28 Fla. L. Weekly Supp. 125a
Online Reference: FLWSUPP 2802DIRE
Insurance — Declaratory actions — Complaint for declaratory relief filed by insurer against eight defendants is deficient where complaint is drafted in manner in which each succeeding count incorporates by reference prior averments not attributed to any one defendant, requiring that defendants respond to claims against other unrelated defendants — Further, complaint does not show doubt or uncertainty as to existence of some right, status, immunity, power or privilege and, accordingly, does not state cause of action for declaratory relief — Motion to dismiss granted
DIRECT GENERAL INSURANCE COMPANY, Plaintiff, v. GINA JACKSON, MICHAEL NORMAN, AMANDA BELAMONTE, MICHAEL BELAMONTE, AUSTIN HOPPER, NEXT MEDICAL FLORIDA, FLORIDA EMERGENCY PHYSICIANS, and STAND UP MRI OF ORLANDO, Defendants. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 2018-CA-012235-O, Division 37. March 24, 2020. John Marshall Kest, Judge. Counsel: Eric Nelsestuen, Savage Villoch Law, PLLC., Tampa, for Plaintiff. Michelle R. Reeves, Simoes Davila, PLLC, Ocala, for Next Medical of Florida; John P. Gaset, Dinsmore & Shohl, LLP, Tampa, for Florida Emergency Physicians Kang & Associates, M.D., Inc.; and Keith M. Petrochko, Simoes Davila, PLLC, Ocala, for Stand Up MRI of Orlando, Defendants.
ORDER ON DEFENDANT,STAND UP MRI OF ORLANDO’S RENEWED MOTIONTO DISMISS, OR, IN THE ALTERNATIVE,MOTION FOR MORE DEFINITE STATEMENT
THIS CAUSE having come before the Court upon Defendant, STAND UP MRI OF ORLANDO’s Motion to Dismiss, or, in the alternative, Motion for More Definite Statement, and the Court having considered the Motion, having reviewed the record, heard argument of counsel, and being otherwise fully advised in the premises, it is hereby CONSIDERED, ORDERED and ADJUDGED as follows:
PROCEDURAL BACKGROUND
1. Direct General insurance Company (the “Insurance Company”) filed a one-count Complaint for Declaratory Relief against seven defendants, including Stand Up MRI Of ORLANDO (“Stand Up”), on November 8th, 2018.
2. Stand Up filed a Motion to Dismiss, or, in the Alternative, Motion for More Definite Statement on August 16, 2019.
3. The Insurance Company filed a Motion to Amend the Complaint to add an eighth defendant on April 11, 2019; the Court granted the Motion to Amend on July 17, 2019.
4. Stand Up renewed its Motion to Dismiss, or, in the Alternative, Motion for More Defendant Statement on January 22, 2019. This motion is the subject of this order.
5. At the hearing held on March 4th, 2020, and within its filed motion, Stand Up advanced the position that, as eight unrelated defendants are required to answer a one-count Complaint, which incorporates by reference all preceding paragraphs, which are not directed to any one defendant, the Complaint is legally unintelligible and should be dismissed. Stand Up further states that the Complaint shows no doubt or uncertainty, and therefore is not ripe as a Declaratory Action, thus it should be dismissed.
6. At the hearing held on March 4th, 2020 the Insurance Company argued that the defendants should simply deny allegations which are not unique to them. There was no written response.
ANALYSIS
In Florida, every cause of action, whether derived from statute or common law, is comprised of necessary elements which must be proven for the plaintiff to prevail. See Barrett v. City of Margate, 743 So.2d 1160, 1162 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D2398a]. To state a cause of action, the pleading must contain a “short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” Id. Additionally, the body of a pleading is comprised of averments, which must be made in consecutively numbered paragraphs, the contents of which should be limited to a statement of a single set of circumstances. Doyle v. Flex, 210 So.2d 493, 494 (Fla. 4th DCA 1968). Only those paragraphs that are applicable to a particular cause of action should be realleged and incorporated by reference. Id.
In the matter sub judice, the Complaint is drafted in such a way that each succeeding count incorporates by reference averments which are not attributed to any one of the eight defendants. As an example, Paragraph 21 incorporates paragraphs 1-19. Further, it requires that the eight individual defendants respond to claims against other, non-related defendants. Commingling various claims against all defendants together may warrant dismissal of a complaint pursuant to Fla. R. Civ. P. 1.110(f). See generally Collado v. Baroukh, 226 So. 3d 924, 926 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D1916a].
Additionally, the test recognized in Florida as to whether or not a complaint will state a cause of action under the Florida Declaratory Judgment Act is “whether or not the party seeking a declaration shows that he is in doubt or is uncertain as to the existence of some right, status, immunity, power or privilege and has an actual, practical and present need for the declaration.” See Lutz v. Protective Life Ins. Co., 951 So. 2d 884 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D160a]. The Complaint shows no such doubt or uncertainty.
THEREFORE, IT IS HEREBY ORDERED that:
1. The Court finds that the individual Defendants have a right to know specifically what is being alleged against them. A more definite statement will not cure the issue presented. Therefore, Defendant’s Motion to Dismiss is GRANTED. Plaintiff may cure with an amended complaint; and
2. The Court finds that Plaintiff must show the basis for its requested Declaratory Relief as to each individual defendant.
