500 LA PENINSULA CONDOMINIUM ASSOCIATION, INC.
v.
LANDMARK AMERICAN INSURANCE COMPANY
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The court held that the defendant's motion to dismiss the plaintiff's complaint is denied.
Plaintiff sued its insurer for breach of an insurance policy following Hurricane Irma, also seeking declaratory relief. The insurer moved to dismiss, …
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Defendant. /
ORDER1
Before the Court is Defendant Landmark American Insurance Company’s Motion to Dismiss (Doc. 5) and Plaintiff 500 La Peninsula Condominium Association, Inc.’s response in opposition (Doc. 10). The Court denies the Motion. This is a Hurricane Irma insurance case.2 La Peninsula alleges Landmark breached the parties’ insurance policy by not fully paying out on a covered loss. The Complaint also seeks declaratory relief. A complaint must recite “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This pleading standard
Mostly, Landmark moves to dismiss because Count1 (declaratory relief) is duplicative of Count 2 (breach of contract). What is more, says Landmark, Count1 fails because it specifies nothing demanding a declaration. Finally, Landmark contends a coverage declaration is not proper under Count 1. Each argument falls short. The Court starts with the duplicity argument, which it sees a lot in this context. This Court consistently rejects that argument; in fact, it did so just last week. E.g., Hanus v. AIG Prop. Cas. Co., No. 2:20-cv-814-FtM-38NPM, 2020 WL 6154813, at *1 (M.D. Fla. Oct. 20, 2020). To the extent that Landmark cites two Middle District cases adopting the Southern District’s approach, Judge Conway recently distinguished those. Tiro Beachwear Inc. v. Foremost Ins., No. 6:20-cv-
425-Orl-22DCI, 2020 WL 5983830, at *3 (M.D. Fla. Apr. 8, 2020). On duplicity, the Motion is denied. Next, Landmark claims the Complaint alleges nothing in need of declaration. Yet the Complaint seeks a declaration of rights, seeks a determination of full coverage, and lists a several questions in need of a decision. In short, La Peninsula did not bring an ambiguous or hypothetical declaratory request. It brings an actual controversy that survives a motion to dismiss. See Massey Constr. Grp., Inc. v. Hartford Ins. Co. of the Midwest, No. 2:19-cv-708-SPC-NPM, 2019 WL 5863897, at *2 (M.D. Fla. Nov. 8, 2019).3 Likewise, Landmark’s final argument falls flat. La Peninsula’s requests are not inappropriate for a declaratory judgment action as there is still a present controversy between the parties. Accordingly, it is now ORDERED: Defendant’s Motion to Dismiss Plaintiff's Complaint (Doc. 5) is DENTED. DONE and ORDERED in Fort Myers, Florida on October 26, 2020.
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record
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