16 Fla. L. Weekly Supp. 388a
Online Reference: FLWSUPP 165LEVIN
Torts — Negligence — Insured’s action against insurer for breach of duty to ensure adequacy of policy limits — Error to dismiss complaint where four corners of complaint set forth elements of duty of care, breach of that duty, causation and damages and attached documents demonstrating that insurer raised insured’s policy limits on personal property and loss of use every year while limits on residence, personal liability and medical payments to others remained the same could support claim that insurer acted as insured’s agent and owed duty of care
VICKI LEVIN, Appellant, v. USAA CASUALTY INSURANCE COMPANY, a foreign corp., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-126 AP. L.C. Case No. 2007002044CC05.February 26, 2009. An Appeal from the County Court for Miami-Dade County. Counsel: Roy D. Wasson, Wasson & Associates, Chartered, and Eric S. Kleinman, Kleinman & Arrizabalaga, P.A., for Appellant. Michael Simon, Maltzman Foreman, P.A., for Appellee.
(Before STANFORD BLAKE, BEATRICE BUTCHKO, and JOHN W. THORNTON, JR., JJ.)
(BLAKE, J.) Vicki Levin appeals the dismissal of her complaint with prejudice for failure to state a cause of action for negligence. We reverse, finding that the complaint was sufficient to withstand the restrictive scope of review required on a motion to dismiss for failure to state a cause of action.
The ruling of a trial court in dismissing a complaint for failure to state a cause of action is an issue of law requiring de novo review. Romo v. Amedex Insurance Company, 930 So. 2d 643 (Fla. 3d DCA 2006). The function of a motion to dismiss is to test the legal sufficiency of the compliant and not to determine factual issues. The Fla. Bar v. Greene, 926 So. 2d 1195, 1196 (Fla. 2006). Unlike a motion for summary judgment, when ruling on a motion to dismiss, a court may not go beyond the four corners of the complaint in considering the legal sufficiency of the allegations. Pacific Ins. Co., Ltd. v. Botelho, 891 So. 2d 587 (Fla. 3d DCA 2004). All material allegations must be taken as true and considered in the light most favorable to nonmoving party. Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204 (Fla. 3d DCA 2003). It is not for the court to speculate whether the allegations are true or whether the pleader has the ability to prove them. Id. The test is whether any set of facts whatsoever could be proven to support the claim. Wausau Ins. Co. v. Haynes, 683 So. 2d 1123, 1124 (Fla. 4th DCA 1996).
USAA Casualty Insurance Company argues that Levin failed to allege that it undertook any duty to ensure her policy limits were adequate. Whether Levin can ultimately prove the duty element of her claim by showing USAA was acting as her agent is not the question when considering a motion to dismiss, but merely whether she can plead her claim. The four corners of the Levin’s complaint set forth the four elements of a negligence claim which are “duty of care, breach of that duty, causation, and damages.” Clampitt v. Sales, 786 So. 2d 570, 573 (Fla. 2001). Additionally, alleged facts and attached documents that show USAA raised her policy limits on personal property and loss of use every year from 1999 through 2006, while dwelling, personal liability, and medical payments to others remained the same. These facts when taken as true and considered in the light most favorable to Levin arguably could support her claim that USAA acted as her agent and owed her a duty of care. Therefore, we hold the complaint is sufficient to withstand an attack by motion to dismiss for failure to state a cause of action and it was an error to dismiss it with prejudice.
FOR THESE REASONS, the order granting summary judgment in favor of Appellee is REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
REVERSED and REMANDED. (BUTCHKO and THORNTON, JJ., concur.)
