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 Plaintiff, Security National Insurance 

Company’s (“SNIC”), motion to dismiss Defendant Monica O’Chaney’s amended 

counterclaim. (Mot., ECF No. 69.) Ms. O’Chaney has responded. (Resp., ECF No. 

74.) SNIC has replied. (Reply, ECF No. 77.) After careful consideration of the 

briefing, the record, and the relevant legal authorities, the Court grants SNIC’s 

motion to dismiss. (ECF No. 69.) 

1. Background 

This case centers around an insurance dispute between SNIC and 

Defendants the City of Miami Beach (the “City”), A&A Drainage, Inc. (“A&A”), and 

Ms. O’Chaney relating to an underlying personal injury lawsuit in Florida state 

court. (Compl., ECF No. 1, ¶¶ 1, 8-13, 26-28.) The insurance dispute arose when 

Ms. O’Chaney brought a negligence action in state court against A&A and the City 

relating to injuries she suffered after falling into a storm drain on a Miami Beach 

sidewalk. (Compl. ¶ 9.) SNIC, A&A’s insurer, filed this diversity action in federal 

court seeking a declaration of its rights relating to the state-court action. (Id.

¶¶ 1-2.) 

Ms. O’Chaney now brings a counterclaim against SNIC, seeking a 

declaratory judgment holding that Defendant A&A’s insurance policy provides 

coverage for the City with regards to her claim against the City in state court. 

(Am. Countercl. ¶¶ 16-18, ECF No. 65.) Ms. O’Chaney claims that she is a thirdparty beneficiary of A&A’s insurance policy, and the policy requires SNIC to 

indemnify A&A or the City for Ms. O’Chaney’s damages. (Id. ¶ 17.) 

SNIC moves to dismiss the counterclaim, arguing that Ms. O’Chaney lacks 

standing to bring claims under A&A’s policy because she is not an insured under 

the policy and therefore may not bring a claim for declaratory judgment under 

Florida law until the state-court action is resolved and she has a judgment 

against A&A or the City. (Mot. at 10-11.) SNIC also argues that Ms. O’Chaney has 

failed to state a claim upon which relief may be granted because her state-court 

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complaint fails to allege a claim for vicarious liability against the City. (Id. at 11-

14.) Finally, SNIC argues the amended counterclaim should be dismissed because 

Ms. O’Chaney has repeatedly amended her state-court complaint in an 

impermissible effort to “plead into coverage.” (Id. at 14-16.) 

In response, Ms. O’Chaney argues that she has standing because SNIC has 

brought her into this suit and her counterclaim is compulsory. (Resp. ¶¶ 7-13.) 

She also argues that she has sufficiently pleaded her state-court vicarious 

liability claim (id. ¶¶ 14-15) and that her amendments to her state-court 

pleadings have not been improper (id. ¶¶ 16-18.) 

2. Legal Standards 

A challenge to a plaintiff’s standing to bring a lawsuit is analyzed under 

Federal Rule 12(b)(1). MSP Recovery Claims, Series LLC v. Amerisure Ins. Co., No. 

20-24077-Civ, 2021 WL 358670, at *1 (S.D. Fla. Feb. 1, 2021) (Altonga, J.). As 

standing is jurisdictional, it has the same effect as a dismissal for lack of subject 

matter jurisdiction pursuant to Federal Rule 12(b)(1). Id. (discussing Stalley ex 

rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1244, 1251 

(11th Cir. 2008)). A motion to dismiss pursuant to Rule 12(b)(1) may be based on 

either a facial or factual attack to the complaint. Id. A facial attack asks whether 

the plaintiff has alleged a sufficient basis for subject matter jurisdiction whereas 

a factual attack requires the Court to consider matters outside the pleadings 

such as testimony and affidavits. Id. 

In order to prove standing, a plaintiff must allege he has suffered (1) an 

injury in fact, (2) that is fairly traceable to the challenged conduct of the 

defendant, and (3) that is likely to be redressed by a favorable judicial decision. 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To establish injury in fact, a 

plaintiff must show that he suffered an invasion of a legally protected interest 

that is concrete and particularized and actual and imminent, not conjectural or 

hypothetical. Id. at 1548. For an injury to be particularized, it must impact the 

plaintiff in a personal and individual way. Id. For the injury to be concrete, it 

must be real and not abstract. Id. at 1548-49 

3. Analysis 

Ms. O’Chaney fails to demonstrate that she has standing to bring a 

counterclaim against SNIC based on A&A’s insurance policy, so the Court must 

dismiss her amended counterclaim.1 Under Florida law, which the Court applies 

in this diversity action, Ms. O’Chaney must have a settlement with or a verdict 

1 Because the Court finds Ms. O’Chaney lacks standing to bring her claims, the Court declines to 

address SNIC’s other arguments for dismissal. 

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against either A&A or the City2 before she can attempt to enforce the terms of 

A&A’s policy against SNIC. Colony Ins. Co. v. Total Contr. Roofing, Inc., No. 10-

23091-CIV, 2010 U.S. Dist. Lexis 129497, at *4 (S.D. Fla. Dec. 7, 2010) (Seitz, J.). 

Florida law clearly states that a third party to an insurance contract may 

not sue an insurer based on the insured’s alleged liability to the third party until 

the third party has a judgment against or a settlement with the insured: 

627.4136. Nonjoinder of Insurers 

(1) It shall be a condition precedent to the accrual or maintenance of a 

cause of action against a liability insurer by a person not an insured under 

the terms of the liability insurance contract that such person shall first 

obtain a settlement or verdict against a person who is an insured under the 

terms of such policy for a cause of action which is covered by such policy. 

(2) . . . No person who is not an insured under the terms of a liability 

insurance policy shall have any interest in such policy, either as a thirdparty beneficiary or otherwise, prior to first obtaining a settlement or 

verdict against a person who is an insured under the terms of such policy 

for a cause of action which is covered by such policy. 

Fla. Stat. 627.4136 (2022). Florida courts hold that this statute bars third-party 

claims against insurers until the third party obtains a settlement with or 

judgment against the insured. See, e.g., Int’l Special Events & Recr. Assoc., Inc. v. 

Bellina, 219 So. 3d 138, 139 (Fla. 5th DCA 2017). This rule applies even in the 

context of compulsory counterclaims under Federal Rule of Civil Procedure 

13(a)(1)(A). Colony Ins., 2021 U.S. Dist. Lexis 129497, at *4 (finding that the 

defendant, a third-party to an insurance contract, lacked standing to sue before 

obtaining a settlement or verdict against the insured because, under the Florida 

statute, the plaintiffs “did not have a claim against [the insurer] at the time they 

served their answer – their declaratory judgment claims were premature in the 

absence of a settlement or judgment against [the insured].”). 

Ms. O’Chaney does not, according to her own allegations, have a judgment 

against A&A or the City. (See generally Am. Countercl.). Nor does she have a 

settlement with either party. (See generally id.) Accordingly, under Florida Statute 

627.4136, she currently does not have standing to bring a claim against SNIC 

based on A&A’s insurance policy. Colony Ins., 2021 U.S. Dist. Lexis 129497, at 

*4. Therefore, the Court must dismiss her amended counterclaim. 

2 Assuming, of course, that the City qualifies as an additional insured under the terms of A&A’s 

policy with SNIC, which the Court has not definitively decided. (See Order Granting Mot. to 

Dismiss, at 8 n.3, ECF No. 40.) 

Case 1:22-cv-22357-RNS Document 84 Entered on FLSD Docket 03/15/2023 Page 3 of 4
4. Conclusion

For the reasons stated above, the Court grants SNIC’s motion to dismiss 

(ECF No. 69) and dismisses Defendant O’Chaney’s amended counterclaim SNIC

without prejudice.

Done and ordered in Miami, Florida, on March 14, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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