United States District Court

for the

Southern District of Florida

The Four Ambassadors Master 

Association, Inc. and others, Plaintiffs,

v.

Seneca Insurance Company, Inc., 

Defendant.

)

)

)

)

)

)

)

Civil Action No. 20-22047-Civ-Scola

Order on Motion to Dismiss

This matter is before the Court upon the Defendant’s motion to dismiss 

the Plaintiffs’ amended consolidated complaint. For the reasons set forth below, 

the Court denies the Defendant’s motion. (ECF No. 31.) 

1. Background

In this declaratory judgment action, Plaintiffs The Four Ambassadors 

Master Association, Inc.; The Four Ambassadors Association Inc.; Gary 

Goldbloom; and Southern Skyway Property, Inc. seek a declaration from the 

Court that the Defendant, Seneca Insurance Company, Inc. is estopped from 

refusing to indemnify the Plaintiffs for losses and certain litigation costs

incurred by the Plaintiffs in Vice City Marina LLC v. Gary Goldbloom, et al., 

Case No. 2016-002905 CA 01 in the Circuit Court of the 11th Judicial Circuit 

in and for Miami-Dade County, Florida (the “Vice City Marina Case”).

The instant dispute spins out of a related litigation that began in 2013, 

Brickell Bay Entm’t Co. et al. v. Southern Skyway Property, Inc., et al., Case No. 

13-13200 CA 40 in the Circuit Court of the 11th Judicial Circuit in and for 

Miami-Dade County, Florida (the “Brickell Bay Litigation”). (ECF No. 30, at 

¶ 17.) The Brickell Bay Litigation involved “certain rights and interests relative 

to the Four Ambassadors Condominium, including rights to build a fifth phase 

of construction . . . , and the rights to operate the marina next to the property.” 

(ECF No. 30-3, at 2.) Seneca provided a defense for Goldbloom and Southern 

Skyway in the Brickell Bay Litigation under a reservation of rights letter dated 

June 14, 2013, pursuant to a commercial general liability insurance policy 

(“CGL”) bearing the number SCC- 2042394. (ECF No. 30, at ¶ 19-20). Seneca 

also provided a defense for The Four Ambassadors Master Association, Inc. and 

the Four Ambassadors Association Inc. (together, the “Associations”) as 

additional insureds under the same policy, but allegedly did not provide the 

Associations with their own reservation of rights letter. (ECF No. 30, at ¶ 21.)

Case 1:20-cv-22047-RNS Document 41 Entered on FLSD Docket 02/03/2021 Page 1 of 6
The Brickell Bay Litigation was settled in 2015 when Plaintiffs Goldbloom 

and Southern Skyway entered into a purported oral contract with Vice City 

Marina LLC, who was otherwise not a party to the Brickell Bay Litigation. The 

Associations were not involved in the agreement between Goldbloom, Southern 

Skyway and Vice City Marina. The agreement between these parties involved a 

proposed global settlement of the Brickell Bay Litigation which would result in 

the dismissal of the lawsuit, payment of money from Vice City Marina to the 

plaintiffs and defendants, and Vice City Marina’s receipt of the phase five rights 

and rights to operate the marina at the Four Ambassadors Condominium. (ECF 

No. 30-3, at 2.) After an agreement in principle was reached, the Plaintiffs (who 

were the defendants in the Brickell Bay Litigation) attempted to back out of 

their agreement with Vice City Marina. 

The Vice City Marina Case at the heart of the instant dispute was filed on 

February 5, 2016 by Vice City Marina against Goldbloom, Southern Skyway, 

and the Associations and sought to enforce the agreement that resulted in the 

settlement and dismissal of the Brickell Bay Litigation. Seneca provided a 

defense to Goldbloom, Southern Skyway, and the Associations in the Vice City 

Marina Case, though apparently never issued a new reservation of rights letter 

to the Plaintiffs. (ECF No. 30, at ¶ 22.) That same day, Vice City Marina also 

brought a separate suit against the Associations in a case styled Vice City 

Marina LLC v. The Four Ambassadors Master Association, Inc., et al., Case No. 

2016-002954 CA 01 in the Circuit Court of the 11th Judicial Circuit in and for 

Miami-Dade County, Florida (the “Vice City v. Associations Case”). The parties 

did not make clear the difference between the Vice City Marina Case and the 

Vice City v. Associations Case. Seneca also defended the Associations in this 

second case, but the Plaintiffs claim did not issue a reservation of rights letter. 

The Plaintiffs defended themselves in both of these cases through 

insurance-appointed counsel. (ECF No. 30, at ¶ 25.) On March 15, 2018, the 

Court entered a final judgment against the Plaintiffs in the Vice City Marina 

Case, which required the Plaintiffs, including the Associations, to specifically 

perform under the oral contract entered into by Goldbloom and Southern 

Skyway that related to the Brickell Bay Litigation. (ECF No. 30, at ¶ 28-29.) 

The Plaintiffs moved for rehearing, but ultimately lost on their motion after the 

Court found the defenses the Plaintiffs tried to raise had been waived as they 

had not been raised by their counsel at trial. (ECF No. 30, at ¶ 31-32.) The 

Plaintiffs then appealed, but the appellate court affirmed the trial court’s 

decisions. (ECF No. 30, at ¶ 33.) 

On February 27, 2020, days after the appellate court issued its mandate 

in the Vice City Marina Case, Seneca sent Goldman and Southern Skyway a 

letter with the subject line “Vice City Marina, LLC v. Four Ambassadors Master 

Case 1:20-cv-22047-RNS Document 41 Entered on FLSD Docket 02/03/2021 Page 2 of 6
Association, et al.” which the Plaintiffs claim related to the Vice City v. 

Associations Case and not the Vice City Marina Case. In the letter Seneca 

stated it had been providing a defense under a “reservation of rights” and “has 

no obligation to indemnify the Insureds.” (ECF No. 30, at ¶ 39-40.) The letter 

also stated “a final judgment has been entered in the above lawsuit against the 

Insureds, and the only remaining issue is the amount of attorney’s fees that 

the Plaintiff is entitled to.” (ECF No. 30, at ¶ 42.) Finally, the letter stated “[a]s 

explained in our previous letters, Seneca has no obligation to indemnify the 

Insureds in connection with the damages sought in the underlying lawsuit.” 

(ECF No. 30, at ¶ 44.) The Plaintiffs argue this letter made little to no sense as 

neither Goldbloom nor Southern Skyway were parties to the Vice City v. 

Associations Case. The Associations claims it only learned of the 2013 

reservation of rights letter after Goldbloom and Southern Skyway received the 

February 27, 2020 letter from Seneca. (ECF No. 30, at ¶ 50.) Ultimately, the 

parties in the Vice City Marina Case settled the issue of costs and attorney’s 

fees for $425,000.00 which Seneca states it has no responsibility to cover. (ECF 

No. 30, at ¶ 34-37.) 

The Plaintiffs have now filed the instant declaratory judgment action 

asking the Court to find that Seneca is estopped from denying coverage with 

respect to the Vice City Marina Case. The Plaintiffs stated they were prejudiced 

by their reliance on Seneca’s actions as they would have conducted the 

litigation differently had they known Seneca was providing its defense under a 

reservation of rights. The Defendant argues that the Court must dismiss the 

Plaintiff’s claim for declaratory judgment because there is no “substantial 

controversy between Plaintiffs and Seneca” and therefore the Court cannot 

issue a declaratory judgment pursuant to 28 U.S.C. § 2201. 

2. Legal Standard

A. Motion to Dismiss

When considering a motion to dismiss under Federal Rule 12(b)(6), the 

Court must accept all of the complaint’s allegations as true, construing them in 

the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 

1284 (11th Cir. 2008). Under Federal Rule 8, a pleading need only contain “a 

short and plain statement of the claim showing that the pleader is entitled to 

relief.” Fed. R. Civ. P. 8(a)(2). The plaintiff must nevertheless articulate “enough 

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (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. 

Case 1:20-cv-22047-RNS Document 41 Entered on FLSD Docket 02/03/2021 Page 3 of 6
Iqbal, 129 S. Ct. 1937, 1949 (2009). “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” Id.

Thus, a pleading that offers mere “labels and conclusions” or “a formulaic 

recitation of the elements of a cause of action” will not survive dismissal. Id.

In applying the Supreme Court’s directives in Twombly and Iqbal, the 

Eleventh Circuit has provided the following guidance to the district courts:

In considering a motion to dismiss, a court should 1) eliminate any 

allegations in the complaint that are merely legal conclusions; and 

2) where there are well-pleaded factual allegations, assume their 

veracity and then determine whether they plausibly give rise to an 

entitlement to relief. Further, courts may infer from the factual 

allegations in the complaint obvious alternative explanation[s], 

which suggest lawful conduct rather than the unlawful conduct 

the plaintiff would ask the court to infer.

Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138 (11th 

Cir. 2011) (citations omitted). “This is a stricter standard than the Supreme 

Court described in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which held 

that a complaint should not be dismissed for failure to state a claim ‘unless it 

appears beyond doubt that the plaintiff can prove no set of facts in support of 

his claim which would entitle him to relief.’” Mukamal v. Bakes, 378 F. App’x 

890, 896 (11th Cir. 2010). These precepts apply to all civil actions, regardless 

of the cause of action alleged. Kivisto, 413 F. App’x at 138.

B. Declaratory Judgment Act, 8 U.S.C. § 2201

The Declaratory Judgment Act is an “all-purpose remedy, designed to 

permit an adjudication whenever the court has jurisdiction, there is an actual 

case or controversy and an adjudication would serve a useful purpose.” 

AquaDry Plus Corp. v. Rockhill Ins. Co., No. 19-62331-Civ, 2020 WL 927440 

(S.D. Fla. Feb. 26, 2020) (Scola, J.). The Act gives federal courts “competence to 

make a declaration of rights” but “did not impose a duty to do so.” Pub. Affairs 

Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962). The only relevant inquiry in 

a motion to dismiss a declaratory judgment action is whether or not the 

plaintiff is entitled to a declaration of rights. 550 Seabreeze Dev., LLC v. Ill. 

Union Ins. Co., 19-24611-Civ, 2020 WL 473610, at *2 (S.D. Fla. Jan. 29, 2020) 

(Scola, J.). Claims for declaratory judgment “must look forward, rather than 

backward, as any retrospective declaratory judgment would be equally solved 

by resolution” of a breach of contract claim. Id. In order to demonstrate that a 

case or controversy exists to meet the case or controversy requirements under 

Article III, “a plaintiff must allege facts from which it appears there is a 

Case 1:20-cv-22047-RNS Document 41 Entered on FLSD Docket 02/03/2021 Page 4 of 6
substantial likelihood that he will suffer injury in the future.” Malowney v. Fed. 

Collection Deposit Grp., 193 F.3d 1342, 1346-47 (11th Cir. 1999). Accordingly, 

a dispute must be definite and concrete, touching the legal relations of parties 

having adverse legal interests, “[a]s distinguished from an opinion advising 

what the law would be upon a hypothetical state of facts.” Maxum Indem. Co. v. 

I.T.A. Sec. Servs., Inc., 2014 WL 12862522, at *2 (S.D. Fla. July 24, 2014) 

(Goodman, Mag. J.) (internal quotations omitted). 

C. Duty to Defend and Indemnify

Under Florida law, an insurer’s duty to defend an insured “‘depends solely

on the facts and legal theories alleged in the pleadings and claims against the 

insured.’” Steadfast Ins. Co. v. Celebration Source, Inc., 240 F. Supp. 3d 1295, 

1302-03 (S.D. Fla. 2017) (Scola, J.) (emphasis in original) (quoting Stephens v. 

Mid-Continent Cas. Co., 749 F.3d 1318, 1323 (11th Cir. 2014)). Accordingly, if the 

pleaded facts do not fall within a policy’s coverage, there is no duty to defend. Id. 

at 1303. To make a determination as to the insurer’s duty to defend, the Court 

must apply the language of the policy to the facts of the underlying complaint. 

Id. Any doubts regarding the duty to defend must be resolved in favor of the 

insured. Jones v. Fl. Ins. Guar. Ass’n, Inc., 908 So. 2d 435, 443 (Fla. 2005). 

Unlike the duty to defend, “‘which is generally triggered by the allegations 

in the underlying complaint, an insurance company’s duty to indemnify an 

insured party is narrower and is determined by the underlying facts adduced at 

trial or developed through discovery during the litigation.’” Health First, Inc. v. 

Capitol Ins. Corp., 747 F. App’x 744, 749 (11th Cir. 2018). While the duty to 

defend arises as soon as a relevant claim is made based on the facts and legal 

theories alleged in the pleadings, the duty to indemnify is based on the actual 

facts, not only those that were alleged in the complaint. Id. As the duty to defend 

is broader than the duty to indemnify, “Florida Courts have recognized that a 

duty to indemnify cannot exist if there is no duty to defend.” Id. at 750.

3. Analysis

Seneca argues in its motion to dismiss that because the Plaintiffs settled 

the issue of fees between the Plaintiffs and Vice City Marina in the Vice City 

Marina Case on October 5, 2020, there is no longer a live case or controversy at 

issue between the parties. Seneca goes on to argue that the Court therefore 

lacks jurisdiction to enter a declaratory judgment finding Seneca has a 

responsibility to “indemnify the Plaintiffs for alleged losses that they claim have 

already incurred.” (ECF No. 31, at 2.) While the Court acknowledges that the 

underlying litigations appear to have concluded and the issue of fees and costs

Case 1:20-cv-22047-RNS Document 41 Entered on FLSD Docket 02/03/2021 Page 5 of 6
as between Plaintiffs and Vice City Marina have been settled, the issue of 

whether Seneca has responsibility to indemnify the Plaintiffs for certain of

those fees and other defense costs has not been resolved.

There is no bright line test for determining whether a case presents a live 

“case or controversy,” sufficient for adjudication. Clarendon Nat’l Ins. Co. v. 

Vickers, No. 05-60805-Civ, 2006 WL 8434796, at *4 (S.D. Fla. May 25, 2006) 

(Moreno, J.) The question “in each case is whether the facts alleged, under all 

the circumstances, show that there is a substantial controversy, between the 

parties having adverse legal interests, of sufficient immediacy and reality to 

warrant the issuance of a declaratory judgment.” GTE Directories Publishing 

Corp. v. Trimen Am. Inc., 67 F.3d 1563, 1567 (11th Cir. 1995). It is clear from a 

review of the Plaintiffs’ amended complaint that there is an actual controversy 

between the parties with respect to the question of whether Seneca has 

responsibility to indemnify the Plaintiffs for their losses in the Vice City Marina 

Case, including whether Seneca has any responsibility to indemnify the 

Plaintiffs for the $425,000.00 they owe to Vice City Marina for its fees and 

costs. The Court finds the instant dispute analogous to the dispute before the 

Court in Clarendon where the Court considered whether there was a live case 

or controversy in a declaratory judgment action between an insurer and its 

insured relating to indemnification of $800,000.00 in attorney’s fees and costs 

where the underlying litigation had been disposed of via settlement. As here, 

the Court in Clarendon found that “[i]n light of that demand, it is clear that a 

viable controversy exists before this court.” Clarendon, 2006 WL 84334796, at 

*4. 

4. Conclusion

For the reasons stated above, the Court denies the Defendant’s motion 

to dismiss. (ECF No. 31.)

Done and ordered, in Miami, Florida, on February 1, 2021.

________________________________

Robert N. Scola, Jr.

United States District Judge

Case 1:20-cv-22047-RNS Document 41 Entered on FLSD Docket 02/03/2021 Page 6 of 6