Verneus v. Axis Surplus Insurance Company

Filing 98

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 72 Motion to Enforce; re 78 Motion to Amend. Order denying 72 Motion; granting in part and denying in part 78 Motion. The stay is lifted. The Clerk of Court is directed to REOPEN this case. Signed by Judge Jose E. Martinez on 10/26/2021. See attached document for full details. (kpe)

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case Number: 16-21863-CIV-MARTINEZ-GOODMAN
ALPHONSINE VERNEUS,
Plaintiff,
vs.
AXIS SURPLUS INSURANCE CO.,
Defendant.
_____________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
THE MATTER was referred to the Honorable Jonathan Goodman, United States
Magistrate Judge, for a Report and Recommendation on Plaintiff’s Motion to Enforce Payment of
the Appraisal Award and Motion to Compel Payment of Interest Pursuant to Section 627.4265,
Florida Statutes, and for Sanctions (“Motion to Enforce”) (ECF No. 72), and Plaintiff’s Motion
for Leave to File First Amended Complaint to add Plaintiff’s Ripe Bad Faith Claim and Assert a
Claim for Punitive Damages Against Defendant (“Motion to Amend”) (ECF No. 78). Magistrate
Judge Goodman filed a Report and Recommendation (ECF No. 93), after conducting a 2.25-hour
hearing on the Motions, recommending that the Motion to Enforce be denied, and the Motion to
Amend be granted in part and denied in part. The Court has conducted a de novo review of the
entire file and record.
Neither Plaintiff nor Defendant object to Judge Goodman’s Report and Recommendation
on the Motion to Enforce. (ECF No. 94 at 4; ECF No. 95 at 6). Defendant, but not Plaintiff,
objects to Judge Goodman’s Report and Recommendation regarding the Motion to Amend. (ECF
No. 94 at 4). The Court briefly addresses the objections below.

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Plaintiff’s Motion to Amend seeks leave to add a bad faith claim under section 624.155,
Florida Statutes, and leave to request punitive damages. (ECF No. 78; ECF No. 78-1 at 9–12; see
also ECF No. 1-5 at 4–9). After conducting a thorough analysis, Judge Goodman recommended
that Plaintiff be granted leave to add the bad faith claim but that Plaintiff’s request to seek punitive
damages be denied. (ECF No. 93 at 13–17). Defendant objects to the recommendation that
Plaintiff be granted leave to add the bad faith claim, arguing that it lacked adequate notice under
section 624.155(3), Florida Statutes. (ECF No. 94 at 4).
In her proposed amended complaint, Plaintiff alleges that Defendant, her surplus insurer,
did not conduct a proper investigation of her claim before providing payment, refused to pay
statutory interest, improperly inserted settlement language into its payments to Plaintiff, and
improperly held Plaintiff’s money. (See ECF No. 93 at 15; ECF No. 78-1 at 9–12). In response,
Defendant argued that the civil remedy notices were not sufficiently specific to provide an
opportunity to cure. (See ECF No. 93 at 15; ECF No. 87 at 8–12). The Court finds that Defendant
had sufficient notice of Plaintiff’s intent to bring a statutory bad faith claim and agrees with Judge
Goodman’s recommendation that Plaintiff should be granted leave to amend to add a Florida bad
faith claim. The Court also agrees with Judge Goodman that Plaintiff did not allege any facts to
support a claim for punitive damages; accordingly, Plaintiff will not be permitted to request this
relief in her amended complaint.
In addition to the bad faith claim, Plaintiff’s proposed amended complaint includes a count
for breach of contract. Although Plaintiff asserted a claim for breach of contract in her initial
complaint, the proposed amended complaint contains additional allegations regarding Defendant’s
alleged breach. (Compare ECF No. 78-1 at 6–8, with ECF No. 1-5 at 4–5). These new allegations,
as they pertain to the breach-of-contract claim, were not mentioned in Plaintiff’s Motion to Amend.
See (ECF No. 78). Defendant contends that the issues raised in the proposed breach-of-contract
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count “are exactly the same” as those raised in the Motion to Enforce. (ECF No. 94 at 5). In other
words, Judge Goodman addressed and rejected allegations pertaining to Defendant’s purported
breach when considering the Motion to Enforce. This argument is well taken. The Court finds
that Plaintiff must re-file a motion for leave to amend solely as to her breach-of-contract count that
is consistent with Judge Goodman’s findings in the Motion to Enforce, which are adopted by this
Order.
Accordingly, after careful consideration, it is hereby ADJUDGED that United States
Magistrate Judge Goodman’s Report and Recommendation, (ECF No. 93), is AFFIRMED and
ADOPTED.
It is further ADJUDGED that:
1.

The stay is lifted. (ECF No. 48). The Clerk of Court is directed to REOPEN this

case. The Court will issue a revised scheduling order by separate order.
2.

Plaintiff’s Motion to Enforce, (ECF No. 72), is DENIED.

3.

Plaintiff’s Motion to Amend, (ECF No. 78), is GRANTED IN PART AND

DENIED IN PART as stated in Judge Goodman’s Report and Recommendation, (ECF No. 93).
4.

On or before November 2, 2021, Plaintiff shall re-file a motion for leave to amend

solely as to her breach-of-contract claim, which is consistent with Judge Goodman’s findings on
the Motions adopted here. After the Court rules on Plaintiff’s proposed amendment of her breachof-contract claim, Plaintiff may file an amended complaint containing her bad faith claim.
DONE AND ORDERED in Chambers at Miami, Florida, this 26th day of October, 2021.
____________________________________
JOSE E. MARTINEZ
UNITED STATES DISTRICT JUDGE

Copies provided to:
Magistrate Judge Goodman
All Counsel of Record
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