25 Fla. L. Weekly Supp. 161a
Online Reference: FLWSUPP 2502MATTInsurance — Liability — Coverage — Declaratory judgment — Plaintiff who was not listed as either named insured or additional insured in policies attached to first amended complaint and who failed to allege facts which could qualify the plaintiff as an insured or additional insured under express written language of policies, cannot state cause of action for declaratory judgment regarding additional insurance coverage available to the plaintiff under the policies — Accordingly, count against insurer must be dismissed — Further, complaint against insurer is prohibited by Florida’s non-joinder statute, which requires that a person not insured under policy obtain a settlement or verdict against insured prior to bringing an action against insurer — Because plaintiff is not named insured or additional insured under the policies at issue and has not obtained settlement or verdict against insured, dismissal with prejudice is warranted
MATTAMY (JACKSONVILLE) PARTNERSHIP, a Florida general partnership, Plaintiff, v. EMCO RAIN GUTTERS, INC., a Florida corporation; PRECISION CONSTRUCTION SYSTEMS, INC., a Florida corporation; PREMIER WINDOWS & CABINETS, INC., a Florida corporation; RANCO PLASTERING, INC., a Florida corporation; UPRIGHT CONSTRUCTION, INC., a Florida corporation; AMERICAN SAFETY INDEMNITY COMPANY, an Oklahoma corporation; AMERISURE MUTUAL INSURANCE COMPANY, a Michigan corporation; OLD DOMINION INSURANCE COMPANY, a Florida corporation; SOUTHERN-OWNERS INSURANCE COMPANY, a Michigan corporation; WESTFIELD INSURANCE COMPANY, an Ohio corporation, Defendants. Circuit Court, 4th Judicial Circuit in and for Duval County. Case No. 2015-CA-7599, Division CV-G. April 5, 2017. Tatiana R. Salvador, Judge. Counsel: Mark A. Boyle and Molly Chafe Brockmeyer, Boyle & Leonard, P.A., Fort Myers, for Plaintiff. Reed W. Grimm, Taylor, Day, Grimm & Boyd, Jacksonville, for Old Dominion Insurance Company.
ORDER GRANTING OLD DOMINION INSURANCECOMPANY’S MOTION TO DISMISSFIRST AMENDED COMPLAINT
This matter came before the Court upon Defendant Old Dominion Insurance Company’s Motion to Dismiss First Amended Complaint, filed herein on July 18, 2016. A hearing on the Motion was held on January 12, 2017, at which counsel for the parties were present. Having considered the Motion (Dkt. #129), the Defendant’s Memorandum of Law in Support of its Motion, filed herein on January 6, 2017 (Dkt. #221), Plaintiff’s Omnibus Response to Defendants’ Motion to Dismiss, filed herein on January 4, 2017 (Dkt. #220), the First Amended Complaint (Dkt. #72), argument of counsel and the legal authority presented, this Court finds and rules as follows:
A. Plaintiff filed its First Amended Complaint and Demand for Jury Trial on May 23, 2016, naming eleven (11) Defendants and including forty-six (46) counts. As to Defendant Old Dominion Insurance Company (“Old Dominion”), Plaintiff alleged a cause of action for a declaratory judgment relative to a liability insurance policy or policies issued to Defendant Premier Windows & Cabinets, Inc. (“Premier”) by Old Dominion. (See Count 41). Plaintiff seeks a declaration by this Court about additional insurance coverage available to Plaintiff under the policies issued to Premier by Old Dominion. Plaintiff believes coverage is available to it, as an Additional Insured, under one or more of the subject policies of insurance.
B. Paragraph 249 of the First Amended Complaint alleges that Plaintiff “is, was, should have been and/or was known to be an Additional Insured under one or more of the subject policies” thereby contending that the subject policies provided coverage for Plaintiff’s liability, claims and legal expenses occasioned by the alleged construction defects by the insured subcontractor Premier for Plaintiff’s construction project. In addition, as required under Florida Rule of Civil Procedure 1.130(a), the Plaintiff attached two insurance policies between Old Dominion and Premier under which it seeks the declaration of coverage due to its alleged status as an Additional Insured. (See Exhibits G and H attached to the First Amended Complaint; Dkt #73)[Editor’s Note: Exhibits Omitted].
C. This Court recognizes that in considering a Motion to Dismiss, the allegations in the complaint are viewed in the light most favorable to the Plaintiff. Palm Beach-Broward Medical Imaging Ctr. v. Continental Grain Co., 715 So.2d 343 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1883c]. When evaluating a motion to dismiss for failure to state a cause of action, “the trial court must accept the allegations of the complaint as true.” Doe v. Baptist Primary Care, Inc., 177 So.3d 669, 674 (Fla. lst DCA 2015) [40 Fla. L. Weekly D2307a]. The trial court can not look beyond the four corners of the complaint in deciding the motion. Stubbs v. Plantation Gen. Hosp. Ltd. P’ship, 988 So.2d 683, 684 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1876b]. However, if an exhibit to a complaint contradicts the allegations made in a complaint or negates a cause of action asserted, the exhibit controls and must be considered in determining a motion to dismiss. Fladell v. Palm Beach Cnty. Canvassing Board, 772 So.2d 1240, 1242 (Fla. 2000) [25 Fla. L. Weekly S1102b]; State v. Beach Blvd Automotive, Inc., 139 So.3d 380, 389 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D1023a].
D. Applying these principles to the instant Motion to Dismiss, a review of the insurance policies attached to the First Amended Complaint reveals that there exists a contradiction between the exhibits and the allegations made therein, and thereby preclude the Plaintiff from properly and legally stating a cause of action for declaratory judgment. Plaintiff is not listed as a named insured in the Declarations of the insurance policies, and is not listed as an Additional Insured in either policy, although other companies are. (See Exhibits G and H to the First Amended Complaint) [Editor’s Note: Exhibits Omitted]. Moreover, under the facts alleged in the First Amended Complaint and accepted as true by this Court, Plaintiff does not qualify as an Insured or Additional Insured under the express written language of the policy (See “Who is an Insured” on page 1 of 10 of each of the policies). Thus, absent Plaintiff’s status as a Named Insured or Additional Insured, it cannot state a cause of action for declaratory judgment. On this basis alone, Plaintiff’s Count 41 against Old Dominion must be dismissed.
E. In addition, Plaintiff’s First Amended Complaint as to Old Dominion must be dismissed because such an action against Old Dominion is prohibited by Florida’s Non-Joinder Statute §627.4136, which provides in relevant part:
It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy. (emphasis added).
Florida Statute §627.4136 applies to declaratory judgment actions against insurers. See Tomlinson v. State Farm Fire & Cas. Co., 579 So. 2d 211, 212 (Fla. 2d DCA 1991).
F. In the instant matter, the allegations of the First Amended Complaint show that Plaintiff has not first obtained a settlement or verdict against Premier, who is the insured under the terms of the policies, for a cause of action which is covered by such policies. Indeed, Premier is a named Defendant in this action facing eight counts by Plaintiff (breach of oral and written contract, contractual and common law indemnification, negligence, among other causes of action) for the same construction project and claims for which it seeks coverage from Old Dominion in Count 41. “[A] cause of action against an insurance company by a party who is not its insured does not accrue until a settlement or verdict has been obtained.” Villas at Meadow Lakes Condo. v. U.S. Liab. Ins. Co., No. 12-61469-CIV, 2013 WL 424361 (S.D. Fla. Feb. 1, 2013) (emphasis added). Thus, “where an injured third-party brings a declaratory judgment action against an insurer prior to obtaining a settlement with or verdict against the insured, the action must be dismissed.” So. Owners Ins. Co. v. Mathieu, 67 So.3d 1156, 1159 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1710a] The trial court’s failure to do so is a departure from the essential requirements of the law. Id.
G. Lastly, a claim should be dismissed with prejudice, “when the pleader has failed to state a cause of action and it conclusively appears there is no possible way to amend the complaint to state a cause of action.” Florida Nat. Org. for Women, Inc. v. State, 832 So.2d 911 (Fla. 1st DCA 2002) [28 Fla. L. Weekly D21a]. In this matter, because the Plaintiff is not an Named Insured or Additional Insured under Premier’s insurance policies with Old Dominion and because Plaintiff has not first obtained a settlement or verdict against Premier for a cause of action which is covered by such policies, this Court finds that it conclusively appears there is no way to amend the First Amended Complaint to state of cause of action at this time.
Therefore, based on the above1, it is HEREBY
ORDERED AND ADJUDGED that Defendant Old Dominion Insurance Company’s Motion to Dismiss First Amended Complaint, filed herein on July 18, 2016, is GRANTED with prejudice.
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1Old Dominion raised additional grounds for dismissal which the Court does not address in this Order, as this Court finds dismissal of the claim against Old Dominion is sufficient on the grounds outlined herein
