EVANSTON INSURANCE COMPANY

v.

WILLIAM KRAMER & ASSOCIATES, LLC

See Essex Ins. Co. v. William Kramer & Associates., LLC, Case No. 3:13-cv-1537, 2016 WL 3198190, at *19 (D. Conn. 2016). On June 16, 2016, Plaintiff appealed to the United States Court of Appeals for the Second Circuit. (Doc. # 37). On August 15, 2016, while the Second Circuit appeal was pending, Plaintiff filed a nearly-identical complaint with this Court as a back-up plan in case its appeal in the Second Circuit was unsuccessful. (Doc. ## 1, 37-4). On December 20, 2016, Judge Kovachevich stayed this case pending a ruling from the Second Circuit.

(Doc. # 21). On June 11, 2019, the Second Circuit affirmed the judgment of the District of Connecticut. Evanston Ins. Co. v. William Kramer & Associates, LLC, 925 F. 3d 604, 604 (2d Cir. 2019). On July 17, 2019, following notice of the Second Circuit’s ruling, this case was re-opened. (Doc. # 35). Legal Standard A motion to dismiss for failure to state a claim tests the legal sufficiency of a plaintiff’s complaint. Fla. Action Comm. v. Seminole Cty, 212 F. Supp. 3d 1213, 1223 (M.D. Fla. 2016). At a minimum, a complaint must include “a short and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Am. Dental Ass’n v. Cigna Corp., 605 F. 3d 1283, 1290 (11th Cir. 2010). The Court may only consider the facial sufficiency of the complaint, must accept all well-pleaded factual allegations as true, and is required to interpret the complaint “in the light most favorable to the

[p]laintiff.” See Rickman v. Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D. Fla. 1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Where it appears on the face of the complaint that a plaintiff can prove “no set of facts in support of his claim” that would entitle him to relief, the complaint may be dismissed with prejudice. Conley v. Gibson, 355 U.S. 41, 45–46 (1957); see also Twombly, 550 U.S. at 562–63. Granting a motion to dismiss “on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred.” Doe v. St. John’s Episcopal Parish Day Sch., 997 F. Supp. 2d 1279, 1284 (M.D. Fla. 2014) (quoting Tello v. Dean Witter Reynolds, Inc., 410 F. 3d 1275, 1288 (11th Cir. 2005)); La Grasta v. First Union Sec., Inc., 358 F. 3d 840, 845 (11th Cir. 2004). Analysis Defendant argues that this case should be dismissed because it is barred by both Connecticut’s and Florida’s statutes of limitations. Plaintiff contends that the

Court should apply Florida’s longer statute of limitations and find that its claim is timely. Upon review, the Court finds that, even if it were to apply the Florida statute of limitations, the face of Plaintiff’s complaint makes it clear that its claim is time-barred.³ Plaintiff has brought a claim for negligence. In Florida, a common law negligence action has a statute of limitations of four years. See § 95.11(3)(a), Florida

Statutes. For general negligence claims, Florida applies the first injury rule to determine when the statute of limitations begins to run. Under this rule, a “cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1), F.S.; see Kipnis v. Bayerische Hypo-Und Vereinsbank, AG, 202 So. 3d 859, 862 (Fla. 2016). In this case, the last element of the cause of action most likely occurred in 2007, when Plaintiff – due to Defendant’s negligence – failed to pay Intervest under the policy. However, at the latest, it occurred in 2010 when Plaintiff was served with a complaint from Intervest that attached a copy of the mortgage that serves as the basis for its negligence claim here.4 At that moment, in 2010, Plaintiff knew or

Although this action is for general negligence, the Court notes that Plaintiff’s claim would be considered untimely even under the delayed discovery rule. As previously noted, when Intervest served Plaintiff with its complaint, it included a copy of the mortgage that Defendant failed to identify.6 (Doc. # 67-1). Consequently,

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UNITED STATES DISTRICT JUDGE