Opinion
Case No. 20-cv-80728-SINGHAL
08-03-2020
Scott DANDENEAU, Corrine Dandeneau, and Andre Corn, Plaintiffs, v. The HANOVER INSURANCE COMPANY O/B/O ALL MY SONS MOVING AND STORAGE OF WEST PALM BEACH, INC. and Hiscox Insurance Company, Inc. o/b/o All my Sons Moving and Storage of West Palm Beach, Inc., Defendants.
Christopher Anthony Sajdera, Sajdera Kim, PLLC, Boca Raton, FL, David Jaeil Kim, West Palm Beach, FL, for Plaintiffs. Edwina Victoria Kessler, Catri Holton Kessler & Kessler, Fort Lauderdale, FL, Jeffrey T. Edwards, Pro Hac Vice, Preti, Flaherty, Beliveau & Pachios, Chartered, LLP, Portland, ME, for Defendant The Hanover Insurance Company. Joseph A. Oliva, Pro Hac Vice, Goldberg Segalla LLP, New York, NY, Dustin Craig Blumenthal, Goldberg Segalla LLP, West Palm Beach, FL, for Defendant Hiscox Insurance Company.
Christopher Anthony Sajdera, Sajdera Kim, PLLC, Boca Raton, FL, David Jaeil Kim, West Palm Beach, FL, for Plaintiffs.
Edwina Victoria Kessler, Catri Holton Kessler & Kessler, Fort Lauderdale, FL, Jeffrey T. Edwards, Pro Hac Vice, Preti, Flaherty, Beliveau & Pachios, Chartered, LLP, Portland, ME, for Defendant The Hanover Insurance Company.
Joseph A. Oliva, Pro Hac Vice, Goldberg Segalla LLP, New York, NY, Dustin Craig Blumenthal, Goldberg Segalla LLP, West Palm Beach, FL, for Defendant Hiscox Insurance Company.
ORDER
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Defendants’ Joint Motion to Dismiss and Joint Motion to Strike Claims for Attorneys’ Fees (DE [18] ). In June 2016, Plaintiffs contracted with All My Sons Moving and Storage ("All My Sons") to move and store about 300 pieces of personal items, including furniture, artwork, and kitchenware. Compl. ¶ 7 (DE [1-2] ). All My Sons stored Plaintiffs’ items at one of its warehouses located in Jupiter, Florida. Id. ¶ 8. About one year later, for reasons not explained in the complaint, it moved the items to one of its other locations in West Palm Beach, Florida. Id. ¶ 9. Presumably as a result of that move, some four months later, Plaintiffs discovered "multiple high-net-worth" items either missing or damaged. Id. ¶ 10. They now bring this four-count action against two insurance companies, Defendant Hiscox Insurance Company ("Hiscox") and Defendant Hanover Insurance Company ("Hanover") (collectively, "Insurers"), for declaratory relief and breach of contract.
All My Sons has a commercial crime insurance policy with Hiscox. See Ex. A to Mot. to Dismiss (DE [18-1] ). It also has commercial general liability coverage with Hanover. See Compl. ¶¶ 20–21. Plaintiffs seek declaratory relief against Hanover in Count I, and damages for breach of contract in Count III. Likewise, they seek declaratory relief against Hiscox in Count II, and damages for breach of contract in Count IV. Critically, they do not seek any relief against All My Sons in this action. From the arguments raised by Insurers in their motion, it is clear Plaintiffs have not brought an action against All My Sons at all. Insurers move to dismiss, arguing that Plaintiffs must first seek relief against All My Sons before it can file suit against them. The Court agrees and, for the reasons explained below, the motion to dismiss is GRANTED .
I. LEGAL STANDARD ON A MOTION TO DISMISS
" ‘When evaluating a motion to dismiss under Rule 12(b)(6), the question is whether the complaint contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ " Worthy v. City of Phenix City , 930 F.3d 1206, 1217 (11th Cir. 2019) (alteration in original) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ); see also Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Worthy , 930 F.3d at 1217. The Court is guided by the well-known principle that, on a motion to dismiss for failure to state a claim, the Court assumes all well-pled allegations in the Complaint are true and views them in the light most favorable to the plaintiff. Jackson v. Okaloosa Cty. , 21 F.3d 1531, 1534 (11th Cir. 1994).
II. DISCUSSION
The basis of Insurers’ motion to dismiss is Florida's Nonjoinder Statute, see Fla. Stat. § 627.4136, which states, in relevant part:
It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy
In other words, the nonjoinder statute provides that injured parties cannot file a direct action against an insurer unless and until they sue and obtain a settlement or verdict against the insured. GEICO Gen. Ins. Co. v. Lepine , 173 So. 3d 1142, 1143–44 (Fla. 2d DCA 2015). Florida district courts of appeal have determined the nonjoinder statute "creates a condition precedent before a cause of action against [the insurer] has even accrued or can be maintained." GEICO Gen. Ins. Co. v. Martinez , 240 So. 3d 43, 46 (Fla. 3d DCA 2018) ("Unlike first-party claims, premature and unaccrued third-party claims must be evaluated in light of the legislative mandate established by the plain language of the nonjoinder statute. That legislative mandate precludes [the plaintiff] from maintaining any cause of action against [the insurer]—indeed, precludes even the accrual of such a cause of action—until [the plaintiff] satisfies the compulsory condition precedent of obtaining a settlement or verdict against [the insured].").
Plaintiffs do not respond to this argument raised by Insurers; they actually make no mention of the idea of a condition precedent precluding their action against Insurers, whatsoever. Their only argument is that they have properly stated a claim for declaratory relief because they "are in doubt" as to their rights under the insurance policies. Notably, they do not cite to any case for the proposition that the nonjoinder statute's condition precedent gives way to a claim for declaratory relief.
Under Florida law, the proper course of action for premature third-party claims is to dismiss without prejudice. See Martinez , 240 So. 3d at 47. With no exception for declaratory actions, and no indication that Plaintiffs have obtained a settlement or judgment against All My Sons, this action has not yet accrued. Accordingly, it is
ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss (DE [18] ) is GRANTED . This case is DISMISSED . The Clerk of Court is directed to CLOSE this case and deny any pending motions as MOOT .
Insurers’ relief to strike the request for attorneys’ fees is mooted by this action's dismissal.
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DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 3rd day of August 2020.