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Filing # 44780726 E-Filed 08/03/2016 02:32:49 PM
IN THE COUNTY COURT OF THE
SIXTH JUDICIAL CIRCUIT IN AND
FOR PINELLAS COUNTY, FLORIDA
CASE NUMBER: 16006029SCSOUTH
MOBILE AUTO GLASS REPAIR, LLC a/a/o
MIGUEL FULLER,
Plaintiff,
vs.
PROGRESSIVE SELECT INSURANCE
COMPANY,
Defendant.
/
DEFENDANT’S MOTION TO STRIKE PARAGRAPHS 28 & 29 OF PLAINTIFF’S
COMPLAINT AND INCORPORATED MEMORANDUM OF LAW
COMES NOW, Defendant, PROGRESSIVE SELECT INSURANCE COMPANY
by and through the undersigned counsel, and files this, its Motion to Strike Paragraphs
28 & 29 of Plaintiff's Complaint, and in support thereof states as follows:
1. Plaintiff, MOBILE AUTO GLASS REPAIR, LLC a/a/o MIGUEL FULLER,
filed this lawsuit against the Defendant, PROGRESSIVE SELECT INSURANCE
COMPANY for benefits allegedly due to Plaintiff through insured MIGUEL FULLER via a
purported assignment of benefits for alleged windshield replacement services.
2. Plaintiffs Complaint consists of one count alleging that as a lawful
assignee under the insured’s policy of insurance, Plaintiff is entitled to damages as a
result of Defendant’s breach thereof.
3. More specifically, the Plaintiff's Complaint makes references to
Defendant’s purported relationship with a Third Party Administrator (TPA). Plaintiff
appears to use the allegations pertaining to the relationship with this non-party to
support its allegations in paragraphs 28 and 29 of the Complaint.
0214-3342
***ELECTRONICALLY FILED 08/03/2016 02:32:48 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***5. Specifically, paragraphs 28 and 29 state as follows:
28. The express provision of the policy, as specifically pled
and quoted in paragraph 24, afforded the Defendant
substantial discretion to promote the Defendant’s self-
interest and from this express provision of the insurance
contract arises the implied covenant of good faith and fair
dealing, which limits the Defendant's ability to act
capriciously, unreasonably, or in bad faith in preforming its
contractual duties relative to the amount owed under the
policy for windshield replacements. The implied covenant of
good faith and fair dealing arises from this express provision,
because this provision provides the Defendant with the
power to make a discretionary pricing and payment decision
without defined standards. There are no defined standards
in the insurance policy guiding the Defendant with its choice
in deciding on a TPA to use to administer windshield claims.
29. The Defendant's decision to use Safelite as a TPA
breached the implied covenant of good faith and fair dealing.
6. In reality, these paragraphs are a thinly veiled attempt by Plaintiff to
include a claim for bad faith, which, is entirely premature and completely inappropriate
at this juncture.
7. Florida law is well-settled that a bad faith claim brought under Fla.Stat. §
624.155 is not ripe until the underlying breach of contract action is fully resolved against
the insurer. See Vest v. Travelers Ins. Co., 753 So. 2d 1270 (Fla. 2000).
8. Because these paragraphs of Plaintiff's Complaint contain allegations
pertaining to and alleging a premature bad faith claim striking of these paragraphs is
appropriate as a matter of law.
MOTION TO STRIKE STANDARD
Rule 1.140(f), Florida Rules of Civil Procedure permits a party to move to strike
redundant, immaterial, impertinent or scandalous matter from a pleading at any time.
Rice-Lamar v. City of Fort Lauderdale, 853 So.2d 1125 (Fla. 4th DCA 2003). A motion
0214-3342to strike a matter as redundant, immaterial or scandalous should be granted if the
material is wholly irrelevant, can have no bearing on the equities and no influence on
the decision. See /d., citing McWhirter, Reeves, McGothlin, Davidson Rief & Bakas,
P.A. v. Weiss, 704 So.2d 214, 216 (Fla. 2d DCA 1998) (quoting Pentecostal Holiness
Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972).
“Immaterial” means allegations having no essential or important relationship to
the issues or unnecessary elaboration of material allegations. Trawick, Fla. Prac. &
Proc. § 10:6 (2014-2015 ed.). Impertinent means allegations that do not belong to the
issue and are not necessary to it. /d.
Here, the allegations in paragraphs 28 and 29, referencing the Defendant's
purported “bad faith” are immaterial and impertinent under the existing law of Florida,
and wholly premature as to this breach of contract action.
MEMORANDUM OF LAW
Historically, courts have rejected attempts to join a cause of action for breach of
contract and breach of the covenant of good faith and fair dealing because the latter
claim is the functional equivalent of a bad faith claim. QBE Ins. Corp. v. Chalfonte
Condo. Apartment Ass'n, Inc., 94 So. 3d 541 (Fla. 2012); see also QBE Ins. Corp. v.
Dome Condo. Ass'n, 577 F. Supp. 2d 1256, 1261 (S.D. Fla. 2008) (dismissing a claim
for breach of the implied covenant of good faith and fair dealing because “no such
cause of action exists under Florida law”); cf. Trief v. Am. Gen. Life Ins. Co., 444 F.
Supp. 2d 1268, 1270 (S.D. Fla. 2006) (describing plaintiffs allegations regarding
insurer's failure to adjust, investigate, and pay claim as “resembl[ing] a claim for
0214-3342statutory bad faith rather than one for breach of implied obligation of good faith” and
dismissing it as premature until the underlying coverage dispute was determined).
In Vest v. Travelers Ins. Co., the Florida Supreme Court held that a claim for bad
faith against an insurer is founded upon the obligation of the insurer to pay when all
conditions under the policy would require an insurer exercising good faith and fair
dealing towards its insured to pay. Vest v. Travelers Ins. Co., 753 So.2d 1270, 1275
(Fla. 2000). The Court also stated: “...the denial of payment does not mean an insurer
is guilty of bad faith as a matter of law. The insurer has a right to deny claims that it in
good faith believes are not owed on a policy. Even when it is later determined by a
court or arbitration that the insurer's denial was mistaken, there is no cause of action if
the denial was in good faith.” /d. The Court concluded that a cause of action alleging
bad faith “is premature until there is a determination of liability and extent of damages
owed...” /d. at 1276. See also Blanchard v. State Farm Mutual Automobile Ins. Co.,
575 So.2d 1289 (Fla. 1991); Imhoff v. Nationwide Mutual Insurance Company, 643
So.2d 617 (Fla. 1994); Cammarata v. State Farm Florida Ins. Co., 2014 W.L. 4327948
(Fla. 4"° DCA 2014); Doan v. John Hancock Mutual Life Insurance Company, 727 So.
2d 400, 402 (Fla. 3d DCA 1999); Al/state Insurance Company v. Baughman, 741 So. 2d
624 (Fla. 2d DCA 1999); Hartford Insurance Company v. Mainstream Construction
Group, 864 So. 2d 1270 (Fla 5" DCA 2004); General Star Indemnity Company v.
Anheuser Busch Companies, Inc., 741 So. 2d 1259, 1261 (Fla. 5th DCA 1999) (“For
both first party and third party bad faith claims against insurers, recent case law has
clarified the point that coverage and liability issues must be determined before a bad
faith cause can be prosecuted.”)
0214-3342Simply stated, no bad faith action may be maintained until there has been a
determination of liability and damages in the underlying claim. State Farm ins. Co. v.
Seville Place Condon Assn., 2011 WL 2905642 (Fla. 3d DCA 2011). Any bad faith
claim filed before that date is subject to dismissal. General Star Indemnity Company v.
Anheuser Busch Companies, Inc., 741 So. 2d at 1259 and Vest, 753 So. 2d at 1270.
(“Such a claim should be dismissed as premature.”) See also State Farm Mut. Auto.
Ins. Co. v. Cook, Jones, et. al., 744 So.2d 567, 568 (Fla. 2d DCA 1999) citing
Cunningham v. Standard Guaranty Ins. Co., 630 So.2d 179, 181 (Fla. 1994) (stating
that ordinarily a third-party is required to prevail against the insured before litigating a
bad faith claim against the insurer).
In addition, under the applicable statutes and Fla. Stat. § 624.155(3)(a), Plaintiff
is required to give the department of insurance and the insurer 60 days’ written notice of
an alleged violation. See Vest v. Travelers Ins. Co., 753 So.2d 1270, 1275 (Fla. 2000).
The 60-day time period shall not begin until proper notice has been given, and “[njo
action shall lie, if, within 60 days after filing notice, the damages are paid or the
circumstances giving rise to the violation are corrected.” Fla. Stat. § 624.155.
In the instant case, Plaintiff's bad faith allegations are premature as no final
judgment has been entered. See Cunningham v. Standard Guaranty Ins. Co., 630
So.2d 179, 181 (Fla. 1994). Second, Plaintiff has failed to comply with conditions
precedent to bringing an action against Defendant for failing to settle claims in good
faith, pursuant to Fla. Stat. § 624.155, which requires Plaintiff to provide the department
of insurance with 60 days’ “proper” notice of the violation. Third, even if Plaintiff has
provided the department of insurance with the required 60 days’ notice, the allegations
0214-3342contained in paragraphs 28 and 29 of the Complaint constitute mere opinions and lack
any supporting factual specificity specifically pertaining to this matter. For these
reasons, paragraphs 28 and 29 of Plaintiff's Complaint should be stricken.
WHEREFORE, Defendant, PROGRESSIVE SELECT INSURANCE COMPANY,
respectfully requests this Court Strike paragraphs 28 and 29 from Plaintiff's Complaint,
and further grant any and all other relief this court deems appropriate.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 3 day of August, 2016, a copy of the foregoing
has been filed with the Court using the Florida Courts E-Filing Portal which will send a
notice of electronic filing to all counsel of record. John C. Murrow, Esq.
John C. Murrow, P.A.
4856 W Gandy Bivd.,
Tampa, FL 33611
Phone: 813.999.4950
service-john@johncmurrowlaw.com
Respectfully submitted,
COLE, SCOTT & KISSANE, P.A.
/s/ Paula A. Post, Esq.
Paula A. Post, Esq.
Florida Bar No.: 70315
4686 Sunbeam Road,
Jacksonville, FL 32257
Telephone: 904.672.4000
Fax: 904.672.4050
Email: paula.post@csklegal.com
Email: april.jarvis@csklegal.com
Attorney for Defendant
0214-3342
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Filing # 44780726 E-Filed 08/03/2016 02:32:49 PM IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CASE NUMBER: 16006029SCSOUTH MOBILE AUTO GLASS REPAIR, LLC a/a/o MIGUEL FULLER, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. / DEFENDANT’S MOTION TO STRIKE PARAGRAPHS 28 & 29 OF PLAINTIFF’S COMPLAINT AND INCORPORATED MEMORANDUM OF LAW COMES NOW, Defendant, PROGRESSIVE SELECT INSURANCE COMPANY by and through the undersigned counsel, and files this, its Motion to Strike Paragraphs 28 & 29 of Plaintiff's Complaint, and in support thereof states as follows: 1. Plaintiff, MOBILE AUTO GLASS REPAIR, LLC a/a/o MIGUEL FULLER, filed this lawsuit against the Defendant, PROGRESSIVE SELECT INSURANCE COMPANY for benefits allegedly due to Plaintiff through insured MIGUEL FULLER via a purported assignment of benefits for alleged windshield replacement services. 2. Plaintiffs Complaint consists of one count alleging that as a lawful assignee under the insured’s policy of insurance, Plaintiff is entitled to damages as a result of Defendant’s breach thereof. 3. More specifically, the Plaintiff's Complaint makes references to Defendant’s purported relationship with a Third Party Administrator (TPA). Plaintiff appears to use the allegations pertaining to the relationship with this non-party to support its allegations in paragraphs 28 and 29 of the Complaint. 0214-3342 ***ELECTRONICALLY FILED 08/03/2016 02:32:48 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***5. Specifically, paragraphs 28 and 29 state as follows: 28. The express provision of the policy, as specifically pled and quoted in paragraph 24, afforded the Defendant substantial discretion to promote the Defendant’s self- interest and from this express provision of the insurance contract arises the implied covenant of good faith and fair dealing, which limits the Defendant's ability to act capriciously, unreasonably, or in bad faith in preforming its contractual duties relative to the amount owed under the policy for windshield replacements. The implied covenant of good faith and fair dealing arises from this express provision, because this provision provides the Defendant with the power to make a discretionary pricing and payment decision without defined standards. There are no defined standards in the insurance policy guiding the Defendant with its choice in deciding on a TPA to use to administer windshield claims. 29. The Defendant's decision to use Safelite as a TPA breached the implied covenant of good faith and fair dealing. 6. In reality, these paragraphs are a thinly veiled attempt by Plaintiff to include a claim for bad faith, which, is entirely premature and completely inappropriate at this juncture. 7. Florida law is well-settled that a bad faith claim brought under Fla.Stat. § 624.155 is not ripe until the underlying breach of contract action is fully resolved against the insurer. See Vest v. Travelers Ins. Co., 753 So. 2d 1270 (Fla. 2000). 8. Because these paragraphs of Plaintiff's Complaint contain allegations pertaining to and alleging a premature bad faith claim striking of these paragraphs is appropriate as a matter of law. MOTION TO STRIKE STANDARD Rule 1.140(f), Florida Rules of Civil Procedure permits a party to move to strike redundant, immaterial, impertinent or scandalous matter from a pleading at any time. Rice-Lamar v. City of Fort Lauderdale, 853 So.2d 1125 (Fla. 4th DCA 2003). A motion 0214-3342to strike a matter as redundant, immaterial or scandalous should be granted if the material is wholly irrelevant, can have no bearing on the equities and no influence on the decision. See /d., citing McWhirter, Reeves, McGothlin, Davidson Rief & Bakas, P.A. v. Weiss, 704 So.2d 214, 216 (Fla. 2d DCA 1998) (quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). “Immaterial” means allegations having no essential or important relationship to the issues or unnecessary elaboration of material allegations. Trawick, Fla. Prac. & Proc. § 10:6 (2014-2015 ed.). Impertinent means allegations that do not belong to the issue and are not necessary to it. /d. Here, the allegations in paragraphs 28 and 29, referencing the Defendant's purported “bad faith” are immaterial and impertinent under the existing law of Florida, and wholly premature as to this breach of contract action. MEMORANDUM OF LAW Historically, courts have rejected attempts to join a cause of action for breach of contract and breach of the covenant of good faith and fair dealing because the latter claim is the functional equivalent of a bad faith claim. QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass'n, Inc., 94 So. 3d 541 (Fla. 2012); see also QBE Ins. Corp. v. Dome Condo. Ass'n, 577 F. Supp. 2d 1256, 1261 (S.D. Fla. 2008) (dismissing a claim for breach of the implied covenant of good faith and fair dealing because “no such cause of action exists under Florida law”); cf. Trief v. Am. Gen. Life Ins. Co., 444 F. Supp. 2d 1268, 1270 (S.D. Fla. 2006) (describing plaintiffs allegations regarding insurer's failure to adjust, investigate, and pay claim as “resembl[ing] a claim for 0214-3342statutory bad faith rather than one for breach of implied obligation of good faith” and dismissing it as premature until the underlying coverage dispute was determined). In Vest v. Travelers Ins. Co., the Florida Supreme Court held that a claim for bad faith against an insurer is founded upon the obligation of the insurer to pay when all conditions under the policy would require an insurer exercising good faith and fair dealing towards its insured to pay. Vest v. Travelers Ins. Co., 753 So.2d 1270, 1275 (Fla. 2000). The Court also stated: “...the denial of payment does not mean an insurer is guilty of bad faith as a matter of law. The insurer has a right to deny claims that it in good faith believes are not owed on a policy. Even when it is later determined by a court or arbitration that the insurer's denial was mistaken, there is no cause of action if the denial was in good faith.” /d. The Court concluded that a cause of action alleging bad faith “is premature until there is a determination of liability and extent of damages owed...” /d. at 1276. See also Blanchard v. State Farm Mutual Automobile Ins. Co., 575 So.2d 1289 (Fla. 1991); Imhoff v. Nationwide Mutual Insurance Company, 643 So.2d 617 (Fla. 1994); Cammarata v. State Farm Florida Ins. Co., 2014 W.L. 4327948 (Fla. 4"° DCA 2014); Doan v. John Hancock Mutual Life Insurance Company, 727 So. 2d 400, 402 (Fla. 3d DCA 1999); Al/state Insurance Company v. Baughman, 741 So. 2d 624 (Fla. 2d DCA 1999); Hartford Insurance Company v. Mainstream Construction Group, 864 So. 2d 1270 (Fla 5" DCA 2004); General Star Indemnity Company v. Anheuser Busch Companies, Inc., 741 So. 2d 1259, 1261 (Fla. 5th DCA 1999) (“For both first party and third party bad faith claims against insurers, recent case law has clarified the point that coverage and liability issues must be determined before a bad faith cause can be prosecuted.”) 0214-3342Simply stated, no bad faith action may be maintained until there has been a determination of liability and damages in the underlying claim. State Farm ins. Co. v. Seville Place Condon Assn., 2011 WL 2905642 (Fla. 3d DCA 2011). Any bad faith claim filed before that date is subject to dismissal. General Star Indemnity Company v. Anheuser Busch Companies, Inc., 741 So. 2d at 1259 and Vest, 753 So. 2d at 1270. (“Such a claim should be dismissed as premature.”) See also State Farm Mut. Auto. Ins. Co. v. Cook, Jones, et. al., 744 So.2d 567, 568 (Fla. 2d DCA 1999) citing Cunningham v. Standard Guaranty Ins. Co., 630 So.2d 179, 181 (Fla. 1994) (stating that ordinarily a third-party is required to prevail against the insured before litigating a bad faith claim against the insurer). In addition, under the applicable statutes and Fla. Stat. § 624.155(3)(a), Plaintiff is required to give the department of insurance and the insurer 60 days’ written notice of an alleged violation. See Vest v. Travelers Ins. Co., 753 So.2d 1270, 1275 (Fla. 2000). The 60-day time period shall not begin until proper notice has been given, and “[njo action shall lie, if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.” Fla. Stat. § 624.155. In the instant case, Plaintiff's bad faith allegations are premature as no final judgment has been entered. See Cunningham v. Standard Guaranty Ins. Co., 630 So.2d 179, 181 (Fla. 1994). Second, Plaintiff has failed to comply with conditions precedent to bringing an action against Defendant for failing to settle claims in good faith, pursuant to Fla. Stat. § 624.155, which requires Plaintiff to provide the department of insurance with 60 days’ “proper” notice of the violation. Third, even if Plaintiff has provided the department of insurance with the required 60 days’ notice, the allegations 0214-3342contained in paragraphs 28 and 29 of the Complaint constitute mere opinions and lack any supporting factual specificity specifically pertaining to this matter. For these reasons, paragraphs 28 and 29 of Plaintiff's Complaint should be stricken. WHEREFORE, Defendant, PROGRESSIVE SELECT INSURANCE COMPANY, respectfully requests this Court Strike paragraphs 28 and 29 from Plaintiff's Complaint, and further grant any and all other relief this court deems appropriate. CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 3 day of August, 2016, a copy of the foregoing has been filed with the Court using the Florida Courts E-Filing Portal which will send a notice of electronic filing to all counsel of record. John C. Murrow, Esq. John C. Murrow, P.A. 4856 W Gandy Bivd., Tampa, FL 33611 Phone: 813.999.4950 service-john@johncmurrowlaw.com Respectfully submitted, COLE, SCOTT & KISSANE, P.A. /s/ Paula A. Post, Esq. Paula A. Post, Esq. Florida Bar No.: 70315 4686 Sunbeam Road, Jacksonville, FL 32257 Telephone: 904.672.4000 Fax: 904.672.4050 Email: paula.post@csklegal.com Email: april.jarvis@csklegal.com Attorney for Defendant 0214-3342