1194,
1199 (11th Cir. 2012). As a rule, courts do “not consider anything beyond the face of the
complaint and documents attached thereto when analyzing a motion to dismiss.” Fin. Sec.
Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007). An exception to this
rule exists “in cases in which a plaintiff refers to a document in its complaint, the document
is central to its claim, its contents are not in dispute, and the defendant attaches the
document to its motion to dismiss.” Id.
The Allens’ claims are based on the premise that the statute requires a separate
written rejection of the default level of law and ordinance coverage before the insurer can
provide coverage greater than the default level; they also assert that this statutory right, as
they have defined it, is incorporated into their policies as a contract term. USAA argues

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that the Allens have failed to state a breach of contract claim because they do not allege
a breach of any of the policy’s express terms and, even if the statute is incorporated into
the policy, the remedy for the type of breach alleged (that is, providing too much insurance)
is to enforce the policy as written, not re-write the contract, citing Fla. Stat. § 627.418(1).
USAA further asserts that the Court should not create a remedy for disputes involving the
rates charged for insurance coverage because such matters are committed by state law
to an administrative or regulatory forum.
To state a plausible breach of contract claim or claim for declaratory relief, the
Allens must show that Section 627.7011 is incorporated into their policies as a material
term and that it has been violated. Although the Court accepts the factual assertions as
true at this stage, the predicate questions of law–such as whether the statute is
incorporated into the policies or whether the facts alleged amount to a violation of the
statute–cannot be accepted as true and must be determined by the Court as a matter of
law. See Iqbal, 556 U.S. at 678 (stating, “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions”). These
questions require a careful examination of the statute. As always, the Court begins with
the statute’s plain language. See Atwater v. Kortum, 95 So. 3d 85, 90 (Fla. 2012) (“When
the language of the statute is clear and unambiguous and conveys a clear and definite
meaning, there is no occasion for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious meaning.”) (internal marks
omitted). The current statute on law and ordinance coverage provides, in relevant part, as
follows:
(1)
Prior to issuing a homeowner's insurance policy, the insurer must offer
each of the following:
(a)
A policy or endorsement providing that any loss that is repaired or
replaced will be adjusted on the basis of replacement costs to the dwelling
not exceeding policy limits, rather than actual cash value, but not including
costs necessary to meet applicable laws and ordinances regulating the
construction, use, or repair of any property or requiring the tearing down of

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any property, including the costs of removing debris.
(b)
A policy or endorsement providing that, subject to other policy
provisions, any loss that is repaired or replaced at any location will be
adjusted on the basis of replacement costs to the dwelling not exceeding
policy limits, rather than actual cash value, and also including costs
necessary to meet applicable laws and ordinances regulating the
construction, use, or repair of any property or requiring the tearing down of
any property, including the costs of removing debris. However, additional
costs necessary to meet applicable laws and ordinances may be limited to
25 percent or 50 percent of the dwelling limit, as selected by the policyholder,
and such coverage applies only to repairs of the damaged portion of the
structure unless the total damage to the structure exceeds 50 percent of the
replacement cost of the structure.
An insurer is not required to make the offers required by this subsection with
respect to the issuance or renewal of a homeowner's policy that contains the
provisions specified in paragraph (b) for law and ordinance coverage limited
to 25 percent of the dwelling limit, except that the insurer must offer the law
and ordinance coverage limited to 50 percent of the dwelling limit. This
subsection does not prohibit the offer of a guaranteed replacement cost
policy.
(2)
Unless the insurer obtains the policyholder's written refusal of the
policies or endorsements specified in subsection (1), any policy covering the
dwelling is deemed to include the law and ordinance coverage limited to 25
percent of the dwelling limit. The rejection or selection of alternative
coverage shall be made on a form approved by the office. The form must
fully advise the applicant of the nature of the coverage being rejected. If this
form is signed by a named insured, it is conclusively presumed that there
was an informed, knowing rejection of the coverage or election of the
alternative coverage on behalf of all insureds. . . .
Fla. Stat. § 627.7011 (2011).7

7

In 2005, lawm akers am ended subsection (1)(b) to allow the insurer to offer alternative levels of
coverage – the additional costs “m ay be lim ited to either 25 percent or 50 percent of the dwelling lim it, as
selected by the policyholder;" but the subsection (2) provided only that in the absence of a written rejection,
coverage would be deem ed as that “specified in paragraph (1)(b),” without identifying which am ount was the
default level. See Fla. Stat. § 627.7011 (2005). In other words, the statute at that tim e did not specify which
level of perm issible coverage (25 percent or 50 percent) would be deem ed to apply in the absence of a written
rejection or selection. A 2006 am endm ent clarified that the default coverage would be lim ited to 25 percent

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“Florida courts have long recognized that the statutory limitations and requirements
surrounding traditional insurance contracts may be incorporated into an insurance contract
for purposes of determining the parties’ contractual rights.”8

Foundation Health v.

Westside EKG Assocs., 944 So. 2d 188, 194-95 (Fla. 2006). In Foundation Health, the
Florida Supreme Court “accepted the principle that when parties enter into a contract
regarding a matter which is the subject of statutory regulation, those regulatory provisions
become a part of the contract.” Health Options, Inc. v. Palmetto Pathology Servs., P.A.,
983 So. 2d 608, 614 (Fla. 3d DCA 2008); see Foundation Health, 944 So. 2d at 195
(finding the HMO Act’s prompt pay provisions may be incorporated into member contracts
for purposes of asserting a third-party breach of contract claim). Specifically, the Florida
Supreme Court noted that incorporation of the HMO Prompt Payment provision was proper
where there was “significant statutory regulation” surrounding the contract; the statute
played “an integral role in providing substance or structure” to the parties’ rights and
responsibilities; and the statute did not foreclose a common law contract action based on
breach of the statutory requirements. Foundation Health, 944 So. 2d at 195-96 (finding
that the statutory language at issue provided additional payment details considered
“implicit” in the contracts); see also State Farm Fire and Cas. Co. v. Palma, 629 So. 2d
830, 832 (Fla. 1993) (finding that an attorney’s fee statute, which applied in virtually all
insurance contract suits, was “an implicit part of every insurance policy issued in Florida”);
Heatlh Options, 983 So. 2d at 614 (finding that a statute governing when HMO physician
services are authorized may be incorporated into member contracts);9 Lutz v. Protective

of the dwelling lim it. Fla. Sat. § 627.7011 (2006). Additionally, som e m inor gram m atical changes to the
statute have been m ade over the years.
8

Although Fla. Stat. § 624.155 does not provide a civil rem edy for a violation of Section 627.7011,
the rem edies specified there do “not preem pt any other rem edy or cause of action provided for pursuant to
any other statute or pursuant to the com m on law of this state.” Fla. Stat. § 624.155(8).
9

W hen applying this principle in Health Options, the Third District Court of Appeal noted that the
contracts there in dispute were "expressly subject to ‘all applicable state and federal laws and regulations,'"
with no exception directed at the statutes at issue. Id. at 614 n.6.

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Life Ins. Co., 951 So. 2d 884, 887-88 (Fla. 4th DCA 2007) (noting that a statutory
requirement for a group insurance policy could be incorporated into the policy and support
a breach of contract claim if properly pleaded, but rejecting the claim on grounds that the
contractual breaches alleged in that instance were not sufficiently tied “to any specific
statutory language or requirements”). Thus, the “‘general doctrine’” provides that, where
a contract involves “‘a subject which is surrounded by statutory limitations and
requirements’” that play an “integral role” in defining the parties’ rights and responsibilities,
those statutory limitations and requirements may be implicit in the contract, absent a
reason to conclude otherwise. See Foundation Health, 944 So. 2d at 195 (quoting Citizens
Ins. Co. v. Barnes, 124 So. 722, 723 (Fla. 1929)). On the other hand, where the statute’s
text and structure, which “display the legislature’s intent,” do not demonstrate that the
statute provides “essential substance to a contract” that is applicable in “virtually all suits,”
Lemy v. Direct Gen. Fin. Co., 884 F. Supp.2d 1236, 1241 (M.D. Fla. 2012), aff’d, 2014 WL
903371, at *2 (11th Cir. Mar. 10, 2014), and where the statute establishes no penalties for
the statutory violation, see QBE Ins. Corp. v. Chalifonte Condo. Apt. Assoc., 94 So. 3d
541, 553 (Fla. 2012) (finding no private right of action for a technical type-size violation
where no penalty was provided in the statute), courts should not infer either a statutory or
a common law right of action. See Lemy, 884 F. Supp.2d at 1241; see also Lemy, 2014
WL 903371, at *2 (stating “courts cannot provide a remedy when the Legislature has failed
to do so” (internal marks omitted)). The Middle District of Florida aptly noted in Lemy that,
in cases where the Florida Supreme Court has determined that a particular statute was
incorporated as a contract term, such as in Foundation Health and Palma, the statute was
a type that materially aided an insured in obtaining a claim payment from an insurer. See
Lemy, 884 F. Supp.2d at 1242 (rejecting an argument for incorporation where the statute
did not affect claim payment; the policy itself displayed the coverage purchased; and there
was no allegation that the plaintiffs had received less that what the policy promised).
The statutory text and structure of Section 627.7011(1),(2) requires law and
ordinance coverage to be offered at specified limits and provides for default coverage by

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“deeming” a policy to include law and ordinance coverage limited to 25 percent of the
dwelling limit unless the insurer has obtained a “written refusal of the policies or
endorsements specified in subsection (1).” Fla. Stat. § 627.7011(2). There is no claim for
coverage or any coverage dispute at issue in this case. Instead, the Allens maintain that
this statutory language is incorporated into their contract and defines their substantive
rights to include–according to the Allens’ reading of the statute–a right to receive and pay
for only the default level of coverage, regardless of the face of the policy, unless the insurer
has obtained their express written rejection of the default level or written selection of the
higher coverage level. For the following reasons, the Court finds no such right in the
statute, and therefore no basis for incorporating the statute into the Allens’ insurance
policies.
First, the default coverage provided by the statute simply does not apply in this
case. Because the Allens’ policies included law and ordinance coverage, the event that
otherwise would trigger the default coverage described in subsection (2)–that is,
purchasing a homeowner’s policy with no law and ordinance coverage–did not occur.
Although there is an argument to be made that this statute reflects the necessary
legislative intent to provide a substantive level of default coverage for homeowners who
do not have law and ordinance coverage and have not rejected such coverage in writing,
see, e.g., Adams v. Aetna Cas. & Sur. Co., 574 So. 2d 1142, 1146 (Fla. 1st DCA 1991)10
(discussing uninsured motorist coverage and stating that the requirement of a written
refusal of coverage is “not a mere technicality, but a substantial statutory requirement

10
In the absence of controlling Florida Suprem e Court law, this Court is bound to apply the decisions
of Florida’s First District Courts of Appeal when deciding issues of substantive state law in diversity. See Fisk
Elec. Co. v. SECS, Inc., No. 07-61184-CIV, 2008 W L 1776665, at *4 n.3 (S.D. Fla. 2008) (stating the federal
court is bound by the Florida Suprem e Court decisions and, if none, those of the state’s interm ediate court
where suit could have been brought) (citing Peoples Bank of Polk County v. Roberts, 779 F.2d 1544, 1545-46
(11th Cir.1986); Farmer v. Travelers Indemnity, Co., 539 F.2d 562, 563 (5th Cir.1976)); see also CDC
Builders, Inc. v. Amerisure Mut. Ins. Co., 2011 W L 4454937, at *8 (S.D. Fla. 2011) (“Federal courts sitting in
diversity in Florida m ust follow the decisions of the state courts and apply Florida law as if they are courts of
the State of Florida.”).

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designed to protect all insureds under the policy”), that circumstance is not present here
where the Allens’ policies provided coverage over and above the default level. Because
the default coverage statute does not define the coverage level for the Allens’ policies, the
statute cannot be said to play an “integral role” in defining the parties’ rights and
responsibilities as is necessary for incorporation as a policy term. See Foundation Health,
944 So. 2d at 195. In sum, where, as here, the policy on its face expressly provides
coverage in excess of the default level, there is simply no basis for incorporating the
statutory default level into the policy.
Second, the written refusal requirement in subsection (2) does not relate to the
levels of law and ordinance coverage but instead applies only when the insured has
refused the coverage altogether–that is, the statute requires the insurer to obtain “written
refusal of the policies or endorsements specified in subsection (1).”

Fla. Stat.

§ 627.7011(2) (emphasis added). Subsection (1) describes two describes two types of
coverage–(a) a replacement cost policy without law and ordinance coverage and (b) a
replacement cost policy including law and ordinance coverage. Id. § 627.7011(1). Thus,
a separate writing is required either to select a policy without law and ordinance coverage
or to refuse a policy with law and ordinance coverage.

The statute’s language

unquestionably refers to the type or nature of coverage when discussing the written refusal
requirement, not the particular amount or limits of coverage.11 The statute speaks in terms
of “policies and endorsements specified in subsection (1)” and references that “the
rejection or selection of alternative coverage” shall be on an approved form that advises
the policyholder of the “nature of the coverage being rejected.” Id. (emphasis added). It
stands to reason that a rejection or selection between the subsection (1) types of
alternative coverage must be in writing to ensure a knowing rejection of law and ordinance
coverage, which otherwise would not be evident from a policy that does not provide this

11

Subsection (2) refers to the 25 percent coverage level only to clarify that, in the event of a default
in the policy, this is the level of coverage that will be deem ed to apply.

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coverage. Because subsection (2) requires insurers to obtain a policyholder’s “written
refusal of the policies” and not written refusal of particular limits of coverage, the right that
the Allens allege has been violated does not exist in the statute.
Third, subsection (1)’s statement that a law and ordinance policy “may be limited to
25 percent or 50 percent of the dwelling limit, as selected by the policyholder,” also does
not expressly require a separate written selection to purchase the higher limit. Indeed,
nothing in the statute requires a separate written selection of law and ordinance coverage,
or a separate written selection of the coverage at the 50 percent limit.12

Such a

requirement would be nonsensical because if law and ordinance coverage is selected, the
face of the policy will necessarily define the limit of coverage that will govern the policy,
unless the policy provides less than what the statute requires, which is not at issue here.
There is no basis in the statute for imposing an additional requirement that, in the absence
of a separate “written selection” of a particular limit of law and ordinance coverage, the
plain language of the policy must be disregarded if it exceeds the statutory default level,
as the Allens seem to suggest is the case. The express legislative policy choice in the
statute reflects the Florida Legislature’s intent to protect the public from uncovered losses
by providing notice of this type of coverage; by offering the coverage at two different
amounts from which the policyholder can choose; and by setting coverage at the 25
percent limit where the policy does not include such coverage expressly and the insurer
has not obtained the policyholder’s written knowing rejection of the coverage. Subsection
(4) states an express intent “to encourage policyholders to purchase sufficient coverage
to protect them in case events excluded from the standard homeowners policy, such as
law and ordinance enforcement,” combine with covered events to produce a loss, and “to
encourage policyholders to discuss these issues with their insurance agent.” Fla. Stat.
§ 627.7011(4). Contrary to the Allen’s argument, nothing in the statute reflects a legislative

12

Subsection (2) speaks of a written selection of “alternative coverage,” and plainly, law and
ordinance coverage lim ited to 50 percent is still law and ordinance coverage; not “alternative coverage.”

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policy choice to protect, or deter, a policyholder from purchasing more coverage than
needed. The insurer’s provision of a policy with greater coverage, which the insured may
reject, actually works to benefit the policyholder and the public in the event the
reconstruction costs of complying with ordinances after a covered event are high.
Furthermore, the Allens cannot plausibly claim that they did not “select” this
coverage where the facts alleged show that they accepted the renewal policies, which
clearly provided and charged for this increased coverage, and they paid for coverage at
the 50 percent level year after year. “If the insured failed to read the policy his dereliction
cannot be charged to the insurance company. In the absence of fraud[,] no fraud is
asserted herein[,] the provision of the policy here under consideration is binding upon the
policyholder.” Globe & Rutgers Fire Ins. Co. v. Segler, 44 So. 2d 658, 660 (Fla. 1950)
(also stating “[t]he insured is bound by the terms of the policy which he accepts”). It is
axiomatic that a clear and unambiguous insurance policy “must be construed in
accordance with the plain language of the policy as bargained for by the parties.”
Auto–Owners Ins. Co. v. Anderson, 756 So. 2d 29, 33 (Fla. 2000) (internal marks omitted);
see also State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 569-70 (Fla. 2011)
(stating a policy’s plain language must be given effect as written). For all of these reasons,
neither the statutory default coverage limit nor the requirement of a written refusal of law
and ordinance coverage provides the right the Allens claim, and the statute is not so
integral to defining their rights under the contracts at issue that it is incorporated by law as
a material term. Thus, in light of the plain terms of the statute and the insurance policies,
the Allens have not alleged a plausible claim that USAA violated either. The Allens
likewise also have no plausible basis for pursuing the declaratory and injunctive relief they
seek. Even accepting their factual allegations as true, they cannot show a plausible
violation of the statute or that any of their contractual rights are in doubt or uncertain.13
Accordingly, Defendant USAA’s Motion to Dismiss the First Amended Complaint

13

In light of these conclusions, it is not necessary to address the parties’ rem aining argum ents.

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(doc. 20) is GRANTED. This Order also applies to the complaint in the consolidated Schall
file, No. 3:13 cv582-MCR-CJK, which involves the same issues and thus likewise suffers
from the same defect of failure to state a claim and is DISMISSED for the same reasons.
Therefore, the Clerk is directed to close both files. Costs to be taxed against the Plaintiffs
in each case. All other pending motions are DENIED as MOOT.

DONE and ORDERED this 30th day of March, 2014.

M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

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