17 Fla. L. Weekly Supp. 181a

Online Reference: FLWSUPP 1703BAYFTorts — Contracts — Insurance — Jurisdiction — Non-residents — Motion to dismiss filed by nonresident insurer whose codefendant/insured was involved in automobile accident in Florida that resulted in property damage to plaintiff’s vehicle and to custom cabinets in vehicle and who, according to allegations of complaint, committed negligence per se by having an unlicensed adjuster perform appraisal of damages resulting from the accident and breached insurance contract by failing to pay for loss and damages caused by its insured — Where pleadings indicate that insurer had only attenuated relationship with Florida, established only through fact that its insured traveled within state borders, it lacked sufficient minimum contacts with Florida such that it could reasonably anticipate being haled into court in Florida — Insurer’s motion to dismiss counts alleging breach of contractual obligation of good faith and fair dealing, bad faith claims handling, and negligence per se is granted

BAYFRONT CENTRAL SECURITY AND SYSTEMS, Plaintiff, vs. SEMLA HADZISEJDIC and NEW YORK CENTRAL MUTUAL INSURANCE COMPANY Defendants. Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 09-010570-CI-13 UCN: 522009CA010570XXCICI. January 8, 2010. Anthony Rondolino, Judge. Counsel: Charles R. Gallagher, III, Gallagher & Associates Law Firm, P.A., St. Petersburg, for Plaintiff. John W. Weihmuller, James Michael Shaw, Tampa, for Defendant New York Central Mutual Insurance Company. Selma Hadzisejdic, Canadaigua, NY, Pro se Defendant.

ORDER

THIS CAUSE came before the court on Defendant New York Central Mutual’s Motion to Dismiss Plaintiff’s Amended Complaint, by which Defendant seeks dismissal of Counts II, III, IV, and V of the Amended Complaint for lack of in personam jurisdiction and for failure to state a claim. The court, having heard argument of counsel and being otherwise fully advised so now finds:

On December 6, 2004, Defendant Selma Hadzisejdic collided with Plaintiff Bayfront Central Security and System’s (“Plaintiff”) vehicle, used in connection with Plaintiff’s business operations and containing custom cabinets. An appraiser hired by Defendant New York Central Mutual Insurance Company (“Defendant New York Central”) assessed the property damage to the car at $6,451.39 and the property damage and replacement cost for the cabinets at $4,957.44. By Plaintiff’s allegations, Hadzisejdic has not paid for the damages resulting from the accident, nor has Defendant New York Central, who issued an automobile policy covering Hadzisejdic.

Plaintiff commenced this action by filing a Complaint on June 16, 2009. Defendant New York Central filed a motion to dismiss, which was set for hearing. A few days prior to the hearing, Plaintiff filed an Amended Complaint, asserting claims for Negligence (Count 1) against Hadzisejdie; as against Defendant New York Central, Breach of the Contractual Obligation of Good Faith and Fair Dealing (Count II), Bad Faith Claims Handling (Count III), and Negligence Per Se (Count V); and Declaratory Judgment (Count IV) against both defendants. Defendant New York Central filed the instant motion to dismiss.

A plaintiff seeking to establish in personam jurisdiction over a nonresident defendant bears the burden of alleging that (2) the defendant has performed any of the acts enumerated in the Florida long-arm statute, § 48.193 of the Florida Statutes,¹ and (2) the defendant has sufficient minimum contacts with the state so that exercising personal jurisdiction over the defendant comports with due process. Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989).

Plaintiff asserts that a jurisdictional defense based on a disputed fact is improper in a motion to dismiss because the court must accept all allegations within the four corners of the Complaint as true and correct. However, if the allegations of the complaint are sufficient to establish a basis for the court’s long-arm jurisdiction, the defendant may contest jurisdiction by filing a motion to dismiss supported by a legally sufficient affidavit or other sworn proof contesting the complaint’s jurisdictional facts. Crownover v. Masda Corp., 983 So. 2d 709, 712 (Fla. 2d DCA 2008) (citations omitted).

Plaintiff cites to the following provisions of the long-arm statute as subjecting Defendant New York Central to the jurisdiction of Florida courts:

48.193. Acts subjecting person to jurisdiction of courts of state

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:

(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.

(b) Committing a tortious act within this state.

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(d) Contracting to insure any person, property, or risk located within this state at the time of contracting.

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(g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

§ 48.193, Fla. Stat. Specifically, Plaintiff argues that Defendant New York Central carried on business in the state by adjusting an insurance claim; it committed a tort, i.e., negligence per se, by having an unlicensed adjuster perform the appraisal of damages resulting from an accident that occurred in Florida; its insured’s car was present in Florida; it has not proven that Hadzisejdic was a New York resident when she applied for the policy; and Defendant New York Central breached the insurance contract that required it to pay for loss and damages caused by its inured.

Plaintiff relies on Virginia Farm Bureau Mutual Insurance Co. v. Dunford, 877 So. 2d 22 (Fla. 4th DCA 2004), for the proposition that because the insurance policy covered accidents in all states, the nonresident insurer had a contractual obligation to exercise good faith to defend its nonresident insured who was involved in an accident in Florida. Therefore, the insurer’s failure to do so constituted an act that would bring a defendant under section (g) of the long-arm statute. Id. at 23. The court found no violation of due process under International Shoe Co. v. Washington, 326 U.S. 310 (1945), because the insurer should have foreseen that a breach of the duty to exercise good faith in defending claims against the insured in Florida, resulting in a Florida judgment, would subject it to being haled into a Florida court. Dunford, 877 So. 2d at 24. Following this reasoning, Plaintiff argues that a loss in Florida was a foreseeable consequence of issuing a policy with nationwide coverage.

The Florida Supreme Court in Meyer v. Auto Club Insurance Association, 492 So. 2d 1314 (Fla. 1986), rejected a similar conclusion articulated in National Grange Mutual Insurance Co. v. Fondren, 43 So. 2d 1276 (Fla. 4th DCA), rev. denied, 433 So. 2d 980 (Fla. 1983). In Meyer, the plaintiff insured sued the defendant insurer, both residents of Michigan, seeking coverage under his automobile insurance policy for a claim arising from an automobile accident that occurred in Florida. The court noted that the insured risk included the possibility of an accident occurring within any of the states, including Florida, and may be of significance to an insured’s entitlement to coverage. However, “[c]overage vel non is not the issue here. The sole issue before us is whether Florida courts have the power to entertain petitioner’s claim.” Meyer, 492 So. 2d at 1315.

The Meyer court followed the reasoning in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), in which the Supreme Court rejected the theory that this type of foreseeability is a basis for establishing in personam jurisdiction. “[The foreseeability that is critical to due process analysis . . . is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297 (cited in Meyer, 492 So. 2d at 1316). The central focus is “the relationship among the defendant, the forum, and the litigation.” Shaffer v. Heitner, 433 U.S. 186, 204 (1977); Rush v. Savchuk, 444 U.S. 320 (1980).

Defendant New York Central has submitted the Affidavit of Timothy A. Trueworthy, a casualty representative, who testified that Defendant New York Central is incorporated in New York and has its principal place of business in New York; at relevant times, Defendant New York Central has not sold insurance, issued or delivered policies, obtained a license to do business, transacted business, or maintained any offices or agents to transact business in the State of Florida. Moreover, when the contract was entered into between the co-defendants, Hadzisejdie was also a New York resident.

In opposition, Plaintiff emphasizes that Defendant New York Central engaged an unlicensed appraiser in Florida to assess damages and that such action constituted a business activity within the state. However, Plaintiff has failed to demonstrate that Defendant New York Central, through this isolated activity, purposely directed its activities to the residents of Florida or that the litigation arises from or relates to this activity. See Baranek v. Am. Optical Corp., 941 So. 2d 1214, 1218 (Fla. 4th DCA 2006). Instead, the pleadings indicate that Defendant New York Central has only an attenuated relationship with the state of Florida, established in this instance only through its insured travelling within the state borders. Under these circumstances, even if the actions of Defendant New York Central bring it within the reach of Florida’s long-arm statute, it lacks sufficient minimum contacts with the state such that it could reasonably anticipate being haled into court in Florida. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

Therefore, the court GRANTS the Defendant New York Central’s Motion to Dismiss Plaintiff’s Amended Complaint for lack of personal jurisdiction.² Counts II, III, and V are DISMISSED, and Count IV is DISMISSED as against Defendant New York Central.

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¹The court does not address whether New York law or Florida law applies under choice of law rules. For purposes of determining whether this court has personal jurisdiction over Defendant New York Central, Florida laws control.

²In light of this conclusion, the court does not address whether Plaintiff’s Amended Complaint states a claim or claims against Defendant New York Central.