STATE FARM FLORIDA INSURANCE COMPANY a/s/o XAVIER LOPEZ v. UNITED STATES OF AMERICA et al

Filing 24

ORDER ON MOTION TO DISMISS granting 18 Motion to Dismiss for Lack of Jurisdiction. Closing Case. Motions Terminated: 18 Defendant's MOTION to Dismiss for Lack of Jurisdiction 16 Amended Complaint filed by UNITED STATES OF AMERICA. Signed by Judge Beth Bloom on 7/20/2017. (lan) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-60369-BLOOM/Valle

STATE FARM FLORIDA INSURANCE
COMPANY a/s/o XAVIER LOPEZ,
Plaintiff,
v.
UNITED STATES OF AMERICA
and CHARLENE BRADFORD MILES,
Defendants.
____________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant United States of America’s
(“Defendant” or the “United States”) Motion to Dismiss, ECF No. [18] (the “Motion”). Plaintiff
State Farm Florida Insurance Company, as subrogee of Xavier Lopez, (“State Farm”) filed a
response, ECF No. [19] (the “Response”), to which the United States replied, ECF No. [20] (the
“Reply”). The Court has carefully considered the Motion, the Response and Reply, the record in
this case and the applicable law, and is otherwise fully advised. For the reasons set forth below,
the Motion is granted.
I.

Background
State Farm initiated this action against the United States seeking damages arising from an

accident between State Farm’s insured, Xavier Lopez (“Lopez”), and a United States Postal
Services (“USPS”) truck driven by USPS employee, Charlene Bradford Miles (“Miles”).1 Lopez

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Miles was omitted as a Defendant in the Amended Complaint, ECF No. [16], and the Court
dismissed her from this action on June 30, 2017. See ECF No. [21].

Case No. 17-cv-60369-BLOOM/Valle
sustained

injuries

in

the

accident,

for

which

State

Farm

paid

$10,000.00

in

uninsured/underinsured benefits. In this action, State Farm seeks to recover the $10,000.00 from
the United States, pursuant to the Federal Tort Claims Act, (“FTCA”), 28 U.S.C. § 2671, et seq.
In the Motion, the United States seeks dismissal for lack of subject matter jurisdiction.
II.

Legal Standard
A Rule 12(b)(1) motion challenges the district court’s subject matter jurisdiction and

takes one of two forms: a “facial attack” or a “factual attack.” “A ‘facial attack’ on the
complaint ‘require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a
basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the
purposes of the motion.’” McElmurray v. Consol. Gov’t of Augusta-Richmond Cty., 501 F.3d
1244, 1251 (11th Cir. 2007) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990)).

“A ‘factual attack,’ on the other hand, challenges the existence of subject matter

jurisdiction based on matters outside the pleadings.” Kuhlman v. United States, 822 F. Supp. 2d
1255, 1256-57 (M.D. Fla. 2011) (citing Lawrence, 919 F.2d at 1529); see Stalley ex rel. U.S. v.
Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir. 2008) (“By contrast, a
factual attack on a complaint challenges the existence of subject matter jurisdiction using
material extrinsic from the pleadings, such as affidavits or testimony.”).
“In assessing the propriety of a motion for dismissal under Fed. R. Civ. P. 12(b)(1), a
district court is not limited to an inquiry into undisputed facts; it may hear conflicting evidence
and decide for itself the factual issues that determine jurisdiction.” Colonial Pipeline Co. v.
Collins, 921 F.2d 1237, 1243 (11th Cir. 1991).

As such, “[w]hen a defendant properly

challenges subject matter jurisdiction under Rule 12(b)(1), the district court is free to
independently weigh facts, and ‘may proceed as it never could under Rule 12(b)(6) or Fed. R.

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Case No. 17-cv-60369-BLOOM/Valle
Civ. P. 56.’” Turcios v. Delicias Hispanas Corp., 275 F. App’x 879, 880 (11th Cir. 2008)
(quoting Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003)). Through this lens, the
Court considers the instant Motion.
III.

Discussion
The United States argues that it is not liable to State Farm for repayment of the benefit it

paid to Lopez because the sovereign immunity waiver in the FTCA is expressly limited, and the
United States is similarly situated to a private, insured party, not to an uninsured or self-insured
party under Florida law, as maintained by State Farm.
“The United States cannot be sued except as it consents to be sued.” Powers v. United
States, 996 F.2d 1121, 1124 (11th Cir. 1993). “The terms of the federal government’s ‘consent
to be sued in any court define that court’s jurisdiction to entertain the suit.’” JBP Acquisitions,
LP v. United States ex rel. F.D.I.C., 224 F.3d 1260, 1263 (11th Cir. 2000) (quoting United States
v. Sherwood, 312 U.S. 584, 586 (1941)). The FTCA authorizes suit against the United States
for injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment . . . .
28 U.S.C. § 1346(b)(1). Thus, the FTCA is a limited waiver of sovereign immunity for these
types of claims. JBP Acquisitions, 224 F.3d at 1263. Where the FTCA applies, the United
States may be liable “in the same manner and to the same extent as a private individual under
like circumstances . . . .” 28 U.S.C. § 2674. However, the United States is liable only “under
circumstances where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.” “This clearly means
that state law cannot expand the Government’s liability beyond that which could flow from an
analogous private activity.” Scheib v. Fla. Sanitarium & Benevolent Assoc., 759 F.2d 859, 864

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Case No. 17-cv-60369-BLOOM/Valle
(11th Cir. 1985). As a result, if a private person “under like circumstances” would be liable
under Florida law in this case, the United States would be liable to State Farm.
State Farm relies upon the Florida Supreme Court’s decision in Young v. Progressive Se.
Ins. Co., 753 So. 2d 80, 85 (Fla. 2000), and claims that the United States should be considered to
be self-insured. Therefore, under Florida law, the United States is analogous to an uninsured for
purposes of the Uninsured Motorists Statute (“UM Statute”).
The UM Statutes provides that
No motor vehicle liability insurance policy which provides bodily
injury liability coverage shall be delivered or issued for delivery in
this state with respect to any specifically insured or identified
motor vehicle registered or principally garaged in this state unless
uninsured motor vehicle coverage is provided therein or
supplemental thereto for the protection of persons insured
thereunder who are legally entitled to recover damages from
owners or operators of uninsured motor vehicles because of
bodily injury, sickness, or disease, including death, resulting
therefrom.
Fla. Stat. § 627.727(1) (emphasis added). The Court disagrees that the analogy to Young is
applicable. Young is distinguishable from the case at bar for two principal reasons. First, in
Young, the question presented was whether a provision in an insurance policy excluding a selfinsured vehicle from the definition of “uninsured motor vehicle” for purposes of
uninsured/underinsured coverage is permissible under Florida law and public policy. Young, 753
So. 2d at 81. Thus, the Florida Supreme Court was not asked to decide a question involving
federal law or the FTCA. Second, the Sheriff’s Office in Young was in fact self-insured—with a
certificate of self-insurance that expressly limited coverage, up to $100,000 per person and
$200,000 per occurrence. Id. at 82. In contrast, the United States does not have a certificate of
self-insurance, nor is it otherwise subject to a liability limitation. Indeed, “[i]n Young, [the
Florida Supreme] Court dealt with the meaning of ‘insurance’ in the Uninsured Motorists

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Case No. 17-cv-60369-BLOOM/Valle
Statute, holding that a self-insured party is not insured.” Intervest Constr. of Jax, Inc. v. Gen.
Fidelity Ins. Co., 133 So. 3d 494, 505 (Fla. 2014). In contrast, in the case at bar, the Court is
tasked with determining what constitutes “like circumstances” for purposes of the FTCA.
“The ‘like circumstances’ inquiry is designed to prevent state legislatures from using the
United States’ waiver of sovereign immunity under the FTCA as an occasion to ‘enrich their
own citizens at the expense of the deepest pocket.’” Nationwide Mut. Ins. Co. v. United States, 3
F.3d 1392, 1396 (10th Cir. 1993) (quoting Carter v. United States, 982 F.2d 1141, 1143 (7th Cir.
1992)). “Recognizing that the United States is seldom situated identically to private parties,
however, the ‘like circumstances’ inquiry requires only that the United States be analogized to a
similarly situated private party.” Id. (citing Indian Towing Co. v. United States, 350 U.S. 61,
(1955)). Indeed, “[a] state law cannot expand the waiver of sovereign immunity in the Federal
Tort Claims Act.” Maradiaga v. United States, 679 F.3d 1286, 1292-93 (11th Cir. 2012).
In applying these principles, the Court finds that the United States is more like an owner
or operator of an insured vehicle, rather than self-insured, because unlike the Sheriff’s Office in
Young, the United States provides unlimited coverage to injured tort victims through the FTCA.
Therefore, State Farm’s reliance upon one isolated sentence in Rogers v. United States, 2016 WL
4805920, at *3 (S.D. Fla. Feb. 24, 2016), stating that the “United States is self-insured” to argue
that the United States should be liable to State Farm in this case, is misplaced. In Rogers, the
court did not undertake a ‘like circumstances’ analysis, and the parties did not dispute that the
vehicle involved was uninsured. Here, the entire dispute revolves around whether the USPS
truck should be properly considered to be self-insured, and therefore, uninsured, in accordance
with Young. Moreover, the court in Rogers acknowledged, consistent with this Court’s view,
that “under Young, an insurer only owes uninsured motorist benefits for damages exceeding the

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Case No. 17-cv-60369-BLOOM/Valle
limits of self-insurer’s liability . . . [and] the FTCA provides unlimited liability coverage to
injured tort victims.” Rogers, 2016 WL 4805920, at *4 n.4 (emphasis in original). Because the
United States provides unlimited coverage, damages cannot possibly exceed any liability limit in
this case. As a result, the United States is not analogous to an owner of an uninsured vehicle,
and therefore remains immune from suit under the FTCA. Thus, this Court lacks subject matter
jurisdiction.
IV.

Conclusion
Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [18], is

GRANTED. The Amended Complaint, ECF No. [16], is DISMISSED WITH PREJUDICE.
The Clerk of Court shall CLOSE this case.
DONE AND ORDERED in Miami, Florida, this 20th day of July, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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