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Filing # 123623405 E-Filed 03/23/2021 04:15:05 PM
IN THE COUNTY COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
BEVERLY ALEXANDER,
Plaintiff, CASE NO.: COCE-21-07792
vs.
SOUTHERN FIDELITY INSURANCE COMPANY
A/K/A CAPITOL PREFERRED INSURANCE
COMPANY, INC.,
Defendant
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT, OR IN THE
ALTERNATIVE, FOR A MORE DEFINITE STATEMENT.
Defendant, SOUTHERN FIDELITY INSURANCE COMPANY (“SOUTHERN
FIDELITY), by and through the undersigned counsel, pursuant to Fla. R. Civ. P. 1.140, files this
Motion to Dismiss Plaintiff's Complaint, or in the alternative, for a More Definite Statement, and
in support thereof states as follows:
1 Plaintiff's Complaint seeks damages allegedly resulting from a breach of contract
under a policy of insurance between Beverly Alexander and Southern Fidelity.
2. Plaintiff bases its Complaint upon a contract or policy of insurance and makes
numerous references to same throughout its Complaint; however, Plaintiff completely fails to
identify the policy and fails to incorporate or attach a copy of the policy to the Complaint, in
derogation of Florida law.
3 Rule 1.130 (a), Fla. R. Civ. P., requires Plaintiff to attach to the Complaint a copy
of the insurance contract or any material or relevant portion thereof. Restoration I of Treasure
Coast v. First Protective Ins. Co., WL 7150467 (2014); Safeco Ins. Co. of America v. Ware, 401
Page 1 of 3
#** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/23/2021 04:15:05 PM.****
So.2d 1129 (Fla. 4th DCA 1981); Diaz v. Bell Microproducts-Future Tech, Inc., 43 So.3d 138
(Fla. 3d DCA 2010) (citing Ware and holding Rule 1.130(a) requires attachment of the instrument
that provides basis for the lawsuit).
4 “In case of a [C]omplaint based on a written instrument, it does not state a cause of
action until the instrument or an adequate portion thereof is attached to or incorporated in the
pleading in question.” Ware, 401 So.2d at 1130.
5 When Plaintiff has been provided with a certified copy of the insurance policy,
dismissal is the appropriate remedy to compel Plaintiff to attach the insurance policy contract to
the Complaint. Ware, 401 So.2d at 1130, 1131.
6 Plaintiff's Complaint fails to meet the requirements set forth by Rule 1.130(a) and
Florida law, therefore it must be dismissed.
7
Moreover, Plaintiff's Complaint vaguely alleges that a contract exists between
Southern Fidelity and “Beverly Alexander” for the residence located at 17765 SW 23rd St,
Miramar, FL 33029; however, the only policy is issued by Southern Fidelity Property & Casualty,
Inc. for a property located at this address.
8 In the alternative, if some part of the Complaint should not be dismissed, then
Plaintiff should be required to file an Amended Complaint that attaches the subject policy of
insurance and appropriately sets forth its claim in a more definite manner, providing sufficient
factual allegations so that Southern Fidelity may respond through straightforward affirmations or
denials. See Fla. R. Civ P. 1.140(e). Currently, the defects in the Complaint described herein render
Southern Fidelity unable to reasonably frame a responsive pleading.
WHEREFORE, for the foregoing reasons, Defendant, SOUTHERN FIDELITY
INSURANCE COMPANY, by and through undersigned counsel, hereby respectfully requests that
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this Court enter an Order dismissing the Complaint filed by Plaintiff, or in the alternative, require
the Plaintiff to draft a version of the Complaint that attaches the subject policy of insurance and
states the allegations in a more definitive manner, and for all other relief that this Court deems just
and appropriate under the circumstances.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 23rd day of March 2021, I electronically filed the
foregoing with the Clerk of the Courts by using the ECF system, which will send a notice of
electronic filing to Saul Escobar, Esq. and Gioia DeCarlo, Esq. at eservice@edclaw.com,
scobar@edclaw.com and decarlo@edclaw.com.
Attorney for
SOUTHERN FIDELITY
INSURANCE COMPANY
2S. University Drive, Suite 110
Plantation, FL 33324
Phone: (850) 906-1254
rgomez@pmains.com
bbehan@pmains.com
By: /s/ Ricardo A. Gomez
RICARDO A. GOMEZ, ESQ.
Florida Bar No.: 32561
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Filing # 123623405 E-Filed 03/23/2021 04:15:05 PM IN THE COUNTY COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA BEVERLY ALEXANDER, Plaintiff, CASE NO.: COCE-21-07792 vs. SOUTHERN FIDELITY INSURANCE COMPANY A/K/A CAPITOL PREFERRED INSURANCE COMPANY, INC., Defendant DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT, OR IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT. Defendant, SOUTHERN FIDELITY INSURANCE COMPANY (“SOUTHERN FIDELITY), by and through the undersigned counsel, pursuant to Fla. R. Civ. P. 1.140, files this Motion to Dismiss Plaintiff's Complaint, or in the alternative, for a More Definite Statement, and in support thereof states as follows: 1 Plaintiff's Complaint seeks damages allegedly resulting from a breach of contract under a policy of insurance between Beverly Alexander and Southern Fidelity. 2. Plaintiff bases its Complaint upon a contract or policy of insurance and makes numerous references to same throughout its Complaint; however, Plaintiff completely fails to identify the policy and fails to incorporate or attach a copy of the policy to the Complaint, in derogation of Florida law. 3 Rule 1.130 (a), Fla. R. Civ. P., requires Plaintiff to attach to the Complaint a copy of the insurance contract or any material or relevant portion thereof. Restoration I of Treasure Coast v. First Protective Ins. Co., WL 7150467 (2014); Safeco Ins. Co. of America v. Ware, 401 Page 1 of 3 #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/23/2021 04:15:05 PM.**** So.2d 1129 (Fla. 4th DCA 1981); Diaz v. Bell Microproducts-Future Tech, Inc., 43 So.3d 138 (Fla. 3d DCA 2010) (citing Ware and holding Rule 1.130(a) requires attachment of the instrument that provides basis for the lawsuit). 4 “In case of a [C]omplaint based on a written instrument, it does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in the pleading in question.” Ware, 401 So.2d at 1130. 5 When Plaintiff has been provided with a certified copy of the insurance policy, dismissal is the appropriate remedy to compel Plaintiff to attach the insurance policy contract to the Complaint. Ware, 401 So.2d at 1130, 1131. 6 Plaintiff's Complaint fails to meet the requirements set forth by Rule 1.130(a) and Florida law, therefore it must be dismissed. 7 Moreover, Plaintiff's Complaint vaguely alleges that a contract exists between Southern Fidelity and “Beverly Alexander” for the residence located at 17765 SW 23rd St, Miramar, FL 33029; however, the only policy is issued by Southern Fidelity Property & Casualty, Inc. for a property located at this address. 8 In the alternative, if some part of the Complaint should not be dismissed, then Plaintiff should be required to file an Amended Complaint that attaches the subject policy of insurance and appropriately sets forth its claim in a more definite manner, providing sufficient factual allegations so that Southern Fidelity may respond through straightforward affirmations or denials. See Fla. R. Civ P. 1.140(e). Currently, the defects in the Complaint described herein render Southern Fidelity unable to reasonably frame a responsive pleading. WHEREFORE, for the foregoing reasons, Defendant, SOUTHERN FIDELITY INSURANCE COMPANY, by and through undersigned counsel, hereby respectfully requests that Page 2 of 3 this Court enter an Order dismissing the Complaint filed by Plaintiff, or in the alternative, require the Plaintiff to draft a version of the Complaint that attaches the subject policy of insurance and states the allegations in a more definitive manner, and for all other relief that this Court deems just and appropriate under the circumstances. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 23rd day of March 2021, I electronically filed the foregoing with the Clerk of the Courts by using the ECF system, which will send a notice of electronic filing to Saul Escobar, Esq. and Gioia DeCarlo, Esq. at eservice@edclaw.com, scobar@edclaw.com and decarlo@edclaw.com. Attorney for SOUTHERN FIDELITY INSURANCE COMPANY 2S. University Drive, Suite 110 Plantation, FL 33324 Phone: (850) 906-1254 rgomez@pmains.com bbehan@pmains.com By: /s/ Ricardo A. Gomez RICARDO A. GOMEZ, ESQ. Florida Bar No.: 32561 Page 3 of 3