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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORDA

Case No.: 20-cv-10063-JEM

SALTPONDS CONDOMINIUM 

ASSOCIATION, INC.

Plaintiff,

v.

ROCKHILL INSURANCE COMPANY, 

COLONY INSURANCE COMPANY, 

EVANSTON INSURANCE COMPANY, FIRST 

SPECIALTY INSURANCE CORPORATION, 

HALLMARK SPECIALTY INSURANCE 

COMPANY/LLOYD’S OF LONDON, 

HOMELAND INSURANCE COMPANY OF 

NEW YORK, LEXINGTON INSURANCE 

COMPANY, LIBERTY SURPLUS 

INSURANCE CORPORATION, LLOYD’S OF 

LONDON, MITSUI SUMITOMO INSURANCE 

COMPANY OF AMERICA, RSUI 

INDEMNITY, SCOTTSDALE INSURANCE 

COMPANY, and UNITED NATIONAL 

INSURANCE COMPANY,

Defendants.

DEFENDANT, LIBERTY SURPLUS INSURANCE CORPORATION’S MOTION TO 

DISMISS PLAINTIFF’S AMENDED COMPLAINT [D.E. 41] FOR FAILURE TO STATE 

A CAUSE OF ACTION

Defendant, LIBERTY SURPLUS INSURANCE CORPORATION, by and through its

undersigned counsel, and pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6), hereby 

files its Motion to Dismiss and Incorporated Memorandum of Law in response to the Amended

Complaint [D.E. 41] filed by Plaintiff, SALTPONDS CONDOMINIUM ASSOCIATION, INC.

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TABLE OF CONTENTS

I. INTRODUCTION....................................................................................................................1

II. STATEMENT OF RELEVANT FACTS...............................................................................2

A. The Amended Complaint...............................................................................................2

A. The Lead Policy...............................................................................................................3

B. The Excess Policies..........................................................................................................4

III.LEGAL STANDARD ..............................................................................................................6

IV.ARGUMENT............................................................................................................................9

A. Plaintiff Fails to Properly Plead That Its Losses Exceed the Primary Layer or

That The Primary Layer of Insurance Has Been Exhausted .....................................9

B. Plaintiff’s Fails to Plead Sufficient Facts in order to State a Claim against Liberty 

Upon Which Relief Can Be Granted...........................................................................12

1. Count I – Specific Performance.................................................................................13

2. Counts II & III – Breach of Contract.........................................................................15

V. CONCLUSION AND REQUESTED RELIEF...................................................................16

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I. INTRODUCTION

Plaintiff, Saltponds Condominium Association, Inc.’s (“Plaintiff”) claims for specific 

performance and breach of contract (Counts I – III) against Defendant, Liberty Surplus Insurance 

Corporation (“Liberty”) must be dismissed because Plaintiff fails to state a cause of action

against Liberty. Fatally, Plaintiff brings this suit prematurely against Liberty, who is an excess 

insurer. 

The subject action arises from a purported loss to property located at 3635 – 3675 Seaside 

Drive, Key West, Florida (the “Insured Location”) resulting from Hurricane Irma. In connection 

therewith, Plaintiff filed a claim for insurance benefits against policy number EB3R16-10008

(the “Lead Policy”) issued by Defendants participating in the insurance program, including 

primary and excess insurers (the “Claim”). See D.E. 41 at ¶¶ 9 and 12. Notably, Liberty is not 

a participating member in the primary layer of coverage. Rather, as referenced in Lead Policy,

Liberty’s participation in the program is limited to two policies issued to Plaintiff: (i) Policy No. 

100125847-03, providing coverage of $15m excess of $10m; and (ii) Policy No. 1000238406-

01, providing coverage of $25m excess of $75m (collectively, the “Excess Policies”). Liberty’s 

coverage, pursuant to the clear and express terms of the Excess Policies, is triggered only if (1) 

Plaintiff’s alleged covered losses are in excess of $10m, thereby invoking Liberty’s layer of 

insurance, and (2) Plaintiff has exhausted the limits of the primary layer of insurance. However, 

Plaintiff alleges neither of these requirements in the Amended Complaint. See D.E. 41. 

Therefore, Plaintiff’s specific performance and breach of contract claims against Liberty 

necessarily fail: Liberty has no duty to perform under the Excess Policies until its coverage is 

triggered. See Reesey v. FEMA, No. 13-60488-Civ-SCOLA, 2013 WL 12086662, at *3 (S.D. 

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Fla. July 9, 2013) (interpreting Florida law and dismissing a breach of contract claim against an 

excess insurer for plaintiff’s failure to plead facts that triggered the excess layer coverage).

Even if the Court were to determine that Plaintiff has plausibly pleaded facts sufficient 

to trigger Liberty’s excess coverage, the result is still the same: Plaintiff’s Amended Complaint 

should be dismissed. Plaintiff has failed to plead sufficient facts as opposed to legal conclusions 

to state valid causes of action for specific performance and breach of contract against Liberty. 

Rather, through a series of broad, conclusory and unsubstantiated allegations, Plaintiff 

erroneously lumps together and attributes the conduct of Defendants participating in the primary 

layer of coverage to Liberty in support of its claims. See D.E. 41 at ¶ 9. Additionally, the Court 

cannot issue Plaintiff an advisory opinion related to a hypothetical injury. See Reesey, No. 13-

60488-Civ-SCOLA, 2013 WL 12086662, at *3 (interpreting Florida law and dismissing a breach 

of contract claim against an excess insurer for plaintiff’s failure to plead facts that triggered the 

excess layer coverage); Santa Rosa Cty v. Admin. Comm’n, Div. of Admin. Hearings, 661 So. 2d 

1190, 1193 (Fla. 1995) (courts will not render advisory opinions where plaintiff “show[s] merely 

the possibility of legal injury on the basis of a hypothetical state of facts which have not arisen 

and are only contingent, uncertain, [and] rest in the future”) (emphasis in original) (citations and 

quotations omitted). For all of these reasons, the Court should dismiss Plaintiff’s Amended 

Complaint with prejudice. 

II. STATEMENT OF RELEVANT FACTS

A. The Amended Complaint

Plaintiff is the owner of the Insured Location located in Monroe County, Florida. See D.E. 

41 at ¶¶ 3 – 6. Plaintiff purchased a commercial property insurance policy from participating 

Defendants. See D.E. 41 at ¶ 9. Plaintiff alleges that as a result of Hurricane Irma, the Insured 

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Location was damaged prompting Plaintiff to report its claim to Defendants against the Lead

Policy. See D.E. 41 at ¶¶ 9 – 12. Ultimately, Plaintiff alleges to have been damaged by Defendants 

failure to pay Plaintiff’s claim as well as Defendants failure to participate in the appraisal of 

Plaintiff’s claim. See D.E. 41 at ¶¶ 39 and 41. Notably, the Amended Complaint makes no specific 

allegations as to: (i) Liberty’s involvement as an excess insurer; (ii) Liberty’s obligations under 

the Lead Policy as an excess insurer; (iii) losses in excess of the primary layer of coverage; and 

(iv) exhaustion of the primary layer of coverage sufficient to trigger Liberty’s duties under the 

Excess Policies. Plaintiff rather conclusively lumps together Liberty with Defendants participating 

in the primary layer of coverage to support its claims. See D.E. 41 at ¶¶ 5 – 41.

Accordingly, while Plaintiff conclusively alleges that Defendants were provided with 

notice of the Claim, certain documents and information in support of Plaintiff’s Claim, a demand 

for appraisal, an examination under oath, and various communications in connection with the 

Claim, such is unsubstantiated. In fact, Liberty was not provided with notice of the loss prior to 

service of this lawsuit and was therefore not afforded an opportunity to investigate Plaintiff’s

Claim. Plaintiff filed its Amended Complaint on March 10, 2021, claiming that Defendants 

breached the Lead Policy and seeking damages for breach of contract and specific performance of 

the Lead Policy’s appraisal provision. See D.E. 41 at ¶¶ 39, 41, 45 – 52, 53 – 61 and 62 – 70. 

B. The Lead Policy

Participating Defendants issued a commercial property insurance policy to Skinner Select, 

insuring various scheduled locations, including, but not limited to, Plaintiff’s Insured Location 

identified by Policy Number EB3R16-10008 providing coverage to the Insured Location, subject 

to all policy forms, endorsements, terms, conditions, limitations, and exclusions. “Appendix C –

Market Security” to the Lead Policy references all insurers participating in the insurance program 

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– including primary and excess insurers – as identified by corresponding “Policy #” as follows:

See D.E. 41 at Ex. A. 

In light of the foregoing, Liberty’s obligations to Plaintiff are subject to and limited to the 

terms, conditions, limitations, exclusions and endorsements of the Policies referenced in the 

Market Security appendix to the Lead Policy. Moreover, as an excess insurer as defined by the 

Excess Policies referenced in the Market Security appendix to the Lead Policy, Liberty benefits 

from the underlying insurance coverage which come into effect to the benefit of its attachment 

point, $10 million and $75 million.

C. The Excess Policies

As referenced above, Liberty issued two policies to Plaintiff: (i) Policy No. 100125847-03, 

providing excess coverage of $15m excess of $10m; and (ii) Policy No. 1000238406-01, providing 

excess coverage of $25m excess of $75m, the Excess Policies. True and correct copies of the 

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Excess Policies are attached hereto as Composite Exhibit A. Therefore, Liberty is merely an 

excess insurer whose coverage under the Excess Policies is triggered only if (1) Plaintiff’s alleged 

covered losses are in excess of $10 million, thereby invoking Liberty’s layer of insurance, and (2) 

Plaintiff has exhausted the limits of the primary layer of insurance. Specifically, Excess Property 

Form 2016 to the Excess Policies provides as follows:

EXCESS PROPERTY FORM

Policy Period: November 30th, 2016 through May 30th, 2018

This insurance is subject to the same conditions, limitations and exclusions as the 

underlying policy(ies) issued by:

Primary Carriers

Carrier Policy No. Limit of 

Liability

Locations Perils

Everest 

Indemnity 

Ins. Co.

CA3P005709-161 $10,000,000 Per SOV 

on File

All Risk Including 

Flood and Earthquake, 

Excluding CA 

Earthquake

Rockhill Ins. 

Co.

RCPPRU000025-

00

$10,000,000 Per SOV 

on File

All Risk Including 

Flood and Earthquake, 

Excluding CA 

Earthquake

Underwriters 

at Lloyd's / 

Rockhill 

Insurance Co.

LLO15332 / 

RADP001381-00

$10,000,000 Per SOV 

on File

Flood and Earthquake 

Only

It is expressly agreed that liability under this policy shall only attach after the Underlying 

Insurer(s) have paid or have been held liable to pay the full amount of their loss up to 

their stated limits (including any aggregated limits that may be applicable) as respects 

All Risks of Direct Physical Loss or Damage Including Earthquake and Flood.

* * *

See Comp. Ex. A at “Excess Follow Form 2016”. 

Contrary to the broad allegations in Plaintiff’s Amended Complaint, Liberty is not a 

participating insurer in the Lead Policy’s primary layer of coverage. As set forth above, Liberty’s

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excess coverage is triggered only when Plaintiff’s covered losses are in excess of $10 million and 

the primary layers are exhausted. Id. Plaintiff’s failure to plead these requirements were satisfied

is fatal as to its claims against Liberty. 

III. LEGAL STANDARD

To survive dismissal under Federal Rule of Civil Procedure 12(b)(6), a complaint must set 

forth “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). “Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 

(2009). 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 Fed. Appx. 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 Fed. Appx. 890, 896 

(11th Cir. 2010).

When considering a motion to dismiss under 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. See 

Pielage v. McConnell, 516 F. 3d 1282, 1284 (11th Cir. 2008). The district court shall also consider 

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“the facts derived from a complaint’s exhibits as part of the plaintiff's basic factual averments,” 

and where those exhibits contradict the complaint's allegations, the exhibits control. See F.T.C. v. 

AbbVie Prods. LLC, 713 F. 3d 54, 63 (11th Cir. 2013).

While the district court is generally barred from considering materials not attached to the 

complaint, an exception is made for documents that are both central to the plaintiff’s claim and 

undisputed as to authenticity. See Day v. Taylor, 400 F. 3d 1272, 1275-76 (11th Cir. 2005). Thus, 

for example, the district court may properly consider a document attached to a motion to dismiss, 

or otherwise made part of the record, if it is both central to the plaintiff’s claim and indisputably 

authentic. See, e.g., Griffin Indus., Inc. v. Irvin, 496 F. 3d 1189, 1205 (11th Cir. 2007); Horsley v. 

Feldt, 304 F. 3d 1125, 1134 (11th Cir. 2002). Accordingly, this Court need not accept Plaintiff’s

bald assertions as to the meaning of the insurance contract attached to the Amended Complaint 

and otherwise made part of the record. See, e.g., Iqbal, 566 U.S. at 672 (“the tenet that a court 

must accept as true all of the allegations contained in a complaint is inapplicable to legal 

conclusions”). 

Moreover, on a motion to dismiss for failure to state a claim, to the extent a complaint’s 

allegations conflict with an exhibit, the exhibit must control. Fed. R. Civ. P. 10(c), 12(b)(6); see 

also, e.g., Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (where 

exhibit “reveals facts which foreclose recovery as a matter of law, dismissal is appropriate.”); 

Simmons v. Peavy-Welsh Lumber Co., 113 F. 2d 812, 813 (5th Cir. 1940) (“Where there is a 

conflict between allegations in a pleading and exhibits thereto, it is well settled that the exhibits 

control.”); Bloch v. Wells Fargo Home Mortgage, 11-80434-CIV, 2012 WL 12862805, at *3 (S.D. 

Fla. Aug. 7, 2012), citing Fladell v. Palm Beach County Canvassing Bd., 772 So. 2d 1240, 1242 

(Fla. 2000) (“If an exhibit facially negates the cause of action asserted, the document attached as 

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an exhibit controls and must be considered in determining a motion to dismiss.”). Indeed, the 

interpretation of contracts, such as insurance policies, is a question of law for the Court. See Storfer 

v. Guarantee Trust Life Ins. Co., 666 F. 3d 1277, 1279 (11th Cir. 2012).

Under Florida law, the interpretation of an insurance contract—including the question of 

whether an insurance provision is ambiguous—is a question of law. Pac. Emp’rs Ins. Co. v. 

Wausau Bus. Ins. Co., 2007 WL 2900452, at *4 (M.D. Fla. Oct. 2, 2007), citing Graber v. 

Clarendon Nat’l Ins. Co., 819 So. 2d 840, 842 (Fla. 4th DCA 2002)). If the language of an 

insurance policy is clear and unambiguous, courts must enforce it as written and according to its 

terms. Garcia v. Fed. Ins. Co., 473 F. 3d 1131, 1135 (11th Cir. 2006) (quoting Taurus Holdings, 

Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005)). 

The “terms of an insurance policy should be taken and understood in their ordinary sense 

and the policy should receive a reasonable, practical and sensible interpretation consistent with the 

intent of the parties-not a strained, forced or unrealistic construction.” Siegle v. Progressive 

Consumers Ins. Co., 819 So. 2d 732, 736 (Fla. 2002) (quoting Gen. Accident Fire & Life Assurance 

Corp. v. Liberty Mut. Ins. Co., 260 So. 2d 249 (Fla. 4th DCA 1972)); see also Gilmore v. St. Paul 

Fire & Marine Ins., 708 So. 2d 679, 680 (Fla. 1st DCA 1998) (“The language of a policy should 

be read in common with other policy provisions to accomplish the intent of the parties.”). 

Importantly, Florida law does not force insurers to “insure risks that they never contracted to 

cover.” Musselwhite v. Fla. Farm Gen. Ins. Co., 273 So. 3d 251, 255 (Fla. 1st DCA 2019). 

Therefore, “[b]ecause the interpretation of contracts generally is a question of law to be determined 

by the [district court], it may dismiss the complaint where contracts are unambiguous and do not 

support the plaintiff’s claim.” Soroof Trading Dev. Co., Ltd. v. GE Fuel Cell Sys., LLC, 842 F. 

Supp. 2d 502, 509-10 (S.D.N.Y. 2012).

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IV. ARGUMENT

Plaintiff’s claims against Liberty should be dismissed. Plaintiff has failed to allege the 

ultimate facts necessary to establish that coverage under Liberty’s Policy has been triggered by 

Plaintiff’s alleged losses, because Plaintiff fails to allege exhaustion of the primary insurance layer. 

This deficiency, alone, is fatal to Plaintiff’s claims against Liberty. Further, Plaintiff’s claims fail 

to allege sufficient facts to state claims for specific performance and breach of contract against 

Liberty. 

A. Plaintiff Fails to Properly Plead That Its Losses Exceed the Primary Layer 

Or That The Primary Layer of Insurance Has Been Exhausted

As an initial matter, Plaintiff’s claims against Liberty, an excess insurer whose Excess 

Policies cover only those losses that exceed the primary layer of $10 million and the third excess 

layer of $75 million, must be dismissed because Plaintiff fails to plead that its losses exceed the 

primary layer of insurance or that the primary layer of insurance has been exhausted.

Plaintiff’s claims for specific performance and breach of contract against Liberty fail

because Plaintiff fails to allege any facts showing that the underlying primary insurance layer has 

been exhausted or that Plaintiff’s losses are in excess of $10 million, thereby triggering Liberty’s

coverage. Under Florida insurance law, “Primary coverage” exists where, under the terms of the 

policy, liability attaches immediately upon the happening of the occurrence that gives rise to 

liability. See Privilege Underwriters Reciprocal Exch. v. Hanover Ins. Group, 304 F. Supp. 3d 

1300, 1308 (S.D. Fla. 2018), citing to St. Paul Fire & Marine Ins. Co. v. Lexington Ins. Co., No. 

05-80230-CIV, 2006 WL 1295408, at *4 (S.D. Fla. Apr. 4, 2006). Excess insurance, on the other 

hand, “exists where, under the terms of the policy, liability attaches only after a predetermined 

amount of primary coverage has been exhausted.” Id. Accordingly, an “excess insurance policy 

does not to come into effect unless and until the amount of damages exhausts the limits of the 

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primary policy.” See Conley v. Fla. Fam. Ins. Co., 2010 WL 3385353, at *3 (N.D. Fla. Aug. 26, 

2010). Because Plaintiff has not sufficiently alleged coverage under the Excess Policies, Plaintiff’s 

claims against Liberty should be dismissed as a matter of law. See, e.g., Zodiac Group, Inc. v. 

Axis Surplus Ins. Co., 542 Fed. Appx. 844, 2013 WL 5718439 (11th Cir. 2013) (holding that 

district court properly granted insurer's motion to dismiss breach of contract and declaratory 

judgment claims because plain language of the policy precluded coverage for the underlying 

claim); MJCM, Inc. v. Hartford Cas. Ins. Co., No. 8:09-CV-2275-T-17TBM, 2010 WL 1949585 

(M.D. Fla. May 14, 2010) (granting motion to dismiss under Rule 12(b)(6) on breach of contract 

claim because the underlying lawsuit was not covered under the insurance policy at issue).

Under the terms of the Lead and Excess Policies, Liberty is an excess insurer. Specifically, 

Appendix C to the Lead Policy references insurers participating in the insurance program –

including primary and excess insurers – as identified by corresponding “Policy #”. See D.E. 41 at 

Ex. A. Accordingly, Liberty’s participation in the insurance program is limited to policies 

numbered “100125847-03” and “1000238406-01”, the Excess Policies. Id. Pursuant to the 

Declarations of the Excess Policies, Liberty’s limits of liability are $15,000,000 per occurrence 

excess of $10,000,000 per occurrence, and $25,000,000 per occurrence excess of $75,000,000 per 

occurrence. See Comp. Ex. A.

1

 Additionally, the “Other Insurance” provision to Appendix C to 

the Lead Policy states:

On Occasion the Insurers listed above may benefit from underlying 

(Re)insurance coverage, which may inure to the benefit of their 

1 A copy of the Excess Policies which Plaintiff relies on in its Amended Complaint to state claims 

against Liberty by virtue of reference to the Lead Policy and Plaintiff’s allegations as to Liberty’s 

obligations to Plaintiff thereunder, is attached as Composite Exhibit A and is properly before the 

Court on Liberty’s Motion. Therefore, the document is impliedly incorporated into the Amended 

Complaint and can be considered by the Court with Liberty’s Motion. See Financial Sec. Assur., 

Inc. v. Stephens, Inc., 500 F. 3d 1276, 1284 (11th Cir. 2007), citing Harris v. Ivax Corp., 182 F. 

3d 799, 802 n. 2 (11th Cir. 1999).

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attachment point, as it relates to certain and/or all perils and interests 

insured herein. Should such insurance exist it does not change the 

limit contained on the Declaration page of this policy or any 

sublimits elsewhere included, nor does it alter coverages and terms 

contained within this policy. 

See D.E. 41 at Ex. A. Therefore, as an excess insurer as defined by the Excess Policies referenced 

in the Market Security appendix to the Lead Policy, Liberty benefits from the underlying insurance 

coverage layers which inure to the benefit of Liberty’s $10 million and $75 million attachment 

points. 

Further, the Excess Property Forms to the Excess Policies unambiguously identify Everest 

Indemnity Insurance Company, Rockhill Insurance Company, and Underwriters at 

Lloyd’s/Rockhill Insurance Company as the “Primary Carriers” subject to a $10 million primary 

layer limit of liability. See Comp. Ex. A. The Excess Property Forms, in pertinent part, further 

provide as follows:

It is expressly agreed that liability under this policy shall only attach 

after the Underlying Insurer(s) have paid or have been held liable 

to pay the full amount of their loss up to their stated limits (including 

any aggregated limits that may be applicable) as respects All Risks 

of Direct Physical Loss or Damage Including Earthquake and Flood.

Id. (emphases added). In light of the foregoing, Liberty’s obligations to provide coverage to 

Plaintiff is only triggered in the event that the underlying primary insurance policies are exhausted. 

Plaintiff, however, makes no factual allegations in the Amended Complaint that its losses 

exceed the $10 million limits of the primary insurance policies. Plaintiff’s general allegations

related to its losses are insufficient to invoke Liberty’s layer of coverage. Plaintiff only generally 

alleges that its losses are in excess of $75,000.00, which is less than Liberty’s $10 million 

attachment point. See D.E. 41 ¶¶ 1-2, 45, 53 and 62. Additionally, Plaintiff on multiple instances 

alleges Defendants have failed to pay Plaintiff’s Claim despite their obligations to do so under the 

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Lead Policy. Id. at ¶¶ 39, 57 and 66. Therefore, Plaintiff sets forth no allegations that it has 

exhausted the primary layer of insurance, yet another prerequisite to triggering Liberty’s coverage. 

This is insufficient to trigger Liberty’s excess layer of coverage. 

Courts have held that failure to plead ultimate facts showing that excess coverage is 

triggered warrants dismissal. For example, in Reesey, 2013 WL 12086662, at *3, the court, 

interpreting an insurance contract under Florida law, found that an excess policy was not triggered 

based on the allegations contained in the plaintiff’s complaint. Because the excess policy was not 

exhausted under the facts alleged, the court dismissed plaintiff’s breach of insurance contract claim

against the excess insurer. Id.

The same outcome is warranted here: Plaintiff’s allegations do not trigger the excess 

coverage provided by Liberty. Until (and if) Plaintiff’s losses trigger Liberty’s layer of coverage

and the primary layer of insurance is exhausted, there is no duty Liberty owes Plaintiff that Liberty

could have allegedly breached. See Id.; see also, Royal Hosp. Corp. v. Underwriters at Lloyd’s, 

No. 3:18-CV-000102, 2019 WL 4228490, at *4–5 (S.D. Fla. Aug. 20, 2019), aff’d 2019 WL 

4225579 (S.D. Fla. Sept. 5, 2019) (granting dismissal of plaintiff’s claims against an excess insurer 

where the “plain and unambiguous contractual language” provided that the excess layer was not 

triggered until the primary was exhausted, holding that the plaintiff “cannot file a case against the 

[e]xcess [c]arriers when there is no actual dispute between the parties in the hopes that one day in 

the not-so-distant future there might be a real, live case or controversy”). Plaintiff has not pleaded 

that coverage under Liberty’s Excess Policies is implicated in this case, and therefore its breach of 

contract claim against Liberty should be dismissed.

B. Plaintiff’s Fails to Plead Sufficient Facts in order to State a Claim against 

Liberty Upon Which Relief Can Be Granted

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Even if the Court determines Plaintiff can properly bring claims against Liberty as an 

excess insurer, the Complaint must still be dismissed for failure to allege sufficient facts as opposed 

to legal conclusions to state claims against Liberty for specific performance and breach of contract. 

1. Count I – Specific Performance

As a preliminary matter, Count I of Plaintiff’s Amended Complaint for Specific 

Performance must be dismissed as a matter of law. Specifically, Plaintiff seeks to compel appraisal 

of the Claim under the Lead Policy. See D.E. 41 ¶¶ 45-52. Specific performance is an equitable 

remedy as opposed to a legal cause of action. To demonstrate a right to this remedy under Florida 

law, Plaintiff must plead facts showing: (1) plaintiff is clearly entitled to this remedy; (2) there is 

no adequate remedy at law; and (3) justice must require it. See La Gorge Palace Condo Ass'n, 

Inc. v. QBE Ins. Corp., 733 F. Supp. 2d 1332, 1334 (S.D. Fla 2010), citing Castigliano v. 

O’Connor, 911 So. 2d 145, 148 (Fla. 3d DCA 2005). Accordingly, the first element of the claim 

requires Plaintiff to establish the legal requirements of entitlement to the right “by clear, definite 

and certain proof.” Id. While Plaintiff may plead the validity of the contract at issue and its

performance under it generally, when it comes to establishing entitlement to a particular right 

under the contract, Plaintiff will need to provide a greater degree of proof than that required under 

the preponderance of evidence rule. See La Gorge, 733 F. Supp. 2d at 1334, citing Humphry’s v. 

Jarrell, 104 So. 2d 404, 410 (Fla. 2d DCA 1958). 

Notwithstanding the foregoing, Plaintiff has not pled facts to demonstrate (1) a present 

right to appraisal under the insurance contract, (2) no adequate remedy at law if appraisal is not 

ordered, or (3) that justice presently requires the appraisal. While Plaintiff conclusively alleges to 

not have an adequate remedy at law, such is contradicted by the fact that, in subsequent Counts II 

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Telephone 305-299-9939 – Facsimile 612-336-9100

14

and III, Plaintiff asserts two causes of action for breach of contract against Liberty. See D.E. 41 ¶ 

50.

Additionally, in order to plead a claim for specific performance of an appraisal clause, 

Florida law requires Plaintiff to allege that there are no coverage issues which require judicial 

determination or that the dispute between the parties is simply a difference in the amount of loss. 

See La Gorge, 733 F. Supp. 2d at 1334, citing Johnson v. Nationwide Mut. Ins. Co., 828 So. 2d 

1021, 1025 (Fla. 2002) (“the existence of coverage issues requiring judicial determination preclude 

entitlement to appraisal”). However, Plaintiff has pled no such allegations. Therefore, Plaintiff’s 

Amended Complaint fails to state a claim. Id. 

Lastly, Count I of Plaintiff’s Amended Complaint is nothing more than a veiled petition to 

compel appraisal. Such is supported by Plaintiff’s prayer for relief which seeks an order 

“compelling appraisal of the loss, the appointment of a neutral umpire if necessary, the timely and 

fair completion of the appraisal process and a final judgment confirming the amount of the 

appraisal award.” See D.E. 41 at p. 9. However, “Florida law does not recognize this count to be 

a viable claim.” Aspen Specialty Ins. Co. v. River Oaks of Palm Beach Homeowners Ass’n, Inc., 

2012 WL 13019190 *2 (S.D. Fla. 2012) (dismissing petition to compel appraisal). 

Notwithstanding, an order compelling an appraisal prior to a determination of coverage under the 

Lead Policy is premature. See Landmark Am. Ins. Co. v. Hacienda Village Homeowners Ass’n, 

Inc., 2008 WL 4371325, at *2 (M.D. Fla. 2008) (finding that an order compelling an appraisal 

prior to determining whether the insured’s loss is covered under the policy would be premature). 

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SunTrust International Center, One Southeast Third Avenue, Ste. 1700, Miami, Florida 33131

Telephone 305-299-9939 – Facsimile 612-336-9100

15

For all of the foregoing reasons, Count I of Plaintiff’s Amended Complaint against Liberty must 

be dismissed.

2. Counts II & III for Breach of Contract

To the extent that Counts II and III of Plaintiff Amended Complaint allege that Liberty 

breached the Lead Policy by failing to pay Plaintiff’s Claims, Plaintiff has failed to plead sufficient

facts to state a claim for breach of contract against Liberty. As a preliminary matter, pursuant to 

Appendix C – Market Security of the Lead Policy, Liberty’s obligations to the Plaintiff are set in 

the Excess Policies. See D.E. 41 at Ex. A. Accordingly, Liberty’s obligation to provide coverage 

to Plaintiff is only triggered in the event that the underlying primary layer of coverage totaling $10 

million is exhausted. See Comp. Ex. A. Therefore, any alleged breach of contract against Liberty, 

must, at a minimum, allege a breach of the Excess Policies. However, as discussed in Section IV. 

A., supra, Plaintiff fails to plead that its losses exceed the primary layer of insurance or that the 

primary layer of insurance has been exhausted. 

Although the general allegations to Plaintiff’s Amended Complaint, contain purported 

facts concerning Defendants handing, investigation and adjustment of the Claim, through a series 

of broad, conclusory and unsubstantiated allegations, Plaintiff erroneously lumps Liberty together

with all named defendants, and attributes the conduct of said defendants participating in the 

primary layer of coverage to Liberty in support of its claims. Accordingly, these allegations are 

not connected Plaintiff’s demand for appraisal against Liberty, or Plaintiff’s claims for breach of 

the Lead Policy against Liberty. Aside from these allegations, Counts II and III of Plaintiff’s

Amended Complaint constitute nothing more than formulaic recitations of the elements for a 

breach of contract action. As such, Plaintiff has failed to satisfy Rule 8(a)(2), warranting dismissal 

under Rule 12(b)(6).

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SunTrust International Center, One Southeast Third Avenue, Ste. 1700, Miami, Florida 33131

Telephone 305-299-9939 – Facsimile 612-336-9100

16

V. CONCLUSION AND REQUESTED RELIEF 

In light of the foregoing, Plaintiff has failed to state a cause of action against Liberty, as a 

matter of law, and the Court should dismiss Plaintiff’s Amended Complaint against Liberty in its 

entirety, with prejudice.

Dated: May 4, 2021.

Respectfully submitted, 

ZELLE LLP

Counsel for Defendant Liberty Surplus Insurance 

Corporation

SunTrust International Center

One Southeast Third Avenue, Ste. 1600

Miami, Florida 33131-4332

Tel: 786-693-2350

Fax: 612-336-9100

By: /s/ Christine M. Renella

CHRISTINE M. RENELLA

Florida Bar No. 65485

crenella@zelle.com

CERTIFICATE OF SERVICE

I hereby certify that on May 4, 2021, I have electronically filed the foregoing with the clerk 

of Court using the CM/ECF system, which will send notification of such filing to all counsel and 

parties of record:

By: /s/ Christine M. Renella

CHRISTINE M. RENELLA

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ZELLE LLP

SunTrust International Center, One Southeast Third Avenue, Ste. 1700, Miami, Florida 33131

Telephone 305-299-9939 – Facsimile 612-336-9100

17

CERTIFICATE OF SERVICE 

Joseph William Janssen, III, Esq.

Janssen & Siracusa, PA 

120 South Olive Avenue Suite 504 

West Palm Beach, FL 33401 

Tel No.: 561-420-0583

Fax: 561-420-0576 

Email: jjanssen@jasilaw.com

jsiracusa@jasilaw.com

Counsel for Plaintiff 

Robert Malcolm Darroch, Esq.

Goodman McGuffey LLP

6751 Professional Parkway West Suite 103 

Sarasota, FL 34240

Tel No.: 941-806-2980

Fax: 941-953-4411

Email: rdarroch@gm-llp.com

Counsel for Colony Insurance Company

Kirsten K. Johnson, Esq

Mozley, Finlayson & Loggins, LLP

4767 New Broad Street

Orlando, FL 32814

Tel No.: 407-514-2765

Counsel for Rockhill Insurance Company

4830-5874-5319v2

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