Chicken Kitchen USA, LLC v. Maiden Specialty Insurance Company
Filing
146
ORDER granting 119 Motion to Dismiss Count III. Signed by Magistrate Judge Jonathan Goodman on 7/22/2016. (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 14‐23282‐CIV‐GOODMAN
[CONSENT CASE]
CHICKEN KITCHEN USA, LLC,
Plaintiff,
v.
MAIDEN SPECIALTY INSURANCE
COMPANY,
Defendant.
_____________________________________/
ORDER GRANTING MOTION TO DISMISS COUNT III
United States District Judge Joan A. Lenard previously dismissed without
prejudice [ECF No. 94] Count III of Plaintiff Chicken Kitchen USA, LLC’s Complaint
[ECF No. 1]. Count III alleged punitive damages under Florida Statute § 624.155(5).
Plaintiff filed a First Amended Complaint [ECF No. 101], which was amended shortly
thereafter and replaced with a Second Amended Complaint [ECF No. 117]. After the
filing of the Second Amended Complaint, the parties consented to full Magistrate Judge
jurisdiction [ECF No. 133] and Judge Lenard referred [ECF No. 134] the case to the
Undersigned for all further proceedings, including trial and entry of final judgment.
Defendant Maiden Specialty Insurance Company filed another motion to dismiss
Count III ‐‐ the punitive damages claim ‐‐ of the Second Amended Complaint. [ECF No.
119]. Plaintiff opposed the motion, [ECF No. 120] and Defendant filed a reply [ECF No.
121]. For the reasons outlined below, the Undersigned grants the motion and dismisses
Count III.
I.
FACTUAL BACKGROUND
Judge Lenard’s order on the motion to dismiss sufficiently summarizes the facts
alleged in the complaint. [ECF No. 94, pp. 1‐6]. The Court adopts those facts as gleaned
from Plaintiff’s Complaint, which are deemed to be true for the purposes of ruling on
Defendant’s motion. The additional facts pled in the Second Amended Complaint are
addressed in the analysis below.
II.
LEGAL STANDARD FOR MOTION TO DISMISS
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
a court must take all well‐pleaded facts in the plaintiff’s complaint and all reasonable
inferences drawn from those facts as true. Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531,
1534 (11th Cir. 1994). “A pleading must contain ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677‐78
(2009) (quoting Fed. R. Civ. P. 8(a)(2)). While detailed factual allegations are not always
necessary in order to prevent dismissal of a complaint, the allegations must “‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)).
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A complaint must provide “more than labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. See also 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”). Nor can a complaint
rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’“ Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).
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) (emphasis added); see also Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288–90
(11th Cir. 2010).
III.
ANALYSIS
To sustain a claim for punitive damages under Florida Statute § 624.155(5), a
plaintiff must show “that the acts giving rise to the violation occur with such frequency
as to indicate a general business practice and these acts are: (a) [w]illful, wanton, and
malicious; (b) [i]n reckless disregard for the rights of any insured; or (c) [i]n reckless
disregard for the rights of a beneficiary under a life insurance contract.”
Judge Lenard previously dismissed Count III without prejudice because it was
“the quintessential ‘formulaic recitation of the elements of a cause of action’ that is
insufficient to state a claim under Rule 8.” [ECF No. 94, p. 14] (quoting Twombly, 550
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U.S. at 555). Judge Lenard’s discussion also addressed Plaintiff’s response to the motion
to dismiss, where, in an attempt to bolster its allegations of a “general business
practice,” Plaintiff requested the Court take judicial notice of several complaints filed in
other courts against Defendant.
Judge Lenard rejected this request on the grounds that the Court could not
legally take judicial notice of those filings and “even if it could be judicially noticed,
[Plaintiff] has not established [that Defendant has a general practice of acting in bad
faith] because allegations in unsworn complaints filed in other cases cannot be used as
evidence of an insurer’s general business practices for purposes of establishing a
punitive damages claim.” [ECF No. 94, p. 15] (citing Shannon R. Ginn Constr. Co. v.
Reliance Ins. Co., 51 F. Supp. 2d 1347, 1354 (S.D. Fla. 1999) (finding that the plaintiff
could not rely on unsworn complaints from cases in other jurisdictions to establish that
an insurance company “conducts its claims practice unfairly”)); Tucker v. Am. Intern.
Grp., Inc., 936 F. Supp. 2d 1, 22 (D. Conn. 2013) (noting, in a similar case and in response
to a similar argument, that “an action that has not been decided on its merits does not
result in any finding of wrongdoing on the part of the parties and is thus not admissible
evidence of the facts alleged therein”).
In the Second Amended Complaint, Plaintiff moves beyond the “quintessential
formulaic recitation of the elements of a cause of action” by re‐alleging and
incorporating by reference specific paragraphs from earlier in the complaint. [ECF No.
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117, pp. 18‐19]. In paragraph 91, Plaintiff specifies which factual allegations from this
case constitute the “general business practices” of which it is complaining. [Id.].
Additionally, instead of requesting that the Court take judicial notice of complaints filed
against Defendant in other districts, Plaintiff simply pulls the facts alleged in those
cases and includes them in this complaint “[u]pon information and belief[.]” [ECF No.
117, pp. 11‐14]. After reviewing the Second Amended Complaint, I find that Plaintiff
still has not alleged sufficient facts to support a claim for punitive damages.
Plaintiff’s allegations of a general practice of “ignoring the rights of its insureds”
boils down to two instances where Defendant allegedly did not pay out one hundred
percent on claims, which were then disputed by the insureds. [Id.]. Specifically, in
paragraphs 57 through 71, Plaintiff goes into great detail about the impact of
Superstorm Sandy upon New York City’s transit system. [Id., at pp. 11‐13]. Plaintiff
describes the damage done, the claims submitted by Amtrak to Defendant, and
Defendant’s response to those claims ‐‐ namely, that it engaged in very detailed
inspections and re‐inspections of the damage and ultimately agreed to only pay
significantly less than the claim. [Id.]. In paragraphs 72 through 75, Plaintiff describes
the experience of an auto dealer in New York who also submitted a claim to Defendant
after Superstorm Sandy and received less than the claimed amount from Defendant.
[Id., at p. 14].
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Plaintiff alleges that these two instances, in addition to the facts specific to
Plaintiff’s individual case, constitute a “general practice” of Defendant not meeting its
obligations to its insureds, which it says are grounds for punitive damages.
Plaintiff’s Second Amended Complaint only describes Defendant’s assessment of
certain claims and infers that those assessments were incorrect. The Second Amended
Complaint is missing crucial allegations of fact to support Plaintiff’s inference that this
insurer’s refusal to pay out one hundred percent of these claims was actually (1)
incorrect and (2) caused by specific, persistent unscrupulous behavior on behalf of the
insurer. “[C]onclusory allegations, unwarranted deductions of fact, or legal conclusions
masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis,
297 F.3d 1182, 1188 (11th Cir. 2002). Plaintiff’s new allegations in the Second Amended
Complaint concerning Count III are the classic example of conclusory allegations and
unwarranted deductions of fact.
These allegations are entirely conclusory, presenting the Court with only the
observation that an insurer contested an insured’s claims. This is hardly an unusual
occurrence in the insurance field. See Kafie v. Nw. Mut. Life Ins. Co., No. 11‐21251, 2011
WL 4499051, at *12 (S.D. Fla. Sept. 27, 2011) (dismissing punitive damages claim for
failure to satisfy the requirements of Florida Statute § 624.155, noting that the allegation
that at least ten Florida claimants filed civil remedy notices “by itself does not provide
enough factual matter” to support a punitive damages claim and explaining that “the
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Court has no way of knowing whether ten CRNs in four years is indeed frequent”);
Shannon v. Fulton County, Ga., 51 F. Supp. 2d 1354 (“the mere fact that claims have been
denied is not relevant to whether [the carrier] has engaged in unfair settlement practices
as a general business practice”).
If the observation that an insurer denied or reduced three claims was enough for
an insured to assert punitive damages, then virtually every single insurance case could
proceed with a punitive damages claim. That result is illogical and unworkable, of
course, but it would be the natural consequence of Plaintiff’s theory. Plaintiff’s
allegations are far too generalized and conclusive to support a claim for punitive
damages, so the Undersigned therefore grants Defendant’s motion to dismiss Count III.
DONE AND ORDERED in Chambers, at Miami, Florida, July 22, 2016.
Copies furnished to:
All counsel of record
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