Opinion
CASE NO. 20-cv-14013-MIDDLEBROOKS
06-05-2020
PIN-PON CORPORATION, Plaintiff, v. LANDMARK AMERICAN INSURANCE COMPANY, Defendant.
Rochelle Wimbush, Arya Attari Li, Stephen A. Marino, Jr., Ver Ploeg & Marino, P.A., Miami, FL, for Plaintiff. Eric William Dickey, Lauren Diane Levy, Levy Law Group, Coral Gables, FL, for Defendant.
Rochelle Wimbush, Arya Attari Li, Stephen A. Marino, Jr., Ver Ploeg & Marino, P.A., Miami, FL, for Plaintiff.
Eric William Dickey, Lauren Diane Levy, Levy Law Group, Coral Gables, FL, for Defendant.
ORDER GRANTING MOTION TO DISMISS
DONALD M. MIDDLEBROOKS, UNITED STATES DISTRICT JUDGE THIS CAUSE is before the Court upon a Motion to Dismiss filed by Defendant Landmark American Insurance Company ("Defendant") on March 26, 2020. (DE 25). Plaintiff Pin-Pon Corporation responded on March 31, 2020. (DE 26). Defendant replied on April 2, 2020. (DE 27). With leave of the Court, Plaintiff filed a sur-reply on April 17, 2020. (DE 32). For the following reasons, Defendant's Motion is granted.
BACKGROUND
Plaintiff initiated this action on January 15, 2020, bringing a single cause of action against Defendant for Statutory Bad Faith in violation of Fla. Stat. § 624.155(1)(b)(1). (DE 1). Defendant is an insurance company who issued a policy to Plaintiff in 2005. (DE 24 ¶ 6). During Hurricane Frances, Plaintiff suffered substantial losses, which it alleged were covered under the policy. (DE 24 ¶¶ 9-10). Due to Defendant's refusal to pay for these losses, Plaintiff brought a claim in state court against Defendant. (DE 24 ¶11). This litigation ultimately resulted in a $2,935,642.37 judgment for Plaintiff, but only after ten years of litigation in which this case was appealed, remanded, and then appealed again. In the present case, Plaintiff argues that Defendant violated Fla. Stat. § 624.155(1)(b)(1) by "[n]ot attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests." (DE 24 ¶¶13-20).
Defendant argues that dismissal of this action is warranted as Plaintiff failed to comply with the requirements of Fla. Stat. § 624.155(3), which is a condition precedent to bringing an action under Fla. Stat. § 624.155(1)(b)(1). Defendant also argues that dismissal is warranted as Plaintiff's claim is not pled with the requisite specificity.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the allegations in a complaint. See Fed. R. Civ. P. 12(b)(6). In assessing legal sufficiency, the Court is bound to apply the pleading standard articulated in Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). That is, the complaint "must ... contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Am. Dental Ass'n v. Cigna Corp. , 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "Dismissal is therefore permitted when on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Glover v. Liggett Grp., Inc. , 459 F.3d 1304, 1308 (11th Cir. 2006) (internal quotations omitted) (citing Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist. , 992 F.2d 1171, 1174 (11th Cir. 1993) ).
When reviewing a motion to dismiss, a court must construe plaintiff's complaint in the light most favorable to plaintiff and assume the truth of plaintiff's factual allegations. See Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ; Christopher v. Harbury , 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) ; Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997). However, pleadings that "are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; see also Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1260 (11th Cir. 2009) (stating that an unwarranted deduction of fact is not considered true for purposes of determining whether a claim is legally sufficient).
DISCUSSION
Under Fla. Stat. § 624.155(3), a plaintiff must file a notice with the Florida Department of Financial Services ("the Department") at least 60 days before filing a Statutory Bad Faith lawsuit. This notice is commonly referred to as a "civil notice remedy: or CRN. Section § 624.155(3) sets out five pieces of information which must be included in a CRN:
1. The statutory provision, including the specific language of the statute, which the authorized insurer allegedly violated.
2. The facts and circumstances giving rise to the violation.
3. The name of any individual involved in the violation.
4. Reference to specific policy language that is relevant to the violation, if any. If the person bringing the civil action is a third party claimant, she or he shall not be required to reference the specific policy language if the authorized insurer has not provided a copy of the policy to the third party claimant pursuant to written request.
5. A statement that the notice is given in order to perfect the right to pursue the civil remedy authorized by this section.
The statute also provides that, in addition to these five requirements, the CRN shall be "on a form provided by the [Department] and shall state with specificity ... such other information as the department may require. " (emphasis added).
The Florida Supreme Court has held that Fla. Stat. § 624.155 "must be strictly construed." Talat Enterprises, Inc. v. Aetna Cas. and Sur. Co. , 753 So. 2d 1278, 1283 (Fla. 2000). Strict construction is appropriate as "this statute is in derogation of the common law." Id. When interpreting a statute in derogation of the common law, "[a] court will presume that such a statute was not intended to alter the common law other than as clearly and plainly specified in the statute." Time Ins. Co., Inc. v. Burger , 712 So. 2d 389, 393 (Fla. 1998). In this case, such an interpretation would mean that statutory bad faith cases cannot proceed unless the plaintiff has specifically complied will all statutory requirements.
After the promulgation of this statute, the Department created a CRN form: Form DFS-10-363. Form DFS-10-363 lays out 15 requirements:
1) Complainants Name;
2) Complainants Address;
3) Complainants E-mail address;
4) Complainant type (Insured or otherwise);
5) Insured's Name;
6) Insurance Policy Number;
7) Insurance Claim Number;
8) Attorney's Name;
9) Attorney's Address;
10) Attorney's E-mail Address;
11) Type of Insurer (authorized or otherwise);
12) Name of Insurer;
13) Address of Insurer;
14) Type of Insurance (Commercial Property & Casualty or otherwise); and
15) Reason for Notice.
As these requirements are all information required by the Department, according to § 624.155, they must be stated with specificity.
Plaintiff utilized Form 363 to submit three different CRNs to Defendant on July 7, 2008, October 25, 2011, and November 7, 2016. (DE 24-3; DE 24-4; DE 24-5). Defendant argues that each of these CRNs were deficient. CRN One lists an Insured and Complainant other than Plaintiff (Estefan Enterprises Inc., not Pin-Pon Company). It also does not list an email address for the Complainant, or an address of the Insurer. CRN Two lists the same email address for both the Complainant and the Attorney, and does not include the address of the insurer. Finally, CRN Three lists the incorrect address for the Complainant and does not include the address of the Insurer. Defendant also argues that the reason for notice in each CRN is insufficient.
Defendant appears to ask me to take judicial notice of the fact that the email address listed is that of Plaintiff's counsel in this action. I find judicial notice is unnecessary as complainant and attorney are clearly different individuals and they would not have the same email address. Thus, either the complainant or the attorney's email address was not listed.
Plaintiff argues that none of the three CRNs are deficient. As an initial matter, Plaintiff argues that at the motion to dismiss stage the court must take as true Plaintiff's allegation that it "promptly reported the loss and complied with all Policy conditions and conditions precedent to this action." (DE 24 ¶ 9). However, this argument fails as "[a] district court can generally consider exhibits attached to a complaint in ruling on a motion to dismiss, and if the allegations of the complaint about a particular exhibit conflict with the contents of the exhibit itself, the exhibit controls." Hoefling v. City of Miami , 811 F.3d 1271, 1277 (11th Cir. 2016). All three CRNs were attached to Plaintiff's amended complaint. (DE 24-3; DE 24-4; DE 24-5).
Plaintiff alternatively argues that each CRN complied with the statutory requirements. As to CRN One, Plaintiff argues that the Complainant is listed as "Estefan Enterprises, Inc." because that is Plaintiff's parent company. However, the only acceptable name to be listed in this section is that of Plaintiff; the relationship between the listed party and Plaintiff is immaterial. See Borrego v. State Farm Mut. Auto. Ins. Co. , 14-20365-CIV, 2014 WL 2615192, at *4 (S.D. Fla. Apr. 30, 2014) (finding that a wife could not bring a bad faith claim where the CRN listed only her husband's name as the complainant); see also Erhard v. Hartford Accident and Indemnity Company , No. 07-60532-CIV, 2008 WL 203583 (S.D. Fla. Jan. 23, 2008) (disallowing an employee from bringing a claim in his individual capacity where the CRN stated he was bringing a claim as an assignee).
As to CRN Two, Plaintiff concedes that the email address listed is not that of Complainant, but argues that he has been listing his email address as that of the client throughout his career. However, given that this statute is strictly construed, equitable arguments are inappropriate. See In re Brightful , 267 F.3d 324, 328 (3d Cir. 2001) (explaining that where a test is strictly construe "equitable concerns or other extraneous factors [are] not contemplated"). Finally, as to CRN Three, Plaintiff concedes that the address listed for Complainant is not the correct address, as it is that of the law firm. Plaintiff argues that "[h]aving been embroiled in litigation with this claimant and its law firm for seven years at the time CRN three was filed, Landmark cannot reasonably suggest that it had any difficulty locating or identifying the claim referenced in the CRN as a result of the use of the law firm's address." (DE 26 at 10). Again, as the statute is strictly construed, this information is immaterial.
As discussed in footnote one, there is no need to take judicial notice of the address of the attorney as CRN Three lists the same address for the complainant and the attorney, and therefore must be incorrect for one of these two parties.
As the statute requires that all fields on the CRN form must be stated with specificity, and as this statute is strictly construed, I find that none of Plaintiff's CRNs are compliant with the statutory requirements. Further, I find unpersuasive Plaintiff's argument that his CRNs may be taken in combination to satisfy the statutory requirements. Plaintiff has provided no caselaw to support this position. Other courts have failed to combine the information within multiple CRNs to create a single, compliant CRN. See e.g., Ardrey v. USAA Cas. Ins. Co. , 8:12-CV-08-T-24 MAP, 2012 WL 831620, at *4 (M.D. Fla. Mar. 12, 2012) (separately analyzing the deficiencies of three CRNs).
Plaintiff states in its sur-reply that "once Landmark is selected as the ‘Authorized Insurer’ via the drop down menu provided on the electronic Form, there is no option to include the insurer's address." (DE 32 at 5). Other courts have suggested that plaintiffs may not rely on the online presentation of the form to avoid providing the required infraorder Ardrey v. USAA Cas. Ins. Co. , 8:12-CV-08-T-24 MAP, 2012 WL 831620, at *3 (M.D. Fla. Mar. 12, 2012) ("The fact that the online form did not provide an option for selecting the specific subsections of § 626.9541(1)(i) ... did not prevent her from adding facts ... on the portion of the form that directs her to describe the violation at issue."). However, as there are other deficiencies in all three CRNs, this issue is not dispositive.
Given that the basic identifying information on these CRNs is deficient, I need not address the more complex issue of whether the reason for notice is adequate. However, upon a preliminary review, it appears that there may be deficiencies in this regard too.
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Finally, Plaintiff argues that the fact that the Department did not return its CRNs for lack of specificity shows that its CRNs complied with the statutory requirements. In support of this argument, Plaintiff cites the portion of the statute which provides that within 20 days after the Department receives a CRN, "the department may return any notice that does not provide the specific information required by [ § 624.155(3)(b) ], and the department shall indicate the specific deficiencies contained in the [CRN]." Given the deficiencies discussed above, I do not find that the Department's failure to return Plaintiff's CRN establishes that it complied with the statutory requirements. The statute states that the Department "may" return a CRN that does not contain the required information. Thus, the Department's failure to reject a CRN is not dispositive.
CONCLUSION
Based upon the foregoing, and after careful consideration of Plaintiff's Amended Complaint (DE 24), the Parties’ written submissions, the record, and applicable law, I find that Plaintiff failed to satisfy the condition precedent to filing a statutory bad faith action. As this failure is dispositive of this case as a whole, I need not address Defendant's argument that Plaintiff failed to plead its claims with the requisite specificity. Accordingly, it is hereby
ORDERED AND ADJUDGED that:
1. Defendant's Motion to Dismiss (DE 25) is GRANTED .
2. The Clerk of Court shall CLOSE THIS CASE and DENY all pending Motions AS MOOT .