13 Fla. L. Weekly Supp. 595b
Insurance — Automobile — Rescission of policy — Complaint alleging that insurer failed to pay interest for time it held on to premiums for policy which was subsequently rescinded due to alleged material misrepresentation and that insurer failed to refund two policy fees states cause of action — Court declines to determine on motion to dismiss whether or not case should be class action
CLEMENTE BENITEZ, Plaintiff, vs. INTERSTATE INDEMNITY COMPANY, Defendant. Circuit Court, 16th Judicial Circuit, Monroe County, Civil Division. Case No. 03-298-M. February 27, 2006. Richard Payne, Judge. Counsel: Marcy Aldrich. John Jabro. Carlos Lidsky, Lidsky, Vaccaro & Montes, Hialeah.
ORDER DENYING MOTION TO DISMISS
Facts
Plaintiff Clemente Benitez (“Benitez”) alleges that he purchased an automobile insurance policy from Defendant Interstate Indemnity Company (“Interstate”) in March of 2001, which he alleges was “rescinded” by Interstate in February of 2003 due to a material misrepresentation in the application for insurance. The misrepresentation at issue was the failure to list Bridgette Benitez, Benitez’ daughter, as an additional member of the household. As alleged in one of the complaint’s exhibits, if Interstate had been aware that Bridgette resided in the Benitez household, the risk would have been unacceptable and the premiums would have been higher. Benitez does not appear to dispute the alleged rescission or that Interstate refunded to him the premiums he twice paid for the policy.
Plaintiff’s Claims
However, Benitez claims that Interstate: (a) failed to pay interest for the time it held on to his premiums, and (b) failed to pay the two $25 policy fees it charged him. Benitez seeks to recover these items of damages for himself and on behalf of two subclasses of Interstate insureds, which he labels the “Interest” subclass and the “Policy Fee” subclass.
Defendant’s Contentions
Interstate contends that Benitez fails to state a cognizable claim for relief because: Florida law does not obligate it to pay interest on the premium amounts returned, given it made the refunds simultaneously with the rescission; and, it does not have to refund agency fees. More broadly, Interstate argues that there is no interest obligation under Florida law on the refund of a rescinded policy’s premiums. With respect to the agency fees, Interstate asserts that it does not have to “refund” fees that it neither collected nor received.
Procedurally, Interstate claims that Benitez asserts an inappropriate claim for declaratory relief and for money had and received. With respect to the class claims, Interstate argues that: (1) Benitez’ claims must be dismissed because he failed to comply with the requisite class action pleading requirements; (2) his claims are unsuitable for class action treatment; and (3) that the maintenance of this case as a class action will likely violate the rule against splitting a single cause of action.
The Court’s Ruling
Because the Court is considering a motion to dismiss for failure to state a cause of action, the Court is limited to the “four corners of the complaint.” See, e.g., Pascual v. Florida Power & Light Co., 911 So.2d 152, 153-154 (Fla. 3d DCA 2005). The Court finds that Benitez’ complaint states a cause of action for the refund of interest on the premiums and of the policy fees. The Court declines to go beyond the complaint to determine whether this case should or should not be a class action; that is a determination the Court will make at a motion for summary judgment or at a class certification hearing.
Defendant has 30 days in which to answer the complaint.
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