Please set up your API key!

The Rough Notes Company Inc.



July 26
09:17 2021

Walkin’ blues

Stevie Howard, a pedestrian, was injured outside a T-Mobile/Metro PCS store property. In April 2018, Howard filed a complaint alleging several counts of negligence against T-Mobile USA d/b/a MetroPCS (“T-Mobile”), and two other defendants. T-Mobile was covered by a liability policy issued by Greenwich Insurance Company. Howard filed his second amended complaint in October 2018, adding for the first time one count against Greenwich for breach of contract, alleging that he was a third-party beneficiary of medical payment benefits as an omnibus insured under the T-Mobile/Greenwich insurance agreement.

A month after filing his second amended complaint, Howard filed a proposal for settlement with T-Mobile, which T-Mobile accepted. In December 2018, Howard and T-Mobile executed a release discharging T-Mobile and stating that payments for medical treatment rendered as a result of the accident were covered in the settlement payment made by T-Mobile USA. Howard received payment, and in January 2019 the court rendered its order on a joint stipulation dismissing the case with prejudice as to T-Mobile only.

In May 2019, Greenwich moved to dismiss count VII of the second amended complaint, the sole count against it. Greenwich argued that the complaint failed to attach the insurance policy and failed to state a cause of action by failing to allege a duty. The trial court denied Greenwich’s motion to dismiss and ordered it to file an answer to the second amended complaint. The court, in the same order, also required Howard and Greenwich to file supplemental memoranda of law discussing the policy’s medical payments provision and whether the second amended complaint violated Florida’s non-joinder statute.

Greenwich filed its answer, and both parties filed supplemental legal memoranda on the issue of the applicability of non-joinder statute. Greenwich asserted in its answer that Howard was not a beneficiary under the policy and was barred from seeking recovery under the medical payments provision of the policy because he was already compensated for his medical expenses from the T-Mobile settlement agreement and release of liability. Because Howard’s settlement with T-Mobile did not yet exist when Howard filed his second amended complaint, the court took judicial notice of those documents and concluded that the settlement and release of all claims against T-Mobile also extinguished Howard’s claim against Greenwich as a matter of law. The court granted Greenwich’s motion to dismiss and entered final judgment in favor of Greenwich. Howard appealed.

On appeal, the court stated that entry of the final judgment stemming from a pretrial motion to dismiss that did not raise the issue on appeal as a basis for dismissal—let alone dismissal with prejudice—constituted reversible error. The trial court’s consideration of the settlement and release of T-Mobile was a matter outside the four corners of the second amended complaint, as those documents did not exist at the time the second amended complaint was filed. The appellate court stated that it has followed the general rule that a court may not look beyond a complaint and its attachments to take judicial notice of a separate legal proceeding when ruling on a motion to dismiss. Further, in evaluating a motion to dismiss that alleges an action is barred by a previous adjudication—or, as here, a settlement and release of claims—where there is no reference in the complaint to the prior action and no stipulation that documents from the earlier claim can be considered—the court’s analysis is restricted to the allegations of the complaint.

The error was further compounded by the trial court’s consideration of Greenwich’s affirmative defenses advanced in Greenwich’s answer to the second amended complaint, which demanded trial by jury and raised both factual and legal issues—after the trial court had initially denied Greenwich’s motion to dismiss. The court essentially transformed a motion to dismiss into an unarticulated motion for summary judgment where, so far as the appellate record showed, no motion for summary judgment had been made or argued by either Greenwich or Howard after Greenwich filed its answer. A motion to dismiss is not a substitute for a motion for summary judgment.

The second amended complaint specifically alleged that Howard was entitled to coverage pursuant to the medical payments provision of the Greenwich policy. The trial court did not address that issue or give Howard an opportunity to further amend the complaint in order to attach the policy that contained the medical payments provision.

Finally, the final judgment prematurely addressed the merits, on a motion to dismiss, to conclude that the T-Mobile settlement operated to extinguish count VII against Greenwich. By ruling on the merits by way of a motion to dismiss, the trial court deprived Howard of the opportunity to fully respond to Greenwich’s affirmative defenses. It was error to treat Greenwich’s motion to dismiss as a motion for summary judgment.

The trial court’s final judgment was reversed, and the case was remanded for further proceedings.

Howard v. Greenwich Insurance Company—District Court of Appeal of Florida, Third District—September 9, 2020—No. 3D19-1922.

Related Articles






Philadelphia Let's Talk - Click Here

Spread The Word & Share This Page

Trending Tweets