Roberto and Georgina Cardelle v. Scottsdale Insurance Company

By: David A. Mervine

United States District Court for the Southern District of Florida
2022 U.S. Dist. LEXIS 11705
2022 WL 196294
January 21, 2022

The Plaintiffs sued Scottsdale for breach of a homeowner’s insurance contract in the Circuit Court for Miami Dade County. Scottsdale removed the case to the district court for the Southern District of Florida and moved to dismiss without prejudice based on the Plaintiffs’ alleged failure to provide notice of intent to litigate under Florida Statute 627.70152 (the notice statute).

In considering the motion to dismiss, the Court (District Judge Beth Bloom) acknowledged Rule 8 of the Federal Rules of Civil Procedure provided the pleading standard. The Complaint does not need detailed factual allegations, but it may not rest on “naked assertions devoid of further factual enhancement.” The Court further acknowledged that the Plaintiffs may plead the satisfaction of conditions precedent generally, stating that it is satisfactory to aver that all conditions precedent have occurred or have been performed.  The Court did not mention the Defendant’s duty to specifically deny which conditions precedent are not met in its answer.

The Court reviewed the notice statute and acknowledged Florida Statutes section 627.70152 (5) states explicitly that a court must dismiss without prejudice any claimant’s suit for which a notice of intent to initiate litigation was not given. Scottsdale sought dismissal and asserted in its motion that the notice was not given. The Plaintiffs made an argument that the notice statute should not apply to policies issued before enactment of the statute, relying on the no-fault auto insurance case Menendez v. Progressive Exp. Ins. Co., Inc., 35 So.3d 873 (Fla. 2010). The court did not express an opinion as to whether the notice statute applied retroactively but noted that Scottsdale’s assertion that the notice was not given was an issue of fact outside of the four corners of the Complaint. The Plaintiffs’ general averment that conditions precedent had been met provided the necessary allegation to survive the motion to dismiss at the initial pleading stage. Accordingly, the motion to dismiss was denied. The court stated it would revisit the issue at a later stage in the proceedings, presumably on summary judgment.