Zapata, et al v. Companion Property and Casualty Insurance Co. et al
ORDER granting in part and denying in part 29 Joint Motion to Dismiss 22 Amended Complaint. Signed by Judge Robert N. Scola, Jr. on 10/7/2019. See attached document for full details. (ls)
United States District Court
Southern District of Florida
Consuelo Zapata, PZP Investments,
Civil Action No. 19-22686-Civ-Scola
Companion Property and Casualty
Insurance Co., Clarendon National
Insurance Co., Defendants.
Order on Motion to Dismiss
This matter is before the Court on the Defendants’ joint motion to dismiss
filed by Companion Property and Casualty Insurance Co. (“Companion”) and
Clarendon National Insurance Company’s (“Clarendon”). After review of the
parties submissions, the record, and the applicable case law, the Court grants
in part and denies in part the Defendants’ joint motion to dismiss. (ECF No.
The suit arises from an insurance coverage dispute that was removed from
state court. Plaintiffs sued to collect on a judgment for $358,848.93 entered
against Douglass Roofing, Inc. and in favor of PZP Investments. Douglass
Roofing, Inc. is insured by the Defendants. In their second amended complaint,
the Plaintiffs Consuelo Zapata and PZP Investments set forth one count for
declaratory judgment, requesting that the Court declare (a) the insurance policy
is valid and enforceable and (b) that the Plaintiffs’ claims are covered under the
policy. (ECF No. 22 at ¶ 22.)
The Defendants move to dismiss the Plaintiffs’ claims for lost revenue due
to loss of tenants because they are not covered under the policy, and they move
to dismiss the Plaintiff Consuelo Zapata’s claims because her claims are barred
by § 627.4136, Florida Statutes.
2. Legal Standard
A court considering a motion to dismiss, filed under Federal Rule of Civil
Procedure 12(b)(6), must accept all of the complaint’s allegations as true,
construing them in the light most favorable to the plaintiff. Pielage v. McConnell,
516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only contain a
short and plain statement of the claim showing that the pleader is entitled to
relief, a plaintiff must nevertheless articulate “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “But where the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged—but it has
not shown—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)) (internal punctuation omitted). A court
must dismiss a plaintiff’s claims if she fails to nudge her “claims across the line
from conceivable to plausible.” Twombly, 550 U.S. at 570.
(1) Consuelo Zapata is not a proper plaintiff.
Under Florida law, a non-insured third party can sue an insurer when that
person has “first obtain[ed] a settlement or verdict against a person who is an
insured under the terms of such policy for a cause of action which is covered by
such a policy.” Fla. Stat. § 627.4136; see also, Southern Owners Ins. Co. v.
Mathieu, 67 So. 3d 1156, 1158 (Fla. 2d DCA 2011) (party who is not an insured
cannot sue the insurer until it obtains a settlement with or verdict against the
insured). Zapata and PZP Investments seek to collect on a judgment entered
against Douglass Roofing, Inc. from its insurers, the Defendants. The state court
judgment at issue was entered in favor of PZP Investments, and Zapata was not
a party in the state court case. As Zapata has not secured a judgment against
the insured, he is not a proper plaintiff in this case.
The Plaintiffs argue that because Consuelo Zapata is the sole shareholder
of PZP Investments, the entity that secured the judgment against the insured,
he is a proper plaintiff with a “legal and equitable interest in the money
judgment.” (ECF No. 43 at 3.) Plaintiff’s rely on Hutson v. Fulgham Industries,
Inc. for this proposition. (Id. at 5.) Hutson is an Eleventh Circuit opinion applying
Alabama law and interpreting Alabama’s corporate survival statute. 869 F.2d
1457, 1460-61 (11th Cir. 1989). It is thus inapplicable to this case because
Alabama’s corporate survival statute does not apply. Moreover, under Florida
law, a shareholder cannot generally sue “in the shareholder’s name for injuries
to a corporation unless there is a special duty between the wrongdoer and the
shareholder, and the shareholder has suffered an injury separate and distinct
from that suffered by other shareholders.” Braun v. Buyers Choice Morg. Corp. ex
rel. McAloon, 851 So. 2d 199, 203 (Fla. 4th DCA 2003); see also, Dinuro
Investments, LLC v. Camacho, 141 So. 3d 731, 739-40 (Fla. 3d DCA 2014). That
the corporation is dissolved is irrelevant to this analysis. See Braun, 851 So. 2d
at 203 (corporation at issue was administratively dissolved prior to suit). Instead,
“dissolution of a corporation does not…prevent commencement of a proceeding
by or against the corporation in its corporate name.” Fla. Stat. § 607.1405;
Braun, 851 So. 2d at 203 (a dissolved corporation “continues its existence for
the purposes of winding up and liquidating its business affairs and that
dissolution does not prevent suits by or against the corporation in its corporate
(2) Whether the Plaintiffs’ lost revenue claims are covered under the
policy cannot be determined at the motion to dismiss stage.
The Defendants argue that Plaintiffs’ claim regarding “lost revenue as a
result of loss of tenants” cannot be recovered under the policy because this lost
revenue is not considered “property damage.” (ECF No. 29 at 7.) Although
Defendants’ argument may ultimately be correct, this issue cannot be resolved
at the motion to dismiss stage because it involves interpreting the extent of the
policy’s coverage, and “[c]ontract interpretation is typically inappropriate at the
motion to dismiss stage.” Alhassid v. Bank of America, N.A., 60 F. Supp. 3d 1302
(S.D. Fla. 2014) (Bloom, J.); see also, Geter v. Galardi S. Enterprises, Inc., 43 F.
Supp. 3d 1322, 1328 (S.D. Fla. 2014) (Altonaga, J.) (“[T]he Court may not engage
in contract interpretation at the motion to dismiss stage, as these arguments are
more appropriate for summary judgment.”) (citations omitted); Larach v.
Standard Chartered Bank Int’l (Americas) Ltd., 724 F. Supp. 2d 1228, 1239 (S.D.
Fla. 2010) (Moreno, J.) (denying motion to dismiss because plaintiff had
“sufficiently alleged the required elements for claims of breach of contract” and
the differing interpretations of the contract were not yet ripe for ruling).
Tellingly, all of the Defendants’ caselaw on the issue of interpreting the
contractual term “property damage” was at the summary judgment stage. See
Mid-Continent Cas. Co. v. C-D Jones & Co., 2013 WL 12081104, *1 (N.D. Fla. Aug.
6, 2013) (resolving plaintiff’s second motion for summary judgment); Key Custom
Homes, Inc. v. Mid-Continent Casualty Company, 450 F. Supp. 2d 1311, 1312
(M.D. Fla. 2006) (resolving the parties’ cross motions for summary judgment);
American States Ins. Co. v. Pioneer Elec. Co., 85 F. Supp. 2d 1337, 1338 (S.D.
Fla. 2000) (Moore, J.) (omnibus order addressing four different motions for
summary judgment); Mid-Continent Cas. Co. v. Clean Seas Co., 2009 WL 812072,
*1 (M.D. Fla. March 27, 2009). The Court will not interpret the policy at this
stage, and therefore, the Court cannot dismiss these claims.
In sum, the Court grants in part and denies in part the Defendants’
motion to dismiss. (ECF No. 29.) The Court grants the motion to dismiss as to
the Plaintiff Consuelo Zapata’s claims because he is not a proper plaintiff. The
Court denies the motion as to the Plaintiffs’ lost revenue claims.
Done and ordered at Miami, Florida, on October 7, 2019.
Robert N. Scola, Jr.
United States District Judge
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