192 F. Supp. 3d 1287
M.D. Fla.2016Background
- Timber Pines Plaza, LLC sued Kinsale Insurance for breach of an "all risks" policy, claiming damage from "sinkhole activity" to its commercial building discovered in 2011.
- The Policy excludes earth movement but excepts "sinkhole collapse," defined as "the sudden sinking or collapse of land into underground empty spaces created by the action of water on limestone or dolomite."
- Plaintiff’s FAC alleged progressive settlement, cracking, and expert findings of "sinkhole conditions" and "differential settlement," and relied on an expert (Sinn) saying significant sinkhole activity occurred during Sept. 2010–2011.
- Plaintiff later disclosed an additional expert (Funderburk) after the court-ordered initial expert deadline; Kinsale moved to strike that testimony as untimely.
- Kinsale moved to dismiss the FAC for failure to plead that losses resulted from a "sudden sinking or collapse" as required by the policy exception; the court previously dismissed the original complaint for pleading deficiencies.
- The court granted dismissal in part, allowed one final amendment to plead facts plausibly showing a "sudden" collapse, struck Funderburk’s opinions for purposes of the motion-to-dismiss ruling (subject to possible later motion), and took limited judicial notice (surplus-lines status only).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FAC plausibly alleges losses from a "sudden sinking or collapse" under the policy exception | FAC allegations of damage, expert statements of "sinkhole activity," and Zimmer authority show "sudden" need not be instantaneous | "Sinkhole collapse" requires an abrupt or sudden rate of collapse; allegations of "progressive settlement" foreclose coverage | FAC fails to plead a sudden/abrupt collapse; dismissal without prejudice; plaintiff given one final chance to amend |
| Whether late-disclosed expert (Funderburk) may be considered on the motion to dismiss | Funderburk is a timely rebuttal to defendant experts and discovery remained open | Disclosure missed the initial expert-deadline; Funderburk’s opinions go to plaintiff’s prima facie case and are improper rebuttal | Court excluded Funderburk’s opinions for purposes of ruling on the motion to dismiss under Rule 37(c)(1); parties may seek leave later and must meet-and-confer |
| Whether court should judicially notice defendant’s surplus lines status and related law | Plaintiff did not object to surplus-lines status and urged statutory caselaw be considered for guidance | Defendant sought notice of surplus-lines status to show inapplicability of Fla. Stat. ch. 627 | Court took judicial notice that Kinsale is a surplus-lines insurer but declined to judicially notice statutory case-law; allowed consideration of Chapter 627 caselaw as persuasive guidance |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not entitled to assumption of truth on Rule 12(b)(6))
- Neitzke v. Williams, 490 U.S. 319 (1989) (dismissal appropriate where dispositive legal issue precludes relief)
- Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283 (11th Cir. 2010) (two-pronged pleading standard for motions to dismiss)
- Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So.2d 700 (Fla. 1994) (ordinary meaning of "sudden" includes a temporal element of abruptness)
- Zimmer v. Aetna Ins. Co., 383 So.2d 992 (Fla. 5th DCA 1980) (discussing temporal scope of "sudden" in sinkhole-related coverage)