LAUREL et al v. COUNTRY MUTUAL INSURANCE COMPANY et al

Filing 29

ORDER denying 6 Motion to Dismiss; granting 9 Motion to Remand. Accordingly, the Clerk is directed to REMAND this case to the CircuitCourt of the Fourteenth Judicial Circuit in and for Washington Country, Florida. Signed by JUDGE RICHARD SMOAK on 10/27/2014. (jcw)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
LORRIE LAUREL and
RUBEN A. LAUREL,
Plaintiffs,
v.

CASE NO. 5:14-cv-216-RS-CJK

COUNTRY MUTUAL INSURANCE,
COMPANY as successor in interest to
COTTON STATES MUTUAL INSURANCE
COMPANY, a Foreign corporation, and
JERRY WATKINS, individually,
Defendant.
_________________________________________/
ORDER
Before me are the following motions and responses:
1. Defendant Watkins’ Motion to Dismiss (Doc. 6), Plaintiffs’ Response
in Opposition to Defendant’s Motion to Dismiss (Doc. 17),
2. Plaintiffs’ Motion to Remand (Doc. 9),
3. Defendant Watkins’ Response to Plaintiffs’ Motion to Remand (Doc.
27), and
4. Defendant Country Mutual Insurance Company’s Response in
Opposition (Doc. 28).

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The relief requested in Defendant Watkins’ Motion to Dismiss (Doc. 6) is
DENIED, and the relief requested in Plaintiffs’ Motion to Remand (Doc. 9) is
GRANTED.
STANDARD OF REVIEW
To overcome a motion to dismiss, a plaintiff must allege sufficient facts to
state a claim for relief that is plausible on its face. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is
clear that no relief could be granted under any set of facts that could be proven
consistent with the allegations of the complaint. Hishon v. King & Spalding, 467
U.S. 69, 104 S. Ct. 2229, 2232 (1984).
The Supreme Court has clarified the specificity of pleading required to
survive a motion to dismiss:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is entitled to
relief.” Specific facts are not necessary; the statement need only
“‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)).
Erickson v. Pardus, 551 U.S. 89, 93 (2007). A complaint thus “does not need
detailed factual allegations.” Bell Atlantic Corp., 550 U.S. at 555.
On the other hand, a conclusory recitation of the elements of a cause of
action is insufficient. A complaint must include more than “labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atlantic Corp., 550 U.S. at 555. A complaint must include “allegations
plausibly suggesting (not merely consistent with)” the plaintiff’s entitlement to
relief. Id. at 557.
BACKGROUND
While considering a motion to dismiss, I must construe all allegations in the
complaint as true and in the light most favorable to the plaintiff. Shands Teaching
Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir.
2000) (citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir.
1999)).
Plaintiffs purchased a homeowner’s insurance policy from Defendant
Country Mutual through its insurance agent Defendant Watkins. Doc. 1. The
policy was in effect from December 29, 2010, through December 29, 2011, and
provided coverage for loss and damage caused by fire. Id. On or about December
28, 2011, as the result of an accidental cooking fire, Plaintiffs suffered total
destruction of their residence, furnishings, contents and personal property in an
amount in excess of the policy limits. Id. In accordance with their policy, Plaintiffs
timely reported the fire loss to Defendant Country Mutual, complied with all the
terms and conditions of the policy, and participated in the investigation of their
claim. Id.

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In Plaintiffs’ complaint, Plaintiff alleges that Defendant Country Mutual has
breached its contract and that Defendant Watkins was negligent in failing to ensure
Plaintiffs had adequate coverage limits. Id.
ANALYSIS
1. Motion to Dismiss
According to Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1065 (Fla.
2001), when an insured files a claim against the insurance company for breach of
contract and a claim against an insurance agent for failing to obtain insurance
coverage, the negligence cause of action against the agent does not accrue until the
insured incurs damages at the conclusion of the breach of contract claim. Id. The
rationale beneath this decision is that it avoids the inconsistency wherein the
insured must claim against the insurer that coverage exists while claiming against
the agent that coverage does not. See id.; Brocato v. Health Options, Inc., 811
So.2d 827, 829 (Fla. 2d DCA 2002).
The holding in Blumberg is not applicable to this case. The claim Plaintiffs
have alleged against Defendant Country Mutual is not inconsistent with their claim
against Defendant Watkins. Plaintiffs claim that they were under-insured by
$208,880.00. Doc. 17. Therefore, Plaintiffs claim against Defendant Watkins is not
dependent on the resolution of their claim against Defendant Country Mutual.

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Accordingly, taking the allegations in the complaint as true, the relief
requested in Defendant Watkins’ Motion to Dismiss (Doc. 6) is DENIED.
2. Motion to Remand
A party seeking removal on the basis of diversity of citizenship has the
burden of proving that the action is wholly between citizens of different states, and
the amount in controversy exceeds $75,000, exclusive of interests and costs. 28
U.S.C. § 1332. Plaintiffs and Defendant Watkins are residence of Florida. Doc. 1.
Accordingly, the relief requested in Plaintiffs’ Motion to Remand (Doc. 9) is
GRANTED.
CONCLUSION
The relief requested in Defendant Watkins’ Motion to Dismiss (Doc. 6) is
DENIED, and the relief requested in Plaintiffs’ Motion to Remand (Doc. 9) is
GRANTED.
Accordingly, the Clerk is directed to REMAND this case to the Circuit
Court of the Fourteenth Judicial Circuit in and for Washington Country, Florida.

ORDERED on October 27, 2014.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE