22 Fla. L. Weekly Supp. 854a
Online Reference: FLWSUPP 2207GARCInsurance — Automobile — Claim that defendant is not insurer for plaintiff’s assignee is not grounds for motion to dismiss and should be raised, instead, as affirmative defense
BROWARD INSURANCE RECOVERY CENTER LLC a/a/o Edgar Garcia, Plaintiff, v. TRAVELERS INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-004880 COWE 80. January 14, 2015. Honorable Eric Beller, Judge. Counsel: Emilio R. Stillo, for Plaintiff. Tera M. Radigan, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE came before the Court on January 16, 2015 for hearing on Defendant’s Motion to Dismiss, and the Court’s having reviewed the motion and entire Court file; reviewed the relevant legal authorities; heard argument; and been sufficiently advised in the premises the Court finds as follows:
Findings of Fact: The Plaintiff has pled a one count complaint alleging breach of contract for failure to pay in full for glass repair under a comprehensive/collision policy issued by the Defendant. The Defendant has filed a Motion to Dismiss alleging that “Travelers Indemnity Company was not the insurer for assignee Edgar Garcia”. On September 25, 2014, the Defendant filed Answers to Interrogatories identifying the adjuster as being employed by “Travelers”. Further, the Defendant identifies the issue as a dispute over the reasonable amount of glass repairs and acknowledges partial payment.
In reviewing Defendant’s Motion to Dismiss, this Court is limited to an examination of the four corners of the Complaint and its attachments, and this Court must consider the allegations raised by Defendant’s Motion to Dismiss in the light most favorable to the Plaintiff, as the non-moving party, accepting all allegations in the Complaint as true; additionally, all reasonable inferences must be drawn in favor of the pleading party. Solorzano v. First Union Mortgage Corporation, 896 So.2d 847 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D528a]. In this regard, Plaintiff has stated a valid cause of action within the four corners of the Complaint, and further, the grounds stated for the relief requested by Defendant’s Motion to Dismiss should instead be raised as Affirmative Defenses in Defendant’s Answer.
ORDERED AND ADJUDGED THAT: the Defendant’s Motion to Dismiss is DENIED. The Court further finds the complaint to be sufficiently drafted to require the Defendant to file an Answer and Affirmative Defenses. Defendant shall file an Answer and Affirmative Defenses within twenty (20) days of the date of this Order.
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