Motion to Dismiss in CREEKSIDE CLEARWATER LLCVs. SCOTTSDALE INSURANCE COMPANY| Trellis.Law

On May 02, 2018 a Motion,Ex Parte was filed involving a dispute between Creekside Clearwater Llc, and Scottsdale Insurance Company, for INSURANCE CLAIMS - CIRCUIT in the District Court of Pinellas County.

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Filing # 72426611 E-Filed 05/21/2018 01:11:43 PM

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION

CREEKSIDE CLEARWATER, LLC,

Plaintiff,
CASE NO. 18—00280LCI
vs.

SCOTTSDALE INSURANCE COMPANY,
Defendant.
/

MOTION TO DISMISS PLAINT—IFF'S COMPLAINT OR. IN THE ALTERNATIVE,
MOTION FOR MORE DEFINITE STATEMENT, MOTION TO STRIKE, AND
INCORPORATED MEMORANDUM OF LAW

COMES NOW the Defendant, Scottsdale Insurance Company, (“Scottsdale”), by and

through its undersigned counsal, and pursuant to Fla. R. Civ‘ P. 1.110 and 1.140, and all other

applicable Rules of Civil Procedure, and hereby ﬁles its Motion to Dismiss Plaintiffs Complaint

or, in the alternative, its Motion for More Deﬁnite Statement, Motion to Strike, and Incorporated

Memorandum of Law. In support thereof, Scottsdale states as follows:

1. On pr about May 3, 2018, the Plaintiff ﬁled a Complaint in the above-styled matter in the

Sixth Judicial Circuit in and for Pinellas County, Florida.

2. On or about May 7, 2018, the Plaintiff served itsComplaint on the designated agent for

Dﬁfendant, Scottsdale.

3. Plaintiff’s Complaint alleges that 'Plain’eifﬁs commercial property sustained damage due

to a water leak on or about October 43 2017. (Complaint, 1B). Plaintiff further alleges that

Defendant has “refused to pay for all of Plaintiff(s)’ losses.” (Complaint, 115).

301905524vl 1009172

***ELECTRONICALLY FILED 05/21/2018 01:11:43 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
Notwithstanding the aforementioned allegations, Plaintiff failed to attach a copy of the

policy of insurance to the Complaintl.

4. More importantly, Plaintiff’s Complaint fails to sufficiently identify the source of water

leak and what damages are being alleged. See Plaimjﬂ’s Complaint attached hereto as

”
Exhibit “A.

5. Litigants, at the outset of a suit,must state their pleadings with sufﬁcient particularity for

the defense to be prepared. See Arky, Freed, Stearns, Watson, Greer; Weaver & Harris,

P.A. v.Bowmar Instrument Corp, 537 So. 2d 561 (Fla. 1988).

6. Furthermore, “Florida is a fact-pleading jurisdiction.” Horowitz v.Laske, 855 So. 2d’ 169,

172 (Fla.
5“1
DCA 2003); Cont'l Baking Co. v. Vincent, 634 So. 2d 242, 244 (Fla.
5th
DCA

1994). Accordingly, a complaint must state “the ultimate facts showing that the pleader is

entitled to relief.” Fla. R. Civ. P. 1.]10(b)(2). "Florida's pleading rule forces" parties "to

recognize the elements of their cause of action and determine Whether they have or can

develop the facts necessary to support it,which avoids a great deal of wasted expense to

{he litigants and unnecessary judicial effort." Horowitz at 173.

1
Rule 1.130(3) provides:

contracts, accounts, or documents upon which action may be brought or
bills of exchange,
A11 bonds, notes,
defense made, or a copy thereof or a copy of the portionsthereof materialto the pleadings,shall be
incorporatedin or attached tothe pleading. No papers shall be unnecessariiyannexed as The
exhibits.

pleadings shall containAno unnecessary recitals of deeds, documents, contracts, or other instruments.
Fla. R. Civl P.
1.130(a)4

The pan thereof for
exhibits attached to the pleading are "considered a purposes." Fla R. Civ. P.
all 1.130(b)."A complaint based
on a instrument does not
wri‘ruin statea cause of action until the instrument or an adequate portion thereof,
is attached to or
Nortrax Equip.
incorporated in the complaint." Contractors Unlimited, Inc.
v. C0; $2.,833 So. 2d 286, 288 DCA 2006)
(Fla. 5th

Samuels
(citing v.King Alotor Co. of Fort Lauderdale, 782
SO. 2d 489, 500 DCA 2001)).
(Fla. 4th

The purpose of this of the nature and extent of the cause of.action so that the defendant may
rule "is to apprise the defendant
plead with greater certainty." Amiker
v.Mid-Century Ins. Ist DCA 1981) (citing Sachse v.
C0,, 398 So. 2d 974, 975 (Fla. Tampa
Music Co., 262 So. 2d 17 (Fla.2d DCA 1972)). Rule 1.130 does not requireattachment of the entire but
contract, only the
attachment or the incorporation into the pleading of the material portions of the contract on which the action is based. Id at 976
("We further note that Rulb only attachmenl or incorporation of the
1.130(a) does not require attachment of the entire contract,
contract's material provisions.").

301905524v1 1009172
Importantly, "[t]o sufﬁciently plead a claim for breach of contract under Florida law, a

plaintiff 'must assert the existence of a contract, a breach of such contract, and damages

resulting from such breach." Cruz v. Underwriters at Lloyd's London, 2014. WL 3809179,
at *2 (MD. Fla. Aug. 1, 2014).

"It is appropriate to dismiss a breach of contract claim if it fails to state Which provision

of the contract was breached." Id, This-is because failing to allege the speciﬁc provision

of the centract that has been breached is akin to— making "the—defendant—un’lawﬁllly-

harmed—me— accusation" that the United States Supreme Court warned against in Ashcroft

V. Iqbal. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 US. 544, 579(2007». Id; see also Whitney Nat. Bankv. SOC Cmtys., Inc,

2010 WL 1270264, at *3 (MD. Fla. Apr. 1, 2010)(A complaint must be dismissed for

failure to state a claim upon which relief can be granted if the complaint does not plead

“sufﬁcient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.”)

Alternatively, where a complaint includes bare legal conclusions in-lieu of such ultimate

facts or states facts in a vague, ambiguous, or indeﬁnite manner, the defendant may move

for a more deﬁnite statement. See Fla. R. Civ. P. 1.140(6); e.g., Wilson v.Clark, 414 So.

2d 526, 528 (Fla.
1St
DCA 1982) (motion for more deﬁnite statement is one avenue to

address “improper pleading”); Feller v. Eau Gallie Yacht Basin, Inc, 397 So. 2d 1155,

1157 (Fla.
5th
DCA 1981') (responding party may move for compliance with Rule

1.110(b) or move for a more deﬁnite statement).

10. Finally, Plaintiff ’s Complaint improperly seeks attorneys’ fees pursuant to Florida Statute

Section 627.428. Defendant, Scottsdale, is a foreign corporation duly licensed to transact

301905524v1 1009172
insurance business in the State of Florida, pursuant to the Surplus Lines Law contained in

Chapter 626, Florida Statutes. "On June 11, 2009, Florida’s Legislature amended

§626.913, Fla. Stat. (known as the “Surplus Lines Law”) to bar Chapter 627 from

applying to surplus lines insurance, as follows:

Except as may be speciﬁcally stated to apply to surplus lines insurers, the
provisions of chapter 627 do not apply to surplus ‘Iines insurance
authorized under ss. 626.918—626.937, the Surplus Lines law.

11. For thereasons set forth above, any reference to Chapter 627, including paragraph 10 and

the “Wherefore” clause, must be stricken.

WHEREFORE, Defendant, Scottsdale Specialty Insurance Company, respectfuin

requests that this honorable Court issue an Order dismissing the Plaintiffs Complaint, striking all

references to Chapter 627, or in the alternative, issue an Order directing the Plaintiff to ﬁle an

Amended Complaint that provides allegations of ultimate facts and more deﬁnite statements with

respect to the alleged covered peril(s), the applicable policy provisions, the type of damages at

issue in this lawsuit, and removing all references to Chapter 627, Florida Statutes," and any and

all further relief this honmrable Court deems just and proper.

MEMORANDUM OF LAW

I. Motion to Dismiss/Motion for More Definite Statement

As noted above, Plaintiffs Complaint contains both bare conclusions of law and vague,

ambiguous, and indeﬁnite allegations. Speciﬁcally, Plaintiff‘s Complaint fails to identify facts to

support the peril(s) he alleges to be at issue, which provision(s) of the contract italleges to have

been breached, and or What, if any, damages are being claim. Plaintiff‘s Complaint states only

that itsuffered a Windstorm loss to the property. Without stating facts to support the cause of the

301905524v1 1009172
damage or the type of peril with sufﬁcient particularity, Scottsdale cannot determine What policy

provisions, terms, conditions, and endorsements would be applicable to the alleged claim.

Additionally, without alleging the damages or loss being claimed, with sufﬁcient particularity,

Scottsdale cannot reasonably determine the applicable and appropriate defenses to Plaintiff‘s

action.

Plaintiffs' allegations largely constitute formulaic legal conclusions; not well—pleaded

factual allegations. It is not sufﬁcient under Iqbal to merely plead that the defendant breached

the Policy by failing to pay the beneﬁts owed under the Policy. See etglAshcroﬁ‘ v. Iqbal, 129 S.

Ct. 1937, 1949(2009). Similarly, it is not sufﬁcient to plead that the “Defendant’s denial of

Plaintiffs’ claim is a breach of contract.” See Complaint, 117. It is—equally insufﬁcient to plead

that the Plaintiff is entitled to judgment against Scottsdale without articulating how the

applicable policy of insurance entitles the Plaintiff to such relief. See e. g. Timber Pines Plaza,

LLC v. Kinsale Insurance Company, DE 14, Case No. 8:]5—cv—01821—EAK—TBM Finally,

because some afﬁrmative defenses are waived if not pied, Defendant, Scottsdale, has a right to

know What peri1(s) are at issue with sufﬁcient particularity so it can appropriately respond to

Plaintiffs Complaint.

The Complaint, as currently pled, does not contain any meaningful allegations regarding

how the policy of insurance was breached, What damages the Plaintiff suffered, or the remedies

the Plaintiff alleges to be entitled to receive under the Policy. Without knowing certain minimum

ultimate facts on such essential issues as: (1) the alleged peri1(s), (2) the type of damages and

amount, eveﬁ generally, being claimed, and (3) the applicable policy provisions, Scottsdale

“cannot reasonably be required to frame a responsive pleading,” and a Motion to Dismiss or

Motion for More Deﬁnite Statement should be granted. Fla. R. Civ. P. 1.140(e). Since the

301905524V1 1009172
Complaint does not contain well-plead factual allegations that plausibly give rise to an

entitlement to relief, the Complaint must be dismissed.

WHEREFORE, Defendant respectfully requests that this honorable Court issue an Order

dismissing the Plaintiff‘s Complaint, or in the alternative, issue an Order directing the Plaintiff to

ﬁle an Amended Complaint that provides allegations of uitimate facts and more deﬁnite

statements with respect to the alleged covered peril(s), the applicable Policy provisions, and the

type of damages at issue in this lawsuit.

II. Motion to Strike

Pursuant to Rule 1.140, Fla.R. Civ.P. a party may move to strike or the Court may strike

any redundant, immaterial, impertinent or scandalous matter from any pleading at any time.

As noted above, Defendant, Scottsdale, is a foreign corporation duly licensed to transact

insurance business in the State of Florida, pursuant to the Surplus Lines Law contained in

Chapter 626, Florida Statutes. On June 11, 2009, Florida’s Legislature amended §626.913’, Fla.

Stat. (known as the “Surplus Lines Law”) to bar Chapter 627 from applying to surplus lines

insurance, as follows:

Except as may be speciﬁcally stated to apply to surplus lines insurers, the
provisions of chapter 627 do not apply to surplus lines insurance
authorized under 55. 626.918—626937, the Surplus Lines law.

Under the above revised provisions of Section 626.913, Scottsdale is not required to comply with

the provisions of Chapter 627 unless those provisions speciﬁcally indicate that they apply to

surplus lines insurers.

Plaintiff’s Wherefore” seeks entitlement to attorney's fees and costs pursuant to Section

627.428. By Operation of Section 626.913, Florida Statutes, allallegations and references in the

301905524v1 1009172
Complaint to-Chapter 627, Florida Statutes, are impertinent and immaterial to the allegations in

this suit since the provisions of Chapter 627 do not apply to Scottsdale. For the reasons set forth

above, any reference to Chapter 627 in Plaintiff ’s Complaint must be stricken.

WHEREFORE, Defendant, Scottsdale Insurance Company, respectfully requests that this

honorable Court issue an Order striking any and all references to Chapter 627, including those

references set forth in the “wherefore” clause.

THIS SPA CE LEFT INTENTIONALL Y BLANK

301905524v1 1009172
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 21, 2018, a true and correct copy of the foregoing was

E-Filed with the Circuit Civil Clerk via Florida Courts eFiling Portal and sent via E-Mail to:

Bradford L. Stewart, Esquire
The Nation Law Firm, LLP
5151 S. Lakeland Drive, Suite 2
Lakeland, FL 33813
Primary Email: mszutz@nationlawcom
Secondary Email: bstewart@nationlaw.com
Attorney far Plairztiﬁr

HINSHAW & CULBERTSON LLP

o/Jbtiotina .8.ma
Kristina L. Marsh, Esquire
Florida Bar No. 31 1080
Primary: kmarsh@hinshawlaw.com
Secondary: psantivasci@hinshawlaw.com
100 South Ashley Drive
Suite 500
Tampa, FL 33602
Teléphone: 813-276—1662
Facsimile: 813—276—1 956
Attorney for Defendant Scottsdale Insurance
Company

301905524v1 1009172
Filing # 71550480 E-Filed 05/02/2018 10:35:48 AM

IN THE CIRCUIT COURT IN AND FOR
PINELLAS COUNTY, FLORIDA

CASE NO.

CREEKSIDE CLEARWATER, LLC,

Plaintiff(s),

vs.

SCOTTSDALE INSURANCE COMPANY,

Defendant.
l

C 0 M P L Al N T

COME NOW the Plaintiff(s), CREEKSIDE CLEARWATER, LLC, by and through

the undersigned attorney and sue(s) the Defendant, SCOTTSDALE INSURANCE

COMPANY, a corporation authorized and doing business in the state of Florida, and

alleges as follows:

1. This is an action for damages in the amount of $66,777.74, exclusive of

attorneys’ fees, costs and interest. Plaintiff’s attorneys’ fees at the time this action was

filed are less than $1,000.00.

2. Plaintiﬁ(s)’ commercial property, located at 1280 Druid Road E,

Clearwater, Florida, sustained damage due to a water leak which occurred on or about

October 4, 2017.

3. A policy of commercial insurance, including the coverages to protect

Plaintiff(s) against the above losses, was issued by Defendant and was in full force and

effect as to Plaintiff(s) when Plaintiff(s)’ commercial property was damaged. A copy of

the policy is in the exclusive control of Defendant, and will be produced during

A EXHIBIT
discovery.

4. Plaintiff(s) have complied with all conditions precedent to entitle Plaintiff(s)

to recover under the policy.

5. Defendant has refused to pay for all of Plaintiff(s)’ losses.

6. Defendant’s refusal to pay for all of Plaintiff(s)’ losses is a breach of

contract.

7. Because of Defendant's refusal to pay for all of Plaintifﬁs)’ losses, ithas

become necessary that Plaintiff(s) retain the services of the undersigned attorney.

Piaintifﬂs) are obligated to pay a reasonable fee for the attorney's services in bringing

this action, plus necessary costs.

WHEREFORE, Plaintiff(s) demand judgment against Defendant for all covered

losses with interest on any overdue payments, damages that were a consequence of

the breach of the contract that could have reasonably been expected to result from the

breach, attorney's fees and costs pursuant to Florida Statutes §§ 627.428 or 626.9373,

57.041, and 92.231, and demand a trial byjury,

Dated: May 2, 2018

Bradford L. Stewart
Florida Bar No. 015760
The Nation Law Firm, LLP
5151 S. Lakeland Drive, Suite 2
Lakeland, FL 33813
Telephone: (863) 940-5350
Facsimile: (863) 940—5380
Primary Emaii: mszutz@nationlaw.com
Secondary Email: bstewart@nationlaw.com
Attorneys for Plaintiff(s)

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Document Filed Date

May 21, 2018

Case Filing Date

May 02, 2018

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Motion,Ex Parte: CREEKSIDE CLEARWATER LLCVs. SCOTTSDALE INSURANCE COMPANY

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