UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

KEY WEST DIVISION

CASE No.: 4:20-CV-10085-JLK

WILMINGTON SAVINGS FUND

SOCIETY, FSB, DOING BUSINESS AS

CHRISTIANA TRUST, NOT IN ITS

INDIVIDUAL CAPACITY BUT SOLELY

AS CERTIFICATE TRUSTEE FOR NRP

MORTGAGE TRUST I,

 Plaintiff and Counter-Defendant,

v.

INTEGON NATIONAL INSURANCE

COMPANY, foreign profit corporation and

NATIONAL GENERAL INSURANCE

COMPANY, a foreign profit corporation,

 Defendant and Counter-Plaintiff,

___________________________________/

 

ORDER DENYING AMENDED MOTION TO DISMISS COUNTERCLAIM

THIS MATTER comes before the Court upon Plaintiff and Counter-Defendant’s

Amended Motion to Dismiss Counterclaim (the “Motion”) (DE 10), filed September 30, 2020. 1

The Court has also Considered Defendant and Counter-Plaintiff’s Response (DE 16) and

Plaintiff and Counter-Defendant’s Reply (DE 17).

I. BACKGROUND

Homeowners Aaron Hernandez and Tech USA, Inc. (“Homeowners”) obtained a

mortgage loan from BSI Financial Service, Inc. (“BSI”). Countercl. ¶¶ 11–12, DE 4. As per the

mortgage agreement, Homeowners were required to insure their home; and if they did not, BSI

had the right to obtain a lender-placed insurance policy on the property. Id. ¶ 16 Because BSI

 Counter-Defendant’s Amended Motion is “substantially identical” to its original Motion to Dismiss (DE 8). Mot. at 1

1 n.1 The Amended Motion is filed to correct a clerical error. 

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thought the mortgagor Homeowners failed obtain an insurance policy, BSI as mortgagee

obtained an insurance policy from Integon. Id. 

On or about September 10, 2017, Hurricane Irma damaged Homeowners’ property and

BSI filed a claim with Integon for the damage to the property. Id. ¶ 18. It was then discovered

that Homeowners had in fact insured the property, obtaining an insurance policy from Lloyd’s of

London. Id. ¶ 21 The Lloyd’s policy was in effect at the time of the loss, and Lloyd’s issued

payment to Homeowners for their damages. Id. ¶ 21, 24. Integon claims that it issued its policy

to BSI because it “mistakenly believed” that the mortgaged property was uninsured. Resp. at 2.

Wilmington Savings Fund (“Wilmington”) acquired its interest in the property through an

assignment of claim for damages from BSI dated June 8, 2021, and Wilmington is now the

assignee of BSI. Compl. ¶ 7, DE 1-2. 

On June 16, 2020, Wilmington filed its Complaint against Integon, alleging breach of

contract for failing to pay on its insurance policy and seeking declaratory judgment in State

Court. See Compl. On July 28, 2020, Integon removed this action based on diversity of

citizenship. See Not. of Removal, DE 1. On August 10, 2020, Integon filed its Answer and

Affirmative Defenses to Plaintiff’s Complaint and Counterclaim. DE 4. Integon’s Answer denies

breach of contract and counterclaims for declaratory judgment seeking clarification whether

Integon’s policy was void or voidable in light of the fact there was a previously issued insurance

policy in effect from Lloyd’s of London on the date of loss. See Countercl. 

Wilmington moves, under Federal Rule of Civil Procedure 12(b)(6), to have the

Counterclaim dismissed because Integon’s request for declaratory relief fails to state a cause of

action upon which declaratory relief can be granted and is a redundant claim. See Mot. 

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II. LEGAL STANDARD

Counterclaims are held to the same pleading standards applied to complaints. Manuel v.

Convergys Corp., 430 F.3d 1132, 1141 (11th Cir. 2005). Rule 8 requires that a complaint include

a “short and plain statement” demonstrating that the claimant is entitled to relief. Fed R. Civ. P.

8. To survive a Rule 12(b)(6) motion to dismiss, a complaint must include “enough facts to state

a claim to relief that is plausible on its face,” Bell Atlantic 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. Iqbal, 556 U.S. 662, 663 (2009).

When evaluating a motion to dismiss, the Court must take all of the well-pled factual

allegations as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007). So long as the complaint

properly alleges facts that make its claims plausible, the Court must view the complaint’s

allegations in the light most favorable to the plaintiff. Am. Dental Ass’n v. Cigna Corp., 605 F.3d

1283, 1289 (11th Cir. 2010). As a corollary, allegations absent supporting facts are not entitled

to this presumption of veracity. Iqbal, 556 U.S. at 680. If the Court identifies such conclusory

allegations, it must then consider whether the remaining allegations “plausibly suggest an

entitlement to relief.” Id. The Court must dismiss a complaint or counterclaim that does not

present a plausible claim entitled to relief.

III. DISCUSSION

A. Sufficient Facts to State a Claim

Plaintiff and Counter-Defendant Wilmington’s Motion argues that Integon’s

Counterclaim should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure

for failing to state a claim. See Mot. The Integon Policy reads in pertinent part:

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Insurance under this RESIDENTIAL PROPRETY FORM 

will automatically terminate on the effective date and time of any

other insurance coverage acceptable to YOU. WE shall not make

any payment for LOSS if other insurance acceptable to YOU is in

force on the DATE OF LOSS. 

DE 1-2 at 20.

Specifically, Wilmington argues that the Policy language requires Counter-Plaintiff

Integon to plead that the existing Lloyd’s policy was “acceptable” to Wilmington, but Integon

merely conclusively states in its Counterclaim that “[g]iven the existence of the Lloyd’s Policy,

the [Integon Policy] was void or voidable.” Mot. at 2.

In its Response, Integon argues that Wilmington’s Motion to Dismiss the Counterclaim

should be denied because the Counterclaim clearly includes “a short and plain statement of the

claim showing that the pleader is entitled to relief” under Rule 8 and that Integon has alleged

enough facts to demonstrate “that the language of the ‘conditions’ section of its policy precludes

coverage.” Resp. at 6.

To maintain an action for a declaratory judgment, the “plaintiff must allege facts

indicating a ‘substantial continuing controversy between two adverse parties’ that is not

‘conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, 

rather than speculative threat of injury.’” Malowney v. Fed. Collection Deposit Grp., 193 F.3d

1342, 1347 (11th Cir. 1999). In its Counterclaim, Integon alleges “. . . it was determined that

there was a Lloyd’s Dwelling Three WITH Wind Insurance Policy . . . which covers damages

sustained to the Property from multiple sources, including those alleged as a cause of the Loss.”

Countercl. ¶ 21. Integon further alleges that “The Lloyd’s Policy was in effect from January 23,

2017 to January 23, 2018, which covers the time frame when the Loss occurred . . .” and “. . . the

Claim pursued by Wilmington in this matter was paid under the Lloyd’s policy.” Id. ¶¶ 23–24.

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Considering all allegations in its Counterclaim, Integon articulates “enough facts to state

a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The Counterclaim

includes a “short and plain statement of the claim” showing that Integon is entitled to seek

declaratory judgment under the Policy language. Fed. R. Civ. P. 8(a)(2).

B. The Statutory Element of Misrepresentation 

Counter-Defendant Wilmington additionally argues in its Motion that Integon attempts to

circumvent Florida Statute Section 627.409 which requires misrepresentation to rescind a

binding contract. Mot. at 6. Specifically, Wilmington argues that Integon has not plead facts

alleging any misrepresentation or deception to meet the statutory threshold for recession. Id. In

its Response, Integon argues that even without material misrepresentation, the Policy can still be

found void or voidable because there was no “meeting of the minds.” Resp. at 7. Integon further

argues that because “. . . Wilmington disputes that this policy is void, the Counterclaim states a

cause of action for declaratory relief with respect to rescission.” Id. at 8. 

“[P]ursuant to [S]ection 627.409, the legislature has mandated that "any

misrepresentation, innocent or intentional, will void an insurance contract if the

misrepresentation 'is material either to the acceptance of the risk or to the hazard assumed by the

insurer' or '[i]f the true facts had been known to the insurer . . . , the insurer in good faith would

not have issued the policy. . . .'" Universal Prop. & Cas. Ins. Co. v. Johnson, 114 So. 3d 1031,

1037, (Fla. 1st DCA 2003) (citing GRG Transport, Inc. v. Certain Underwriters at Lloyd's,

London, 896 So. 2d 922, 925 (Fla. 3d DCA 2005) (bold added; quoting § 627.409). 

In its Counterclaim, Integon alleges that “[g]iven the existence of the Lloyd’s Policy, the

[Integon] Policy was void or voidable and Integon would not have paid the Claim.” Countercl. ¶

26. Further, “[h]ad Integon been aware of the existence of the Lloyd's Policy, it would not have

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issued the subject . . . Policy.” Id. ¶ 25. Since Integon alleges that the Policy is void because it

would not have issued the policy if the true facts were known, the Counterclaim states a cause of

action for declaratory relief with respect to rescission. A mutual mistake may be a ground for

rescission if plead properly. See, e.g., CJM Fin., Inc. v. Castillo Grand, LLC, 40 So. 3d 863 (Fla.

4th DCA 2010).

C. Redundancy of Claims 

Counter-Defendant Wilmington lastly argues that the Counterclaim is redundant because

“Integon’s Second Affirmative Defense, section c, squarely presents the issue of whether the

Integon Policy is void based on the exact provision cited in the Counterclaim.” Mot. at 8. In its

Response, Integon states the “Counterclaim serves a useful purpose as it alleges a different cause

of action than the complaint, and seeks relief not sought in the complaint.” Resp. at 8 (citing

Medmarc Cas. Ins. Co. v. Pineiro & Byrd, PLLC, 783 F. Supp. 2d 1214, 1217 (S.D. Fla. 2011).

“[I]n order to discern whether a declaratory action serves a useful purpose, courts should

consider ‘whether resolution of plaintiff's claim, along with the affirmative defenses asserted by

defendant[], would resolve all questions raised by the counterclaim.’" Evanston Ins. Co. v.

Gaddis Corp., 2015 U.S. Dist. LEXIS 58112, at *7 (S.D. Fla. May 4, 2015) (citing Medmarc 783

F.Supp.2d at 1217). The Complaint alleges breach of contract whereas the Counterclaim requests

declaratory judgment independent from the relief sought by Wilmington. Resp. at 10. Because

the relief sought in the affirmative defense and the Counterclaim are different, the Counterclaim

is not redundant. 

IV. CONCLUSION

Accordingly, upon careful consideration, it is ORDERED, ADJUDGED, and

DECREED that 

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1) Plaintiff and Counter-Defendant’s Amended Motion to Dismiss Counterclaim (DE

10) be, and the same is, hereby DENIED; and

2) Plaintiff’s Unopposed Motion to Strike from the Record Plaintiff’s Motion to Dismiss

(DE 11) is GRANTED. 

DONE and ORDERED in chambers at the James Lawrence King Federal Justice

Building and United States Courthouse, Miami, Florida, dated this 28th day of April, 2021.

______________________________

JAMES LAWRENCE KING

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF FLORIDA

Cc: All counsel of record 

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