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

counterclaim. (“Second Mot.,” ECF No. 68.) The Plaintiff, Security National 

Insurance Company (“SNIC”), responded (“Resp.,” ECF No. 71), and the City 

replied (ECF No. 72). After careful consideration of the briefing, the record, and 

the relevant legal authorities, the Court grants the City’s motion for leave to 

amend its counterclaim. (ECF No. 68.)

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. (Omn. 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 later moved to amend its counterclaim based on Ms. O’Chaney’s 

amended Underlying Complaint. (First Mot., ECF No. 42.) The Court denied the 

first motion to amend because, at the time, the controlling Underlying Complaint 

did not contain a separate claim for vicarious liability. (Order Denying First Mot., 

ECF No. 58.) Accordingly, under Florida law, the controlling Underlying 

Complaint at the time did nothing to alter the facts supporting the Court’s 

reasoning in its original order. (Id.) 

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Now, the City again moves to amend its counterclaim, based this time on a 

fourth amended Underlying Complaint, in which Ms. O’Chaney pleads a claim for 

direct negligence and a claim for vicarious liability against the City. (Second Mot. 

¶¶ 18-19.) SNIC again opposes the motion, arguing that the City’s efforts to 

amend its counterclaim are made in bad faith, are futile, and are unduly delayed. 

(Resp. at 2.) 

SNIC’s arguments are premised on the theory that the City and O’Chaney 

are working in concert to “plead into coverage,” and therefore the City should be 

denied an opportunity to amend its pleadings here, when the Court has 

previously dismissed the City’s counterclaim against SNIC with prejudice. (Id.) 

SNIC’s position is not adequately supported, however. SNIC is only able to 

support this argument with conjecture—because Ms. O’Chaney has attempted to 

amend her complaint in state court multiple times, and because the City has not 

opposed her attempts to amend, SNIC asserts that Ms. O’Chaney and the City 

must be working in concert to force SNIC to provide coverage where none would 

otherwise exist. (Id.) 

This is not the only plausible explanation for the series of events that have 

occurred. Indeed, as the City states in its reply, the City is not the plaintiff in the 

underlying state-court action—Ms. O’Chaney is. (Reply at 9-10.) The plaintiff 

controls her own case, and without more from SNIC, the Court is not willing to 

impute Ms. O’Chaney’s litigation strategy as the state-court plaintiff to the City, 

one of the state-court Defendants. Accordingly, the Court cannot find that the 

second motion to amend is made in bad faith or is an attempt by the City to plead 

into coverage. Nor can the Court find that the City has not acted diligently in 

moving to amend, despite the expiration of the deadline to amend the pleadings. 

See, e.g., Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 19-23590-CIV, 

2020 WL 1905219, at *14 (S.D. Fla. Apr. 17, 2020) (Bloom, J.) (holding that the 

plaintiff’s request for leave to amend its pleadings, after the scheduling order’s 

deadline to amend had passed, was supported by good cause where a court ruling

necessitated amendment, and the movant promptly acted on that ruling). 

Finally, the Court observes that it cannot, at this stage, find the City’s 

proposed amended counterclaim to be futile. Unlike the prior proposed amended 

counterclaim that the Court rejected as futile, the present version is now based 

on an Underlying Complaint that meets the simple and clear requirement of 

Florida law that claims for vicarious liability must be pleaded separately from 

direct negligence claims. (Second Mot. ¶¶ 18-19; Ex. A, ECF No. 68-1); 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)). Accordingly, the proposed amended counterclaim is no 

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longer “clearly insufficient.” Van Cleve v. Ross, No. 20-23611-CIV, 2020 WL 

13413755, at *1 (S.D. Fla. Dec. 28, 2020) (“Leave to amend should not be denied 

on the ground of futility unless the proposed amendment is clearly insufficient or 

frivolous on its face.”) (cleaned up). The Court need dig no deeper than that to 

approve amendment. 

For the reasons stated above, the Court grants the City’s second motion for 

leave to amend. (ECF No. 68.) The City shall separately file its amended answer, 

affirmative defenses, and counterclaim (ECF No. 68-1) as a separate docket entry 

consistent with Federal Rule of Civil Procedure 15 and Local Rule 15.1, the 

Plaintiffs no later than February 8, 2023. 

Done and ordered in Miami, Florida, on February 3, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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