Forthuber v. First Liberty Ins. Corp., Case No: 6:18-cv-00880-GAP-GJK

• Decision Date: 27 September 2018
• Docket Number: Case No: 6:18-cv-00880-GAP-GJK
• Parties: DAVID FORTHUBER, Plaintiff, v. THE FIRST LIBERTY INSURANCE CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Florida

DAVID FORTHUBER, Plaintiff,
v.
THE FIRST LIBERTY INSURANCE CORPORATION, Defendant.

Case No: 6:18-cv-00880-GAP-GJK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

September 27, 2018

ORDER

This matter comes before the Court without a hearing on the Motion to Dismiss Count I with Prejudice, or, Alternatively, to Strike Claims for Damages (Doc. 9) filed by the Defendant, The First Liberty Insurance Corporation ("First Liberty"), the Response in Opposition (Doc. 13) filed by the Plaintiff, David Forthuber ("Forthuber"), and the Reply to Plaintiff's Response (Doc. 16.) filed by First Liberty.

PROCEDURAL BACKGROUND

Forthuber brought the instant suit in the Eighteenth Judicial Circuit on April 4, 2018 ("Forthuber II"). (Doc. 2, p. 1.) Count I of Forthuber's complaint asserted bad faith pursuant to Fla. Stat. §624.155 and sought damages including punitive damages. Count II of the complaint alleged breach of contract for First Liberty's failure to pay a separate claim, unrelated to Count I. (Doc. 1, p. 8.) Forthuber II was removed to Federal Court on June 6, 2018. (Id.) By its motion, First Liberty seeks dismissal of Count I or, in the alternative, to strike Forthuber's claim for punitive damages. (Doc. 9, p. 1.)

Page 2

BACKGROUND

After Forthuber's residence was damaged in May 2009, Forthuber filed a claim with his home insurer, First Liberty ("2009 Claim.") (Doc. 2, p. 1.) First Liberty disputed the amount claimed and Forthuber brought suit for breach of contract in the Eighteenth Judicial Circuit for Seminole County in Forthuber v. First Liberty Ins. Corp. 2011-CA-001210 ("Forthuber I"). The parties signed a settlement agreement on July 15, 2015 ("Settlement Agreement"). (Doc. 9-1.) Pursuant to the Settlement Agreement First Liberty paid $30,000 to Forthuber ("2015 Payment"), and Forthuber released First Liberty from all claims arising from the 2009 Claim, except Forthuber's claim for attorneys' fees. (Id.)

I. Attorneys' Fees: Appeal to the Fifth District Court of Appeal

First Liberty paid the 2015 Payment on August 10, 2015. (Doc. 2, p. 2.) In Forthuber I, a fee hearing was held on April 27, 2016. (Id. at 3.) Forthuber claimed attorneys' fees pursuant to Fla. Stat. § 627.428 for the hours his attorney worked on Forthuber I, including an amount that Forthuber's attorney accrued at a prior law firm ("Prior Firm Fees"), which was disputed by First Liberty. Id. On June 14, 2016, the Court issued a Final Judgment Awarding Fees to Forthuber which excluded the Prior Firm Fees. (Id.) The amount stipulated in the Final Judgment Awarding Fees was timely paid to Forthuber by First Liberty ("2016 Fee Payment"). (Doc. 2-1, p. 18.) Forthuber appealed, and on November 17, 2017 the Fifth DCA reversed and remanded the case back to the trial court to consider the Prior Firm Fees. Forthuber v. First Liberty Ins. Corp., 229 So. 3d 896 (Fla. 5th DCA 2017).¹

Page 3

II. Civil Remedy Notice

On January 19, 2018, Forthuber filed and served on First Liberty a Civil Remedy Notice of Insurer Violations ("2018 CRN") which included claims that First Liberty breached the Settlement Agreement, misrepresented its obligations to Forthuber, and acted unreasonably in contesting and failing to pay the entire amount of attorneys' fees claimed by Forthuber. (Doc. 2-1, pp. 12-13.) The 2018 CRN claimed damages totaling $318,000, the exact composition of which was not specified. (Doc. 2-1 p. 17.) However, it is clear that the lion's share of the fees Forthuber claims include those expended by Forthuber's attorney at his prior firm and those expended pursuing the appeal in the Fifth DCA. (Doc. 2-1 pp. 16-17.)

LEGAL STANDARD

Dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) will be granted where the allegations in a complaint, however true, do not raise a claim of entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558, 127 S. Ct. 1955, 1966 (2007). In ruling on a motion to dismiss, the Court must accept the factual allegations as true and construe the complaint in the light most favorable to the plaintiff. SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.1988). The court must limit its consideration to the...