One of the basic purposes of a motion to dismiss is to test the over-all sufficiency of the complaint to state a claim upon which relief can be granted. Since the complaint states a claim upon which at least nominal damages may be awarded, then it follows that the motion to dismiss the amended counter-claim should not have been granted, even though some of the damages alleged may have been non-recoverable. Augustine v. Southern Bell Telephone & Tel. Co., Fla. 1956, 91 So. 2d 320.Abstract Co. of Sarasota v. Roberts, 144 So. 2d 3, 5 (Fla. 2d DCA 1962); see also Augustine v. S. Bell Tel. & Tel. Co., 91 So. 2d 320, 323 (Fla. 1956) ("[I]f the complaint states a claim upon which at least nominal damages may be awarded, then a motion to dismiss such a complaint should not be sustained.").

The measure or amount of damages is not at issue at this point in the proceedings. See Hutchison v. Tompkins, 259 So.2d 129, 132 (Fla. 1972) ("It is well established in Florida that where the allegations of a complaint show the invasion of a legal right, the plaintiff on the basis thereof may recover at least nominal damages, and a motion to dismiss should be overruled.") (citing Augustine v. S. Bell Tel. Tel. Co., 91 So.2d 320, 323 (Fla. 1956)); Williams v. Bay Hosp., Inc., 471 So.2d 626, 630 (Fla. 1st DCA 1985) (holding that the remedy to avoid claims for impermissible elements of damage is a motion to strike the damage claim, or an objection at trial to the damage claim, but not dismissal of the complaint); Williams v. Legree, 206 So.2d 13, 15 (Fla. 2d DCA 1968) ("[A] complaint which sufficiently states a cause of action is not rendered vulnerable to a motion to dismiss by its allegation of an improper element of damages."). Section 215.422, Florida Statutes, which governs the processing of state warrants, vouchers and invoices, has no bearing at this juncture, if at all.

After Argonaut, this court clearly cannot compel plaintiffs to specially plead an element of damage that does not require special pleading as special damage under the Florida Rules of Civil Procedure. See Fla.R.Civ.P. 1.120(g); see also Augustine v. S. Bell Tel. Tel. Co., 91 So.2d 320 (Fla. 1956). A trial court may be authorized to include in its standard pretrial order a requirement that a party indicate whether it is seeking prejudgment interest from the judge or from the jury.

After Argonaut, this court clearly cannot compel plaintiffs to specially plead an element of damage that does not require special pleading as special damage under the Florida Rules of Civil Procedure. See Fla. R. Civ. P. 1.120(g); see also Augustine v. S. Bell Tel. Tel. Co., 91 So.2d 320 (Fla. 1956). A trial court may be authorized to include in its standard pretrial order a requirement that a party indicate whether it is seeking prejudgment interest from the judge or from the jury.

On the other hand, general damages are those which the law presumes actually and necessarily result from the alleged breach or wrong. Augustine v. S. Bell Tel. Tel. Co., 91 So.2d 320, 323 (Fla. 1956). Based upon this definition, Radcliffe's contingent liability on the guarantees were special damages which may be the natural but not the necessary result of the breach of contract.

On the other hand, general damages are those which the law presumes actually and necessarily result from the alleged breach or wrong. Augustine v. S. Bell Tel. Tel. Co., 91 So.2d 320, 323 (Fla. 1956). Based upon this definition, Radcliffe's contingent liability on the guarantees were special damages which may be the natural but not the necessary result of the breach of contract.

Aetna Life Ins. Co. v. Smith, 345 So.2d 784 (Fla. 4th DCA 1977); Cruz v. Union Gen. Ins., 586 So.2d 91 (Fla. 3d DCA 1991); Monsanto Co. v. Fuqua, 280 So.2d 496 (Fla. 1st DCA 1973); Walden. Since the Plaintiff did not incur any medical expenses which the Defendant did not reimburse, and any damages the Plaintiff might have sustained as a result of the alleged anticipatory breach are too speculative to sustain an action for breach of contract, this Court declines the opportunity to affirm the dismissal but remand with instructions to allow the Plaintiff to amend her complaint. Augusting v. Southern Bell Tel. Tel. Co., 91 So.2d 320 (Fla. 1956) distinguishing Byers v. Southern Bell Tel. Tel. Co., 73 So.2d 875 (Fla. 1954) (dismissal appropriate where on the face of the complaint damages are too speculative to be recoverable). The Court understands the Appellant's frustration at the inability to obtain relief for the insurer's alleged anticipatory breach.

Aetna Life Ins. Co. v. Smith, 345 So.2d 784 (Fla. 4th DCA 1977): Cruz v. Union Gen. Ins., 586 So.2d 91 (Fla. 3d DCA 1991); Monsanto Co. v. Fuqua, 280 So.2d 496 (Fla. 1st DCA 1973); Walden. Since the Plaintiff did not incur any medical expenses which the Defendant did not reimburse, and any damages the Plaintiff might have sustained as a result of the alleged anticipatory breach are too speculative to sustain an action for breach of contract, this Court declines the opportunity to affirm the dismissal but remand with instructions to allow the Plaintiff to amend her complaint. Augusting v. Southern Bell Tel. Tel. Co., 91 So.2d 320 (Fla. 1956) distinguishing Byers v. Southern Bell Tel. Tel. Co., 73 So.2d 875 (Fla. 1954) (dismissal appropriate where on the face of the complaint damages are too speculative to be recoverable). The Court understands the Appellant's frustration at the inability to obtain relief for the insurer's alleged anticipatory breach.

Marquette Cement v. Louisville Nashville R.R. Co., 281 F. Supp. at 947. See also Augustine v. Southern Bell Telephone Telegraph Company, 91 So.2d 320, 323 (Fla. 1956). In other words, "general damages are awarded only if injury were foreseeable to a reasonable man and . . . special damages are awarded only if actual notice were given to the carrier of the possibility of injury. Damage is foreseeable by the carrier if it is the proximate and usual consequence of the carrier's action."

This requirement has been construed by the Florida courts to mean that a claim for special damages is sufficiently pleaded to withstand a motion to strike if it "notif[ies] the defendant of the nature of the special damages claimed." Augustine v. Southern Bell Telephone Telegraph Co., 91 So.2d 320, 323 (Fla. 1956). See also, Arcade Steam Laundry v. Bass, 159 So.2d 915 (2d D.C.A. 1964).