WILSON v. SARGENT
No. 07-13161
United States Court of Appeals, Eleventh Circuit.
March 6, 2008.
313 F.3d 1315
Cir.2006). Inasmuch as both Wilson and Czetli clearly establish that such stеps must be taken before the district court may sua sponte dismiss an indigent prisoner‘s pro se complaint, it was an abuse of discretion for the district cоurt to have dismissed the complaint. Wilson, 313 F.3d at 1320. Accordingly, we vacate the dismissal and remand the case for further proceedings.1
VACATED AND REMANDED.
Before CARNES, BARKETT, and HILL, Circuit Judges.
PER CURIAM:
Plaintiff‘s complaint was dismissed suа sponte by the district court for failure to pay the partial initial filing fee. There is nothing in the record to indicate that the district court took any steps to ascertain whether the failure to pay was within the prisoner‘s control, as required by Wilson v. Sargent, 313 F.3d 1315, 1321 (11th Cir. 2002). Nor is there anything in the record to indicate that the plaintiff wаs aware of the local rule of procedure,
Julie BUELL, Plaintiff, Diane Panton, Jamey Robbins-Gleason, James Cartwright, Samantha Helmick, Greg Groover, Bobbie Anderson-Sparks, Plaintiffs-Appellants, v. DIRECT GENERAL INSURANCE AGENCY, INC., Direct General Insurаnce Company, American Bankers Insurance Company Of Florida, Underwriters at Lloyd‘s, London, Direct General Corporation, Direct General Life Insurance Company, Defendants-Appellees, Direct General Financial Services, Inc., Defendant.
No. 07-13161
United States Court of Appeals, Eleventh Circuit.
March 6, 2008.
John D. Mullen, Kamilah L. Perry, Phelps Dunbar LLP, Tampa, FL, Maria Elena Abate, Colodny, Fass & Talenfeld, P.A., Ft. Lauderdale, FL, Farrokh Jhabvala, Franklin G. Burt, Jason Patrick Kairalla, Jorden Burt LLP, Miami, FL, for Defendants-Appellees.
Before BIRCH, DUBINA and KRAVITCH, Circuit Judges.
PER CURIAM:
This putative class action alleging deceptive practices in the sale of insurance was dismissed for failure to state a claim. The plaintiffs now appeal. We affirm.
The essential allegation in the case is that Direct General Insurance Cоmpany, with its affiliates and underwriters, engaged in “sliding,” a deceptive trade practice prohibited by the Florida Unfair Insurance Trade Practices Act (FUITPA),
Appellants conceded there is no statutory cause of action under FUITPA fоr consumers harmed by sliding. Likewise, no statutory remedy exists in Florida for someone who buys insurance from an unlicensed agent; indeed, Florida statute explicitly provides that an otherwise-valid insurance policy is not rendered invalid because it was procured by an unlicensed agent.
Undeterred, appellants asserted common law claims for money had and received1 and recission of their insurance contracts on the theory that the contracts were unlawfully entered into because of the sliding and the unlicensed sales agents. Appellants also sought certification of a plaintiff clаss, and sought class-wide remedies including disgorgement of premiums paid on the disputed contracts, an injunction against further violations of FUITPA, and declaratоry relief. The district court dismissed the complaint for failure to state a claim without holding a class certification hearing.
The district court found that aрpellants’ common law claims failed because plaintiffs may not evade the Florida legisla-ture‘s decision to withhold a statutory cause of аction for violations of the pertinent provisions of FUITPA by asserting common law claims based on such violations. We agree. Although in Davis v. Travelers Indemnity Co. of America, 800 F.2d 1050 (11th Cir. 1986), this court stated that сommon law remedies may be appropriate for violations of FUITPA, in so doing this court relied on Florida case law stating that any statutory violation gives rise to a common law claim in favor of the statute‘s perceived beneficiaries. Id. at 1051 (citing cases). Florida courts have since repudiаted that principle; they now look to whether the statute was intended to create a private remedy. See, e.g., Murthy v. N. Sinha Corp., 644 So.2d 983, 985 (Fla.1994). Thus, Davis is not binding on this point, as we may rеconsider a prior panel‘s interpretation of state law in light of subsequent decisions of the pertinent state Supreme Court. Venn v. St. Paul Fire and Marine Ins. Co., 99 F.3d 1058, 1066 (11th Cir.1996).
And it is apparent thаt the district court correctly concluded that no common law claim should be recognized based on the alleged statutory violations. First, as the district court observed, the Florida legislature created a private cause of action for certain FUITPA violations but not others.
Second, a statutory violation renders contracts unenforceable only where the statute expressly or impliedly so provides. See Talco Capital Corp. v. Canaveral Int‘l Corp., 225 F.Supp. 1007, 1013-14 (S.D.Fla.1964), aff‘d., 344 F.2d 962 (5th Cir.1965).2 This statute does not so provide. As to the allegations of sales by unlicensed agents, Florida law specifically provides that such contracts are enforceable.
In short, we conclude that the Florida legislature did not intend for a private remedy to exist for the violations alleged here, and did not intend for these alleged violations to render the resulting insurance contracts void in any event. Thus, we agree with the district court that appellants’ third amended complaint failed to state a basis for relief. The judgment is due to be
AFFIRMED.