Las Brisas v. Empire Indemnity Insurance

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

LAS BRISAS CONDOMINIUM HOMES CONDOMINIUM ASSOCIATION, INC.,

Plaintiff,

v. Case No: 2:21-cv-41-SPC-MRM

EMPIRE INDEMNITY INSURANCE COMPANY,

Defendant. / OPINION AND ORDER1 Before the Court is Defendant Empire Indemnity Insurance Company’s Motion to Dismiss Count II of the Amended Complaint (Doc. 62), and Plaintiff Las Brisas Condominium Association, Inc.’s response (Doc. 63).2 This is an insurance bad faith dispute. The initial Complaint (Doc. 4) included one count for unfair claims practices under Fla. Stat. §§ 624.155 and 626.9541. The Amended Complaint includes a separate count for punitive

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s availability and functionality, and a failed hyperlink does not affect this Order.

2 Neither filing follows Local Rule 1.08’s typography requirements. For efficiency reasons, the Court will not strike the papers. But the parties should not expect future leniency from the Court for this failure to follow the Local Rules. damages. (Doc. 60). Empire moves to dismiss the punitive damages for failure to state a claim because the allegations are conclusory.

To start, punitive damages are a form of damages, not a claim for relief. See Cohen v. Office Depot, Inc., 184 F.3d 1292, 1297-98 (11th Cir. 1999), vacated in part on other grounds, 204 F.3d 1069 (11th Cir. 2000) (“It is clear, however, that a request for punitive damages is not a ‘claim’ within the

meaning of 8(a)(2); it is only part of the relief prayed for in the claim.” “Punitive damages are a remedy.”); Fed. R. Civ. P. 81(c) (“These rules apply to a civil action after it is removed from a state court.”). Thus, the Amended Complaint is improper in this regard. The Court will allow Las Brisas to file a

second amended complaint to properly plead punitive damages as a form of damages under the unfair claims count. Accordingly, it is now ORDERED:

1. Defendant may file a second amended complaint by December 2, 2021. If Defendant does not file a second amended complaint, the case will proceed on Count I of the amended complaint (Doc. 60). 2. Defendant Empire Indemnity Insurance Company’s Motion to

Dismiss Count II of the Amended Complaint (Doc. 62) is denied. DONE and ORDERED in Fort Myers, Florida on November 22, 2021.

ites POLSTER atta UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record