33 Fla. L. Weekly Supp. 11aOnline Reference: FLWSUPP 3301RAULInsurance — Homeowners — Bad faith — Unfair claim settlement practices — Notice of claim — Dismissal is appropriate where amended complaint failed to allege ultimate facts supporting bad faith claim — Civil remedy notice that identifies every person involved in handling claim did not satisfy requirement that notice identify persons most responsible for or knowledgeable of facts giving rise to claim — Further, notice alleged breach of statute relating to personal injury protection policies that is inapplicable to homeowners policy — Dismissal of amended complaint is required where CRN was invalid — Claim for breach of fiduciary duty is subsumed in counts for bad faith — Complaint dismissed with prejudice – Naples & Marco Island Criminal Civil Lawyers

SEAN RAULERSON and MARY RAULERSON, Plaintiffs, v. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. Circuit Court, 7th Judicial Circuit in and for Volusia County. Case No. 2022-31345-CICI. Division 31. March 6, 2025. Dennis Craig, Judge. Counsel: Kevin George, Altamonte Springs, for Plaintiffs. Reed W. Grimm, Taylor, Day, Grimm & Boyd, Jacksonville, for Defendant.ORDER ON DEFENDANT STATE FARM FLORIDAINSURANCE COMPANY’S MOTION TO DISMISSPLAINTIFFS’ AMENDED COMPLAINTAND ALTERNATIVE MOTION TO STRIKE

This cause came on to be heard on the Defendant State Farm Florida Insurance Company’s (“State Farm”) motion to dismiss the Plaintiffs, Sean Raulerson and Mary Raulerson’s (“Plaintiffs”), Amended Complaint for failure to state a cause of action, or alternatively striking certain irrelevant allegations in Count III pursuant to Fla. R. Civ. P. 1.110 and 1.140(b) and (f). The Court having reviewed the Amended Complaint and the parties’ submissions in support of and opposition to the motion, having heard the argument of counsel at the hearing held February 20, 2025, and being otherwise fully advised in the premises, finds as follows:Facts and Procedural History

The Court deems all factual allegations in the Amended Complaint to be true for purposes of deciding the present motion. This case arises out of a property damage claim submitted under homeowners’ insurance policy number 80-S8-5262-8 (the “Policy”) issued to Plaintiffs by State Farm (Am. Compl. ¶ 4). The original Complaint was dismissed on State Farm’s motion by an Order entered June 10, 2024, and Plaintiffs were permitted to file the Amended Complaint. That order directed the Plaintiffs to file the Amended Complaint within 14 days, or by June 24, 2024.

Plaintiffs had filed Motions for Extension of time, and later the Amended Complaint was filed on November 5, 2024. Like the original Complaint, the Amended Complaint seeks to state a cause of action for “Violation of Section §624.155, Florida Statutes” (Count I), “Violation of Section §626.9541(1)(i), Florida Statutes” (Count II) and Breach of Fiduciary Duty (Count III). However, it differs from the original Complaint as follows:

1. The phrase “failure to timely adjust the loss” has been added to paragraph 8.

2. Paragraph 18 has been added, and states in full “Defendant was provided with a Civil Remedy Notice (“CRN”) with the Florida Department of Financial Services and more than 60 (60) days after the CRN was filed Defendant’s liability for coverage and the extent of damages was determined.”

3. Paragraph 27 has been added, and states in full “In the alternative, if Count I and Count II fails (sic) for any reason, Plaintiff pleads this Count for Breach of Fiduciary Duty.”

State Farm asserts that these additions are not ultimate facts, and that the Amended Complaint still fails to allege ultimate facts showing that State Farm committed any violation of §§624.155 or 626.9541, or that the Plaintiffs are entitled to relief on the grounds asserted. State Farm further asserts that the allegations of the Amended Complaint as to the purported acts or omissions that are asserted as the basis for the claims that State Farm acted in violation of §§624.155 and 626.9541 Fla. Stat., remain restatements of statutory provisions, opinions and conclusions of law that are insufficient to state a cause of action under Rule 1.110. Plaintiffs assert that the causes of action are sufficiently alleged with ultimate facts in the Amended Complaint.

State Farm additionally argues that the civil remedy notice (“CRN”) attached to the Amended Complaint as its Exhibit B fails to provide the specificity required by § 624.155, Fla. Stat., fails to specifically identify the person or persons representing the insurer who are most responsible for or knowledgeable of the facts giving rise to the allegations in the notice, and cites inapplicable statutory provisions. Plaintiffs argue that the CRN provides adequate notice under Florida law. Finally, State Farm asserts that the claim for breach of fiduciary duty in Count III is subsumed in the claims sought to be alleged in Counts I and II and does not exist separately as a matter of Florida law. The Court further notes that the Plaintiffs seek to bring a claim for a purported violation of §624.155(1)(b), Fla. Stat., but that §624.1551, Fla. Stat. requires an adjudicated breach of contract for a claim for a violation of §624.155(1)(b) to lie.Conclusions of Law

Florida Rule of Civil Procedure 1.110(b) requires a complaint to set forth “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” “The Complaint must set out the elements and the facts that support them so that the court and the defendant can clearly determine what is being alleged.” Barrett v. City of Margate, 743 So. 2d 1160, 1162 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D2398a] (citing Messana v. Maule Indus., 50 So. 2d 874, 876 (Fla. 1951). “Florida’s pleading rule forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort.” Horowitz v. Laske, 855 So. 2d 169, 173-74 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2052b]. “It is insufficient to plead opinions, theories, legal conclusions or argument.” Barrett, 743 So. 2d at 1163. Mere conclusions are insufficient to satisfy the law’s requirement that the Complaint set forth ultimate facts supporting each element of the cause of action. Beckler v. Hoffman, 550 So. 2d 68 (Fla. 5th DCA 1989).

The Court finds that Counts I, II and III of the Plaintiffs’ Amended Complaint do not comply with the requirements of Fla. R. Civ. P. 1.110 as interpreted by the authorities cited above, the additions quoted above do not meet the rule’s requirements, and there is an insufficient factual basis alleged for each count. The Amended Complaint does not allege ultimate facts to establish a violation of §624.155, Fla. Stat. or of the provisions of §626.9541, Fla. Stat. incorporated into §624.155. The allegations of the general language of the statutes do not inform State Farm as the defendant of what facts are proposed to be proved to establish Plaintiffs’ bad faith claims. Additionally, the Court finds that the Amended Complaint fails to sufficiently recite a factual basis for the damages claimed. Dismissal is therefore appropriate on that basis.

Regarding the CRN, this first party claim in which Plaintiffs assert State Farm acted in bad faith relative to their claim for benefits under their own insurance policy. A first party claim exists only by virtue of §624.155, Fla. Stat. as there is no common law cause of action for first party bad faith. Macola v. Government Employees Ins. Co., 953 So. 2d 451, 457 (Fla. 2006) [31 Fla. L. Weekly S690b]. As a statute in derogation of the common law, §624.155 is strictly construed. Talat Enterprises, Inc. v. Aetna Cas. & Sur. Co., 753 So. 2d 1278, 1283 (Fla. 2000) [25 Fla. L. Weekly S172a]. Florida law expressly requires a CRN must “state with specificity,” among other things, the facts and circumstances giving rise to the violation see, §624.155(3)(b), Fla. Stat. An adequate CRN must specifically state 1) the statutory provision that the insurer allegedly violated, the facts and circumstances giving rise to the violation, 3) the name of any individual involved in the violation, and 4) specific policy language that is relevant to the violation.

The approved form of the CRN calls for the party giving notice to identify the person or persons representing the insurer who are most responsible for/knowledgeable of the facts giving rise to the allegations in the notice. In that regard, the Plaintiffs’ CRN states as follows:

Clinton M. Bolton, Javon Martin, and all State Farm claims adjusters, employees, representatives, agents, vendors, and/or engineers who handled the claim.

The notice fails to identify those person(s) “most responsible for” or “knowledgeable of” the facts giving rise to the claim. See, Tappert v. Florida Family Ins. Co., Case No. CACE-22-007257, 2022 WL 17851884 (Fla. 17th Cir. Ct. Dec. 14, 2022) [30 Fla. L. Weekly Supp. 618b] (“Identifying every person involved in the claim does not satisfy the specificity requirement of § 624.155(3)(b).”). See, also, Pierce v. State Farm Fla. Ins. Co., No. 22-CA-010376, 2023 WL 5572301, at *2 (Fla. 13th Cir. Ct. Aug. 21, 2023) (“The Court notes that the statement in Plaintiffs’ CRN is narrower in that it includes only individuals from State Farm that were involved in the claim; however, it is a similar ‘kitchen sink’ approach and is not enough to satisfy the specificity requirement of §624.155(3)(b).”)

The Plaintiffs’ CRN also alleges a breach of §626.9541(1)(i)(3)(i), Fla. Stat, which it describes as “Unfair claim settlement practices.” However, §626.9541(1)(i)(3)(i) relates to personal injury protection benefits in automobile insurance policies and provides separate administrative penalties and sanctions for violations as follows:

Failing to pay personal injury protection insurance claims within the time periods required by s. 627.736(4)(b). The office may order the insurer to pay restitution to a policyholder, medical provider, or other claimant, including interest at a rate consistent with the amount set forth in s. 55.03(1), for the time period within which an insurer fails to pay claims as required by law. Restitution is in addition to any other penalties allowed by law, including, but not limited to, the suspension of the insurer’s certificate of authority;

Accordingly, §626.9541(1)(i)(3)(i) is inapplicable to the Plaintiffs’ claim under their homeowners insurance policy (Am. Compl. ¶ 4; Exh. A). The CRN was invalid when filed and Counts I and II of the Amended Complaint are required to be dismissed as a result.

In 2022, the Florida Legislature enacted §624.1551, Fla. Stat. That provision expressly precludes claims under §624.155(1)(b), Fla. Stat., see, Am. Compl. ¶¶ 17 and 19, against a property insurer unless a breach of the insurance contract has been established. Section 624.1551 as initially enacted provided as follows:

Notwithstanding any provision of §624.155, a claimant must establish that the property insurer breached the insurance contract to prevail in a claim for extracontractual damages under §624.155(1)(b).

Here the Amended Complaint does not allege that State Farm breached its contract with the Plaintiffs; to the contrary, the claim was resolved through the contractually provided appraisal process. The Court finds that an appraisal award is not an adjudicated breach of contract required to satisfy the statute’s requirements.

Count III of the Amended Complaint purports to state a cause of action for an alleged breach of fiduciary duty. However, in a first party action such as this, there is no claim for breach of fiduciary duty against the insurer. Under Florida law, the claim for breach of fiduciary duty in Count III is subsumed in the claims sought to be alleged in Counts I and II and does not exist separately as a matter of law. See, e.g., Gov’t Employees Ins. Co v. Prushansky, Case No. 12-80556-CIV, 2012 WL 6103220, p.3 (S.D. Fla. Dec. 7, 2012), citing QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass’n, Inc., 94 So. 3d 541 (Fla. 2012) [37 Fla. L. Weekly S395a]. No fiduciary relationship exists between an insurer who provides a homeowner’s policy and the insured. See Time Insurance Co., Inc. v. Burger, 712 So. 2d 389, 391 (Fla. 1998) [23 Fla. L. Weekly S309a] (“unlike the fiduciary relationship existed in a third-party claim, the relationship between the [insured and insurer] is that of debtor and creditor”). The claim sought to be asserted in Count III therefore does not exist as a matter of law.Dismissal With Prejudice

Generally, “leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.” Life Gen. Sec. Ins. Co. v. Horal, 667 So. 2d 967, 969 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D434a]. However, the right to amend a complaint is not infinite. Where amendment would be futile, it is not an abuse of discretion to deny amendment to a pleading. Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Cooperative Bank, 592 So. 2d 302, 305 (Fla. 1st DCA 1992); Kalmanson v. Lockett, 848 So. 2d 374 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1257b]. Here, the allegations of the Amended Complaint are the same as the allegations of the original Complaint with the three additions quoted above, and the deficiencies of the original Complaint were not corrected with the amendment. It is therefore apparent that there are no additional ultimate facts to support the claims in Counts I and II, making further amendment futile. The CRN is inadequate and the amount contractually due has been paid. Additionally, the Amended Complaint was not filed within the time directed by the Court in the order dismissing the original Complaint. As to Count III, the claim asserted does not exist as a matter of law for the reasons outlined above. No further amendment could make a breach of fiduciary duty claim exist as to a first party insurance claim. See, e.g., P.D.K., Inc. v. Madeline, 291 So. 3d 134, 136 (Fla. 4th DCA 2020) [45 Fla. L. Weekly D480e] (affirming denial of amendment where existing case law disposed of the legal theory that was the basis for the claim). Accordingly, it is therefore

ORDERED and ADJUDGED

1. Defendant State Farm Florida Insurance Company’s motion to dismiss Plaintiffs’ Amended Complaint is hereby granted, with prejudice.

2. Plaintiffs Sean Raulerson and Mary Raulerson shall take nothing by this action, and Defendant, State Farm Florida Insurance Company shall go hence without day.

3. The Court reserves jurisdiction for the entry of orders taxing attorneys’ fees and costs upon an appropriate motion.* * *

AULInsurance — Homeowners — Bad faith — Unfair claim settlement practices — Notice of claim — Dismissal is appropriate where amended complaint failed to allege ultimate facts supporting bad faith claim — Civil remedy notice that identifies every person involved in handling claim did not satisfy requirement that notice identify persons most responsible for or knowledgeable of facts giving rise to claim — Further, notice alleged breach of statute relating to personal injury protection policies that is inapplicable to homeowners policy — Dismissal of amended complaint is required where CRN was invalid — Claim for breach of fiduciary duty is subsumed in counts for bad faith — Complaint dismissed with prejudice