O'Connor v. Geico Indemnity Company

Middle District of Florida, flmd-8:2017-cv-01539

ORDER granting in part {{5}} Defendant's Motion to Dismiss Counts I and II of Plaintiff's Complaint with Prejudice; denying {{12}} Plaintiff's Motion to Abate Counts I and II. Signed by Judge James D. Whittemore on 10/31/2017. (JJB)

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PageID 307 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION KEVIN PAUL O ' CONNOR, Plaintiff, Case No. 8: 17 - CV - 1539 - T - 27JSS GEICO INDEMNITY COMPANY, Defendant. ORDER BEFORE THE COURT are Defendant's Motion to Dismiss Counts I and II of Plaintiff's Complaint with Prejudice (Dkt. 5) and Plaintiff's Motion to Abate Counts I and II (Dkt. 12) . Both motions are opposed. (Dkts. 11, 14) . Upon consideration, Defendant's motion to dismiss (Dkt. 5) is GRANTED in part and Plaintiff's motion to abate (Dkt. 12) is DENIED. This case arises from an auto negligence lawsuit filed by Plaintiff against Defendant's insured. (Complaint, Dkt. 2 at 10) . The insurance policy provides, in pertinent part: ADDITIONAL PAYMENTS WE WILL MAKE UNDER THE LIABILITY COVERAGES 1. All investigative and legal costs incurred by us [: ] 4. We will upon request by an insured, provide reimbursement for the following items. (c) All reasonable costs incurred by an insured at our request. (Florida Family Automobile Insurance Policy, Dkt. 2 at p. 15) . The index of the policy lists " Legal PageID 308 Expenses and Court Costs " as items that are covered under the Additional Payments Section. (Id. at p. 13) . A Supplemental Final Judgment for Attorney's Fees and Costs was entered against Defendant's insured and in favor of Plaintiff pursuant to Florida's offer of judgment statute, FLA. STAT. § 768. 79. (Supplemental Final Judgment, Dkt. 2 at p. 32) . Defendant appealed the S Supplemental Final Judgment, and that appeal is pending. (Notice of Appeal, Dkt. 5 - 1) . Plaintiff's Complaint against Defendant in this case asserts claims for declaratory judgment (Count I), breach of contract (Count II), and common law bad faith (Count III) . (Complaint, Dkt. 2) . Counts I and II assert that the insurance policy requires Defendant to pay the Supplemental Final Judgment entered against its insured. (Id. at 11 16, 21) . Defendant removed the case to this Court based on diversity jurisdiction. (Notice of Removal, Dkt. 1) . It moves to dismiss Counts I and II on the grounds that they are not ripe and the unambiguous language of the policy does not obligate it to pay the Supplemental Final Judgment. (Dkt. 5) . In response to Defendant's motion to dismiss, Plaintiff admits that his claims are not yet ripe because of the pending appeal, but argues that the claims should be abated, rather than dismissed. (Dkt. 11) . Plaintiff also filed the separate motion to abate Counts I and II. (Dkt. 12) . Defendant opposes abatement, arguing that the proper remedy for Plaintiff's unripe claims is dismissal without prejudice. (Dkt. 14, p. 3 n. 1) . Because Defendant's ripeness argument presents a jurisdictional question, it shall be addressed first. " In diversity actions, the federal court must apply the substantive law of the state in which it sits, " except in matters governed by the Federal Constitution or by act of Congress. ' " After Defendant filed its motion to dismiss, the Florida Supreme Court issued its decision in Government Emps. Ins. Co. v. Macedo, No. SC16 - 935, 2017 WL 2981812 (Fla. July 13, 2017) . The Court held in a case involving identical policy language that " the ambiguous Additional Payments section of the GEICO insurance policy must be construed to provide coverage for the costs and attorneys ' fees awarded against ſits insured ] pursuant to the offer of judgment statute. " Id at * 3. Defendant acknowledges the implications of that decision, but correctly points out that it is immaterial to the ripeness analysis, PageID 309 Y ? Trailer Bridge, Inc. v. Illinois Nat ' l Ins. Co ., 657 F. 3d 1135, 1141 (11th Cir. 2011) (per curiam) (quoting Erie R. R. Co. v. Tompkins, 304U.S. 64, 78 (1938)) . " [ R ] ipeness originate [ s ] from the Constitution's Article III requirement that the jurisdiction of the federal courts be limited to actual cases and controversies. " Elend v. Basham, 471 F. 3d 1199, 1204 - 05 (11th Cir. 2006) (citing Flast C v. Cohen, 392U.S. 83, 94 - 101 (1968)) . " If a claim is not ripe, the district court lacks jurisdiction to issue a ruling on the merits and therefore must dismiss that claim without prejudice. " Serpentfoot v. Rome City Comm ' n, 322 F. App ' x 801, 805 (11th Cir. 2009) (per curiam) (citing Georgia Advocacy Office, Inc. v. Camp, 172 F. 3d 1294, 1299 (11th Cir. 1999)) . " A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all. " Texas v. United 12 ur as E ECTS States, 523U.S. 296, 300 (1998) (quotation marks omitted) . Plaintiff acknowledges that his declaratory judgment and breach of contract claims are contingent on the Florida appellate court affirming the Supplemental Final Judgment, an event that may not occur as anticipated because the appellate court could reverse the judgment. Counts I and II, therefore, must be dismissed without prejudice to Plaintiff to refile his declaratory judgment and breach of contract claims after he prevails in Defendant's appeal of the Supplemental Final Judgment. Accordingly, Defendant's Motion to Dismiss Counts I and II of Plaintiff's Complaint with Prejudice (Dkt. 5) is GRANTED in part and Plaintiff's Motion to Abate Counts I and II of Plaintiffs Complaint (Dkt, 12) is DENIED. Counts I and II of Plaintiff's Complaint (Dkt. 2) are Plaintiff cites cases in which Florida courts held that abatement is an acceptable remedy for a premature claim. See (Motion to Abate, Dkt. 12 at pp. 2 - 3) (citing Fridman v, Safeco Ins. Co. of Ill ., 185 So. 3d 1214, 1229 - 30 (Fla. 2016); Biermany. Miller, 639 So. 2d 627, 628 (Fla. Dist. Ct. App. 1994)) . As noted, Florida law applies in this diversity action except for matters governed by the Federal Constitution, and ripeness is a jurisdictional requirement under the Constitution. Therefore, the Florida cases cited by Plaintiff do not govern Defendant's argument that Counts I and II must be dismissed without prejudice because they are not ripe. PageID 310 DISMISSED without prejudice. DONE AND ORDERED this _ 31 _ day of OCTOBER 2017. Hittema JAMES D. WHITTEMORE United States District Judge Copies to: Counsel of record