15 Fla. L. Weekly Supp. 1015b
Insurance — Property — Failure to pay or deny claim within 90 days — Statute that requires property insurer to pay or deny claim within 90 days of receipt specifically forbids private cause of action based solely on failure to comply with requirement — Complaint for breach of contract based on failure to comply is dismissed with prejudice
MARVIN AND TINA WILLIAMS, Plaintiff, vs. FEDERATED NATIONAL INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502008SC004179XXXXMB (RB). August 20, 2008. Ted Booras, Judge. Counsel: David Bierman, Law Office of Russel Lazega, for Plaintiff. Rory P. Biggins, Kirwan & Spellacy, P.A., Fort Lauderdale, for Defendant.
AFFIRMED at 16 Fla. L. Weekly Supp. 733b
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come upon to be heard on Defendant’s Motion to Dismiss, the Court having considered same, and being otherwise advised in the premises, does hereby make the following findings of fact and conclusions of law:
1. That the Plaintiff has sued the Defendant for alleged breach of contract pursuant to Florida Statute § 627.70131(5)(a).
2. That the sole cause of action for Plaintiff’s Complaint is based upon Florida Statute § 627.70131(5)(a), which specifically forbids such an action.
3. Florida Statute 627.70131(5)(a) states, in pertinent part, the “Failure to comply with this subsection constitutes a violation of this code. However, failure to comply with this subsection shall not form the sole basis for a private cause of action.” (Emphasis Added].
4. That “[t]he legislature is assumed to have expressed its intent through the words found in [a] statute.” Nationwide Insurance Company v. Southeast Diagnostics, Inc., 766 So. 2d 229 (Fla. 4th DCA 2000).
5. That “[i]f the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended.” Id. citing Zuckerman v. Alter, 615 So. 2d 661, 663 (Fla. 1993).
6. That when the plain wording of a Florida Statute is clear and unambiguous, a Florida Court is not permitted to add words to steer its meaning nor to edit statutes to add requirements not included by the legislature. Id. citing James Talcott, Inc. v. Bank of Miami Beach, 143 So. 2d 657, 659 (Fla. 3d DCA 1962) and Meyer v. Caruso, 731 So. 2d 118, 126 (Fla. 4th DCA 1999).
7. That because Fla. Stat. § 627.70131(5)(a) is clear and specifically prohibits its use as the sole cause of action in a Complaint the Plaintiff’s Complaint for Breach of Contract does not state a cause of action for which relief can be granted and, accordingly, must be dismissed.
Fla. Stat. § 627.70131(5)(a) is clear in its statement that the failure to comply with subsection (5)(a) shall not form the sole basis for a cause of action and, accordingly, it is hereupon ORDERED AND ADJUDGED:
1. That the Plaintiff’s Complaint for Breach of Contract is hereby dismissed with prejudice because the Plaintiff has not stated a claim upon which relief can be granted.
2. That the Plaintiff shall take nothing from this action.
3. That the Court reserves jurisdiction to award attorney’s fees and costs to the Defendant.
