11 Fla. L. Weekly Supp. 430a
Insurance — Cancellation — Motion to dismiss complaint in action for return of unearned premium denied — Claim for monies had and received is not barred by existence of other legal remedies because claim functions as legal, not equitable claim — Contracts — Insured is not required to bring action for failure to return unearned premium under section 624.155, but may maintain breach of contract action
MARTHA GARCIA, Plaintiff, v. OMNI INDEMNITY COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 01-15739 CA 15. March 5, 2004. Gill S. Freeman, Judge. Counsel: Carlos Lidsky. Valerie Itkoff.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED COMPLAINT
THIS CAUSE came before the Court on May 8, 2003, pursuant to the Defendant’s Motion to Dismiss the Plaintiff’s First Amended Complaint. The Court have heard argument of counsel, having reviewed the Memoranda of Law submitted by the parties and the court file, the Court finds as follows:
1. Defendant has moved to dismiss the claim for “monies had and received” contending that the cause of action is an equitable one and may not stand because the contract provides an adequate remedy at law. Case law is unclear as to whether the cause of action is in fact equitable or an action at law. Lance Holding Company v. Ashe, 533 So. 2d 929, 930, n.2. (Fla. 5th DCA 1988); Guthhartz v. Lewis, 408 So.2d 600 (Fla. 3d DCA 1982). The Third DCA in Guthartz, in dicta indicates that claims for “money had and received” function as legal, not equitable claims and, are therefore not barred by the existence of other legal remedies. Thus, the Defendant’s Motion to Dismiss the count for “monies had and received” is denied as the complaint has stated sufficient allegations to sustain the cause of action.
2. Defendant has moved to dismiss the count for breach of contract because the counts alleging the failure to return an unearned premium may only be brought pursuant to Florida Statute §624.155. However, as the Third District Court of Appeal recognized in Stinson v. United Auto Ins. Co., 734 So.2d 505, 507 (Fla. 3d DCA 1999), Fla. Stat. §624.155 specifically provides that it does not preempt any other remedies. See also, Isai v. American Colonial Insurance Co., 29 Fla. L. Weekly D114 (Fla. 4th DCA 2003).
It is therefore;
ORDERED and ADJUDGED that the Defendant Omni Indemnity Company’s Motion to Dismiss the First Amended Complaint is hereby denied. The Defendant shall have ten (10) days to file its answer to the First Amended Complaint.
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