5 Fla. L. Weekly Supp. 253a
Declaratory judgments — Insurance — Plaintiff seeking determination of whether insurer’s violation of certain administrative rules also constitutes a violation of section 627.7282 relating to notice of additional premiums and cancellation for nonpayment; and further seeking determination as to whether statute provides any remedy to insured for wrongful acts of insurer — Declaratory judgment is available when bona fide doubt exists as to right of parties under statute or instrument — Plaintiff properly pleaded ambiguity in statute — Defendant’s argument that statute does not provide plaintiff with civil remedy itself reveals existence of bona fide dispute and existence of doubt as to plaintiff’s rights under statute — Money had and received — Plaintiff’s allegation that defendant charged plaintiff unlawful additional premiums which defendant has retained sufficient to state claim for equitable relief — Contracts — Breach — While mere legal conclusions are not sufficient unless substantiated by allegations of ultimate fact, allegation that insurance contract incorporated Florida statutes was necessary to make plaintiff’s complaint intelligible — Whether contract does incorporate statute and administrative rules not properly determined at this stage of proceedings — Motion to dismiss denied
FULMAN SUPREME, Plaintiff, v. DELTA CASUALTY COMPANY, Defendant. 15th Judicial Circuit in and for Palm Beach County. Case No. CL 97-6027 AG. November 20, 1997. Kathleen J. Kroll, Judge.
ORDER ON DEFENDANT’S MOTION TO DISMISS AND OR STRIKE PLAINTIFF’S COMPLAINT AND CLASS CERTIFICATION
This cause comes before the Court on Defendant’s Motion to Dismiss and/or Strike Plaintiff’s Complaint and Class Certification. Defendant moves for an order of dismissal on a number of grounds. First, Defendant argues that Plaintiff’s claims for declaratory relief must be dismissed because Plaintiff fails to plead an ambiguity or dispute as to the interpretation of a statute, rule, or contract and because Plaintiff asks the Court to determine issues of fact and damages. Second, Defendant argues that Plaintiff’s claims for declaratory relief is improper because the statute and administrative code provisions Plaintiff asks the Court to interpret provide no civil remedy to Plaintiff. Third, Defendant seeks dismissal of Counts II and V of Plaintiff’s complaint on the ground that Florida does not recognize “money had and received” as a cause of action. Finally, Defendant seeks dismissal of Plaintiff’s breach of contract claims on the ground that the claims improperly plead legal conclusions and on the ground that the statutes and administrative code sections relied on by Plaintiff do not provide Plaintiff with a civil remedy.
I. DECLARATORY JUDGEMENT
In Count I, Plaintiff seeks declaratory judgement of its rights in light of an alleged violation of Rule 4-167.002 of the Florida Administrative Code which requires that an insurer complete underwriting of policies and make a final determination of the correct premium for the coverage set forth in the insurance application within sixty days after the effectuation of coverage. In Count II, Plaintiff seeks declaratory judgement in light of a second alleged violation of Rule 4167.002 which provides further that a notice of additional premium must include a time period during which the policyholder has the option to pay the additional premium or cancel. The rule provides that if the policy holder fails to respond, the insurer must cancel the policy within forty five days of the notice of additional premium. Plaintiff seeks a declaration as to whether Defendant violated §627.7282, Fla. Stat. (1995) by violating Rule 4-167.002, whether Defendant is required to charge Plaintiff the originally quoted premium, and whether violation of §627.7282 by Defendant entitles Plaintiff to a premium refund.
The first issue presented by the instant motion is whether Plaintiff properly pleads an ambiguity in §627.7282 or whether Plaintiff improperly seeks a determination of fact and damages. Declaratory judgement is available when bona fide doubt exists as to the rights of parties under a statute or instrument. Halpert v. Olesky, 65 So.2d 762, 763 (Fla. 1953). However, doubt based on disputed factual issues alone is not sufficient to invoke the Court’s power to issue a declaratory judgement. Id. at 764. While resolution of Plaintiff’s claims as to possible violation by Defendant of §627.7282 would necessarily involve some questions of fact, the Court finds that the gravamen of Plaintiff’s Complaint requires construction of the statute. Plaintiff seeks a determination of whether Defendant’s alleged violation of Rule 4-167.002 also constitutes a violation of §627.7282. Plaintiff further seeks a determination as to whether §627.7282 provides any remedy to Plaintiff for wrongful acts of Defendant. That Defendant argues that Plaintiff’s petition for declaratory judgement should be dismissed because §627.7282 does not provide Plaintiff with a civil remedy in itself reveals the existence of a bona fide dispute and the existence of doubt as to Plaintiff’s rights under the statute.
II. MONEY HAD AND RECEIVED
Defendant contends that “money had and received” is not a recognized cause of action in Florida. Alternatively, Defendant contends that Plaintiff failed to properly allege the elements of the cause of action. “Money had and received” is a legal remedy to recover money erroneously received by a defendant when allowing defendant to keep the money would unjustly deprive a plaintiff of ownership of the money. Sharp v. Bowling, 511 So.2d 363, 365 (Fla. 5th DCA 1987). As to the facts which must be alleged to state a claim for money had and received, no exhaustive list can be given of the required allegations. Moore Handley, Inc. v. Major Realty Corp., 340 So.2d 1238, 1239 (Fla. 4th DCA 1976). Rather, the allegations which will state a cause of action depend on the circumstances of the individual case. Id. Plaintiff must allege facts which show that an injustice would occur if money were not refunded Id. Plaintiff alleges in its complaint that Defendant charged Plaintiff unlawful additional premiums which Defendant has retained. These allegations are sufficient to state a claim for equitable relief.
III. Breach of Contract
With regard to Plaintiff’s claims for breach of contract, Defendant urges dismissal on the ground that Plaintiff’s claim depends on conclusory allegations rather than allegations of ultimate fact. Further, Defendant urges dismissal on the ground that no civil remedy is afforded Plaintiff by §627.7282. The allegations complained of by Defendant allege that the insurance contract between Plaintiff and Defendant incorporates, as a matter of law, the Florida Insurance Code and related administrative rules. Plaintiff alleges that by failing to comply with the statutes and administrative rules, Defendant breached the insurance contract.
Mere legal conclusions are not sufficient unless substantiated by allegations of ultimate fact. Loving v. Viecelli, 164 So.2d 560, 561 (Fla. 3d DCA 1964). In the instant case Plaintiff pleads ultimate facts setting out two alleged violations of §627.7282. In doing so, Plaintiff properly stated a cause of action. The allegation regarding the incorporation of Florida statutes into the insurance contract was necessary to make Plaintiff’s claim intelligible. As Plaintiff apparently does not claim that Defendant violated any express contract language, the only way Plaintiff could plead breach of contractual duty was to allege that §627.7282 and the administrative rules were incorporated into the contract. Plaintiff cites a number of cases in support of this allegation. However, the question of whether the contract does in fact incorporate the statute and administrative rules is not properly determined at this stage of the proceedings. Accordingly, the Court having heard arguments of counsel, reviewed memoranda of law, and being otherwise fully advised of the premises, it is
ORDERED and ADJUDGED that Defendant’s Motion to Dismiss and/or Strike Plaintiff’s Complaint is DENIED. Defendant has 14 days to answer. The Court reserves judgement on Defendant’s Motion as it relates to striking of Plaintiff’s class certification until such time as a hearing may be held on that issue.
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