Great Lakes Ins. SE v. Concourse Plaza, A Condo. Ass'n

• Decision Date: 17 December 2021
• Docket Number: 21-cv-21873-BLOOM/Otazo-Reyes
• Parties: GREAT LAKES INSURANCE SE, Plaintiff, v. CONCOURSE PLAZA, A CONDOMINIUM ASSOCIATION, INC. Defendant.
• Court: U.S. District Court — Southern District of Florida

GREAT LAKES INSURANCE SE, Plaintiff,
v.
CONCOURSE PLAZA, A CONDOMINIUM ASSOCIATION, INC. Defendant.

No. 21-cv-21873-BLOOM/Otazo-Reyes

United States District Court, S.D. Florida

December 17, 2021

ORDER ON MOTION TO DISMISS COUNTERCLAIMS

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Plaintiff/Counter-Defendant Great Lakes Insurance SE's (“Great Lakes” or “Plaintiff”) Motion to Dismiss Counterclaim, ECF No. [14] (“Motion”). Defendant/Counter-Plaintiff Concourse Plaza, A Condominium Association, Inc. (“Concourse” or “Defendant”) filed a Response in Opposition, ECF No. [22] (“Response”), to which Great Lakes filed a Reply, ECF No. [25] (“Reply”). The Court has carefully reviewed the Motion, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is granted in part and denied in part consistent with this Order.

I.BACKGROUND

Concourse purchased a commercial lines insurance policy from Great Lakes (“Policy”). ECF No. [1] ¶ 7. After Hurricane Irma, Concourse filed a Notice of Loss on September 14, 2017, claiming windstorm damage on September 10, 2017. See Id. ¶ 8. On March 5, 2018, Great Lakes sent Concourse a letter stating that Great Lakes would not pay for the loss because Great Lakes' investigation determined that the damage fell below the deductible. See Id. ¶¶ 10-11; see also ECF No. [1-1] (“Coverage Letter”). On September 4, 2020, Concourse notified Great Lakes that it

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intended to pursue additional insurance benefits. See ECF No. [1] ¶ 12; see ECF No. [1-2] (“Notice”). On April 8, 2021, more than three (3) years after the date of the alleged windstorm damage, Concourse sent Great Lakes a proof of loss for $6, 208, 518.62 and a letter demanding appraisal. See ECF No. [1] ¶ 15; see also ECF No. [1-3] (“Demand for Appraisal”).

On May 19, 2021, Great Lakes filed its Complaint, seeking declaratory judgment that the Notice on September 4, 2020, did not constitute valid notice of a supplemental claim, and that the Demand for Appraisal on April 8, 2021, was an untimely supplemental claim. See ECF No. [1] at 5. Great Lakes contends that Florida Statute § 627.70132 applies to bar any claims. See Id. ¶ 16. Section 627.70132 states, in relevant part:

A claim, supplemental claim, or reopened claim under an insurance policy that provides property insurance, as defined in s. 624.604, for loss or damage caused by the peril of windstorm or hurricane is barred unless notice of the claim supplemental claim, or reopened claim was given to the insurer in accordance with the terms of the policy within 3 years after the hurricane first made landfall or the windstorm caused the covered damage

Fla. Stat. § 627.70132 (2017).^[1] Because the Demand for Appraisal was sent more than three (3) years after the incident, Great Lakes seeks a “declaration that [Concourse] failed to timely provide statutory notice of its supplemental claim for damages, thereby rendering its demand for appraisal untimely.” ECF No. [1] ¶ 1.

On August 6, 2021, Concourse filed its Answer to the Complaint asserting nine (9) affirmative defenses (“Defenses”). See ECF No. [9] at 7-14. Concourse also raised three (3)

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counterclaims: an action for specific performance to compel Great Lakes' compliance with the Policy's appraisal clause (“Count I”); an action for declaratory judgment regarding “(i) Parties' rights, duties and responsibilities under the Policy with respect to the Loss and the Insurance Claim (and those insurance policy benefits recoverable thereunder); (ii) declaration of the legal status of each of the Parties as it concerns the Policy; and (iii) award of all other relief (separate and apart from the damages and/or other forms of relief available to the Insured under any other stated count set forth herein)” (“Count II”); and an action for breach of contract seeking an award of compensatory damages, consequential damages, attorney's fees, costs, and pre-judgment-, post-loss, and/or post-judgment interest (“Count III” and collectively with Counts I and II, “Counterclaims”). See Id. at 24-31.

On August 25, 2021, Great Lakes filed the instant Motion to Dismiss Concourse's Counterclaims pursuant to Rule 12(b)(6). See generally ECF No. [14]; see also Fed. R. Civ. P. 12(b)(6). Great Lakes argues that the Counterclaims are redundant and serve no useful purpose because full and complete relief can be afforded to the Parties through Great Lakes' Complaint and Concourse's Defenses. See ECF No. [14] at 1. Concourse responds that the Counterclaims are not redundant and are based upon the specific terms and provisions of the policy, none of which appear in Great Lakes' Complaint or the Defenses. See generally ECF No. [22].

II. LEGAL STANDARD

Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a complaint “does not need detailed factual allegations, ” it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s pleading standard “demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. These elements are required to survive a motion brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which requests dismissal for failure to state a claim upon which relief can be granted.

When reviewing a motion under Rule 12(b)(6), the court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).

Furthermore, courts may dismiss a counterclaim if the counterclaim is redundant. See Evanston Ins. Co. v. Gaddis Corp., No. 15-CIV-60163, 2015 WL 2070386, at *2 (S.D. Fla. May 4, 2015) (citing Medmarc Cas. Ins. Co. v. Pineiro & Byrd PLLC, 783 F.Supp.2d 1214, 1217 (S.D. Fla. 2011)). When deciding whether to dismiss a counterclaim as redundant, courts consider

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whether the counterclaim “serves a useful purpose.” Medmarc, 783 F.Supp.2d at 1217. To determine whether the counterclaim serves a useful purpose, “courts should consider whether resolution of plaintiff's claim, along with the affirmative defenses asserted by defendants, would resolve all questions raised by the counterclaim.” Id. (internal quotation marks and citations omitted). However, “[e]ven if the counterclaim were wholly redundant, this Court may exercise its discretion by not dismissing the counterclaim.” Id. (citation omitted).

III. DISCUSSION

A. Redundancy of Counts I-III with Respect to the Complaint and Defenses

Great Lakes argues that Concourse's Counterclaims are redundant because the Counterclaims seek to compel appraisal and the Complaint seeks a declaration that Concourse failed to timely provide statutory notice of its supplemental claim for damages, thus rendering Concourse's demand for appraisal untimely. See ECF No. [25] at 2; see also ECF No. [1] ¶ 1 (“Great Lakes seeks a declaration that Respondent failed to timely provide statutory notice of its supplemental claim for damages, thereby rendering its demand for appraisal untimely.”). More specifically, Great Lakes argues that the Second, Sixth, and Seventh Defenses aver that Concourse timely complied with notice requirements. See ECF No. [14] at 5. Great Lakes also argues that the Third, Fourth, Eighth, and Ninth Defenses aver that Great Lakes cannot escape liability due to Great Lakes' actions or inactions upon receiving notice. See Id. As such, Great Lakes contends that in addressing the Complaint and Defenses, the Court will necessarily address the Counterclaims. See Id. at 6.

Concourse responds that the Complaint and the Defenses are directed at the issue of whether Concourse met the statutory notice requirement in Fla. Stat. § 627.70132. See ECF No. [22] at 6. Because the Complaint and the Defenses concern the rights and obligations...