ROBERT LASIC MARLENE DJUSIC v. WESTCHESTER SURPLUS LINES INSURANCE COMPANY (2026)

ORDER

This cause comes before the Court on Defendant Westchester Surplus Lines Insurance Company's Motion to Dismiss (Doc. 17), to which Plaintiffs oppose (Doc. 23). For the reasons that follow, the Motion will be granted.

BACKGROUND

This case involves property insurance claims arising out of hurricane damage occurring at Plaintiffs’ properties located at eleven separate addresses in New Smyrna Beach, Florida. (Doc. 14). All of the properties are covered under the same insurance policy. Plaintiffs assert eleven counts, one for each property address. However, Counts III and X cover addresses that include two separate buildings, and Plaintiffs have asserted these two-building properties as a single count, rather than separate counts. Counts III and X make clear that there are two separate buildings “scheduled” at those respective addresses. Defendant moves to dismiss solely for the purpose of separating these two counts further—into a separate count per building. (Doc. 17).

LEGAL STANDARD

For purposes of deciding a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true the factual allegations in the complaint and draws all reasonable inferences in the light most favorable to the plaintiff. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). “Generally, under the Federal Rules of Civil Procedure, a complaint need only contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ ” Id. (quoting Fed. R. Civ. P. 8(a)(2)). However, the plaintiff's complaint must provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Twombly, 550 U.S. at 556).

DISCUSSION

Defendant moves to dismiss because Plaintiffs should have asserted separate counts for those two properties that include two separate buildings located on the same property because the policy of insurance at issue schedules each building separately based on its value, rather than as a lump-sum. (Doc. 17). Defendant cites to a case involving “whether appraisal is appropriate to resolve the parties’ dispute.” Pernas v. Scottsdale Ins. Co., No. 1:15-cv-21506, 2016 WL 471949, at *1 (S.D. Fla. Feb. 8, 2016). In Pernas, the insurance company covered part of the damage to one of the buildings on the property but denied coverage as to the other building located at the same address. Id. Noting that appraisal rights are only proper where there is no dispute as to coverage, the Court analyzed whether there was a right to appraisal given that there was a dispute as to coverage as to one of the two separate buildings on the property. Id. Relevant here, the Pernas court summarized the type of policy at issue here that involves separately scheduled items, as opposed to being a lump-sum policy, and reasoned that in a policy with separate schedules for each building “each separately treated item of property is in effect covered by a separate contract of insurance and the amount recoverable with respect to a loss affecting such property is determined independently of other items of property.” Id. at *3.

Pernas does not address the pleading standard applicable to separately alleging counts seeking insurance coverage for different buildings. However, Pernas emphasizes an important point: that each building in this case, though covered by the same policy number, is actually covered by a separate contract of insurance given that each building is separately scheduled.¹ The Court agrees that, in order to clarify the breach of contract issues for the remainder of this case, it is best to assert each breach of contract count separately. Since each building will be treated as being governed by its own contract subject to its own policy limitation, the complaint should be divided as such. Plaintiffs shall further separate Counts III and X asserting coverage for the same property address: one count for each of the separate buildings because these buildings will inevitably have unique values and property damage.

Accordingly, Defendant's Motion to Dismiss (Doc. 17) is GRANTED. Plaintiff SHALL FILE a Second Amended Complaint within 14 days that separates each insured building into a separate count. No new claims shall be added. Defendant SHALL FILE an answer to the Second Amended Complaint within 14 days of the filing of the Second Amended Complaint.

DONE and ORDERED in Chambers, in Orlando, Florida on June 1, 2026.

FOOTNOTES

1.   The cases cited by Plaintiffs address whether it is proper to compel an appraisal of some but not all of different buildings covered by the same policy, where there is no coverage dispute as to some of the buildings. That is not the issue here, and the Court does not find these cases persuasive.

Anne C. Conway United States District Judge