Swerdlin v. Fla. Mun. Ins. Trust

• Decision Date: 15 October 2014
• Docket Number: No. 4D13–1759.,4D13–1759.
• Citation: 162 So.3d 96
• Parties: Dr. Scott J. SWERDLIN, Appellant, v. FLORIDA MUNICIPAL INSURANCE TRUST, Appellee.
• Court: Florida District Court of Appeals

162 So.3d 96

Dr. Scott J. SWERDLIN, Appellant

v.FLORIDA MUNICIPAL INSURANCE TRUST, Appellee.

No. 4D13–1759.

District Court of Appeal of Florida, Fourth District.

Oct. 15, 2014.

Robert H. Friedman of Friedman P.A., Palm Beach, for appellant.

Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellee.

Opinion

GERBER, J.

The plaintiff appeals from the circuit court's orders: (1) granting the defendant's motion to dismiss his breach of insurance contract action with prejudice; and (2) denying the plaintiff's motion for defense cost determination under section 627.426(2)(b)3., Florida Statutes (2012) ( “Reasonable fees for the [insured's] counsel may be agreed upon between [the insured and the liability insurer] or, if no agreement is reached, shall be set by the court.”). The plaintiff primarily argues that the court erred in dismissing the action by going outside of the four corners of his complaint and its attachment. We agree with the plaintiff and reverse.

“To rule on a motion to dismiss, a court's gaze is limited to the four corners of the complaint, including the attachments incorporated in it, and all well pleaded allegations are taken as true.”U.S. Project Mgmt., Inc. v. Parc Royale E. Dev., Inc., 861 So.2d 74, 76 (Fla. 4th DCA 2003) (citations and quotation marks omitted). Similarly, on appeal, “[i]n reviewing an order granting a motion to dismiss ... [an appellate] court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true.” Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) (citation and quotation marks omitted).

Here, the circuit court's order granting the defendant's motion to dismiss the plaintiff's causes of action with prejudice clearly went beyond the four corners of the complaint and its attachment. The order instead relies upon the allegations contained in the defendant's motion to dismiss, the defendant's counterclaim for declaratory judgment, and the exhibit attached to the counterclaim, through which the defendant seeks a finding that it owes no duty to defend or indemnify the plaintiff.

By relying on these allegations beyond the four corners of the complaint and its attachment, the circuit court erred. See Barbado v. Green & Murphy, P.A., 758 So.2d 1173, 1175 (Fla. 4th DCA 2000) (reversing final judgment and remanding with directions to reinstate the plaintiff's cause of action where “it was error for the trial court to consider collateral matters and make a determination of whether [the plaintiff] would ultimately be able to prove her case.”).

In an attempt to defend the circuit court's order at oral argument, the defendant primarily relied upon Rocks v. McLaughlin Engineering Co., 49 So.3d 823 (Fla. 4th DCA 2010). There, we held that “[t]he test for a motion to dismiss under rule 1.140(b)(6) [for failure to state a cause of action] is whether the pleader could prove any set of facts whatever in support of the claim.” Id. at 826. According to the defendant, that sentence somehow vitiates the longstanding principle that a court may not go beyond the four corners of the complaint and its attachments, and instead opens the door for a court to consider additional factual allegations contained in the motion to dismiss, a counterclaim, and their attachments. The defendant's argument wholly lacks merit. See Patriotcom, Inc. v. Vega, 821 So.2d 1261, 1261 (Fla. 4th DCA 2002) (“It is well settled that it is error for a court to grant a dismissal based upon factual evidence not contained in, and contradictory to, the complaint's allegations.”); Fla. Farm Bureau Gen. Ins. Co. v. Ins. Co. of N. Am., 763 So.2d 429, 432...