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Filing # 67921279 E-Filed 02/13/2018 04:41:16 PM
IN THE CIRCUIT COURT OF 17"
JUDICIAL CIRCUIT, IN AN FOR
BROWARD COUNTY, FLORIDA
CARLOS ARCE CASE NO: CACE18000484
Plaintiff,
VS.
UNIVERSAL PROPERTY AND CASUALTY
INSURANCE COMPANY,
Defendant.
/
DEFENDANT, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY
MOTION TO DISMISS FOR FAILURE TO JOIN AN INDISPENSABLE PARTY
Defendant, UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY
(“Universal”), files this Motion to Dismiss Plaintiff's Complaint for Failure to Join an
Indispensable Party and states as follows:
1. Plaintiff, Carlos Arce, (“Plaintiff”), filed a Complaint on or about January 28, 2018.
2. This matter arises from a claim for insurance benefits for water damage to the
Plaintiff's home allegedly occurring on September 1, 2017 and first reported to Universal on
September 5, 2017.
3. Universal issued a homeowner’s insurance policy, policy number XXXX-XXXX-
MMH (“Policy”) to Carlos Arce (the “Insured”), subject to the terms, conditions, definitions,
limitations, exclusions, endorsements and applicable Florida statutes, for the property located at
5708 NW 81° Avenue, Tamarac, Florida 33321 (“insured property”) for the one-year policy period
of July 24, 2017 through July 24, 2018.
4. In accordance with the Policy that is at issue in this matter, the insured property is
owned by Carlos Arce and Olga Rodriguez-Arce.
5. Rule 1.140, Florida Rules of Civil Procedure provides that all indispensable parties
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 2/13/2018 4:41:15 PM.****Carlos Arce v. Universal
CASE NO: CACE!8000484
should be joined to the action and that a Court may dismiss an action for failure to include an
indispensable party.
6. Section 627.405, Florida Statutes provides:
(1) No contract of insurance of property or of any interest in property or
arising from property shall be enforceable as to the insurance except for the
benefit of persons having an insurable interest in the things insured as at the
time of the loss.
(2) “Insurable interest” as used in this section means any actual, lawful,
and substantial economic interest in the safety or preservation of the subject
of the insurance free from loss, destruction, or pecuniary damage or
impairment.
(3) The measure of an insurable interest in property is the extent to which
the insured might be indemnified by loss, injury, or impairment thereof.
7. Plaintiff failed to include Olga Rodriguez-Arce as an individual in this action,
thereby failing to include an indispensable party to this litigation.
8. Accordingly, Plaintiffs Complaint should be dismissed for failure to join an
indispensable party.
MEMORANDUM OF LAW
I. STANDARD FOR A MOTION TO DISMISS
“[T]he function of a motion to dismiss a complaint is to raise a question of law as to the
sufficiency of the facts alleged to state a cause of action. The motion admits as true all well-pleaded
facts as well as all reasonable inferences arising from those facts. The allegations must be
construed in the light most favorable to Plaintiff and the trial court must not speculate what the
true facts may be or what will be proved ultimately in trial of the cause. Finally, the motion must
be decided on questions of law, only, and matters not shown on the face of the complaint cannot
properly be raised on a motion to dismiss." Poulson v. Vordermeier, 327 So. 2d 245, 246 (Fla. 4thCarlos Arce v. Universal
CASE NO: CACE!8000484
DCA 1976) (citing 25 Fla. Jur., Pleadings § 127); see also Hilt v. N. Broward Hosp. Dist., 387 So.
2d 482, 483 (Fla. 4th DCA 1980).
I. LAW AND ARGUMENT
The Complaint Must be Dismissed for Failure to Join an Indispensable Party
Plaintiff's Complaint must be dismissed for failure to join Olga Rodriguez-Arce as an
individual who is an indispensable party, in this action. “An indispensable party is one whose
interest in the controversy makes it impossible to completely adjudicate the matter without
affecting either that party's interest or the interests of another party in the action.” Fla. Dept. of
Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006). “An indispensable party [is] one without
whom the rights of others cannot be determined.” Bastida v. Batchelor, 418 So. 2d 297, 299 (Fla.
3d DCA 1982) “The general rule in equity is that all persons materially interested, either legally
or beneficially, in the subject-matter of the suit, must be made parties either as complainants or
defendants, so that a complete decree may be binding upon all parties.” Oakland Properties Corp.
y. Hogan, 117 So. 846, 848 (Fla. 1928) (quoting Indian River Mfg. Co. v. Wooten, 37 So. 731, 731
(1904) (syllabus)); Cummings, 930 So. 2d at 607.
In this matter, it is undisputed that Olga Rodriguez-Arce as an individual who is a named
insured under the Policy, has an interest in the outcome of this action for insurance benefits for the
repair of their mutual home. Olga Rodriguez-Arce as an individual has an insurable interest in the
home as defined within Section 627.405, Florida Statutes. Universal’s rights and obligations
cannot be fully determined absent the inclusion of Olga Rodriguez-Arce as an individual in this
action. Proceeding without joining Olga Rodriguez-Arce as an individual, leaves Universal open
to the possibility of multiple lawsuits based on the same facts and/or circumstances and leaves the
possibility of inconsistent results in separate actions based on the same insurance claim and allegedCarlos Arce v. Universal
CASE NO: CACE!8000484
damage. Accordingly, Olga Rodriguez-Arce as an individual is an indispensable party to this
action and this action must be dismissed due to Plaintiff's failure to join him in this action.
HI. CONCLUSION
Plaintiff's Complaint should be dismissed for failure to join an indispensable party. Olga
Rodriguez-Arce is an indispensable party to this litigation.
WHEREFORE, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE
COMPANY, respectfully requests that this Honorable Court enter an order dismissing the
Complaint and granting such other and further relief as this Honorable Court deems just and
proper.
CERTIFICATE OF SERVICE
IT HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via
Electronic Service to: Robert A. Reynolds, Esq., (robert@dubofflawfirm.com)
(couridocuments@dubofflawfirm.com), Counsel for Plaintiff on this 13" day of February, 2018.
Attorneys for Defendant
Universal Property & Casualty Ins. Co.
1110 West Commercial Blvd.
Fort Lauderdale, Florida 33309
Telephone: 954-958-1200
Facsimile: 954-202-5440
By:_s/Holly Miller
Todd E. Brant, Esq.
Florida Bar No. 0179310
Holly Miller, Esq.
Florida Bar No. 40185
For Service of Court Documents only
Primary: upciceservic niversalproperty.com
Secondary: kb0426@ui rsalproperty.ce
Preview
Filing # 67921279 E-Filed 02/13/2018 04:41:16 PM IN THE CIRCUIT COURT OF 17" JUDICIAL CIRCUIT, IN AN FOR BROWARD COUNTY, FLORIDA CARLOS ARCE CASE NO: CACE18000484 Plaintiff, VS. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. / DEFENDANT, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY MOTION TO DISMISS FOR FAILURE TO JOIN AN INDISPENSABLE PARTY Defendant, UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY (“Universal”), files this Motion to Dismiss Plaintiff's Complaint for Failure to Join an Indispensable Party and states as follows: 1. Plaintiff, Carlos Arce, (“Plaintiff”), filed a Complaint on or about January 28, 2018. 2. This matter arises from a claim for insurance benefits for water damage to the Plaintiff's home allegedly occurring on September 1, 2017 and first reported to Universal on September 5, 2017. 3. Universal issued a homeowner’s insurance policy, policy number XXXX-XXXX- MMH (“Policy”) to Carlos Arce (the “Insured”), subject to the terms, conditions, definitions, limitations, exclusions, endorsements and applicable Florida statutes, for the property located at 5708 NW 81° Avenue, Tamarac, Florida 33321 (“insured property”) for the one-year policy period of July 24, 2017 through July 24, 2018. 4. In accordance with the Policy that is at issue in this matter, the insured property is owned by Carlos Arce and Olga Rodriguez-Arce. 5. Rule 1.140, Florida Rules of Civil Procedure provides that all indispensable parties *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 2/13/2018 4:41:15 PM.****Carlos Arce v. Universal CASE NO: CACE!8000484 should be joined to the action and that a Court may dismiss an action for failure to include an indispensable party. 6. Section 627.405, Florida Statutes provides: (1) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured as at the time of the loss. (2) “Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment. (3) The measure of an insurable interest in property is the extent to which the insured might be indemnified by loss, injury, or impairment thereof. 7. Plaintiff failed to include Olga Rodriguez-Arce as an individual in this action, thereby failing to include an indispensable party to this litigation. 8. Accordingly, Plaintiffs Complaint should be dismissed for failure to join an indispensable party. MEMORANDUM OF LAW I. STANDARD FOR A MOTION TO DISMISS “[T]he function of a motion to dismiss a complaint is to raise a question of law as to the sufficiency of the facts alleged to state a cause of action. The motion admits as true all well-pleaded facts as well as all reasonable inferences arising from those facts. The allegations must be construed in the light most favorable to Plaintiff and the trial court must not speculate what the true facts may be or what will be proved ultimately in trial of the cause. Finally, the motion must be decided on questions of law, only, and matters not shown on the face of the complaint cannot properly be raised on a motion to dismiss." Poulson v. Vordermeier, 327 So. 2d 245, 246 (Fla. 4thCarlos Arce v. Universal CASE NO: CACE!8000484 DCA 1976) (citing 25 Fla. Jur., Pleadings § 127); see also Hilt v. N. Broward Hosp. Dist., 387 So. 2d 482, 483 (Fla. 4th DCA 1980). I. LAW AND ARGUMENT The Complaint Must be Dismissed for Failure to Join an Indispensable Party Plaintiff's Complaint must be dismissed for failure to join Olga Rodriguez-Arce as an individual who is an indispensable party, in this action. “An indispensable party is one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that party's interest or the interests of another party in the action.” Fla. Dept. of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006). “An indispensable party [is] one without whom the rights of others cannot be determined.” Bastida v. Batchelor, 418 So. 2d 297, 299 (Fla. 3d DCA 1982) “The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of the suit, must be made parties either as complainants or defendants, so that a complete decree may be binding upon all parties.” Oakland Properties Corp. y. Hogan, 117 So. 846, 848 (Fla. 1928) (quoting Indian River Mfg. Co. v. Wooten, 37 So. 731, 731 (1904) (syllabus)); Cummings, 930 So. 2d at 607. In this matter, it is undisputed that Olga Rodriguez-Arce as an individual who is a named insured under the Policy, has an interest in the outcome of this action for insurance benefits for the repair of their mutual home. Olga Rodriguez-Arce as an individual has an insurable interest in the home as defined within Section 627.405, Florida Statutes. Universal’s rights and obligations cannot be fully determined absent the inclusion of Olga Rodriguez-Arce as an individual in this action. Proceeding without joining Olga Rodriguez-Arce as an individual, leaves Universal open to the possibility of multiple lawsuits based on the same facts and/or circumstances and leaves the possibility of inconsistent results in separate actions based on the same insurance claim and allegedCarlos Arce v. Universal CASE NO: CACE!8000484 damage. Accordingly, Olga Rodriguez-Arce as an individual is an indispensable party to this action and this action must be dismissed due to Plaintiff's failure to join him in this action. HI. CONCLUSION Plaintiff's Complaint should be dismissed for failure to join an indispensable party. Olga Rodriguez-Arce is an indispensable party to this litigation. WHEREFORE, Defendant, UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, respectfully requests that this Honorable Court enter an order dismissing the Complaint and granting such other and further relief as this Honorable Court deems just and proper. CERTIFICATE OF SERVICE IT HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via Electronic Service to: Robert A. Reynolds, Esq., (robert@dubofflawfirm.com) (couridocuments@dubofflawfirm.com), Counsel for Plaintiff on this 13" day of February, 2018. Attorneys for Defendant Universal Property & Casualty Ins. Co. 1110 West Commercial Blvd. Fort Lauderdale, Florida 33309 Telephone: 954-958-1200 Facsimile: 954-202-5440 By:_s/Holly Miller Todd E. Brant, Esq. Florida Bar No. 0179310 Holly Miller, Esq. Florida Bar No. 40185 For Service of Court Documents only Primary: upciceservic niversalproperty.com Secondary: kb0426@ui rsalproperty.ce