Whennen v. Insuremart, Inc.

ORDER

WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE.

This is an insurance coverage dispute for injuries a truck driver sustained after falling from the sleeper bed in his truck. Before the Court today is Defendant Insuremart, Inc.'s Motion to Dismiss, Dkt. 7, Plaintiff James Whennen's Complaint, Dkt. 1. Plaintiff Whennen, the injured truck driver, filed a response. Dkt. 10. With the benefit of full briefing, the Court denies Insuremart's motion.

BACKGROUND

Mills Shipping Services, LLC-a non-party to this action-is a Florida-based company that employs truck drivers. Dkt. 1-4 at 1. Defendant Insuremart is a general insurance broker that procures insurance policies for third parties. Id. Mills Shipping Services purchased insurance policies from Insuremart to cover its truck drivers. Id. at 2. One such policy was the Occupational Accident Policy. Id. This

policy provided up to $1 million of coverage, and it was issued to Chris Karakaedos, a former truck driver for Mills Shipping Services. Id.

On March 22, 2019, Mills Shipping Services sent the following email to Insuremart:

Good Evening Ladies,

I will have a new driver starting Monday. Not sure if you need his information but if so it is below. Please remove Chris Karakaedos from anything and replace with my new driver

Dkt. 1-4, Ex. 1 at 2. Under a heading that read “New Driver, ” Mills Shipping Services included Plaintiff Whennen's full name, his date of birth, and his driver's license number. Id.

An insurance agent for Insuremart answered this email the same day, asking: “How Many years of experience does he has [sic]?” Id. at 1. Mills Shipping Services replied two days later, on March 24, 2019, stating: “30 years.” Id. It appears there was no further communication about this matter between Mills Shipping Services and Insuremart. However, Insuremart continued charging Mills Shipping Services for insurance coverage well after these communications, leading Mills Shipping Services to believe Plaintiff Whennen was properly insured. Dkt. 1-4 at 2.

On May 21, 2019, Plaintiff Whennen was injured while working for Mills Shipping Services when he fell from the sleeper bed in his truck. Id. at 3. The fall

caused multiple spinal fractures, among other injuries. Id. Insuremart denied any obligation to Plaintiff Whennen or Mills Shipping Services for the accident. Dkt. 1-4, Ex. 2 at 1.

Plaintiff Whennen sued Mills Shipping Services in Florida state court for its failure to provide insurance that would have covered his injuries. Dkt. 1-4 at 3. The two parties settled the suit, and the state court entered a consent final judgment against Mills Shipping Services and in favor of Plaintiff Whennen on July 9, 2021. Id.; Dkt. 1-4, Ex. 2. As part of this settlement, Mills Shipping Services assigned its right to sue Insuremart to Plaintiff Whennen. Dkt. 1-4 at 3. Under Florida law, negligence claims against an insurance broker are assignable. See Wachovia Ins. Servs., Inc. v. Toomey, 994 So.2d 980, 990 (Fla. 2008).

In accordance with that assignment, Plaintiff Whennen sued Insuremart in Florida state court on August 19, 2021. Dkt. 1-4. He alleges that, despite Mills Shipping Services directing Insuremart to remove former driver Chris Karakaedos “from anything” and replace him with Plaintiff, Insuremart negligently failed to procure insurance coverage that would have covered Plaintiff's injuries. Id. at 4. Plaintiff attached two documents to his Complaint: (1) the email chain between Mills Shipping Services and Insuremart from March 2019, and (2) the state-court settlement between Plaintiff Whennen and Mills Shipping Services. Dkt. 1-4, Exs. 1 & 2.

Defendant Insuremart removed the case to federal court in October 2021 based on diversity jurisdiction. Dkt. 1. It now moves to dismiss the case under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Dkt. 7. The Court now considers this motion.

LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

When considering a Rule 12(b)(6) motion, the Court accepts all factual allegations of the complaint as true and construes them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citation omitted). The Court also will limit its ...