27 Fla. L. Weekly Supp. 374a

Online Reference: FLWSUPP 2704DBREInsurance — Property — Limitation of actions — Statute of limitations for breach of property insurance cause of action begins to run from date of loss, not date contract is breached

DANIEL BEITRA and JEANNETTE BEITRA, Plaintiffs, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. CACE18-023215 (09). February 25, 2019. Jeffrey R. Levenson, Judge. Counsel: Daniel Norton, Shochet Law Group, Lake Worth, for Plaintiffs. Michael J. Kranzler, Goldstein Law Group, P.A., Fort Lauderdale, for Defendant.

ORDER GRANTING DEFENDANT’S MOTIONTO DISMISS PLAINTIFFS’ SECOND COMPLAINTWITH PREJUDICE FOR EXPIRATIONOF STATUTE OF LIMITATIONS

THIS CAUSE came before the court on Defendant’s Motion to Dismiss Plaintiffs’ Second Complaint with Prejudice for Expiration of Statute of Limitations. This Court, having reviewed the motion and the responses, the record, and the applicable law, and being otherwise duly advised in the premises, rules as follows:

This action arises out of a property insurance dispute brought by Plaintiffs, Daniel and Jeannette Beitra (“Plaintiffs”) against Defendant, Citizens Property Insurance Corporation (“Defendant”), whereby Plaintiffs allege that Defendant failed to: (1) indemnify Plaintiffs for losses under their insurance policy; and (2) sufficiently investigate their claim. On September 17, 2018, Plaintiff’s filed their Notice of Voluntary Dismissal without Prejudice in case number CACE 17-012159. On October 2, 2018, Plaintiffs filed their Second Complaint premised upon the same claim as their initial complaint in case number CACE17-012159. On November 13, 2018, however, the court entered an Order consolidating both cases.¹ On December 17, 2018, Defendant filed the instant motion to dismiss. During a hearing before the court on February 19, 2019, the court deferred ruling on Defendant’s motion until February 25, 2019. At the hearing, the court also instructed Plaintiffs to immediately file a response to Defendant’s motion, while also, instructing Defendant to file its reply, thereafter, if needed. On February 20, 2019, Plaintiffs filed their response. That same day, Defendant filed its reply. A hearing was held before the court on February 25, 2019.

Under Florida law, it is well-settled that “the function of a motion to dismiss a complaint is to raise a question of law as to the sufficiency of the facts alleged to state a cause of action.” Hitt v. North Broward Hosp. Dist., 387 So. 2d 482, 483 (Fla. 4th DCA 1980). “The motion admits as true all well pleaded facts as well as all reasonable inferences arising from those facts.” Id. “The allegations must be construed in the light most favorable to plaintiffs and the trial court must not speculate what the true facts may be or what will be proved ultimately in trial of the cause.” Id. A motion to dismiss is not a substitute for a motion for summary judgment. Baycon Indus., Inc. v. Shea, 714 So. 2d 1094, 1095 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D1552b]. In ruling on a motion to dismiss a complaint, the trial court is confined to consideration of the allegations found in the four corners of the complaint. Id. “[U]nless it clearly appears as a matter of law that a contract cannot support the action alleged, a complaint should not be dismissed on motion to dismiss for failure to state cause of action.” Vienneau v. Metro. Life Ins. Co., 548 So. 2d 856, 859 (Fla. 4th DCA 1989).

In its motion, Defendant argues that section 95.11(2)(b), Florida Statutes, bars Plaintiffs’ new claim for breach of contract. Specifically, Defendant argues that the five-year statute of limitations period prescribed by the statute began running when the last element giving rise to Plaintiffs’ cause of action occurred, which is July 12, 2012. For this reason, Defendant avers that Plaintiffs’ Second Complaint, filed on October 2, 2018, runs afoul of the statute of limitations and should be dismissed. Conversely, Plaintiffs’ contend that the statute of limitations in a breach of contract action begins to run when the contract is breached and not from the date of loss. In particular, Plaintiffs’ suggest that the letter of representation by the public adjuster, which contains an estimate of Plaintiffs’ repairs and is dated June 6, 2017, initiated the statute of limitations period and thus, does not preclude their claim. In its reply, nonetheless, Defendant asserts that pursuant to section 95.11(2)(e), the statute of limitations for a breach of property insurance contract cause of action begins to run from the date of loss, which is June 30, 2012. This Court agrees.

Section 95.11(2)(e) states, in pertinent part:

Actions other than for recovery of real property shall be commenced as follows:

(2) Within five years —

(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, . . .

(e) Notwithstanding paragraph (b), an action for breach of a property insurance contract, with the period running from the date of loss.

§ 95.11(2)(e), Fla. Stat. (emphasis added). In their Second Complaint, Plaintiffs clearly allege that the date of loss is June 30, 2012. See Pls.’ Second Compl. ¶ 9. Taking the allegations of Plaintiffs’ Second Complaint as true, as this Court must for purposes of a motion to dismiss, the statute of limitations commenced on this date. As such, Plaintiffs’ Second Complaint, filed October 2, 2018, unquestionably, contravenes the five-year statute of limitations. Therefore, Plaintiffs’ claim for breach of contract is barred pursuant to section 95.11(2)(e). Florida Statutes.

After careful consideration, this Court determines that, in giving the statute its “plain and obvious meaning,” the filing of Plaintiffs’ Second Complaint violates of the statute of limitations fixed by section 95.1 1(2)(e), Florida Statutes. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 367 (Fla. 2013) [38 Fla. L. Weekly S17a] (quoting A.R. Douglass, Inc. v. Mc Rainey, 137 So. 157, 159 (1931)) (“If statutory language is ‘clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ”) (emphasis added). Therefore. Defendant’s motion to dismiss is granted with prejudice.

Accordingly, it is hereby:

ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Plaintiffs’ Second Complaint with Prejudice for Expiration of Statute of Limitations is GRANTED with prejudice.

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¹“Consolidation does not merge suits into a single cause or change the rights of the parties or make those who are parties in one suit parties in another. Rather, each suit maintains its independent status with respect to the rights of the parties involved.” Santiago v. Mauna Loa Inv., Inc., 189 So. 3d 752, 757 (Fla. 2016) [41 Fla. L. Weekly S91a] (quoting Wagner v. Nova Univ., Inc., 397 So. 2d 375, 377 (Fla. 4th DCA 1981)).