28 Fla. L. Weekly Supp. 536a
Online Reference: FLWSUPP 2806SOTO
Insurance — Property — Declaratory action against Citizens Property Insurance Corporation seeking declaration on coverage for benefits is not barred by Citizens’ statutory sovereign immunity
M & G RESTORATION GROUP, INC., a/a/o Clara Soto, Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2020-006729-CC-25, Section CG02. July 21, 2020. Elijah A. Levitt, Judge. Counsel: Francisco Cieza and Daniela Coy, Francisco Cieza, P.A., Coral Gables, for Plaintiff. Briana L. Jones, Boca Raton, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE, having come before this Court on July 13, 2020, on Defendant’s Motion to Dismiss Plaintiff’s Complaint for Declaratory Relief, and this Court having read and considered the Motion, having reviewed the Court file and relevant legal authorities, having heard argument, having made a thorough review of the matters argued, and having been sufficiently advised in the premises, it is hereby ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion to Dismiss Plaintiff’s Complaint is DENIED.
2. Defendant shall have twenty (20) days from the date of this Order to file an Answer to the Complaint.
In support of this Order, the Court provides the following:
Section 627.351(s)(1), Florida Statutes (2020), states,
There shall be no liability on the part of, and no cause of action of any nature shall arise against, any assessable insurer or its agents or employees, the corporation or its agents or employees, members of the board of governors or their respective designees at a board meeting, corporation committee members, or the office or its representatives, for any action taken by them in the performance of their duties or responsibilities under this subsection. Such immunity does not apply to:
a. Any of the foregoing persons or entities for any willful tort;
b. The corporation or its producing agents for breach of any contract or agreement pertaining to insurance coverage;
c. The corporation with respect to issuance or payment of debt;
d. Any assessable insurer with respect to any action to enforce an assessable insurer’s obligations to the corporation under this subsection; or
e. The corporation in any pending or future action for breach of contract or for benefits under a policy issued by the corporation; in any such action, the corporation shall be liable to the policyholders and beneficiaries for attorney’s fees under s. 627.428.
Based on the plain language of the statute, Defendant does not have immunity in an action “for benefits under a policy issued by the corporation.” Id. The Complaint filed in the present case is a declaratory judgment action seeking a declaration on coverage for benefits under section 86.021, Florida Statutes (2020), and on whether Plaintiff is entitled to seek benefits in excess of the cap provided in the Reasonable Emergency Services section of the insurance policy. Section 627.351(s)(1) does not limit the type of “action” that may be brought so long as the action is “for benefits” under the policy. The Court finds that the present action is one “for benefits” under the policy.
Wherefore, the Court denies Defendant’s Motion to Dismiss
