Glover v. Liberty Mut. Ins. Co.

• Decision Date: 04 October 2019
• Docket Number: CASE NO. 19-21900-CIV-ALTONAGA/Goodman
• Citation: 418 F.Supp.3d 1161
• Parties: Lessie GLOVER, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

418 F.Supp.3d 1161

Lessie GLOVER, Plaintiff,

v.LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants.

CASE NO. 19-21900-CIV-ALTONAGA/Goodman

United States District Court, S.D. Florida.

Signed October 4, 2019

Christopher J. Lynch, Christopher J. Lynch, P.A., Coral Gables, FL, Edmund Alonso Normand, Jacob Lawrence Phillips, Normand PLLC, Orlando, FL, Scott Adam Edelsberg, Jordan David Utanski, Edelsberg Law P.A., Aventura, FL, Rachel N. Dapeer, Dapeer Law, P.A., Andrew John Shamis, Miami, FL, Garrett O. Berg, Shamis, Gentile, P.A., Pinecrest, FL, for Plaintiff.

Cassandra K. Johnson, Pro Hac Vice, Daniel F. Diffley, Pro Hac Vice, David B. Carpenter, Pro Hac Vice, Alston & Bird, LLP, Atlanta, GA, Matthew John Lavisky, Butler Weihmuller Katz Craig LLP, Tampa, FL, for Defendants.

ORDER

CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court for a hearing on September 25, 2019, on Defendants, Liberty Mutual Insurance Company ("Liberty Mutual") and LM General Insurance Company's ("LM General['s]") Motion to Dismiss Amended Complaint with Prejudice [ECF No. 24], filed July 10, 2019. Plaintiff, Lessie Glover, filed an Opposition to Defendants' Motion to Dismiss [ECF No. 32], attaching supporting case law as exhibits [ECF Nos. 32–1 to 32–4]. Defendants filed a Reply to Plaintiff's Opposition [ECF No. 33], to which Plaintiff filed a Surreply in Opposition [ECF No. 52]. The parties also filed supplemental authorities. (See [ECF Nos. 53 and 60] ). The Court has carefully considered the parties' written submissions, the Amended Class Action Complaint [ECF No. 11], applicable law, and the parties' oral arguments.

I. BACKGROUND

Plaintiff brings this putative class action alleging a single breach of contract claim against both Defendants. (See generally Am. Compl.). Plaintiff was a named insured on a LibertyGuard Auto Insurance Policy ("Insurance Policy") effective July 25, 2016 through July 25, 2017. (See id. , Ex. A, Insurance Policy [ECF 11-1] 1). Plaintiff alleges Defendants have a practice of refusing to pay full Actual Cash Value ("ACV"), including state and local title transfer and vehicle registration fees, to first-party total loss insureds like Plaintiff, on physical damage policies containing comprehensive and collision coverages. (See id. ¶ 3). Defendants' failure to pay full ACV damaged Plaintiff and members of the proposed Florida class of insureds. (See id. ).

Massachusetts-based Liberty Mutual handles and adjusts insurance claims and is responsible for policy language and claims adjustments. (See id. ¶¶ 8, 11). Illinois-based LM General is a wholly-owned underwriter of Liberty Mutual, entirely directed and controlled by Liberty Mutual. (See id. ¶¶ 9, 10). Liberty Mutual, "including by and through LM General[,]" uses the same form language in Plaintiff's Insurance Policy as it does in the policies of all Class Members. (Id. ¶ 14 (alteration added)).

Defendants' standardized policy language promises, upon the occurrence of a total loss to an insured vehicle, to pay the ACV of the insured vehicle to the insured. (See id. ¶ 15). In this regard, the Insurance Policy states:

A. Our limit of liability for loss will be the lesser of the:

1. Actual cash value of the stolen or damaged property;

2. Amount necessary to repair or replace the property with other property of like kind and quality.

However, the most we will pay for loss to any "non-owned auto" which is a trailer is $500.

B. An adjustment for depreciation and physical condition will be made in determining actual cash value in the event of a total loss.

(Insurance Policy 14).¹ According to Plaintiff, under the Insurance Policy and applicable state law, ACV equates to the Full Total Loss Payment ("FTLP") required to replace a vehicle, which includes the obligation to pay state and local fees. (See id. ¶¶ 1, 17). Such fees include title transfer fees and tag transfer fees, each of which is a mandatory fee imposed by the State of Florida. (See id. ¶ 17).

Plaintiff alleges the "promise to pay ACV –– unlike a true Replacement Cost provision, which requires payment of actual costs incurred and does not allow for deductions for depreciation or physical condition –– allows for deductions based on the vehicle's depreciation and condition but does not require the costs be incurred."

(Id. ¶ 18). The promise to pay ACV is a predictable amount upon which Defendants and insureds can rely. (See id. ). The ACV of a vehicle is independent from the amount originally paid, if any, for the total-loss vehicle; and the amount paid, if any, to replace the total-loss vehicle. (See id. ). Given a vehicle's ACV takes into account depreciation, condition, and costs reasonably likely to be incurred in vehicle replacement, the promise to pay the ACV of a total-loss vehicle is a promise to pay the FTLP, including underlying adjusted vehicle value, plus sales tax, plus title transfer fee ($75.25), plus tag transfer fee ($4.60), less any applicable deductible and salvage retention. (See id. ¶ 19).

Plaintiff owned a vehicle insured under Defendants' Insurance Policy and was involved in an accident. (See id. ¶¶ 20–22). Defendant LM General paid Plaintiff an amount that did not include title transfer or tag transfer fees. (See id. ¶¶ 23–26; Ex. C [ECF No. 11-3] ). Title transfer fees and tag transfer fees are mandatory fees that must be paid to replace any vehicle in Florida. (See id. ¶ 27). Defendants, "pursuant to a standard and uniform business practice, never pays [sic] insureds FTLP, including title and tag transfer fees, after a total-loss to an insured vehicle, notwithstanding its [sic] contractual obligation to do so." (Id. ¶ 28). "Defendants breached its [sic] Insurance Policy with Plaintiff by failing to pay any amount for title transfer fees and tag transfer fees when it [sic] paid Plaintiff what it [sic] purported to be the ACV of the total loss of the Insured Vehicle." (Id. ¶ 31).

The Amended Complaint contains a single breach-of-contract claim, alleging Plaintiff "was a party to a contract, the Insurance Policy, with Defendants." (Id. ¶ 63). The Insurance Policy shows the insurer is LM General and not Liberty Mutual. (See Insurance Policy 1).

II. STANDARD

"To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration added) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although this pleading standard "does not require ‘detailed factual allegations,’ ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (alteration added) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Indeed, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

To meet this "plausibility standard," a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (alteration added) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1261 (11th Cir. 2009) (citation omitted), abrogated on other grounds by Mohamad v. Palestinian Auth. , 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012).

On a motion to dismiss, a court construes the complaint in the light most favorable to the plaintiff and accepts its factual allegations as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc. , 835 F.2d 270, 272 (11th Cir. 1988) ). Unsupported allegations and conclusions of law do not benefit from this favorable reading. See Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."); see also Sinaltrainal , 578 F.3d at 1260 ("[U]nwarranted deductions of fact in a complaint are not admitted as true for the purpose of testing the sufficiency of [a] plaintiff's allegations." (alterations added; internal quotation marks omitted) (quoting Aldana v. Del Monte Fresh Produce, N.A., Inc. , 416 F.3d 1242, 1248 (11th Cir. 2005) ; other citation omitted)).

The scope of review on a motion to dismiss under Rule 12(b)(6) is limited to the four corners of the complaint and the exhibits attached. See Thaeter v. Palm Beach Cnty. Sheriff's Office , 449 F.3d 1342, 1352 (11th Cir. 2006) (citation omitted).

III. ANALYSIS

Defendants move to dismiss, with prejudice, Plaintiff's Amended Complaint. Defendants first argue the Court should dismiss the Amended Complaint's single breach-of-contract claim because an insurer is not required to pay title and tag transfer fees as part of the actual cash value of a total loss of a motor vehicle. (See generally Mot.). In support of this case-dispositive argument, Defendants assert Florida Statutes section 626.9743(5) governs whether the payment of title and tag transfer fees is part of an actual cash value payment on a total loss settlement; and section 626.9743(5) does not require title and tag transfer fees be included in actual cash value. (See id. 3–8). Second, Defendants argue the Court should dismiss Liberty Mutual because it did not issue the Insurance Policy and no valid alter-ego or other theory is stated to keep Liberty Mutual in the case. (See id. 14–18). The Court considers the parties' positions below.²

A. Florida Statutes Section...