23 Fla. L. Weekly Supp. 255a
Online Reference: FLWSUPP 2303OTAMInsurance — Automobile — Windshield repair — Repair shop’s complaint seeking payment of benefits for windshield repair is dismissed with leave to amend complaint by stating policy terms requiring payment of claim and how insurer breached those terms
FRY ENTERPRISES INC., d/b/a CORNERSTONE MOBILE GLASS as Assignee of-for Juan Otamendi, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 15-1360-SC. June 16, 2015. Kathleen T. Hessinger, Judge. Counsel: Michael Cerasa, Maitland, for Plaintiff. Brendan J. McKay, Banker Lopez Gassler, St. Petersburg, for Defendant.
ORDER DISMISSING COMPLAINTWITH LEAVE TO AMEND
This Cause came to be heard before this Court on Defendant’s Motion to Dismiss with the Parties present, through counsel, and this Court having heard argument and being otherwise advised of the premises, it is hereby Ordered and Adjudged as follows,
1. Plaintiff filed a “Complaint and Statement of Claim” generally alleging that Defendant breached the contract by refusing to pay all or refusing to pay the full amount of benefits for glass repair in accordance with the terms of the policy of insurance for which the insured assigned to Plaintiff.
2. Defendant filed a Motion to Dismiss alleging that Defendant failed to attach a copy of the policy of insurance and failed to allege the terms under the policy for which Plaintiff claims Defendant breached.
3. As to the policy of insurance, Defendant filed the policy; thus, it is moot.
4. As to the general allegations in the Complaint, Plaintiff argues it need only allege a valid contract, material breach of the contract, and damages. Although Plaintiff’s recital of the law is correct, the complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. 1.110(b), Fla. R. Civ. P. See Havens v. Coast Florida, P.A., 117 So.3d 1179, 1181 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D1273b]. Plaintiff merely filed what appears to be a form complaint with bare bone allegations that Defendant failed to pay all or some of the glass repair invoice in accordance with the terms of the policy. Plaintiff failed to allege what terms of the policy Defendant was to pay the claim and how Defendant breached those terms. This Court recognizes that this is a small claims matter requiring a statement of claim, not a complaint, but the Parties stipulated to the use of the civil rules of procedure. However, even under the lower standard of setting forth a claim, Plaintiff has not sufficiently set forth a claim for which it is entitled to relief.
It is therefore Ordered and Adjudged that Defendant’s Motion to Dismiss is GRANTED and Plaintiff shall have 20 days from the date of this order to file an amended complaint. Defendant has 20 days thereafter to file its responsive pleading.
