5 Fla. L. Weekly Supp. 76a

Torts — Fraud — Insurance agent — Punitive damages — Reasonable basis for punitive damages exists where plaintiff alleged that defendant, acting as its agent, caused a lapsed commercial automobile insurance policy to be reinstated by falsely assuring plaintiff that insured had incurred no losses during period insurance had lapsed — Plaintiff sufficiently alleged that defendant fraudulently concealed loss with purpose of realizing a profit by receiving a commission upon reinstatement of policy — Plaintiff alleged defendant was acting in fiduciary capacity at time of alleged concealment — Information allegedly concealed by defendant was material where plaintiff would not have reinstated policy had it known of accident — Allegations of complaint provide circumstantial evidence of intent or purpose, so that reasonable basis exists for award of punitive damages

MARYLAND CASUALTY COMPANY, Plaintiff, v. MICHAEL ROSIER, Defendant. 13th Judicial Circuit in and for Hillsborough County, General Civil Division. Case No. 95-3453, Division O. September 23, 1997. William Fuente, Judge. Counsel: H. David Luff, Sanders, McEwan, Martinez, Luff & Dukes, P.A., Orlando, for Plaintiff. Lee D. Gunn, IV, Gunn, Ogden & Sullivan, P.A., Tampa, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION TO LIFT STAY AND TO ALLOW PROSECUTION OF PUNITIVE DAMAGE CLAIM

THIS CAUSE came before the Court for hearing on September 4, 1997 on Plaintiff’s Motion to Lift Stay and to Allow Prosecution of Punitive Damage Claim. Having considered the pleadings, memoranda of law, arguments of counsel, and being otherwise informed in the premises, the Court grants plaintiff’s motion for the reasons that follow.

FACTUAL BACKGROUND

Defendant was an insurance agent for Plaintiff. Plaintiff issued a commercial insurance policy to Eagle Demolition Company, Inc., hereinafter referred to as “Eagle Demolition,” for business automobile coverage effective from January 30, 1993 to January 30, 1994. As a result of the nonpayment of premiums by Eagle Demolition, Plaintiff canceled the policy on June 26, 1993. On July 8, 1993, Gary Galusha, an employee of Eagle Demolition, was operating a dump truck within the scope of his employment and collided with Jason Peterson, who was operating a moped. Peterson sustained physical injuries and was transported to Tampa General Hospital. Galusha reported to Eagle Demolition that Peterson was hurt in the accident and that he was taken to the hospital.

On the day following the accident, July 9, 1993, Robert Shulnburg, president of Eagle Demolition, informed the Defendant that he wanted to reinstate his lapsed insurance policy. Defendant contacted Plaintiff about reinstating the policy. Plaintiff indicated that it would reinstate the policy if Eagle Demolition had not sustained any losses and when the overdue premium was rendered. Plaintiff requested a signed statement that Eagle Demolition had incurred no losses during the lapsed period from June 26, 1993 to July 9, 1993. Defendant advised Plaintiff verbally that Eagle Demolition had incurred no losses. Shulnburg had advised the Defendant that one of Eagle Demolition’s trucks had been involved in an accident. (See Second Amended Complaint at 1-3, paras. 3-11); (See generally Deposition of Defendant at pages 79, 96, 97; Deposition of Nancy Carter at pages 11-27).

PROCEDURAL HISTORY

On August 20, 1996, this Court entered its Order Allowing Amendment of Plaintiff’s Complaint and Abating Claim to Punitive Damages. The Court reserved ruling on the issue of punitive damages and stayed and/or abated any allegation in Plaintiff’s Second Amended Complaint until further order. Plaintiff conducted additional discovery and now seeks leave to prosecute its claim for punitive damages for Count IV of the Second Amended Complaint alleging fraudulent concealment. Plaintiff requests this Court to lift the stay and to terminate the abatement of its punitive damages claim.

DISCUSSION

An award of punitive damages is appropriate when a defendant acts fraudulently, maliciously, with deliberate violence or oppression, or with gross negligence indicating a wanton disregard for the rights of others. W.R. Grace & Co.-Conn. v. Waters, 638 So.2d 502, 503 (Fla. 1994) (citing White Construction Co. v. Dupont, 455 So.2d 1026, 1028-29 (Fla. 1984); Winn & Lovett Grocery Co. v. Archer, 171 So. 214, 221 (1936)), superseded on other grounds by statute as stated in State v. Jones, 461 So.2d 97 (Fla. 1994) (pertaining to shopkeeper’s right to detain). Plaintiff alleges that Defendant fraudulently concealed material information from Plaintiff. (See Second Amended Complaint at 7, 8, paras. 25, 27). Plaintiff contends that it is entitled to assert a claim for punitive damages because “punitive damages are appropriate for any tortious conduct accomplished through fraud.” (See Plaintiff’s Motion to Lift Stay and to Allow Prosecution of Punitive Damages Claim at 2) (quoting First Interstate Development Corp. v. Ablanedo, 511 So. 2d 536, 538-39 (Fla. 1987)) (citing Winn & Lovett Grocery Co. v. Archer, 171 So. 214 (Fla. 1936)).

PREDICATE NECESSARY TO SUSTAIN CLAIM FOR PUNITIVE DAMAGES

Section 768.72 of the Florida Statutes provides as follows:

In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which provides a reasonable basis for recovery of such damages. The claimant may move to amend his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages….

Fla. Stat. §768.72 (1995) (emphasis added).

The plain language of this statute requires a plaintiff to “show this evidentiary basis before the court may allow such a claim.” A plaintiff must seek leave of court to amend his complaint before a punitive damage claim is asserted. At that juncture, the court must ascertain whether there is a “reasonable basis” for the recovery of punitive damages. Simeon, Inc. v. Cox, 671 So. 2d 158, 160 (Fla. 1996); See also Globe Newspaper Company v. King, 658 So. 2d 518, 519 (Fla. 1995) (Section 768.71, Florida Statutes creates a substantive legal right not to be subject to a punitive damages claim until the court determines that there is a “reasonable basis” for recovery of punitive damages); Kraft General Foods, Inc., 635 So. 2d 106, 110 (Fla. 4th DCA 1994) (before a claim for punitive damages can be made, a judge must first determine whether a “factual basis” exists to allow the claim to be pleaded), rev. denied, 642 So. 2d 1363 (Fla. 1994); Wolper Ross Ingham & Company, Inc., 544 So. 2d 307, 308 (Fla. 3d DCA 1989) (“By its clear terms, the statute requires” a plaintiff to make a “showing by proffer or through evidence in the record that some reasonable basis exists to support recovery of punitive damages” before plaintiff is permitted to plead such damages). In order to recover punitive damages, it is necessary for the plaintiff to “allege some general facts and circumstances of fraud.” Winn v. Lovett Grocery Co, 171 So. 214, 222 (Fla. 1936) (emphasis added).

Section 768.72, Florida Statutes requires a court to determine the “legal sufficiency” of a punitive damage pleading. Henn v. Sandler, 589 So. 2d 1334, 1336 (Fla. 4th DCA 1991). An evidentiary hearing is not statutorily mandated. A proffer of evidence is sufficient to support the court’s determination. Strasser v. Yalamanchi, 677 So. 2d 22, 23 (Fla. 4th DCA 1996) (trial court erred in deferring its determination of whether there was a “reasonable basis for recovery” of punitive damages until trial).

This Court has considered Plaintiff’s Complaint, the allegations contained therein, the evidence proffered, and the record before it and determines that a reasonable basis or factual predicate for punitive damages exists. Plaintiff’s Complaint does not make insufficient conclusory allegations regarding Defendant’s actions. Rather, Plaintiff has identified and alleged facts which would support an award of punitive damages. Plaintiff has proffered adequate evidence which could potentially lead to the imposition of punitive damages. See e.g. Schryburt v. Olesen, 475 So. 2d 715, 717 (Fla. 2d DCA 1985) (fraud count alleged fraudulent concealment; punitive damages award was affirmed); See also Dibernardo v. Waste Management, Inc. of Florida, 838 F. Supp. 567 (M.D. Fla. 1993) (“[p]laintiff’s complaint alleged facts and established record evidence, in [p]laintiff’s affidavit attached to complaint, which potentially could lead to the imposition of punitive damages”); Contra T.W.M. and S.M. v. American Medical Systems, 886 F. Supp. 842, 845 (N.D. Fla. 1995) (plaintiff failed to identify anything in the record or to make factual allegations that would support an award of punitive damages; plaintiff’s complaint contained only legally insufficient conclusory allegations that the defendant acted “deliberately and maliciously and was guilty of wanton disregard of the rights of the Plaintiff”). This Court concludes that a “reasonable basis” exists for a recovery of punitive damages as required by Florida Statutes Section 768.72.

ELEMENTS OF FRAUD

In order to prove that a defendant perpetrated a fraud, a plaintiff must establish that the defendant “made a deliberate and knowing misrepresentation designed to cause, actually causing detrimental reliance.” “Intentional misconduct is a necessary element of fraud.” First Interstate Development Corp v. Ablanedo, 511 So. 2d 536, 539 (Fla. 1987) (citing Lance v. Wade, 457 So. 2d 1008, 1011 (Fla. 1984)).¹ In order to recover punitive or exemplary damages, a plaintiff must merely allege “some general facts and circumstances of fraud, malice, gross negligence, or oppression” tending to demonstrate plaintiff’s right to recover such damages in addition to compensatory damages. Winn & Lovett Grocery Co. v. Archer, 171 So. 214, 222 (Fla. 1936) (quoted in Ablanedo, 511 So. 2d at 539) (proof of fraud sufficient to support an award of compensatory damages is sufficient to create a jury issue regarding punitive damages).

FRAUDULENT CONCEALMENT

The elements required for a cause of action for fraudulent concealment can be ascertained from the following excerpt.

It is fundamental that a suppression of truth may constitute fraud as much as a false suggestion, provided that it is material to the transaction. A distinction must be drawn, however, between passive and active concealment. The former involves mere silence or failure to disclose a fact, while the latter involves a purpose or design. It is only when there is a duty to reveal the fact that mere nondisclosure constitutes fraud.

Franklin v. Brown, 159 So. 2d 893, 894 (Fla. 1st DCA 1964) (emphasis added); See also Glass v. Craig, 91 So. 332, 335 (Fla. 1922) (it is only when there is a duty to reveal a fact that mere nondisclosure constitutes fraud). A “duty” to disclose exists when the party making the representation or failing to disclose acts in a confidential or fiduciary capacity. The party acting in a fiduciary or confidential capacity has a duty to make a full and fair disclosure of all essential or material facts to the person to whom he owes the duty. See generally Dale v. Jennings, 107 So. 175, 178 (Fla. 1925) (the appellant had a duty to disclose the truth to the appellee regarding facts material to a transaction; his failure to do so constituted fraudulent concealment from appellee of information he was entitled to); See also Johnston v. Thomas, 111 So. 541 (Fla. 1927). A breach of this duty constitutes “fraudulent concealment.” Dale, 107 So. at 178; See generally Pryor v. Oak Ridge Development. Corp, 119 So. 326 (Fla. 1928); 27 Fla. Jur. 2d, “Fraud and Deceit,” § 39. There are sundry examples where a fiduciary’s breach of duty to make full and fair disclosure constitutes fraud. One such example is an agent’s concealment of facts from his principal which enables him to realize a secret profit. See e.g. J.W. McWilliams Co. v. Ft. Myers Development. Corp., 140 So. 902 (Fla. 1932); See also 27 Fla. Jur. 2d “Fraud and Deceit,” §39 n. 39 and accompanying text. Plaintiff has alleged that Defendant acted with the purpose of realizing a profit, that is, that he received a commission upon reinstatement of Eagle Demolition’s insurance policy. (See Second Amended Complaint at 8, para. 27).

FIDUCIARY RELATIONSHIP

Plaintiff alleges the existence of a fiduciary relationship with Defendant. At the time of the alleged concealment, Defendant was acting as an insurance agent for Plaintiff. (See Second Amended Complaint at 1, para. 3). Defendant had a “fiduciary duty to disclose all knowledge that he had which would have been material to Plaintiff’s decision to reinstate the insurance policy of Eagle Demolition.” (See Second Amended Complaint at 7, para. 25). Defendant also had a contractual duty to make such disclosures pursuant to section 5 of the agency company agreement which states in pertinent part that “[t]he agent shall immediately report all claims and losses and forward all legal process involving the company to the appropriate company claims office.” (See Deposition of Plaintiff at page 18 lines 7-12); (See Second Amended Complaint at 7, para. 22) (regarding agency contract between Plaintiff and Defendant); (See Exhibit A) (agency contract). Defendant acknowledged that he had “a duty to advise the insurance company of anything known by [him] which would be material to their binding that particular risk.” (See Deposition of Plaintiff at page 20, lines 10-25; page 21, lines 1-5); See generally Crawford v. DiMicco, 216 So. 2d 769 (Fla. 4th DCA 1968) (action against insurance agency; agent owes his principal an obligation of high fidelity; agent is liable to principal for losses incurred by actions taken beyond his authority).

Plaintiff alleges that Shulnburg advised Defendant that one of his drivers was involved in an accident. Defendant, as Plaintiff’s agent, “had a fiduciary duty to investigate and report any incident or information that might reasonably affect the Plaintiff’s contemplated reinstatement of coverage” for Eagle Demolition. (See Second Amended Complaint at 3, para. 11). Plaintiff further alleges that Defendant concealed such information. (See Second Amended Complaint at 7, para. 25). When considered in light of the law regarding the elements necessary to sustain a cause of action for fraudulent concealment, these allegations provide a “reasonable showing” to support a “reasonable basis” upon which punitive damages could be awarded.²

KNOWLEDGE

Plaintiff proffered sufficient evidence of Defendant’s knowledge of the accident involving Eagle Demolition’s employee and Jason Peterson prior to the request for reinstatement. (See Second Amended Complaint at 8, para. 27) (Defendant’s concealment of material facts was done “knowingly . . .”); (See Deposition of Rosier at page 79, lines 13-16 (regarding necessity of no loss letter); page 96, lines 24-25; page 97, lines 1-4 (regarding accident)); (See also Deposition of Robert V. Shulnburg at page 36, line 18 (Defendant knew about the accident); (See Deposition of Melody Roach at page 21, lines 17-22) (Defendant was present when Shulnburg conveyed information about the accident); page 26, lines 6-15 (regarding discussion about accident where Defendant was present)). Plaintiff has also proffered evidence that Defendant knew that injuries were involved in the accident prior to the request for reinstatement. (See Deposition of Robert V. Shulnburg at page 9, lines 12-18 (Shulnburg advised Defendant that there was some personal injury involved in the accident); page 10, lines 1-9 (regarding discussions about accident between Shulnburg and Defendant)); (See generally Deposition of Defendant at 96, 97) (discussing conversations between Defendant and Shulnburg).

Plaintiff alleges that Defendant “knew of the bodily injury claim, was further advised of the claim by the Plaintiff, and declined to participate in the defense or settlement of the claim of Jason Peterson against Eagle Demolition.” (See Second Amended Complaint at 3, para. 15). Moreover, according to the record, a meeting was held on July 9, 1993 for the purpose of reinstating coverage. Shulnburg, Roach and the Defendant were all present at that meeting and discussed the accident of July 8, 1993. (See generally Deposition of Melody Roach at pages 21-31). Based upon the foregoing allegations and proffered evidence, Plaintiff has made a “reasonable showing” of Defendant’s knowledge to formulate a “reasonable basis” or predicate for an award of punitive damages as required by Florida Statutes Section 768.71.

MATERIALITY

In order to constitute fraud, concealment of truth must be “material” to the transaction at issue. Franklin v. Brown, 159 So. 2d 893, 898 (Fla. 1st DCA 1964). A concealment is deemed “material” when “knowledge or ignorance of the fact involved will influence the judgement of the underwriter as to whether or not he will enter into a contract.” Massachusetts Bonding & Insurance Co. v. Hoxie, 176 So. 480, 482 (Fla. 1937). Relying on Defendant’s alleged representations that Eagle Demolition had incurred no losses, and Shulnburg’s letter of July 13, 1993 asserting that there were no claims against Eagle Demolition, Plaintiff reinstated Eagle Demolition’s insurance policy. Plaintiff would not have reinstated the policy if it had known of the July 8, 1993 accident. (See Second Amended Complaint at 3, paras. 13, 14; at 8, para. 26). It is apparent from these allegations that Plaintiff’s ignorance of the accident, losses and claim influenced its determination regarding whether or not to enter into a reinstatement contract. Accordingly, under the standard enunciated in Hoxie, supra, the information allegedly concealed by Defendant was “material” to the transaction at issue.

INTENT

Fraudulent concealment “involves purpose or design.” Franklin v. Brown, 159 So. 2d 893, 894 (Fla. 1st DCA 1964). In order to prevail on a cause of action based on fraud, a plaintiff must show that the defendant intended to deceive. Donovan v. Armour & Co., 33 So. 2d 601, 602 (Fla. 1948); See also Planation Key Developers, Inc. v. Colonial Mortgage Co., 589 F.2d 164, 172 (5th Cir. 1979) (citing id.); See e.g. Daniel v. Coastal Bonded Title, Co., 539 So. 2d 567, 569 (Fla. 5th DCA 1989) (if the failure to disclose was done with a fraudulent intent, then plaintiff may state a cause of action for fraud and punitive damages). Intent may be proved by circumstantial evidence. Florida East Coast Railroad Co., v. Thompson, 111 So. 525, 528 (Fla. 1927); See generally Phifer v. Steenburg, 64 So. 265 (Fla. 1914), reh’g denied, 64 So. 268 (Fla. 1914); See also Johns-Manville Sales Corp. v. Janssens, 463 So. 2d 242, 247 (Fla. 1st DCA 1984) (the requisite evil intent may be inferred from the defendant having pursued a course of action in wanton disregard of the consequences), rev. denied, 467 So. 2d 999 (Fla. 1985). Plaintiff alleges that Defendant’s concealment of information was intentional and purposeful, and that he had a pecuniary interest in ensuring that Eagle Demolition’s policy would be reinstated. He would not have received a commission payment if the policy had not been reinstated. (See Second Amended Complaint at 8, para. 27); (See also Deposition of Defendant at page 42, lines 12-21) (demonstrating that Defendant stood to gain from the nondisclosure of information; if Plaintiff would have known of the accident, it would not have reinstated Eagle Demolition’s policy, and Defendant would not have received his commission payment). Plaintiff also alleges that Defendant acted for the purpose of “continuing [his] business relationship with Eagle.” (See id.). These allegations provide circumstantial proffered evidence of intent or purpose and thus, formulate a “reasonable basis” for an award of punitive damages. An allegation that a defendant perpetrated a fraud with “willful and wanton disregard of the rights of the plaintiff” is sufficient to plead an adequate predicate for punitive damages. Avila South Condominium Association v. Kappa Corporation, 347 So. 2d 599, 604 (Fla. 1976). Plaintiff alleges that Defendant’s “concealment of material facts was done knowingly, willfully, intentionally and for the purpose of Defendant continuing his business relationship with Eagle and obtaining a commission payment which Defendant would not have otherwise received.” (See Second Amended Complaint at 8, para. 27). Although this allegation is not the equivalent of that which the Avila court held to be sufficient to establish a reasonable basis for an award of punitive damages, this Court has considered it in conjunction with Plaintiff’s other allegations and proffered evidence in analyzing the intent or purpose element of a cause of action for fraudulent concealment.

The allegations asserted by Plaintiff are somewhat analogous to those in Domke v. Domke, 939 F.Supp. 849 (M.D. Fla. 1996) in which the plaintiff filed a complaint containing allegations of negligence, strict liability, breach of express warranty, breach of implied warranty, and fraudulent misrepresentation. The plaintiff made a motion for leave to amend to add a claim for punitive damages. Upon considering the motion, the United States District Court for the Middle District of Florida applied Section 786.72, Florida Statutes, and concluded that the plaintiff provided a “reasonable showing for a reasonable basis for a claim of punitive damages.” The court reasoned that the plaintiff proffered various allegations, including that the defendant (1) had actual knowledge of the material fact caused by combining alcohol and acetaminophen, (2) intended to “muddy the waters in the event of publicity,” (3) sent a letter to pharmacists and hospitals stating that there was no link between liver damages and casual alcohol consumption combined with acetaminophen, and (4) did not convey the risk of liver damages associated with the interaction of alcohol and acetaminophen to consumers. Domke v. Domke, 939 F. Supp. 849, 851, 852 (M.D. Fla. 1996) (emphasis added by this Court); See also Knight v. E.F. Hutton & Co., Inc., 750 F. Supp. 1109, 1114 (M.D. Fla. 1990) (plaintiff’s allegations of fraudulent concealment constituted a reasonable basis upon which punitive damages should be awarded). Similarly, in the case at bar, Plaintiff alleges and proffers evidence that Defendant, among other things (1) had actual knowledge of the accident, losses and claim; (2) intended to conceal the information; (3) did not convey the information; and (4) knew the significance of the “no loss letter.” Accordingly, Plaintiff has provided this Court with a “reasonable showing” to support a “reasonable basis” to permit its punitive damages claim to proceed.

Accordingly, this Court determines that Plaintiff’s allegations, evidence proffered and available in the record constitute a “reasonable basis” to sustain an award of punitive damages. It is therefore

ORDERED and ADJUDGED that the stay is lifted and that the Plaintiff may prosecute its claim for punitive damages.

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¹“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit.” Fla. R. Civ. P. 1.120(b). “In an action for fraud and deceit plaintiff must allege (1) that defendant made a representation on which plaintiff was meant to act, (2) that the representation was false and defendant knew that fact, and (3) that plaintiff relied on the representation to his injury. All three elements must appear with reasonable certainty in Plaintiff’s complaint.” American International Land Corporation v. Hanna, 323 So. 2d 567, 569-70 (Fla. 1975) (construing rule 1.120(b) of the Florida Rules of Civil Procedure); See also Greatland Gold Inc. v. Berger, 617 So. 2d 870, 870 (Fla. 2d DCA 1993) (citing C & J Sapp Publishing Co., v. Tandy Corp., 585 So. 2d 290 (Fla. 2d DCA 1991)); Peninsular Florida District Council of Assemblies of God v. Pan American Investment and Development Corp., 450 So. 2d 1231, 1232 (Fla. 4th DCA) (When fraud is alleged as a claim or defense, “the facts and circumstances constituting fraud must be plead with specificity, and all essential elements of fraudulent conduct must be stated, i.e. that plaintiff relied to his detriment on false statements concerning material fact made with knowledge of its falsity and intent to induce reliance”) (citing George Hunt, Inc., 348 So. 2d 910 (Fla. 2d DCA 1977)).

Plaintiff’s Complaint alleges the “general facts and circumstances” necessary to permit a punitive damages claim to be asserted. The specificity requirement of Rule 1.120(b) pertains to pleadings for the purpose of stating a cause of action. The standard required to permit a punitive damages claim to be asserted is more liberal. It is not necessary for this Court to determine whether or not Plaintiff’s fraudulent concealment claim comports with the specificity requirements of rule 1.210(b) since this Court is not considering a motion to dismiss for failure to state a cause of action for fraud. See e.g. Moudy v. Southland Distributing Company of St. Petersburg, Inc., 452 So. 2d 1045, 1046 (Fla. 2d DCA 1984) (reviewing trial court’s dismissal of counts I, II and V of the complaint; holding that the circumstances constituting the alleged fraud perpetrated by the defendant were not pled with the particularity necessary to state a cause of action); Moore v. Purvis, 194 So. 2d 67, 67 (Fla. 3d DCA 1967) (involving motion to dismiss; count charging fraud contained only conclusions of the pleader and did not allege facts to support fraud); See contra Capital Factors, Inc. v. Heller Financial, Inc., 712 F. Supp. 908, 911 (S.D. Fla. 1989) (plaintiff pled the requisite elements of fraud with sufficient particularity to enable Defendant to frame an adequate response). In considering Plaintiff’s Motion to Lift Stay and Allow Prosecution of Punitive Damage Claim, this Court must only ascertain whether or not a “reasonable basis” for a claim of punitive damages exists. However, for the purpose of determining whether such a reasonable basis has been established, the Court was required to analyze the sufficiency of Plaintiff’s allegations. In doing so, the Court has also determined that Plaintiff has stated a cause of action for fraudulent concealment upon which relief can be granted with the specificity required by Rule 1.210(b). In considering whether a plaintiff has stated a cause of action, a court must determine whether the claimant includes all allegations in his complaint which are necessary to his recovery. See Rice v. White, 147 So. 2d 204, 207 (Fla. 1st DCA 1962). Plaintiff has included all of the specific allegations necessary to support a cause of action for fraudulent concealment in his Complaint.

²Absent the existence of a fiduciary duty, mere non-disclosure or concealment of a material fact does not constitute actionable misrepresentation. One who claims that fraudulent representations have been made to him is charged with knowledge of all facts that he could have learned through diligent inquiry. Ramel v. Chasebrook Construction Co, 135 So. 2d 876, 879 (Fla. 2d DCA 1961)). However, if a defendant has employed “some artifice or trick” to preclude the representee from conducting independent inquiry, non-disclosure of material facts may be fraudulent where the other party does not have an equal opportunity to become apprised of the facts. Id. at 882; See generally Harrell v. Branson, 344 So. 2d 604 (Fla. 1st DCA 1977), cert. denied, 353 So. 2d 675 (Fla. 1977). Plaintiff has not alleged any artifice or trick by Defendant, or lack of an equal opportunity to discover the facts in question.

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