United States District Court

for the

Southern District of Florida

Security National Insurance 

Company, Plaintiff,

v.

The City of Miami Beach and others, 

Defendants.

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Civil Action No. 22-22357-Civ-Scola

Order

This matter is before the Court on the Defendant City of Miami Beach’s (the 

“City”) motion for leave to file amended answer, affirmative defenses, and 

counterclaim. (“Mot.,” ECF No. 42.) The Plaintiff, Security National Insurance 

Company (SNIC), responded (“Resp.,” ECF No. 56), and the City replied (ECF No. 

57). After careful consideration of the briefing, the record, and the relevant legal 

authorities, the Court denies the City’s motion for leave to amend its 

counterclaim. (ECF No. 42.)

The Court previously dismissed counts one, three, and six of the City’s 

counterclaim against SNIC for failure to state a claim upon which relief may be

granted. (Order, ECF No. 40.) The City’s counterclaims sought to require SNIC to 

defend the City in an underlying state-court action (the “Underlying Lawsuit”)

brought against the City and A&A Drainage, Inc. (“A&A”) by Monica O’Chaney for 

damages related to Ms. O’Chaney’s falling into a manhole. (Id. at 1-2.) SNIC 

insured A&A, the City’s contractor for the work being performed on the manhole.

(Id.) The City’s claims against SNIC depended on terms of the insurance contract 

between SNIC and A&A, under which the City sought status as an additional 

insured. (Id.) The Court ultimately dismissed the City’s claims because the Court 

found that (1) the terms of the insurance policy would only grant the City 

additional insured status if the City was subject to a claim for vicarious liability 

in the Underlying Lawsuit, and (2) the City was subject only to a claim for direct 

liability in the Underlying Lawsuit, not vicarious liability. (Id. at 10.)

The City bases its motion for leave to amend on a new amendment to the 

complaint by Ms. O’Chaney in the Underlying Lawsuit. In her second amended 

complaint, Ms. O’Chaney amends her single count of negligence against the City 

to include an allegation stating that the City “was actively and directly negligent 

and/or is vicariously responsible for the active and direct negligence of the coDefendant, A & A DRAINAGE, INC., and its employees/agents.” (Mot. Ex. B, 

Second Am. Compl., ¶ 14, ECF No. 42-2.) The City asserts that this allegation

raises the potential for vicarious liability on the part of the City, and therefore the 

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Court should allow the City to amend its counterclaim to again assert its claims 

against SNIC seeking defense of the Underlying Lawsuit based on the terms of 

A&A’s insurance policy. (Mot. ¶ 14.) SNIC opposes the motion for several reasons, 

including that the City’s proposed amendment would be futile. (Resp. at 2-3.)1 

SNIC is correct that the proposed amendment would be futile. The problem 

for the City is that, as the Court observed in its order denying the City’s motion 

for judgment on the pleadings, Florida law plainly and clearly requires claims for 

vicarious liability to be asserted as independent counts in complaints. (Order at 

10); see also Amerisure Ins. Co. v. Seneca Specialty Ins. Co., No. 20-20442-CIV, 

2020 WL 3317035, at *5 (S.D. Fla. June 18, 2020) (Moreno, J.) (“Florida law is 

clear: ‘to pursue a vicarious liability claim, the claimant must specifically plead it 

as a separate cause of action.’”) (quoting Gen. Asphalt Co. v. Bob’s Barricades, 

Inc., 22 So. 3d 697, 299 (Fla. 3d DCA 2009)). The underlying second amended 

complaint’s single reference to the possibility of the City’s vicarious liability, 

contained within a count that pleads the City’s direct negligence, fails to state a 

claim for vicarious liability. Gen. Asphalt Co., 22 So. 3d at 299. The underlying 

second amended complaint thus still fails to present an obligation for SNIC to 

defend the City. (Order at 10.) As such, the City’s proposed amended 

counterclaim is futile, and the Court need not grant leave to amend. Burger King 

Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999) (observing that “denial of 

leave to amend is justified by futility when the complaint as amended is still 

subject to dismissal.”) (cleaned up). 

Additionally, the Court will briefly address its directive to the parties to 

submit additional briefing regarding whether the Court should enter judgment on 

the pleadings in favor of SNIC on SNIC’s complaint. (Order at 13.) Because 

Defendant O’Chaney has pleaded counterclaims against SNIC and to which SNIC 

has not yet responded (ECF No. 53), the pleadings between SNIC and other 

parties remain open. Therefore, the Court may not grant judgment on the 

pleadings on SNIC’s complaint at this time. See Perez v. Wells Fargo, N.A., 774 

F.3d 1329, 1337 (11th Cir. 2014). 

For the reasons stated above, the Court denies the City’s motion for leave 

to amend. (ECF No. 42.) 

Done and ordered in Miami, Florida, on December 20, 2022. 

 ________________________________ 

 Robert N. Scola, Jr. 

 United States District Judge 

1 In light of the proposed amendment’s futility, the Court declines to address the remainder of the 

parties’ arguments for and against the proposed amendments. 

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