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Filing # 127476399 E-Filed 05/25/2021 12:01:04 PM
39184
IN THE COUNTY COURT OF THE 5TH
JUDICIAL CIRCUIT, IN AND FOR LAKE
COUNTY, FLORIDA
KRISH DARMALINGUM,
CASE NO.: 35-2021-CA-000746
Plaintiffs,
vs.
CLEAR BLUE INSURANCE COMPANY,
Defendant.
/
DEFENDANT’S MOTION TO DISMISS
FOR FAILURE TO JOIN AN INDISPENSABLE PARTY
Defendant, CLEAR BLUE INSURANCE COMPANY (hereinafter “Defendant”), by and
through its undersigned counsel, and pursuant to the applicable Florida Rules of Civil Procedure,
hereby files this Motion to Dismiss for Failure to Join an Indispensable Party (“Motion to Dismiss”)
in response to Plaintiff, KRISH DARMALINGUM, Complaint and in support thereof states as
follows:
1. This litigation stems from a claim for homeowners’ insurance benefits for alleged
damages as a result of windstorm that occurred on August 10, 2021 at 3816 Glenford Drive,
Clermont, Florida 34711. See, generally, Plaintiff's Complaint.
2. Plaintiffs Complaint as pled fails to comply with the requirements set forth in the
Florida Rules of Civil Procedure. Specifically, Plaintiff failed to join an indispensable party.
Accordingly, it fails set forth a proper cause of action against the Defendant and must be dismissed
as a matter of law.
3. There are additional interested parties to this litigation. Specifically, the Warranty
Deed recorded in the Official Records for Lake County, Florida, identifies Plaintiff as a married
man. See, Warranty Deed attached hereto as Composite Exhibit “A”.
FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 05/25/2021 02:52:29 PM.4. While the Defendant does not know the name of Plaintiff's wife, based on the
information provided by the Plaintiff during the claim investigation, it believes that she resided in
the subject property on the alleged date of claim. Therefore, she is a definitional insured under the
subject policy. As such, the contractual benefits and obligations under same, to the extent that
they exist, are equally due to and/or borne by Plaintiff and his wife.
5. The general rule in Florida is well established that all persons materially interested,
either legally or beneficially, in the subject-matter of a suit must be made parties either as
complainants or defendants, so that a complete decree may be made binding upon all parties. See
e.g. Robinson y. Howe, 17 So. 2d 368 (Fla. 1895.) Accordingly, Plaintiff's wife, is an
indispensable party to this litigation because its interest in the subject matter of the action is such
that if it is not joined, a complete and efficient determination of the equities and rights and
liabilities of the other parties is not possible. See Grammer v. Roman, 174 So. 2d 443 (Fla. 2d
DCA 1965.)
6. The Plaintiff’s attempted action here, without joining, his wife is impermissible and
improperly subjects the Defendant to a possible second action by her and potentially inconsistent
judgment on the same contract and the same alleged loss because both Plaintiff and his wife are
both materially interested in the subject matter of the suit. Accordingly, they have equal insurable
interests in the property at issue and equal interests in any proceeds due under the policy, if any.
As such, Defendant is entitled to have this matter resolved in a single action involving both
interested parties.
WHEREFORE, for the forgoing reasons, CLEAR BLUE INSURANCE COMPANY,
hereby requests that this Court enter an Order granting Defendant’s Motion to Dismiss for Failure
to Join an Indispensable Party, or alternatively, grant Plaintiff leave to amend to include theindispensable party, along with any such other relief as this Court deems just and proper under the
circumstances.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
to Brooke Boltz, Esq. by electronic mail to brookeboltz@boltzlegal.com; blacy@boltzlegal.com;
eservice@boltzlegal.com; this 25" day of May, 2021.
GROELLE & SALMON, P.A.
Attorneys for Defendant
485 N. Keller Road, Suite 151
Maitland, FL 32751
(321) 280-4880 / (321) 280-4881 Facsimile
Primary: gsocourtdocs@gspalaw.com
Secondary: gglasgow@gspalaw.com
By: _/s/ Gina S. Glasgow
GINA S. GLASGOW, ESQUIRE
Fla. Bar No.: 54921
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Filing # 127476399 E-Filed 05/25/2021 12:01:04 PM 39184 IN THE COUNTY COURT OF THE 5TH JUDICIAL CIRCUIT, IN AND FOR LAKE COUNTY, FLORIDA KRISH DARMALINGUM, CASE NO.: 35-2021-CA-000746 Plaintiffs, vs. CLEAR BLUE INSURANCE COMPANY, Defendant. / DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO JOIN AN INDISPENSABLE PARTY Defendant, CLEAR BLUE INSURANCE COMPANY (hereinafter “Defendant”), by and through its undersigned counsel, and pursuant to the applicable Florida Rules of Civil Procedure, hereby files this Motion to Dismiss for Failure to Join an Indispensable Party (“Motion to Dismiss”) in response to Plaintiff, KRISH DARMALINGUM, Complaint and in support thereof states as follows: 1. This litigation stems from a claim for homeowners’ insurance benefits for alleged damages as a result of windstorm that occurred on August 10, 2021 at 3816 Glenford Drive, Clermont, Florida 34711. See, generally, Plaintiff's Complaint. 2. Plaintiffs Complaint as pled fails to comply with the requirements set forth in the Florida Rules of Civil Procedure. Specifically, Plaintiff failed to join an indispensable party. Accordingly, it fails set forth a proper cause of action against the Defendant and must be dismissed as a matter of law. 3. There are additional interested parties to this litigation. Specifically, the Warranty Deed recorded in the Official Records for Lake County, Florida, identifies Plaintiff as a married man. See, Warranty Deed attached hereto as Composite Exhibit “A”. FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 05/25/2021 02:52:29 PM.4. While the Defendant does not know the name of Plaintiff's wife, based on the information provided by the Plaintiff during the claim investigation, it believes that she resided in the subject property on the alleged date of claim. Therefore, she is a definitional insured under the subject policy. As such, the contractual benefits and obligations under same, to the extent that they exist, are equally due to and/or borne by Plaintiff and his wife. 5. The general rule in Florida is well established that all persons materially interested, either legally or beneficially, in the subject-matter of a suit must be made parties either as complainants or defendants, so that a complete decree may be made binding upon all parties. See e.g. Robinson y. Howe, 17 So. 2d 368 (Fla. 1895.) Accordingly, Plaintiff's wife, is an indispensable party to this litigation because its interest in the subject matter of the action is such that if it is not joined, a complete and efficient determination of the equities and rights and liabilities of the other parties is not possible. See Grammer v. Roman, 174 So. 2d 443 (Fla. 2d DCA 1965.) 6. The Plaintiff’s attempted action here, without joining, his wife is impermissible and improperly subjects the Defendant to a possible second action by her and potentially inconsistent judgment on the same contract and the same alleged loss because both Plaintiff and his wife are both materially interested in the subject matter of the suit. Accordingly, they have equal insurable interests in the property at issue and equal interests in any proceeds due under the policy, if any. As such, Defendant is entitled to have this matter resolved in a single action involving both interested parties. WHEREFORE, for the forgoing reasons, CLEAR BLUE INSURANCE COMPANY, hereby requests that this Court enter an Order granting Defendant’s Motion to Dismiss for Failure to Join an Indispensable Party, or alternatively, grant Plaintiff leave to amend to include theindispensable party, along with any such other relief as this Court deems just and proper under the circumstances. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Brooke Boltz, Esq. by electronic mail to brookeboltz@boltzlegal.com; blacy@boltzlegal.com; eservice@boltzlegal.com; this 25" day of May, 2021. GROELLE & SALMON, P.A. Attorneys for Defendant 485 N. Keller Road, Suite 151 Maitland, FL 32751 (321) 280-4880 / (321) 280-4881 Facsimile Primary: gsocourtdocs@gspalaw.com Secondary: gglasgow@gspalaw.com By: _/s/ Gina S. Glasgow GINA S. GLASGOW, ESQUIRE Fla. Bar No.: 54921