Kruse v. Massachusetts Mutual Life Insurance Company

Filing 34

ORDER granting in part and denying in part 7 Motion to Dismiss for Failure to State a Claim. Counts II and VIII are DISMISSED with prejudice. Counts IV, V, VI, and VII are DISMISSED without prejudice. Amended Complaint due by 8/21/2017. Signed by Judge Beth Bloom on 8/14/2017. (vmz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-61115-BLOOM/Valle
CORANNE PAMELA KRUSE,
Plaintiff,
v.
MASSACHUSETTS MUTUAL
LIFE INSURANCE COMPANY,
Defendant.
_________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Massachusetts Mutual Life Insurance
Company’s (“Defendant” or “MassMutual”) Motion to Dismiss the Complaint, ECF No. [7] (the
“Motion”); see also ECF No. [8] (Memorandum of Law in Support of the Motion). The Court
has reviewed the Motion, all opposing and supporting submissions, the record and the applicable
law, and is otherwise fully advised. For the reasons set forth below, Defendant’s Motion is
granted in part and denied in part.
I.

BACKGROUND
This action centers around a life insurance contract (Policy No. 8652098, or the “Policy”)

entered into by Defendant, an insurance company based in Massachusetts, and Eliot J. Lupkin
(“Mr. Lupkin”) in March of 1991, whereby Defendant agreed to provide $400,000.00 in death
benefits to Mr. Lupkin’s elected beneficiary or beneficiaries in exchange for payment of a yearly
premium by Mr. Lupkin. See ECF No. [6-2] at ¶ 7. Many years later, when Mr. Lupkin passed
away on November 13, 2016, the Policy remained in effect. See id. at ¶ 8.

Case No. 17-cv-61115-BLOOM/Valle
Several years prior, on August 8, 2008, Mr. Lupkin’s financial advisor sent a form to
Defendant on behalf of Mr. Lupkin requesting that Defendant provide certain information
regarding the Policy, including the identity of the beneficiary of the Policy. Id. at ¶ 11. In a
letter dated August 20, 2008 (the “August 2008 Letter”), an employee of Defendant provided
Mr. Lupkin’s financial advisor with the requested information, and in doing so, identified
Plaintiff Coranne Pamela Kruse (“Plaintiff” or “Ms. Kruse”) as the primary and sole beneficiary
of the Policy. See id. at ¶¶ 12, 17. Thereafter, Mr. Lupkin met with his financial advisor on
multiple occasions to discuss his finances. On each of those occasions he expressed to his
financial advisor his intention and belief that Plaintiff would be the primary and sole beneficiary
of the Policy. Id. at ¶ 14. According to the Complaint, Mr. Lupkin believed that Plaintiff was
the primary and sole beneficiary of the Policy on the date of his death. Id. at ¶ 15.
Following Mr. Lupkin’s death, a wealth counselor working for the estate of Mr. Lupkin
(the “Estate”) contacted Defendant regarding Mr. Lupkin’s death and the Policy. Id. at ¶ 16.
Defendant responded to the wealth counselor with an email advising him that the Policy named
Lea Lupkin (“Ms. Lupkin”)—Mr. Lupkin’s niece—and Colette Bolduc (“Ms. Bolduc”) as the
only two beneficiaries. Id. at ¶ 17. Thereafter, on December 22, 2016, Plaintiff, as personal
representative of the Estate, employed counsel to send Defendant a demand letter demanding
payment of the death benefits under the Policy to Plaintiff. Id. at ¶ 19. On January 28, 2017,
Plaintiff submitted to Defendant a formal claim to the death benefits under the Policy. Id. at ¶
20.
On April 5, 2017, Plaintiff, in both her individual capacity and in her role as personal
representative of the Estate, initiated the instant action against Defendant. See ECF No. [1] at ¶¶
2, 4. Based on the above mentioned factual allegations, Plaintiff asserts the following eight

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claims for relief in her Complaint: equitable estoppel (Count I); negligence against Plaintiff
(Count II); negligence against Mr. Lupkin (Count III); breach of third party beneficiary contract
(Count IV); breach of implied-in-fact contract (Count V); fraudulent misrepresentation (Count
VI); negligent misrepresentation (Count VII); and specific performance (Count VIII). See ECF
No. [6-2]. Defendant moves to dismiss the Complaint in its entirety, arguing that each of
Plaintiff’s claims fail to state a claim under which relief can be granted. See ECF Nos. [7], [8].
II.

LEGAL STANDARD
A pleading in a civil action must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy the Rule 8
pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512,
(2002). While a complaint “does not need detailed factual allegations,” it must provide “more
than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The Supreme Court has emphasized that “[t]o survive a motion to dismiss a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Am. Dental
Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010). With respect to Rule 12(b)(6),
“[d]ismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’”
Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S.
41, 45-46 (1957)). A court considering a Rule 12(b) motion is generally limited to the facts
contained in the complaint and attached exhibits, including documents referred to in the

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complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959
(11th Cir. 2009); see also Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th
Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it
is central to the plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).
III.

DISCUSSION
A. Equitable Estoppel (Count I)
Defendant seeks dismissal of Count I on the basis that the Complaint fails to allege facts

satisfying all of the elements required for an equitable estoppel claim—in particular, that Mr.
Lupkin actually relied on the August 2008 Letter to his detriment. See ECF No. [8] at 7-8. The
Court disagrees.
The elements of an equitable estoppel claim, which a plaintiff must prove by clear and
convincing evidence, are: (1) a representation about a material fact that is contrary to a laterasserted position; (2) reliance on that representation; and (3) a change in position detrimental to
the party claiming estoppel based on the representation and reliance thereon. Lewis v. Dep’t of
Health & Rehab. Servs., 659 So. 2d 1255, 1256-57 (Fla. 4th DCA 1995) (quoting State Dep’t of
Revenue v. Anderson, 403 So. 2d 397 (Fla. 1981)).
The first element is clearly satisfied here. Defendant’s current position that Plaintiff is
not listed as a beneficiary under the Policy is contrary to the August 2008 Letter in which
Defendant represented that Plaintiff was not only a beneficiary, but the sole beneficiary. With
respect to the latter two elements, the Court begins by noting that the particular reliance alleged
in the Complaint is not necessarily a change in position; rather, it is in essence the opposite.
Plaintiff alleges that had Mr. Lupkin known that Plaintiff was not the beneficiary under the

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Policy, he would have taken the appropriate measures to make her the beneficiary. ECF No. [62] at ¶¶ 14-15. According to the Complaint, because he did not know this, he decided to not do
anything—i.e., he did not change his position. Id. at ¶ 18. Nonetheless, the Court finds that the
alleged decision by Mr. Lupkin not to change the Policy based on the August 2008 Letter
constitutes reliance for purposes of equitable estoppel. Taking the allegations in the Complaint as
true, Mr. Lupkin’s inaction led to an identifiable detriment - that is, an undesired disbursement
of the Policy’s death benefits.
Defendant cites to United States Life Ins. Co. in the City of N.Y. v. Logus Mfg. Corp., 845
F. Supp. 2d 1303 (S.D. Fla. 2012), in support of its argument that the above mentioned reliance
was not reasonable. See ECF No. [8] at 8. Defendant points out, and correctly so, that a claim of
reliance must fail where the parties have equal knowledge of the truth or where the plaintiff had
access to the truth. Id. at 7-8 (citing Lennar Homes, Inc. v. Gabb Constr. Serv., Inc., 654 So. 2d
649, 652 (Fla. 3d DCA 1995), and Logus, 845 F. Supp. 2d at 1314). Defendant is incorrect to
argue here, however, that “[b]ecause Mr. Lupkin could have, at any point in the eight years after
the August 2008 Letter, called MassMutual and confirmed the beneficiary (or questioned the
contents of the August 2008 Letter), he cannot claim to have relied on it.” Id. at 8. On this
point, Logus is distinguishable from this case, and the distinction illustrates why Mr. Lupkin’s
alleged reliance on the August 2008 Letter was not unreasonable. At issue in Logus were
deficient “Change Forms” that had been submitted by the deceased insured to the insurer in order
to change the named beneficiary of his life insurance policy to his personal trust. See 845 F.
Supp. 2d at 1318-19. The attempt proved unsuccessful due to the deficiencies in the Change
Forms. See id. at 1309-10. The trust, which was one of two defendants in the action, 1 claimed
1

The action was brought in interpleader by the insurance company to determine the rightful owner of the
policy proceeds.

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that if the insurer would have notified the insured of the deficiencies in the Change Forms, the
insured would have remedied those deficiencies and thus secured the policy’s proceeds for his
personal trust. Id. at 1319. The court rejected that argument, reasoning in relevant part as
follows:
[T]he Trust’s purported reliance was not reasonable because it could have simply
contacted American General to confirm that the change of beneficiary had been
made. . . . The Trust’s abject failure over a period of nine years to call or write to
American General and request confirmation that it had been substituted as the
beneficiary in the instant Policy renders its alleged reliance unreasonable.
Id. In this case, there are no Change Forms at issue (at least not as reflected in the Complaint).
More importantly, whatever might have precipitated Mr. Lupkin’s inquiry in 2008 as to who the
named beneficiary or beneficiaries under the Policy were, the inquiry was made directly to
Defendant, and Defendant itself responded to the inquiry. In other words, Mr. Lupkin did
exactly what the Logus court explained that the insured in that case should have done, but did not
do. In the Court’s view, under these circumstances, that Mr. Lupkin apparently relied on
Defendant’s response in the August 2008 Letter in the years to follow is not in and of itself
unreasonable. Accordingly, the Court finds that Plaintiff’s equitable estoppel claim under Count
I has been sufficiently pled.
B. Negligence Against Plaintiff (Count II)
Defendant seeks dismissal of Count II on the bases that Defendant owed no duty to
Plaintiff, and that even if it did, there was no causal connection between any conduct by
Defendant and the harm to Plaintiff alleged under Count II. See ECF No. [8] at 8-9. The Court
agrees with the latter.
The elements of a negligence claim are: (1) a duty, or obligation, recognized by the law,
requiring the defendant to conform to a certain standard of conduct; (2) the defendant’s failure to

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conform to that standard (i.e., a breach of the duty owed); (3) a reasonably close causal
connection between the conduct at issue and the resulting injury (i.e., proximate cause); and (4)
actual loss or damage. Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003).
“The principle of ‘duty’ . . . may arise from four general sources: (1) legislative enactments or
administration regulations; (2) judicial interpretations of such enactments or regulations; (3)
other judicial precedent; and (4) a duty arising from the general facts of the case.” Id. (quoting
McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n.2 (Fla. 1992)). The fourth category consists
of “that class of cases in which the duty arises because of a foreseeable zone of risk arising from
the acts of the defendant.” McCain, 593 So. 2d at 503 n.2.
With respect to duty, Plaintiff alleges that Defendant “had a duty to Plaintiff to act on
[her formal] claim [for the Policy’s death benefits] within reasonable time after receipt of the
application.” ECF NO. [6-2] at ¶ 33. However, even if the Court were to assume that such a
duty is a legally cognizable one—which the Court does not assume—Plaintiff cannot show that
the specific harm alleged was caused by Defendant’s conduct. Specifically, the harmful conduct
by Defendant alleged in Count II of the Complaint is Defendant’s failure to respond to Plaintiff’s
demand letter and subsequent claim for the Policy’s death benefits. Id. at ¶¶ 32-34. As to the
purportedly resulting harm, Plaintiff alleges that she “has been greatly damaged[] in that she has
not received payment of the $400,000.00 in death benefits.” Id. at ¶ 35. But there is simply no
apparent causal nexus between Defendant’s failure to respond to either Plaintiff’s demand letter
or claim and Plaintiff having not received the Policy’s death benefits. To the contrary, the Court
presumes—as Defendant indicates in its Motion—that Plaintiff is not named as a beneficiary
under the Policy, and that that is the reason why Plaintiff has not received the Policy’s death

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benefits from Defendant. 2 As such, the Court finds that Plaintiff’s negligence claim under Count
II fails. As any amendment would be futile, Count II is dismissed with prejudice.
C. Negligence Against Eliot Lupkin (Count III)
Unlike the negligence claim asserted in Count II, Defendant concedes that, with respect
to the negligence claim asserted in Count III, it owed a duty to Mr. Lupkin—namely, “to adhere
to the terms of the Policy and to pay the benefit due to the beneficiary of record at the time of
death.” ECF No. [8] at 10. In seeking dismissal of Count III, Defendant instead argues that
Plaintiff cannot show that Defendant breached that duty. See id. at 10-11. On that much, the
Court agrees. However, the Court finds that there is at least one other legally cognizable duty
that Defendant arguably owed to Mr. Lupkin that Defendant appears to have breached.
That duty was a duty to convey to Mr. Lupkin accurate information regarding the Policy
he was insured under, especially where the information conveyed was directly in response to an
inquiry made by Mr. Lupkin. Here, the inquiry by Mr. Lupkin at issue concerned in part the
identity of the beneficiary or beneficiaries under the Policy. To that extent, the August 2008
Letter apparently provided an inaccurate response. Importantly, that inaccuracy goes to the heart
of the negligence claim asserted in Count III. Plaintiff alleges in Count III that Defendant “owed
a duty to Eliot J. Lupkin according to their contractual relationship pursuant to the life insurance
contract” and that “Defendant breached its duty by failing to protect Eliot J. Lupkin’s interest
and wishes regarding his desired beneficiary . . . .” ECF No. [6-2] at ¶¶ 38-39 (emphasis added).
In the Court’s view, this allegation sufficiently implicates the above mentioned duty and alleged
breach. Accordingly, the Court declines to dismiss Plaintiff’s negligence claim under Count III
2

The Court notes that although the Complaint neither specifically alleges that the Policy does not name
Plaintiff as a beneficiary nor attaches the Policy itself, the Complaint does not allege or even suggest that
Defendant’s representation that the only two beneficiaries currently named in the Policy are Ms. Lupkin
and Ms. Bolduc—a representation that the Complaint does allege—is false. See ECF No. [6-2] at ¶¶ 1718; see also id. at ¶ 44 (“Plaintiff[] [ ] was not a party to that contract [(the Policy)].”).

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on the basis that Plaintiff cannot show that Defendant breached a duty owed to Mr. Lupkin, and
otherwise finds that the claim has been sufficiently pled.
D. Breach of Third Party Beneficiary Contract (Count IV)
Defendant seeks dismissal of Count IV on the bases that Plaintiff failed to attach a copy
of the Policy to the Complaint, and that even if she had, she cannot show a breach of the Policy
by Defendant. This is because the Policy does not name her as a beneficiary in the first place.
See ECF No. [8] at 11-14. The Court agrees that because the Policy does not name Plaintiff as a
beneficiary, Count IV must fail.
To establish an action for breach of a third party beneficiary contract, a plaintiff must
allege and prove the following four elements: “(1) existence of a contract; (2) the clear or
manifest intent of the contracting parties that the contract primarily and directly benefit the third
party; (3) breach of the contract by a contracting party; and (4) damages to the third party
resulting from the breach.” Found. Health v. Westside EKG Assocs., 944 So. 2d 188, 195 (Fla.
2006) (citation omitted).

“A non-party is the specifically intended beneficiary only if the

contract clearly expresses an intent to primarily and directly benefit the third party or a class of
persons to which that party belongs.” Biscayne Inv. Grp., Ltd. v. Guarantee Mgmt. Servs., Inc.,
903 So. 2d 251, 254 (Fla. 3d DCA 2005). With respect to determining who the appropriate
beneficiary of an insurance policy is, the Supreme Court of Florida has explained that a court
“need look no further than the plain language of the policy itself. . . .” Cooper v. Muccitelli, 682
So. 2d 77, 79 (Fla. 1996). Furthermore, in Florida, “one who seeks to change the beneficiary of
a life insurance policy must strictly comply with the policy’s terms. . . . The doctrine of strict
compliance exists to protect the insurance company, and only the insurance company may waive
it.” Logus, 845 F. Supp. 2d at 1314 (quoting Miller v. Gulf Life Ins., 12 So. 2d 127 (Fla. 1942))

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(internal citation omitted). Further, “strict compliance states reject the notion that equitable
arguments can trump the express terms of the contract agreed to by the parties because to hold
otherwise would be to rewrite the contract for the parties.” Id. at 1314-15. “In Florida, the
burden of proving that there has been strict compliance, and therefore an effective change of
beneficiary, rests squarely on the person claiming as the substitute beneficiary.” Id. at 1315
(citing Follenfant v. Rogers, 359 F.2d 30 (5th Cir. 1966)).
Here, there is no dispute that the third party beneficiary contract underpinning Count IV
is the Policy. Under Florida law, the Policy—particularly its language—is the starting point.
Plaintiff admits that she was “not a party” to the Policy, ECF No. [6-2] at ¶ 44, and, more
importantly, she fails to allege that she is actually listed as a beneficiary under the Policy.
Instead, Plaintiff merely alleges that Mr. Lupkin “intended for Plaintiff[] [] to be the primary and
sole beneficiary of the contract” and that Defendant breached “said contract by failing to make
payment to [Plaintiff] of the $400,000.00 in death benefits.” Id. at ¶¶ 45-46 (emphasis added).
Based on what Plaintiff alleges (and does not allege), the Court presumes that Plaintiff is not a
named beneficiary under the Policy. Thus, the Complaint as pled reflects that, pursuant to the
plain language of the Policy, Plaintiff is not a valid third party thereunder so as to enable her to
bring the breach of third party beneficiary claim asserted in Count IV.
The only discernible argument Plaintiff offers on this point is that the August 2008 Letter
reflects that Mr. Lupkin intended Plaintiff to be the designated beneficiary of the Policy, the
Policy’s actual terms notwithstanding. See ECF No. [21] at 15-16. However, Plaintiff offers no
supporting authority for the proposition that such a letter, without more, 3 can override the plain

3

To the extent that Plaintiff alleges that Mr. Lupkin expressed to his financial advisor on multiple
occasions following receipt of the August 2008 Letter his desire that Plaintiff be the Policy’s sole
beneficiary, conversations between Plaintiff and his financial advisor do not establish a “clear or manifest

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language of a contract. In the Court’s view, under Florida law, that the August 2008 Letter
identifies Plaintiff as the beneficiary under the Policy is simply not enough to overcome the plain
language of the Policy. For example, Plaintiff offers no allegations regarding whether Mr.
Lupkin always intended Plaintiff to be the beneficiary under the Policy (and so designated her as
such at the time the Policy was first formed), or whether instead Mr. Lupkin at some point
sought to substitute Plaintiff in place of someone else who had already been designated as the
Policy’s beneficiary. The absence of such facts is critical; if the latter is the case, the Policy’s
plain language would dictate that Plaintiff would bear the burden of proving that Mr. Lupkin
strictly complied with the Policy’s terms in attempting to substitute Plaintiff as the beneficiary.
Logus, 845 F. Supp. 2d at 1314-15.
Accordingly, the Court finds that Plaintiff fails to sufficiently state a claim for breach of
third party beneficiary contract. Count IV is therefore dismissed without prejudice and with
leave to amend. Should Plaintiff seek to reassert a breach of third party beneficiary contract in
any amended version of her Complaint, she shall provide a copy of the Policy. See generally
Walters v. Ocean Gate Phase I Condo, 925 So. 2d 440, 443-44 (Fla. 5th DCA 2006) (explaining
that “[a] complaint based on a written instrument does not state a cause of action until the
instrument or an adequate portion thereof, is attached to or incorporated in the compliant”)
(citation omitted) (alteration in original).
E. Breach of Implied-in-Fact Contract (Count V)
Defendant seeks dismissal of Count V on the basis that Plaintiff is unable to allege a valid
implied-in-fact contract because the Policy, which any implied-in-fact contract asserted by
Plaintiff would operate to supplant, is enforceable. See ECF No. [8] at 14-15. The Court agrees.

intent of the contracting parties that the [Policy] primarily and directly benefit [Plaintiff].” Found.
Health, 944 So. 2d at 195 (emphasis added).

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A contract implied-in-fact, distinguishable from a contract implied in law (or qausi
contract), “exists where the parties have made an agreement of sorts which falls short of being an
enforceable, true contract.” 14th & Heinberg, LLC v. Terhaar & Cronley Gen. Contractors, Inc.,
43 So. 3d 877, 881 n.1 (Fla. 1st DCA 2010).
Here, Plaintiff does not actually claim that the Policy is somehow deficient or
unenforceable in any way, much less allege facts that would support such a claim. To the
contrary, Plaintiff’s claim for breach of third party beneficiary contract in Count V reflects a
recognition that the Policy is a valid and enforceable contract. Notably, Plaintiff admits in her
Response to Defendant’s Motion to Dismiss that she “ha[s] not seen the life insurance policy
contract . . . .” ECF No. [21] 16. Plaintiff nevertheless contends that she has asserted the breach
of implied-in-fact contract claim “if the [Policy] is held to be unenforceable due to a failure of
the meeting of the minds.” Id. at 17 (emphasis added). As Plaintiff herself recognizes however,
“[w]hile the law will not recognize an implied-in-fact contract where an express contract exists, a
contract may be inferred where an express contract fails for lack of proof.” Baron v. Osman, 39
So. 3d 449, 451 (Fla. 5th DCA 2010). That Plaintiff is “unsure as to the validity of the [Policy]
as stated by Defendant”—in part because she has not actually seen it—is not the equivalent to a
lack of proof of the Policy. ECF No. [21] at 16-17; see Iqbal 556 U.S. at 678 (explaining that a
complaint cannot rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’”)
(quoting Twombly, 550 U.S. at 557) (alteration in original). Accordingly, the Court finds that
Plaintiff fails to sufficiently state a claim for breach of implied-in-fact contract. Count V is
therefore dismissed without prejudice and with leave to amend.

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F. Fraudulent Misrepresentation (Count VI)
Defendant seeks dismissal of Count VI on the basis that Plaintiff is unable to satisfy all of
the elements required for fraudulent misrepresentation claim—in particular, that Defendant
intended the August 2008 Letter to induce Mr. Lupkin’s reliance on it and that Mr. Lupkin
actually relied on the August 2008 Letter to his detriment. See ECF No. [8] at 15-16. The Court
agrees with the former.
“There are four elements necessary to establish fraudulent misrepresentation: (1) a false
statement concerning a material fact; (2) the representer's knowledge that the representation is
false; (3) an intention that the representation induce another to act on it; and (4) consequent
injury by the party acting in reliance on the representation.” Specialty Marine & Indus. Supplies,
Inc. v. Venus, 66 So. 3d 306, 310 (Fla. 1st DCA 2011) (citing Butler v. Yusem, 44 So. 3d 102,
105 (Fla. 2010), and Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985)). With respect to
inducement, a plaintiff cannot withstand a motion to dismiss for failure to state a cause of action
“without specifically alleging more than the vague and conclusory statement they [he was]
induced by the misrepresentation[.]” Hillcrest Pacific Corp. v. Yamamura, 727 So. 2d 1053,
1057 (Fla. 3d DCA 1995).
Here, Plaintiff alleges that “Defendant intended that the representation [made on the
August 2008 Letter] induce Plaintiff [sic] to act on it by not making the corrective change of
beneficiary to his life insurance contract.” ECF No. [6-2] at ¶ 56. But this is nothing more than
a conclusory allegation. See Iqbal, 556 U.S. at 678 (explaining that the Rule 8(a)(2) pleading
standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”).
That conclusory allegation is not supported anywhere in the Complaint, as Plaintiff has not
alleged any facts demonstrating or even suggesting that the August 2008 Letter was sent with the

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specific intention to induce Mr. Lupkin’s reliance on it. In fact, the Complaint offers no factual
allegations shedding light on the state of mind of the employee of Defendant who sent the
August 2008 Letter. Instead, the Complaint simply alleges that an employee of Defendant
provided the August 2008 Letter in response to an inquiry made by Mr. Lupkin’s financial
advisor. See ECF No. [6-2] at ¶ 12. All that allegation shows is that Defendant provided
responsive information as requested by Mr. Lupkin; it does not show that Defendant necessarily
did so with any particular concern on its part as to what Mr. Lupkin might do, or not do, with the
information provided. Thus, in the Court’s view, the allegation is insufficient to support a
fraudulent misrepresentation claim. 4

Accordingly, the Court finds that Plaintiff fails to

sufficiently state a claim for fraudulent misrepresentation. Count VI is therefore dismissed
without prejudice and with leave to amend.
G. Negligent Misrepresentation (Count VII)
Defendant seeks dismissal of Count VII on essentially the same bases that it seeks
dismissal of Count VI, including on the basis that the Complaint fails to sufficiently allege that
Defendant intended the August 2008 Letter to induce Mr. Lupkin’s reliance on it. See ECF No.
[8] at 3 (“Counts VI and VII . . . are both missing a crucial element . . . . While the beneficiary
printed in the August 2008 letter may have been incorrect, there are no facts which would
indicate that it was sent to induce or prevent any sort of action . . . .”). Defendant is again
correct.
To state a cause of action for negligent misrepresentation, a plaintiff must show: (1) the
defendant made a misrepresentation of material fact that he believed to be true but which was in
fact false; (2) the defendant was negligent in making the statement because he should have
4

It is worth noting here that, as already explained, the Complaint sufficiently alleges that Mr. Lupkin
relied on the August 2008 Letter. To be clear, however, such reliance says nothing of the Defendant
employee’s intent who sent the August 2008 Letter.

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known the representation was false; (3) the defendant intended to induce the plaintiff to rely on
the misrepresentation; and (4) injury resulted to the plaintiff acting in justifiable reliance upon
the misrepresentation. Specialty Marine, 66 So. 3d at 309. Negligent misrepresentation is
distinguishable from fraudulent misrepresentation under Florida law in that the two claims
“involve different elements, especially with respect to justifiable reliance. . . . Justifiable reliance
is not a necessary element of fraudulent misrepresentation.”

Id. at 310 (internal citations

omitted).
Plaintiff clarifies in her Response that, with respect to inducement, her negligent
misrepresentation claim relies entirely on the same allegation as her fraudulent misrepresentation
claim relies—that is, that “Defendant intended that the representation induce Plaintiff [sic] to act
on it by not making the corrective change of beneficiary to his life insurance contract.” ECF No.
[21] at 22 (citing ECF No. [6-2] at ¶ 61). For the same reasons this allegation is insufficient to
support Plaintiff’s fraudulent misrepresentation claim, this allegation is insufficient to support
her negligent misrepresentation claim.

Accordingly, the Court finds that Plaintiff fails to

sufficiently state a claim for negligent misrepresentation. Count VII is therefore dismissed
without prejudice and with leave to amend.
H. Specific Performance (Count VIII)
Plaintiff asserts Count VIII “in the alternative if all other counts are deemed inapplicable
at law[,]” seeking specific performance of the Policy, but with payment of the death benefits
made to her rather than the named beneficiaries. ECF No. [6-2] at ¶¶ 64, 72. Defendant seeks
dismissal of Count VIII on the bases that Plaintiff failed to attach a copy of the Policy to the
Complaint, and that even if she had, she is not entitled to the specific performance she seeks
because the terms of the Policy are “clear, definite, certain, and complete” in not naming her as a

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beneficiary. ECF No. [8] at 18. The Court agrees with Defendant that Count VIII is subject to
dismissal, but not for the reasons asserted by Defendant.
“In order for a court of equity to decree specific performance of a contract, the terms of
the agreement must be clear, definite, certain and complete, for the equitable remedy of specific
performance is granted only where the parties have actually entered into an agreement that is
definite and certain in all of its essential elements.” Bay Club, Inc. v. Brickell Bay Club, Inc.,
293 So. 2d 137, 138 (Fla. 3d DCA 1974). Florida courts have held that a decree of specific
performance, which is an equitable remedy granted at the discretion of a trial court, can be
granted only when (1) the plaintiff is clearly entitled to it, (2) there is no adequate remedy at law,
and (3) the trial court believes that justice requires it. Invego Auto Parts, Inc. v. Rodriguez, 34
So. 3d 103, 104 (Fla. 3d DCA 2010). “In order to invoke the remedy of specific performance,
‘the plaintiff must do more than merely prove his case by a preponderance of the evidence, ... he
must prove the contract as alleged in his complaint by competent and satisfactory proof which
must be clear, definite, and certain.” Id. (quoting Miller v. Murray, 68 So.2d 594, 596 (Fla.1953)
(emphasis added).
As other district courts have recognized, it is not to be overlooked that a claim for
specific performance is subject to dismissal “because ‘specific performance is a remedy, not a
freestanding legal claim.’” Crain v. Chesapeake Appalachia, L.L.C., 2013 WL 4419023, at *7
(M.D. Pa. Aug. 14, 2013) (quoting Clark Resources, Inc. v. Verizon Bus. Network Servs., Inc.,
2010 WL 4973342, at *4 (M.D. Pa. Dec. 1, 2010)); see also Gaines v. Robinson Aviation (RVA),
Inc., 2014 WL 6882934, at *2 n.2 (M.D. Fla. Dec. 4, 2014) (“[S]pecific performance is a remedy
to a breach of contract claim, not a claim for relief in and of itself.”). As such, Count VIII,

16

Case No. 17-cv-61115-BLOOM/Valle
which is nothing more than a request for specific performance of the Policy—“as [Plaintiff]
believe[s] it currently exists,” ECF No. [21] at 23—cannot stand alone as its own claim.
Moreover, the circumstances of this case are such that the remedy of specific
performance is precluded as a matter of law, as another adequate remedy at law exists.
Specifically, “because Plaintiff[] [is] merely seeking the payment of the [Policy’s death benefits]
in regards to [her] claim in Count [VIII], [she does] have adequate remedies available at law, i.e.,
money damages. Specific performance is, by its nature, only an alternative to money damages in
enforcing the terms of a contract.” Crain, 2013 WL 4419023, at *7. To that extent, Plaintiff’s
request for specific performance is also redundant. As discussed, payment of the Policy’s death
benefits is the very same remedy Plaintiff seeks for her claim for breach of third party
beneficiary contract claim in Count IV.

Count VIII’s request for the remedy of specific

performance of the Policy is therefore duplicative of Count IV, which Plaintiff will be granted
leave to amend. See Gaines, 2014 WL 6882934, at *2 n.2 (“Although Plaintiff labels Count 2 as
a claim to enforce a pre-suit settlement agreement, specific performance is a remedy to a breach
of contract claim, not a claim for relief in and of itself. As such, Count 2 is more properly
construed as a claim for breach of contract.”). For all of these reasons, Count VIII is dismissed
with prejudice. See Crain, 2013 WL 4419023, at *7 (finding that because plaintiffs’ claim
requesting specific performance was “for an alleged breach of a contractual right of money, the
remedy of specific performance [was] precluded as a matter of law[,]” and therefore dismissing
the claim with prejudice and allowing plaintiffs leave to amend to add a breach of contract
claim).

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Case No. 17-cv-61115-BLOOM/Valle
I. Defendant’s Request for Interpleader
Separate from the grounds for dismissal asserted by Defendant discussed above,
Defendant clarifies that it “has not yet paid the death benefit due under the Policy because it has
been faced with competing claims from Plaintiff, Ms. Bolduc and Ms. Kruse.” ECF No. [8] at 6.
To that extent, Defendant argues that it “is entitled to pay the death benefit to the proper recipient
without risking multiple or duplicative liability for the contractual death benefit[,]” and therefore
requests that the Court “order [Defendant] to file a complaint for interpleader, joining all of the
interested parties, so that this Court might efficiently and completely determine the rightful
recipient of the Policy proceeds.” Id. Defendant’s argument is well taken.
The specific relief Plaintiff seeks through her various claims is payment of the Policy’s
death benefits. To that extent, Defendant undoubtedly faces double liability—namely, potential
payment of the total sum of the death benefits to both groups of competing parties identified.
Interpleader allows a party who holds money claimed by multiple adverse claimants, such as
Defendant here, “[to] avoid[ ] multiple liability by asking the court to determine the asset's
rightful owner.” McBride v. McMillian, 679 F. App'x 869, 871 (11th Cir. 2017) (quoting In re
Mandalay Shores Co-op. Hous. Ass'n, Inc., 21 F.3d 380, 383 (11th Cir. 1994)) (alterations in
original). “The party holding the funds ‘typically claims no interest in [the] asset and does not
know the asset's rightful owner.’”

Id. (quoting In re Mandalay Shores, 21 F.3d at 383)

(alteration in original); see also New York Life Ins. Co. v. Bostwick, 2015 WL 4484305, at *2
(W.D. Wash. July 22, 2015) (“In interpleader actions, the ‘stakeholder’ of a sum of money sues
all those who might have claim to the money, deposits the money with the district court, and lets
the claimants litigate who is entitled to the money.”).

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It appears in this case, then, that

Case No. 17-cv-61115-BLOOM/Valle
interpleader would be the appropriate mechanism through which Defendant could seek to avoid
the potential double liability it faces.
Of course, as it stands now, this case is not an interpleader action, as Plaintiff, rather than
Defendant, initiated suit. With respect to Defendant’s request for an order permitting it to file a
complaint for interpleader, Defendant is advised that the Federal Rules of Civil Procedure
specifically allow for “defensive interpleader” actions. 5

A defensive interpleader action is

governed by Rule 22(a)(2), which permits a defendant exposed to “double or multiple liability”
to seek interpleader through a “crossclaim or counterclaim.” See generally ING Bank, N.V. v.
M/V African Swan, 2017 WL 1080078, at *5 (S.D.N.Y. Mar. 9, 2017). It should be noted,
however, that both of these devices, by definition, can only reach existing parties. Id. (citing
Fed. R. Civ. P. 13(a)-(b), (g)). As such, Defendant is further advised that “under Fed. Rule Civ.
Proc. 22, a defendant seeking interpleader must frame his pleading either as a cross-claim
seeking relief against a co-party already in the lawsuit, or as a counterclaim seeking relief against
the plaintiff. If the defendant states a claim seeking relief against such a co-party or plaintiffcounter-defendant, he may seek to bring in additional parties under the joinder provisions of rule
20. But the interpleader provided by Rule 22 must have some nexus with a party already in the
case.” Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699, 705 n.2 (1972); accord Hussain v.
Boston Old Colony Ins. Co., 311 F.3d 623, 633 n.39 (5th Cir. 2002); Vanderlinden v. Metro. Life
Ins. Co., 137 F. Supp. 2d 1160, 1163, 1163 n.5 (D. Neb. 2001). Accordingly, Defendant is
granted leave to initiate a defensive interpleader action, which, pursuant to the Federal Rules of

5

In opposition to this request, Plaintiff has expressed that she “ha[s] no interest in any ancillary or
competing claims made upon MassMutual regarding Eliot J. Lupkin’s life insurance policy or policies
and intends to litigate the facts and matters between Plaintiff[] and MassMutual alone.” ECF No. [21] at
5. It goes without saying, however, that the Federal Rules of Civil Procedure trump Plaintiff’s interests
and intentions.

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Case No. 17-cv-61115-BLOOM/Valle
Civil Procedure, would involve the filing of a counterclaim against Plaintiff and the joining of
additional parties—such as Ms. Bolduc and Ms. Kruse—to the counterclaim. 6
IV.

CONCLUSION
For all of the reasons stated herein, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion to Dismiss, ECF No. [7], is GRANTED in part and DENIED
in part.
2. Counts II and VIII are DISMISSED with prejudice.
3. Counts IV, V, VI, and VII are DISMISSED without prejudice.
4. Plaintiff is granted leave to amend and is direct to file an Amended Complaint on or
before August 21, 2017.
5. Defendant is granted leave to initiate a defensive interpleader action asserting any
claims for declaratory judgment by filing a counterclaim against Plaintiff, and joining
any additional parties as appropriate.

6

The Court notes, however, that the “federal interpleader remedy does not shield a negligent stakeholder
from tort liability for its creation of a conflict over entitlement to the interpleaded funds.” Lee v. W. Coast
Life Ins. Co., 688 F.3d 1004, 1014 (9th Cir. 2012). Rather, “a claimant may seek to recover all damages
directly and proximately caused by the negligent stakeholder’s conduct.” Id. In other words, “a
disinterested stakeholder may not be subjected to liability for its failure to resolve the controversy over
entitlement to the stake in one claimant’s favor, but [] a stakeholder whose alleged tort caused the
controversy is not absolved of liability by filing an interpleader action.” Id. As such, to the extent that
Plaintiff’s surviving claims and any future claims might warrant recovery other than payment of the
Policy’s death benefits on account of Defendant’s tortious conduct creating the instant conflict in the first
place, such claims are not precluded by any interpleader action Defendant might bring. See, e.g., Sun Life
Assurance Co. of Canada v. O'Connor, 2017 WL 932148, at *2-3 (W.D. Wash. Mar. 9, 2017)
(recognizing that certain claims asserting that “negligence might have caused the conflict over the funds .
. . . may [be] properly [brought] . . . in an interpleader action”) (citing Lee, 688 F.3d at 1014).

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Case No. 17-cv-61115-BLOOM/Valle
DONE AND ORDERED in Miami, Florida this 14th day of August, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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