Peterson and Young v. Jewelers Mutual Insurance Company

Filing 33

ORDER ACCEPTING IN PART and REJECTING IN PART REPORT AND RECOMMENDATIONS re 22 Report and Recommendations: accepting in part, rejecting in part Report and Recommendations re 22 Report and Recommendations on 12 Motion to Dismiss 11 Amend ed Complaint filed by Jewelers Mutual Insurance Company; granting 12 Motion to Dismiss 11 Amended Complaint; Dismissing without prejudice 11 Amended Complaint; denying as moot 32 Motion for Leave to Conduct Mediation via Videoconference; Closing Case. Signed by Judge Aileen M. Cannon on 2/7/2024. See attached document for full details. (ls)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-81253-CIV-CANNON/Reinhart
PETERSON AND YOUNG,
d/b/a Peterson and Young Goldsmiths,
v.

Plaintiff,

JEWELERS MUTUAL INSURANCE
COMPANY,
Defendant.
________________________________/
ORDER ACCEPTING IN PART AND REJECTING IN PART
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION [ECF No. 22]
THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss (the
“Motion”) [ECF No. 12]. The Motion was referred to Magistrate Judge Bruce E. Reinhart for a
report and recommendation [ECF No. 19]. On December 7, 2023, Judge Reinhart issued a report
recommending that the Motion be denied (the “Report”) [ECF No. 22]. On January 4, 2024,
Defendant filed its Objections to the Report [ECF No. 31]. The Court has reviewed the Report
[ECF No. 22], Defendant’s Objections [ECF No. 31], and the full record. 1 For the reasons set
forth below, the Report [ECF No. 22] is ACCEPTED IN PART AND REJECTED IN PART,
and the Motion [ECF No. 12] is GRANTED.
RELEVANT BACKGROUND
This case involves an insurance dispute between Peterson and Young (“Plaintiff”)—a
jewelry store located in Palm Beach Gardens, Florida—and Plaintiff’s insurer, Jewelers Mutual

1

On December 11, 2023, Plaintiff filed a Notice of No Objections to the Report [ECF No. 24].
Plaintiff did not file a response to Defendant’s objections. See Fed. R. Civ. P. 72(b)(2).

CASE NO. 23-81253-CIV-CANNON/Reinhart
Insurance Company (“Defendant”) [ECF No. 11 p. 1]. From 2020 to 2022, repeated water leaks
from an adjacent Starbucks retail location damaged Plaintiff’s property [ECF No. 11 pp. 11–12].
After Plaintiff’s insurer (i.e., Defendant) agreed to pay only for a portion of the resulting damage,
Plaintiff sued Defendant in state court [ECF No. 1-2]. On September 12, 2023, Defendant
removed the action to this Court [ECF No. 1]. On September 15, 2023, Plaintiff filed a notice of
intent to initiate litigation with the Florida Department of Financial Services (the “Notice”)
[ECF No. 22 pp. 6–7]. 2 Later that same day, the Court sua sponte dismissed Plaintiff’s initial
Complaint as an impermissible shotgun pleading [ECF No. 5]. On October 3, 2023, Plaintiff filed
the operative single-count Amended Complaint, alleging breach of contract [ECF No. 11].
On October 12, 2023, Defendant filed the instant Motion to Dismiss, raising two
arguments: (1) Plaintiff failed to give timely pre-suit notice as required by Fla.
Stat. § 627.70152(3)(a); and (2) the content of Plaintiff’s belated Notice lacked the specificity
required by the statute [ECF No. 12 pp. 4–11]. On December 7, 2023, following referral, Judge
Reinhart issued the Report, rejecting both of Defendant’s arguments and recommending the
Motion be denied [ECF No. 22]. Defendant filed its Objections to the Report on January 4, 2024
[ECF No. 31]. The Report is ripe for adjudication [ECF Nos. 22, 31].
LEGAL STANDARD
To challenge the findings and recommendations of a magistrate judge, a party must file
specific written objections identifying the portions of the proposed findings and recommendation
to which objection is made. See Fed. R. Civ. P. 72(b)(3); Heath v. Jones, 863 F.2d 815, 822

2

In Florida, before filing suit under a property insurance policy, an insured must provide its insurer
with notice of its intent to initiate litigation. Fla. Stat. § 627.70152. Such notice “must be given
at least 10 business days before filing suit” and “must state with specificity” certain information
as further described below. Fla. Stat. § 627.70152(3).
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CASE NO. 23-81253-CIV-CANNON/Reinhart
(11th Cir. 1989); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). A district court
reviews de novo those portions of the report to which objection is made and may accept, reject, or
modify in whole or in part, the findings or recommendations made by the magistrate judge.
28 U.S.C. § 636(b)(1). To the extent a party fails to object to parts of the magistrate judge’s report,
the Court may accept the recommendation so long as there is no clear error on the face of the
record. Macort, 208 F. App’x at 784. Legal conclusions are reviewed de novo, even in the absence
of an objection. See LeCroy v. McNeil, 397 F. App’x 554, 556 (11th Cir. 2010); Cooper-Houston
v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994).
DISCUSSION
As noted, the Report rejects Defendant’s arguments as to both the timeliness and
content/specificity of Plaintiff’s Notice under Fla. Stat. § 627.70152(3)(a). On timeliness, the
Report determines that Plaintiff gave notice more than ten business days before filing its Amended
Complaint, as required by Fla. Stat. § 627.70152(3)(a) [ECF No. 22 pp. 2–3]. The Court agrees
with that determination, and Defendant does not object to it [See ECF No. 31]. With respect to
the content of Plaintiff’s Notice, the Report concludes that the Notice substantially complied with
the statute, provided actual notice to Defendant, and did not prejudice Defendant [ECF No. 22 p. 4
(citing Julien v. United Prop. & Cas. Ins. Co., 311 So. 3d 875, 879 (Fla. Dist. Ct. App. 2021))].
For the reasons below, the Court disagrees with the Report’s sufficiency determination, concluding
that the pre-suit Notice failed to include the information required by the plain and mandatory
language of the statute.
Section 627.70152(3)(a) requires that, as “a condition precedent to filing a suit under a
property insurance policy,” a claimant must provide the Florida Department of Financial Services
with “written notice of intent to initiate litigation” on a specified form. Fla. Stat. 627.70152(3)(a).

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CASE NO. 23-81253-CIV-CANNON/Reinhart
The notice must “state with specificity” certain information as enumerated in the statute, including
“[t]he alleged acts or omissions of the insurer giving rise to the suit,” a “presuit settlement demand,
which must itemize the damages, attorney fees, and costs,” and “[t]he disputed amount.” Id.
Plaintiff’s Notice lacks information required by Fla. Stat. § 627.70152(3)(a) and therefore
warrants dismissal of this case without prejudice. Fla. Stat. § 627.70152(5) (“A court must dismiss
without prejudice any claimant’s suit relating to a claim for which [pre-suit notice] was not given
as required by this section.”). A screenshot of the relevant portion the Notice is provided below:

Even if the Court were to construe the “Estimate of Damages” as the equivalent of a
“presuit settlement demand,” the fact remains that the estimate provided does not reflect what the
statute requires: “itemize[d] damages, attorney fees, and costs.” Fla. Stat. § 627.70152(3). Nor
does the notice indicate with specificity “[t]he disputed amount,” another statutory requirement.
Id. Because the Notice fails to include these items of information—information which, by the
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CASE NO. 23-81253-CIV-CANNON/Reinhart
plain terms of the statute, must be included with specificity—dismissal without prejudice is
required. Fla. Stat. § 627.70152(5). 3
The Report reached a different conclusion, finding the Notice sufficient because it
substantially complied with the statute, provided actual notice, and did not prejudice Defendant
[ECF No. 22 pp. 4–5]. In support of that finding, the Report cites to caselaw interpreting the
requirements of Fla. Stat. § 624.155, a different provision governing first-party “bad faith” claims
[ECF No. 22 p. 4 (citing Julien v. United Prop. & Cas. Ins. Co., 311 So. 3d 875, 879 (Fla. Dist.
Ct. App. 2021))]. The Court respectfully disagrees with this portion of the Report’s finding. In
the absence of any authorities interpreting the level of specificity required by the statute at issue
here, Fla. Stat. § 627.70152, the Court declines to analogize to caselaw interpreting a different
statutory provision that, while similar in some respects, notably does not contain what Fla. Stat.
§ 627.70152 contains: a specific directive requiring dismissal of an action in cases of deficient
notice. See Fla. Stat. § 627.70152(5). Moreover, although the Report is correct that some courts
have applied the notice requirements in Fla. Stat. § 624.155 in a more permissive fashion, there is
persuasive authority applying the plain text of that statute to require strict (not substantial)
compliance [ECF No. 31 pp. 3–4 (collecting cases)].
In any event, setting Fla. Stat. § 624.155 aside, the Court must apply the plain language of
the statute at issue here, and the text of that statute, as noted, is clear in its requirement of strict

3

Although unnecessary to resolution of this Motion, it is debatable whether the notice complies
with the statutory requirement to “state with specificity” “[t]he alleged acts or omissions of the
insurer giving rise to the suit.” Fla. Stat. § 627.70152(3)(a). Beyond the allegation that Plaintiff
“was not fully compensated by its insurer,” Plaintiff’s Notice fails to include any meaningful detail
concerning any claims it submitted (or did not submit) with its insurer; the amount of compensation
it received (if any); Defendant’s proffered basis for denying full coverage; and associated dates.
The Florida Department of Financial Services’ website permits a filer to upload attachments with
its notice submission.

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compliance with the pre-suit notice requirements. Fla. Stat. § 627.70152(3)(a) (providing that
“[t]he notice must state with specificity all of the following information” and then requiring
dismissal for failure to comply); see generally Chalfonte Condo. Apartment Ass’n, Inc. v. QBE
Ins. Corp., 526 F. Supp. 2d 1251, 1255 (S.D. Fla. 2007). Because Plaintiff’s Notice fails to provide
all of the necessary information with the requisite degree of specificity, the Notice is inadequate,
and the matter must be dismissed.
The Court finally addresses Plaintiff’s argument that any consideration of the pre-suit
Notice would convert the Motion into one for summary judgment [See ECF No. 15 pp. 4–5].
Plaintiff argues that documents not attached to the pleadings—in this case, the pre-suit Notice—
cannot be considered at the motion to dismiss stage [ECF No. 15 pp. 4–5]. Generally, Plaintiff is
correct that analysis of a 12(b)(6) motion is limited primarily to the face of the complaint and the
attachments thereto. See, e.g., Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364,
1369 (11th Cir. 1997). Exceptions exist, however, and two are applicable in this case.
First, “a district court may take judicial notice of matters of public record without
converting a Rule 12(b)(6) motion into a Rule 56 motion.” Serpentfoot v. Rome City Comm’n,
322 F. App’x 801, 807 (11th Cir. 2009) (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278
(11th Cir. 1999)); see also Fed. R. Evid. 201. Plaintiff’s Notice is publicly available on an official
website maintained by the Florida Department of Financial Services, and thus, it is a “matter of
public record” of which the Court may take judicial notice at this stage. Serpentfoot, 322 F. App’x
at 807; https://piitil.myfloridacfo.gov/ (last visited Feb. 6, 2024). Second, under the incorporationby-reference doctrine, “a court may consider evidence attached to a motion to dismiss without
converting the motion into one for summary judgment if (1) the plaintiff refers to certain
documents in the complaint, (2) those documents are central to the plaintiff’s claim, and (3) the

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documents’ contents are undisputed.” Baker v. City of Madison, Alabama, 67 F.4th 1268, 1276
(11th Cir. 2023) (internal quotations and citations omitted). 4 These elements are met here, and
Plaintiff does not argue otherwise. The Amended Complaint refers to the Notice in alleging that
all conditions precedent are satisfied [ECF No. 11 ¶ 6]. The Notice is essential to satisfying a
statutory condition precedent to bringing the claim. And the Notice’s “contents are undisputed”
by Plaintiff [See ECF No. 15]; Day v. Taylor, 400 F.3d 1272, 1257 (11th Cir. 2005) (explaining
that “‘undisputed’ means that the authenticity of the document is not challenged”). In sum, the
Court’s consideration of the Notice is appropriate and does not convert Defendant’s Motion into
one for summary judgment.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Report and Recommendation [ECF No. 22] is ACCEPTED IN PART AND
REJECTED IN PART.
a. The Report’s determination that Plaintiff’s pre-suit Notice was timely under
Fla. Stat. § 627.70152(3)(a) is ACCEPTED.
b. The Report’s determination that the content of Plaintiff’s pre-suit Notice is
sufficient under Fla. Stat. § 627.70152(3)(a) is REJECTED.
2. Defendant’s Motion to Dismiss [ECF No. 12] is GRANTED.
3. Plaintiff’s Amended Complaint [ECF No. 11] is DISMISSED WITHOUT
PREJUDICE. No repleading is permitted in this action. Plaintiff may initiate a
new lawsuit as permitted by law.

4

Defendant’s Motion incorporates screenshots of the relevant portions of Plaintiff’s pre-suit
Notice [ECF No. 12 p. 5].

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CASE NO. 23-81253-CIV-CANNON/Reinhart
4. The Clerk is directed to CLOSE this case.

Any scheduled hearings are

CANCELED, any pending motions are DENIED AS MOOT, and all deadlines
are TERMINATED.
DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 7th day of February
2024.

_________________________________
AILEEN M. CANNON
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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