Bencomo Enters. v. United Specialty Ins. Co.

345 F. Supp. 3d 1401
CourtDistrict Court, S.D. Florida
DecidedNovember 8, 2018
DocketCASE NO. 18-23389-CIV-ALTONAGA/Goodman
StatusPublished
Cited by6 cases

This text of 345 F. Supp. 3d 1401 (Bencomo Enters. v. United Specialty Ins. Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bencomo Enters. v. United Specialty Ins. Co., 345 F. Supp. 3d 1401 (S.D. Fla. 2018).

Opinion

CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court on Defendant, United Specialty Insurance Company's Motion to Dismiss Counts I and II of Plaintiff's Amended Complaint [ECF No. 22], filed October 4, 2018. Plaintiff, Bencomo Enterprises, filed a Response in Opposition [ECF No. 24] to which Defendant filed a Reply [ECF No. 25]. The Court has carefully considered the Amended Complaint [ECF No. 19], the parties' submissions, the record, and applicable law. For the following reasons, the Motion is granted.

I. BACKGROUND

Plaintiff is the owner of insured commercial property located in Miami, Florida. (See Am. Compl. ¶ 2). Defendant issues commercial and homeowner insurance policies in Florida. (See id. ¶ 3). In consideration for premiums timely and fully paid, Defendant issued a contract of commercial property insurance (the "Policy") for Plaintiff's property, and it was in full force and effect at the time of the loss. (See id. ¶¶ 4-6).

On December 6, 2016, Plaintiff's insured property suffered a covered loss under the Policy. (See id. ¶ 8). Plaintiff timely reported the loss to Defendant. (See id. ¶ 9). To date, Defendant has paid Plaintiff $83,457.04 and $35,910.49, in two separate payments, for Plaintiff's loss under the Policy. (See id. ¶ 20).

Defendant does not deny coverage and admits some of the loss is covered under the Policy. (See id. ¶ 16). Nevertheless, the *1403parties dispute the amount Defendant owes Plaintiff and the specific coverage available under the Policy. (See id. ). Because of these disagreements, the parties participated in an appraisal proceeding as required by the Policy. (See id. ). The appraisal panel signed an appraisal award, calculating Plaintiff's losses to be $685,082.97. (See id. ¶ 19). Defendant has not paid Plaintiff since the appraisal award. (See id. ¶ 20).

On June 28, 2018, Plaintiff brought suit in the Eleventh Judicial Circuit in Miami-Dade County, Florida against Defendant asserting claims for declaratory relief and breach of contract. (See State Court Complaint [ECF No. 1-2] ). On August 21, 2018, Defendant removed the case on the basis of diversity jurisdiction under 28 U.S.C. section 1332. (See Notice of Removal [ECF No. 1] ¶ 4). Defendant then moved to dismiss the Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) (see [ECF No. 7] ), which the Court granted without prejudice after Plaintiff failed to file a timely memorandum of law opposing the Motion (see September 13, 2018 Order [ECF No. 18] ).

On September 24, 2018, Plaintiff filed its Amended Complaint, which is the subject of the present Motion. The Amended Complaint states two claims for relief: first, Plaintiff asks the Court to confirm the entire appraisal award (Count 1) (see Am. Compl. ¶¶ 15-21); and second, Plaintiff brings a claim under the Florida Declaratory Judgment Act for a declaration of its rights under the insurance contract (Count 2) (see id. ¶¶ 22-34).

II. LEGAL STANDARD

"To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration added) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although this pleading standard "does not require 'detailed factual allegations,' ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (alteration added) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Indeed, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

To meet this "plausibility standard," a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (alteration added) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1261 (11th Cir.

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345 F. Supp. 3d 1401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bencomo-enters-v-united-specialty-ins-co-flsd-2018.