Allstate Ins. Co. v. Auto Glass Am., LLC

• Decision Date: 30 September 2019
• Docket Number: Case No: 6:18-cv-2184-Orl-41LRH
• Citation: 418 F.Supp.3d 1009
• Parties: ALLSTATE INSURANCE COMPANY, Allstate Fire and Casualty Insurance Company, Allstate Indemnity Company and Allstate Property and Casualty Insurance Company, Plaintiffs, v. AUTO GLASS AMERICA, LLC and Charles Isaly, Defendants.
• Court: U.S. District Court — Middle District of Florida

418 F.Supp.3d 1009

ALLSTATE INSURANCE COMPANY, Allstate Fire and Casualty Insurance Company, Allstate Indemnity Company and Allstate Property and Casualty Insurance Company, Plaintiffs,

v.AUTO GLASS AMERICA, LLC and Charles Isaly, Defendants.

Case No: 6:18-cv-2184-Orl-41LRH

United States District Court, M.D. Florida, Orlando Division.

Signed September 30, 2019

Douglas B. Brown, Sally Rogers Culley, Lori J. Caldwell, Rumberger, Kirk & Caldwell, PA, Orlando, FL, for Plaintiffs.

Emilio R. Stillo, Stillo & Richardson, PA, Davie, FL, Lawrence M. Kopelman, Lawrence M. Kopelman, Esq., Mac S. Phillips, Phillips Tadros, P.A., Fort Lauderdale, FL, Chad Andrew Barr, Law Office of Chad A. Barr, PA, Altamontes Springs, FL, for Defendants.

ORDER

CARLOS E. MENDOZA, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Defendants' Motion to Dismiss ("Motion," Doc. 22) and Plaintiffs' Response (Doc. 29). As set forth below, the Motion will be granted in part and denied in part.

I. BACKGROUND

Plaintiffs are insurance companies that offer insurance policies for, among other things, automobiles. (Compl., Doc. 1, at 5). Through these insurance policies, Plaintiffs allege that they have contractual relationships with their insured customers. (Id. at 29). Defendant Auto Glass America, LLC, and its owner Charles Isaly, are alleged to be in the business of replacing automobile glass, including replacing damaged windshields. (Id. at 5).

"Florida [law] requires that insurance companies, including Plaintiffs, cover repair or replacement of damaged windshields of their insureds who have comprehensive coverage, [and i]nsureds are not required to pay a deductible on these claims."¹ Gov't Emps. Ins. Co. v. Clear Vision Windshield Repair, L.L.C. , No. 6:16-cv-2077-Orl-28TBS, 2017 WL 1196438, at *1, 2017 U.S. Dist. LEXIS 47353, at *2, (M.D. Fla. Mar. 29, 2017) (citing Fla. Stat. § 627.7288 ); (see also Doc. 1 at 8). The conflict between these parties results from these windshield replacements. (Doc. 1 at 2).

Plaintiffs claim that Defendants "pressure" Plaintiffs' insured customers into hiring Defendants for windshield replacements.² (Id. ). Defendants then allegedly obtain an assignment of benefits from Plaintiffs' insured customers "without the insureds' knowledge or consent." (Id. at 4). Defendants, through the assignment of benefits, allegedly invoice Plaintiffs for the replacements, in accordance with Florida Statute § 627.7288, which provides that insured customers with comprehensive coverage do not have to pay for windshield replacements. (Id. at 2). Plaintiffs claim that these invoices are for "excessive and unreasonable amounts." (Doc. 1 at 2). Plaintiffs assert that a typical windshield replacement done by other vendors in Florida cost an average of $350, whereas Defendants' invoices average $900. (Id. at 4). Plaintiffs also claim that in some of the replacement situations, windshield replacement was unnecessary because the damaged windshield could have been safely repaired at a lower cost. (Id. ).

Consequently, Plaintiffs have refused to pay Defendants more than what it believes are "the competitive and prevailing market rates for windshield replacements." (Id. ). As a result, Defendants have then purportedly "filed over 1,400 lawsuits" against Plaintiffs to recover the "overages"—the difference between the invoice amount and Plaintiffs' payment. (Id. ; see also Doc. Nos. 15, 16). At the time of the Complaint, Plaintiffs allege that "[t]he current amount of overages ... exceeds $200,000." (Doc. 1 at 4). And Plaintiffs claim that they have "incurred litigation costs and fees in 2017 and 2018 alone exceeding $400,000." (Id. at 5).

Plaintiffs filed the instant lawsuit, which asserts claims for tortious interference, violations of Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"), violations of Florida's Home Solicitation Sales Act ("FHSSA"), violations of the Federal Trade Commission's ("FTC") Rule Concerning Cooling-off Period for Sales Made at Homes or at Certain Other Locations ("FTC Rule"), violations of the Florida Motor Vehicle Repair Act ("FMVRA"), and unjust enrichment. (See generally Doc. 1). Plaintiffs seek injunctive and declaratory relief and request actual damages. (Id. ).

Defendants move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 22 at 1). Pursuant to Rule 12(b)(1), Defendants assert what they characterize as a facial attack based on lack of Article III standing and a factual attack based on abstention grounds. (Id. at 3). Defendants also move to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Id. at 2).

II. RULE 12(b)(1)

A. Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss the claims against it for "lack of subject-matter jurisdiction." "Attacks on subject matter jurisdiction ... come in two forms: ‘facial attacks’ and ‘factual attacks.’ " Garcia v. Copenhaver, Bell & Assocs., M.D.'s, P.A. , 104 F.3d 1256, 1260–61 (11th Cir. 1997) (quoting Lawrence v. Dunbar , 919 F.2d 1525, 1528–29 (11th Cir. 1990) ). "Facial attacks challenge subject matter jurisdiction based on the allegations in the complaint, and the district court takes the allegations as true in deciding whether to grant the motion." Morrison v. Amway Corp. , 323 F.3d 920, 925 n.5 (11th Cir. 2003). "However, where a defendant raises a factual attack on subject matter jurisdiction, the district court may consider extrinsic evidence such as deposition testimony and affidavits." Carmichael v. Kellogg, Brown & Root Servs., Inc. , 572 F.3d 1271, 1279 (11th Cir. 2009). "When jurisdiction is properly challenged, a plaintiff has the burden of showing jurisdiction exists." Kruse, Inc. v. Aqua Sun Invs., Inc. , No. 6:07-cv-1367-Orl-19UAM, 2008 WL 276030, 2008 U.S. Dist. LEXIS 7066 (M.D. Fla. Jan. 31, 2008).

B. Article III Standing Analysis

Article III standing is a threshold inquiry, Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), so the Court will address it first. In order to bring a case in federal court, a plaintiff must establish standing under Article III of the United States Constitution. Lujan v. Defs. of Wildlife , 504 U.S. 555, 559–60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To establish Constitutional, or Article III, standing, a plaintiff must show: "1) that [it] personally has suffered an actual or prospective injury as a result of the putatively illegal conduct; 2) that the injury can be fairly traced to the challenged conduct; and 3) that the injury is likely to be redressed through court action." Saladin v. City of Milledgeville , 812 F.2d 687, 690 (11th Cir. 1987).

Defendants assert that Plaintiffs have failed to establish Article III standing because: Plaintiffs have not demonstrated that any of their claims fall within coverage of the consumer protection statutes upon which their claims are based; Plaintiffs have not established that they have suffered an injury-in-fact; and Plaintiffs have not shown a causal connection between the purported injury and the complained of conduct.

To establish Article III standing, "it is not enough that a named plaintiff can establish a case or controversy between himself and the defendant by virtue of having standing as to just one of many claims he wishes to assert. Rather, each claim must be analyzed separately." Griffin v. Dugger , 823 F.2d 1476, 1483 (11th Cir. 1987). Therefore, the Court proceeds to look at whether Plaintiffs have standing to bring each of the ten Counts they have asserted in the Complaint.³

1. Counts II, III, IV, VII, and VIII—FDUTPA Claims

Counts II, III, IV, VII, and VIII of Plaintiffs' Complaint are based on alleged violations of FDUTPA. FDUTPA makes illegal "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce." Fla. Stat. § 501.204(1). "FDUTPA authorizes a private cause of action for actual damages by any ‘person’ who has suffered a loss because of a defendant's violation of the statute." State Farm Mut. Auto. Ins. Co. v. Feijoo , No. 1:18-cv-23329-KMM, 2019 U.S. Dist. LEXIS 93343, at *13 (S.D. Fla. June 3, 2019) (quoting Fla. Stat. § 501.211(2) ). In 2001, the Florida Legislature amended FDUTPA's standing provision by replacing the word ‘consumer’ with the word ‘person.’ Id. "There is currently a split in authority regarding whether the 2001 amendment extended FDUTPA to non-consumers," and neither the Florida Supreme Court nor the Eleventh Circuit has resolved the split. Id. (collecting cases).

Defendants assert that "Plaintiffs are not consumers involved in consumer transactions with [Defendants]," and therefore are not covered by the protections of FDUTPA. (Doc. 22 at 5). Plaintiffs claim that the FDUTPA is not so limited. Plaintiffs are correct.

At least three of Florida's District Courts of Appeal⁴ have categorically held that "an entity [i]s not required to be a consumer in order to have standing to bring a FDUTPA claim."⁵ Feijoo , 2019 U.S. Dist. LEXIS 93343, at *14 (quoting Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach Cty., Inc. , 169 So. 3d 164, 169 (Fla. 4th DCA 2015) (collecting cases)); see also Envtl. Mfg. Sols., LLC v. Fluid Grp. Ltd. , No. 6:18-cv-156-Orl-40KRS, 2018 WL 3635112, at *16, 2018 U.S. Dist. LEXIS 131382, at *48–50 (M.D. Fla. May 9, 2018) (holding same). Absent a clear direction from the Florida Supreme Court on an issue, this Court is "bound to follow" decisions of the state's intermediate appellate courts unless there is some persuasive indication that the Florida Supreme Court would decide the issue differently. Nunez v. Geico Gen. Ins. Co. , 685 F.3d 1205, 1210 (11th Cir. 2012) (citation omitted). Thus, Defendants' argument that Plaintiffs, as insurers, cannot be protected by FDUTPA fails.

Defendants' arguments also fail regarding...