28 Fla. L. Weekly Supp. 541a
Online Reference: FLWSUPP 2806DR
Insurance — Automobile — Windshield repair — Motion to dismiss or stay case and compel appraisal is denied — Allegations in amended complaint contain all necessary elements to support causes of action asserted
DR CAR GLASS, LLC., a/a/o Rafi Boas, Plaintiff. v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2019-014630-SP-26, Section SD05. August 17, 2020. Michaelle Gonzalez-Paulson, Judge. Counsel: Martin I. Berger, Berger & Hicks, P.A., Miami, for Plaintiff. Isaiah E. James, Cole, Scott & Kissane, P.A., Jacksonville, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONTO DISMISS PLAINTIFF’S AMENDED COMPLAINTOR ALTERNATIVELY MOTION TOSTAY AND COMPEL APPRAISAL
This cause came before the Court on August 6, 2020, on Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint or Alternatively Motion to Stay and Compel Appraisal. The Court, having reviewed Defendant’s Motion, Plaintiff’s Response in Opposition, the Court file, and having heard argument of counsel, reviewed relevant legal authority, and been otherwise advised in the premises, the Court finds as follows:
This is a dispute under a policy for automobile comprehensive insurance regarding the manner and method by which Defendant must reimburse Plaintiff for the replacement of the insured’s damaged windshield. Defendant issued a policy of insurance to the insured, Rafi Boas, which covered physical damages to the subject motor vehicle. On August 26, 2019, Plaintiff submitted its bill for the replacement of the damaged windshield to Defendant for payment. On September 9, 2019, Defendant underpaid Plaintiff’s invoice, and sought to invoke the appraisal provision of the subject insurance policy.
On February 14, 2020, Plaintiff filed its Amended Complaint. Plaintiff’s Amended Complaint alleges five counts seeking declaratory relief based upon alleged ambiguities and deprivations of rights contained in the subject insurance policy that leave Plaintiff unsure of its rights, specifically as they pertain to the appraisal clause and limit of liability sections of the policy. Plaintiff’s Amended Complaint also, in the alternative, alleges one count for breach of contract. On February 26, 2020, Defendant filed its Motion to Dismiss Plaintiff’s Amended Complaint or Alternatively Motion to Stay and Compel Appraisal. Defendant’s Motion alleges that Plaintiff’s lawsuit should be dismissed in its entirety because Plaintiff failed to participate in the appraisal process described in Defendant’s insurance policy. Alternatively, Defendant is seeking for the Court to stay this matter and compel participation in Defendant’s appraisal process.
A motion to dismiss tests the legal sufficiency of a complaint. See Bess v. Eagle Capital, Inc., 704 So. 2d 621 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D2571a]. In ruling on a motion to dismiss, this Court is confined to the four comers of the complaint. See Cook v. Sheriff of Collier County, 573 So. 2d 406,408 (Fla. 2d DCA 1991); Murphy v. Bay Colony Prop. Owners Ass’n, 12 So. 3d 924, 926 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D1467a]. On a motion to dismiss, the moving party is deemed to admit all matters alleged in the complaint and the reasonable inferences arising therefrom and may not speculate as to whether the nonmoving party’s allegations will ultimately be proven. See Cook, 573 So. 2d at 408; Murphy, 12 So.3d at 926; Maciejewski v. Holland, 441 So. 2d 703, 704 (Fla. 2d DCA 1983). The relevant inquiry is “not whether the allegations are true, or whether the pleader has the ability to prove them.” Sobi v. Fairfield Resorts, Inc., 846 So. 2d 1204, 1206 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1350a]. Rather, the sole question for the court is “whether, assuming all the allegations in the complaint to be true, the plaintiff would be entitled to the relief requested.” Cintron v. Osmose Wood Preserving, Inc., 681 So. 2d 859, 860-61 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D2249d]; Barbado v. Green & Murphy, P.A., 758 So. 2d 1173, 1174 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1084a] (holding that on a motion to dismiss, all material allegations are accepted as true and speculation by the court as to whether the allegations will ultimately be proven is not permitted).
Upon review of Plaintiff’s Amended Complaint, the Court finds that Plaintiff’s allegations, which must be taken as true for the purposes of this analysis, in Counts I through VI, contain all necessary elements to support each cause of action.
Therefore, this action is not ripe for dismissal.
Accordingly, it is ORDERED and ADJUDGED, that Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint or Alternatively Motion to Stay and Compel Appraisal is hereby DENIED.
