Monday, January 11, 2010

Declaratory Relief Action Dismissed As Duplicative To Breach of Contract Action In Windstorm Insurance Dispute

In Village Square Condominium of Orlando, Inc. v. Nationwide Mutual Fire Insurance Co. (09-cv-1711-Orl), a decision entered one day after the order denying remand discussed HERE, Middle District of Florida Judge Gregory Presnell granted a motion to dismiss a claim for declaratory relief. 

After noting "the elements required under the federal or state declaratory judgment acts are not materially different," the court stated:
Upon review, the Court concludes that Count II fails to allege any real or immediate controversy and that Count II is otherwise superfluous in light of Count I. The gravamen of the Complaint is that Defendant breached its contract of insurance by failing to pay for all of Plaintiff’s covered losses – not that the contract is ambiguous or that the parties are uncertain as to their rights. Indeed, as Defendant points out, the Complaint does not identify any particular provision in the contract that would necessitate declaratory relief.  To the extent that there may be a dispute regarding whether the policy was in effect at the time of the alleged loss,4 that issue is clearly subsumed by Count I. In the absence, then, of any real and immediate controversy apart from what is already alleged in Count I, Defendant’s Motion to Dismiss Count II will be granted.
The decision can be viewed HERE.


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