Amerisure Ins. Co. v. S. Waterproofing, Inc.

• Decision Date: 19 September 2014
• Docket Number: Case No. 3:14-cv-154-J-34JRK
• Parties: AMERISURE INSURANCE COMPANY, a foreign corporation authorized to transact business in Florida A/S/O Plantation Housing Corp., Plaintiff, v. SOUTHERN WATERPROOFING, INC., a Florida corporation, Defendant.
• Court: U.S. District Court — Middle District of Florida

AMERISURE INSURANCE COMPANY, a foreign corporation authorized
to transact business in Florida A/S/O Plantation Housing Corp., Plaintiff,
v.
SOUTHERN WATERPROOFING, INC., a Florida corporation, Defendant.

Case No. 3:14-cv-154-J-34JRK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

September 19, 2014

ORDER

THIS CAUSE is before the Court on Defendant Southern Waterproofing's Motion to Dismiss Counts I, III, and IV of Plaintiff's Complaint and Incorporated Memorandum of Law (Doc. 6; Motion) filed on February 21, 2014. In the Motion, Defendant Southern Waterproofing Inc. (Southern) requests that the Court dismiss Counts I, III, and IV of the Complaint (Doc. 2) pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure (Rule(s)), for "failure to state a cause of action." See Motion at 1-2. Southern alternatively argues that the Court should require Plaintiff Amerisure Insurance Company (Amerisure) to provide a more definite statement regarding its causes of action.¹ Id. at 2. On March 6, 2014, Amerisure filed a response in opposition to the Motion. See Plaintiff Amerisure Insurance Company's Memorandum of Legal Authority in Opposition to Defendant's Motion to Dismiss Counts I,

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III, and IV of Plaintiff's Complaint (Doc. 11; Response). Accordingly, this matter is ripe for review.

I. Standard of Review

When considering a motion to dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure (Rules(s)), the Court must accept all factual allegations in the complaint as true, construing the allegations and drawing all reasonable inferences in the light most favorable to the plaintiff. Castro v. Sec'y of Homeland Sec., 472 F.3d 1334, 1336 (11th Cir. 2006); Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Rule "8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007). Normally, "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (internal citations and quotations omitted). As a result, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

Of course, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a motion to dismiss, a court should "1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, 'assume their veracity and then determine whether they plausibly give rise to an

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entitlement to relief.'" Amer. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 679)).

II. Background

This action stems from a residential construction project performed on property owned by Gary Glaser (Owner), and located at 8 Ocean Club Drive, Amelia Island, Florida (the Project). See Complaint ¶¶ 4, 7. "The Project consists of four (4) stories with five (5) balconies on the front and three (3) on the rear." Id. at 7. Plantation Housing Corp. (PHC) was the contractor for the Project, and Southern served as PHC's subcontractor. Id. ¶¶ 8-9. During the construction of the Project, PHC maintained a commercial general liability insurance policy with Amerisure (the Policy), and the Policy was in "full force and effect" during the relevant time. Id. ¶ 10.

According to the Complaint, Southern's "scope of work on the Project was not constructed in accordance with industry standards, nor was it constructed in accordance with the manufacturer's instructions." Id. ¶ 11. Amerisure alleges that in 2005, after the May 2004 completion of the Project, "the exterior balconies/decks [on the Project] were evidencing water intrusion." Id. ¶ 12. Amerisure contends that although Southern performed remediation to various balconies and decks in 2005, the Project again experienced water intrusion at the balconies and decks in 2011. Id. ¶¶ 13-14. Amerisure hired Construction Solutions, Inc. (CSI), a forensic engineering company, to investigate the water intrusion and damages, and in a January 23, 2012 report, CSI concluded that the cause of the damage to the balconies/decks was the "incorrect installation and subsequent failure of the deck waterproofing." Id. ¶¶ 15-17; Ex. A at 4. According to Amerisure, "[t]he damages that

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occurred due to the improper installation of the waterproofing membrane not only caused damages to the balconies/decks themselves, but also cause[d] damage to other property, which included, but was not limited to corrosion of joist hangers/connections, as well as damage to OSB and structural joists." Id. ¶ 18.

The Policy provides insurance coverage for the "other property damage" to the Project. Id. ¶ 19. As such, PHC made a claim to Amerisure under the Policy with respect to these damages, and Amerisure alleges that it "was required to pay PHC the sum of $221,851.45 for damage to other property . . . ." Id. ¶ 20. Amerisure asserts that it is "legally and equitably subrogated to PHC's rights to the extent of said payment." Id. Based on the foregoing, Amerisure, as subrogee of PHC, brings the instant action against Southern and asserts claims for breach of contract, negligence, equitable subrogation, contribution, and a violation of the Florida Building Code. See generally Complaint. Southern moves for dismissal of the breach of contract, equitable subrogation, and contribution claims. See Motion at 1.

III. Discussion

A. Contribution

Florida's Uniform Contribution Among Tortfeasors Act provides, in pertinent part, that:

A liability insurer who by payment has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full its obligation as insurer is subrogated to the tortfeasor's right of contribution to the extent of the amount it has paid in excess of the tortfeasor's pro rata share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship.

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Fla. Stat. § 768.31(e). Significantly, Florida law limits a tortfeasor's right of contribution in that "[a] tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement . . . ." See Fla. Stat. § 768.31(d). Moreover, "[t]o state a claim for contribution, the claimant must allege a common liability to the injured party." See Mayor's Jewelers, Inc. v. Meyrowitz, No. 12-80055-CIV, 2012 WL 2344609, at *9 (S.D. Fla. June 20, 2012).

Southern first contends that the Court should dismiss the contribution claim because "[t]here are no set of facts under which Amerisure (standing in the shoes of PHC) and Southern could be 'jointly and severally liable' for the injuries sustained by Mr. Glaser . . . ." See Motion at 3. Southern relies on T&S Enters. Handicap Accessibility, Inc. v. Wink Indus. Maint. & Repair, Inc., 11 So. 3d 411, 412 (Fla. 2d Dist. Ct. App. 2009) to argue that because joint and several liability in Florida has been abolished, judgments in Florida are now entered purely on a party's pro rata allocation of fault, obviating the need for contribution claims. See Motion at 3. Southern maintains that Amerisure's allegation that it paid more than its share of the common liability is insufficient because it is "unclear" what transpired between Amerisure and the Owner. Id. at 4. Additionally, Southern argues that if PHC was not at fault for the Owner's damages at all, as Amerisure contends, then it had no obligation to pay the Owner's damages. See Id.

As an initial matter, the Court notes that Southern's reliance on T&S Enterprises is misplaced. In that case, the court reasoned that, with joint and several liability abolished, courts will enter judgments in negligence actions against each liable party only on the basis

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of that party's percentage of fault. See T&S Enters., 11 So. 3d at 412. As such, a defendant tortfeasor will not be held liable for more than its pro rata share of the damages, and therefore, that defendant has no need to bring a third-party complaint for contribution against a non-party tortfeasor. Id. at 412-13; Maguire v. Demos, No. 2:10-cv-782-FtM-3DNF, 2012 WL 859605, at *2 (M.D. Fla. Mar. 12, 2012); Zurich Am. Ins. Co. v. Hi-Mar Specialty Chems., LLC, No. 08-80255-CIV, 2010 WL 298392, at *4 (S.D. Fla. Jan. 19, 2010). This analysis does not address a direct claim for contribution where a tortfeasor alleges that it has already paid more than its pro rata share. Indeed, the court specifically stated that its decision "does not determine any rights [the tortfeasor] may have if it elects to settle the plaintiffs' claims in exchange for a general release which includes [the non-party tortfeasor]." T&S Enters., 11 So. 3d at 413...