UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 22-cv-14353-DMM 

KEITH PEARCE and JANET PEARCE, 

individually and on behalf of all others 

similarly situated, 

 Plaintiffs, 

v. 

STATE FARM MUTUAL AUTOMOBILE 

INSURANCE COMPANY and STATE 

FARM FLORIDA INSURANCE 

COMPANY, 

 Defendants. 

__________________________________/ 

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO 

DISMISS FIRST AMENDED CLASS ACTION COMPLAINT 

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Plaintiffs, Keith Pearce and Janet Pearce (“Plaintiffs”), submit this Response in Opposition 

to the Motion to Dismiss First Amended Class Action Complaint (ECF No. 51) (“Motion”) filed 

by State Farm Mutual Automobile Insurance Company (“State Farm Mutual") and State Farm 

Florida Insurance Company (“State Farm Florida”) (together, “State Farm” or “Defendants”). 

INTRODUCTION 

The crux of Defendants’ Motion to Dismiss is that State Farm Mutual is not a party to the 

Plaintiffs’ personal articles policy (“PAP”). On this basis, Defendants argue that Plaintiffs lack 

standing to pursue contractual claims against State Farm Mutual and that this Court may not 

exercise jurisdiction over that Defendant. This argument, however, is wholly without merit 

because it would require the Court to completely ignore the highly detailed allegations of 

Plaintiffs’ First Amended Class Action Complaint in violation of the motion to dismiss standard. 

Those unrebutted allegations are more than sufficient to state claims against State Farm Mutual 

and to establish this Court’s jurisdiction, and Plaintiffs’ standing on any one of three, independent 

bases: (1) contractual liability should be imputed to State Farm Mutual because the PAP is 

ambiguous as to the contracting parties and because State Farm Mutual exercised complete control 

over the PAPs and the administration thereof; (2) the organization and structure of the State Farm 

entities as well as the misuse of State Farm Florida justifies piercing the corporate veil; and (3) 

State Farm Mutual is liable under the PAPs on the theory of apparent agency. Defendants’ Motion 

to Dismiss does not address the first basis, and the arguments against the second and third bases 

must be rejected because Plaintiffs’ allegations—which Defendants fail to rebut—easily satisfy 

the pleading standard at this stage of the litigation. 

Defendants’ remaining arguments that the class allegations are insufficient, and that unjust 

enrichment cannot be asserted as an alternative to a claim for breach of contract are meritless on 

their face and directly contradicted by well-established precedent in this Circuit and the Supreme 

Court. This Court should decline Defendants’ invitation to disregard the federal pleading standard 

and deny the Motion to Dismiss in its entirety. 

BACKGROUND

Plaintiffs’ First Amended Class Action Complaint (“FAC”) (ECF No. 41) asserts class 

claims for breach of contract and unjust enrichment against both State Farm Mutual and its wholly 

owned subsidiary, State Farm Florida, over which it exercises complete control. Plaintiffs’ claims 

relate to Personal Articles Policies (“PAP” or “PAPs”) which insure specific pieces of non-real 

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property, such as jewelry or artwork, against loss, theft, or damage. Plaintiffs allege that 

Defendants1 breached a PAP they held by failing to refund to them unearned premiums collected 

over the life of the policy after they paid Plaintiffs’ claim for total loss of the insured property, a 

diamond pendant. Id. at ¶ 2. 

 Plaintiffs further allege that all PAPs issued by Defendants contain essentially the same 

terms. Id. at ¶ 2. Defendants set the premium amounts for PAPs based upon the “amount insured,” 

which itself is based on the appraised value of the personal article. Id. In the event of a claim for 

total loss, however, Defendants do not pay the amount insured. Id. Instead, Defendants pay the 

replacement value of the insured article. Id. When the replacement value paid on a total loss claim 

is less than the amount insured, the PAPs, by their express terms, require Defendants to refund 

their “unearned premium”—i.e., the difference between the premium actually paid by the insured 

over the life of the policy (based on the appraised value of the insured article) and the premium 

that would have been paid based on the replacement value of the insured article. Id. Plaintiffs also 

allege that Defendants, as a common and uniform business practice and protocol, do not refund 

this unearned premium, thereby breaching the contracts with all members of the Class. Id. 

This is exactly what occurred when Defendants paid Plaintiffs the replacement value for 

an insured diamond pendant and failed to reimburse the excess premium Plaintiffs paid over the 

life of the PAP to insure the property based on its significantly higher appraised value. Id. at ¶¶ 

52–53. Based on these allegations, Plaintiffs seek certification of a nationwide class of persons 

who were paid a claim for total loss pursuant to a PAP and were not refunded the unearned 

premium collected over the life of the policy. Id. at ¶ 56. 

ARGUMENT 

I. LEGAL STANDARD

In analyzing a complaint subject to a motion to dismiss, courts must accept the factual 

allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. 

McConnel, 516 F.3d 1282, 1284 (11th Cir. 2008); Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 

2003); see also S.-Owners Ins. Co. v. Wall 2 Walls Const., LLC, No. 8:12-CV-1922-T-33TBM, 

2012 WL 6009752, at *2 (M.D. Fla. Dec. 3, 2012) (the “Court accepts as true all allegations in the 

1

 Reference to both State Farm Mutual and State Farm Florida as “Defendants” or “State Farm” is 

appropriate because State Farm Mutual acted through State Farm Florida and exercised complete 

control over its wholly owned subsidiary. FAC at ¶¶ 18–40. 

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complaint and construes them in the light most favorable to the plaintiff ... [and] favors the 

plaintiff with all reasonable inferences from the complaint”). A plaintiff is generally not required 

to allege all the details upon which he bases his claim. See Fed. R. Civ. P. 8(a)(2). Instead, Rule 

8(a)(2) only requires a short and plain statement that fairly notifies the defendant of the claim and 

the supporting grounds. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007). The claims 

must be plausible on their face, meaning that a plaintiff must plead “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, 678 (2009). 

II. PLAINTIFFS HAVE STANDING TO ASSERT CLAIMS AGAINST STATE FARM 

MUTUAL BECAUSE IT IS A PARTY TO THE PAP.

Defendants’ Motion to Dismiss is based almost entirely on the unsupported assertion that 

State Farm Mutual is not a party to the PAP. But Plaintiffs’ detailed allegations, which must be 

taken as true, establish that both State Farm Mutual and State Farm Florida are liable for the breach 

of that agreement. First, the PAP is, at best, ambiguous as to the identity of the contracting entities, 

and contractual liability should, therefore, be imputed to State Farm Mutual. Second, State Farm 

Mutual’s conduct and its relationship with State Farm Florida require piercing of the corporate veil 

to prevent injustice to Plaintiffs and the Class. Finally, State Farm Mutual is contractually liable 

based on the principle of actual or apparent agency. 

A. Contractual Liability Should Be Imputed to State Farm Mutual. 

Plaintiffs sufficiently allege that both Defendants are parties to the PAP, or at the very least, 

that State Farm Mutual should be contractually liable on either one of two, independent bases: (1) 

because the PAP is intentionally ambiguous as to which State Farm entity is the contracting party; 

and/or (2) because State Farm Mutual exercised complete control over all aspects of the PAPs’ 

creation, marketing, sales, underwriting and claims processing, including implementation of the 

scheme to uniformly breach those contracts by not returning unearned premiums. FAC at ¶¶ 24–

28, 44–48, 52–55, 61, 63–64. 

When interpreting an insurance policy, especially at the pleading stage, it is fundamental 

that all ambiguities must be construed in favor of the insured. See St. Paul Fire & Marine Ins. Co. 

v. Lago Canyon, Inc., 561 F.3d 1181, 1191 (11th Cir. 2009); see also Watkins Motor Lines, Inc. v. 

Crum & Forster Ins. Co., No. 306-CV-580-J-33MCR, 2006 WL 3328287, at *6 (M.D. Fla. Nov. 

15, 2006) (“Plaintiff is correct that under Florida law, when an insurance contract is ambiguous, 

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any ambiguity should be construed in favor of the insured.”) (citing Church of the PalmsPresbyterian (U.S.A.), Inc. v. Cincinnati Ins. Co., 404 F.Supp.2d 1339, 1342 (M.D. Fla. 2005)). 

Courts applying this principle to an ambiguity as to the identity of the insurer in the policy have 

held that contractual liability must be imputed to both the parent and subsidiary entities. 

Watkins Motor Lines, Inc. v. Crum & Forster Ins. Co., No. 3:06–cv–580–J–33MCR, 2006 

WL 3328287 (M.D. Fla. 2006), is but one example of a court holding both an insurer and its parent 

company liable. In Watkins, a case remarkably similar to the present one, the plaintiff asserted 

breach of contract and statutory bad faith claims against a subsidiary insurer and its parent 

company, alleging that both entities were liable under the policy at issue. Id. at *1–4. The 

defendant parent company, like State Farm Mutual here, moved to dismiss the complaint, arguing 

that it was not a party to the insurance policy. Id. at *2. The court denied the motion to dismiss, 

holding that “the identity of the insurer(s) [was] ambiguous” because, although the policy 

contained references to the subsidiary, the parent entity’s name also “appear[ed] on numerous 

pages throughout the [p]olicy.” Id. at *5. 

The Watkins court imputed contractual liability to the parent insurer even though the policy 

there contained multiple references to the subsidiary. Id. (subsidiary referenced on at least 13 

pages of the policy). Here, while the PAP contains several references to “State Farm” and State 

Farm Mutual, there is no mention of State Farm Florida in the document containing the policy 

terms. State Farm Florida is referenced three times but only in the separate “Renewal 

Certificate”—which also contains four references to “State Farm.” (ECF No. 51-1 at 3–6). The 

allegations in the present case, therefore, provide substantially more justification for imputing 

liability under the PAP to the parent company, State Farm Mutual, than those the Watkins court 

deemed sufficient to impose liability on the parent insurer in that case. 

 In reasoning particularly applicable here, the Watkins court found that the policy’s failure 

to clearly define the insurer created a critical ambiguity as to that entity’s identity: 

Importantly, there [was] no definition of insurer in the Definition section. Rather, 

the only sections in the Policy which make any mention as to the identity of the 

insurer are ambiguous. In fact, the Policy merely states “[t]hroughout this policy . 

. . [t]he words ‘we,’ ‘us’ and ‘our’ refer to the Company providing insurance.” . . . 

Notably, the word Company is never defined in the Policy. 

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Watkins, 2006 WL 3328287 at *5 (internal citations omitted) (emphasis added). Construing that 

ambiguity in the light most favorable to the plaintiff, the court denied the motion to dismiss and 

held that it was plausible the parent company was a party to the contract. Id. at *5, *8. 

 The PAP here suffers from the identical infirmity that the Watkins court deemed fatal to the 

arguments for dismissal of the parent company—it fails to identify State Farm Florida as the 

insurer. As Defendants readily admit, the PAP does not define the contracting party. Instead, the 

definition—just like the one in Watkins—provides only that “[i]n this policy . . . ‘We’, ‘us’ and 

‘our’ refer to the Company shown in the Declarations.” Motion at 5. Not only is the term 

“Declarations” itself undefined, but the “Declarations” pages contain more references to State 

Farm than State Farm Florida. See generally ECF No. 51-1 at 3–6; see also FAC at ¶ 36.2

 In 

contrast, and equally significant to any reasonable insured, the title of the PAP is prominently 

displayed at the top of the first page as “State Farm® Personal Articles Policy.” ECF No. 51-1 at 

7 (emphasis added). There is not even one reference to State Farm Florida on the PAP’s title page 

or anywhere else in the several pages of the policy’s actual terms. See generally id.3

The confusing nature of the PAP and its ambiguity as to the identity of the insurer are no 

accident. State Farm Mutual was incorporated over a century ago in 1922, and it quickly grew 

into the nation’s largest property and automotive insurer through decades of ubiquitous marketing 

campaigns where it consistently held itself out to consumers and insureds as simply, “State Farm.” 

FAC at ¶ 36. When State Farm Mutual formed State Farm Florida and other subsidiaries in the 

State Farm Group as shells to limit its potential exposure in certain states, it continued to market 

the lines of insurance offered through those subsidiaries as products of the well-established “State 

Farm” brand, recognizing that consumers were much more likely to purchase insurance from the 

“State Farm” entity they had always known. Id. 

2

 The PAP’s referral to the “Declarations” in the definition of “Company” generates further 

confusion because the pages containing the declarations are in fact titled “Renewal Certificate,” 

and the word “declarations” appears nowhere within them. ECF No. 51-1 at 3. The policy 

documents’ sole reference to State Farm Florida in the Renewal Certificate also amplifies the 

ambiguity by indicating it was mailed to Plaintiffs from a State Farm office in Atlanta, Georgia, 

not Florida. Id. at 3. 

3

 The PAP’s ambiguity is further exacerbated by the policy’s signature page, executed by Lynne 

M. Yowell as Secretary of the “Company.” (ECF No. 51-1 at 14) (emphasis added). But Ms. 

Yowel is Secretary of both State Farm Mutual and State Farm Florida. FAC at ¶ 46. And she 

resides and works in Bloomington, Illinois where State Farm Mutual is headquartered. Id. 

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State Farm Mutual’s scheme to portray the insurance offered by its subsidiary shell 

companies as products of the familiar “State Farm” brand did not end with marketing. According 

to the allegations in the FAC, State Farm Mutual drafted uniform PAP documents containing 

identical terms that it used and directed its subsidiaries to use nationwide. Id. at ¶¶ 2, 24–28, 40. 

State Farm Mutual intentionally crafted those policy documents to deceive insureds into believing 

State Farm Mutual was their insurer. Id. at ¶¶ 36, 41, 43. Not only did they refer almost 

exclusively to “State Farm,” as discussed above, but the PAPs and related materials furthered the 

deception by encouraging insureds to contact “your State Farm agent” if they had “any questions 

about your premium, or policy coverages.” ECF No. 51-1 at 6 (“State Farm® works hard to offer 

you the best combination of cost, protection, and service.”); see also id. at 5 (“Important 

information regarding your policy premium[.] . . . If you have any questions regarding the 

information in this notice, please contact your State Farm agent.”). 

Even if the PAP clearly and unambiguously identified State Farm Florida as the insurer—

which it plainly does not—liability can and should still be imputed to State Farm Mutual because 

Plaintiffs have alleged that State Farm Mutual was responsible for administering the PAPs. 

Derocher v. Zurich Am. Ins. Co., No. 3:08-CV-0797, 2008 WL 4671754 (M.D. Pa. Oct. 16, 2008). 

In Derocher, the plaintiff alleged the parent entity was a party to the insurance contract that 

plaintiff admitted had been issued by the subsidiary because the parent entity was “responsible for 

administering and adjusting plans written under the [subsidiary] name.” Id. at *4. Based on the 

relationship between the parent entity and the subsidiary, as well as the plaintiff’s allegation of the 

parent entity’s involvement, the court reasoned that the complaint “state[d] a plausible claim and 

present[ed] a reasonable expectation that discovery will reveal evidence of an insurance contract 

between [p]laintiff and [the parent entity].” Id.; see also McCarty v. Liberty Mut. Ins. Co., No. 15-

CV-210-KHR, 2017 WL 730850, at *3 (D. Wyo. Jan. 25, 2017) (“[T]he fact that the policy at 

issue in this case clearly identified [the subsidiary] as the insurer is immaterial, as the combination 

of a parent-subsidiary relationship combined with full control of the claims adjustment process 

supports a finding that the parent company was a party to the insurance contract.”) (emphasis 

added).

Plaintiffs here have sufficiently alleged that liability under the PAP must be imputed to 

State Farm Mutual, not only based on the ambiguity of the insurer, but also because it exercised 

total control over the PAPs and their administration and adjustment. FAC at ¶¶ 18–40. In fact, 

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the FAC describes in detail how State Farm Mutual controls and is responsible for every aspect of 

all processes related to PAPs.4 Accordingly, Plaintiffs’ allegations are more than sufficient to 

impute liability under the PAP to State Farm Mutual based on either (1) the PAP’s ambiguity as 

to the identity of the insurer; or (2) State Farm Mutual’s control and responsibility for 

administration of the PAPs. 

The cases on which Defendants rely in their failed attempt to refute these arguments are 

easily distinguishable. Defendants, for example, lean heavily on Sandalwood Estates 

Homeowner’s Ass’n, Inc. v. Empire Indem. Ins. Co., 665 F. Supp. 2d 1355 (S.D. Fla. 2009). But 

the court in Sandalwood held that the defendant parent insurance company could not be held liable 

under a policy that clearly and unambiguously identified the subsidiary as the insurer. Id. at 1359. 

The court did not reject the reasoning of Watkins; it simply found that case obviously 

distinguishable. Id. at 1359-60.5 Plaintiffs’ PAP, as discussed above, is very similar to the policy 

4

 The FAC alleges that State Farm Mutual is licensed to engage in the insurance business in Florida 

and did, in fact, direct its business activities regarding the PAPs to residents of Florida. FAC at ¶ 

8. The FAC also alleges that, consistent with its authority as an insurer of the PAPs in Florida, 

State Farm Mutual prepared the PAPs and authorized State Farm Florida to issue them to Florida 

customers, including Plaintiffs, seeking to enter into “State Farm” PAP contracts. Id. at ¶¶ 8, 24–

28, 44; see also Fla. Stat. § 624.03 (defining “insurer” under Florida law). State Farm Mutual 

designed and implemented the claims process for PAPs throughout the country. FAC at ¶ 24. 

State Farm Mutual controls and operates the claims process for PAPs among all members of the 

State Farm Group through company-wide, systematic, and uniform practices, and State Farm 

Mutual operates as a single, integrated enterprise for claims adjustment and administration 

purposes, including, without limitation, the conduct and subject matter at issue in this action. Id. 

State Farm Mutual controls all aspects of underwriting, operations, and decision making relating 

to PAPs for State Farm Florida and its other subsidiaries in the State Farm Group, including risk 

assessment, oversight, actuarial, administrative services, claims, risk management, financial 

operations, investment, legal, public affairs, and underwriting. Id. at ¶ 25. State Farm Mutual was 

and is responsible for all decisions affecting holders of PAPs, including Plaintiffs and members of 

the Class. Id. at ¶ 26. State Farm Mutual was and is responsible for all the decisions relating to 

insurance underwriting of PAPs for State Farm Florida and its other subsidiaries in the State Farm 

Group. Id. at ¶ 27. State Farm Mutual was and is responsible for setting premiums for all PAP 

policies, including those held by Plaintiffs and members of the Class. Id. at ¶ 28. 

5 (“[The parent]’s name appears on one page of the policy while the parent company’s name in 

Watkins was scattered throughout the policy. Unlike the policy in Watkins, [the parent]’s name 

does not appear within the terms of the policy so as to create an ambiguity as to which company 

is actually providing insurance coverage.”). Compare those facts to the PAP at issue here: parent 

State Farm Mutual’s name is the one scattered throughout the policy and subsidiary State Farm 

Florida’s name is the one that does not appear within the terms of the policy. 

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in Watkins and not to the one in Sandalwood.

6

 The other cases on which Defendants rely are 

similarly inapposite because the policies at issue were unambiguous and clearly identified the 

subsidiary as the insurer. See Ordonez v. Chubb & Son, Inc., 2012 WL 13014694 (S.D. Fla. Feb 

9, 2012); Weiner v. Fed. Ins. Co., 2011 WL 13229316 (S.D. Fla. Dec. 16, 2011). Defendants’ own

parenthetical summarizing Buffalo Xerographix, Inc. v. Hartford Ins. Grp., 540 F. Supp. 3d 382, 

392 (W.D.N.Y. 2021), highlights the inapplicability of their authority to the present case: “granting 

motion to dismiss where declaration page reflected that the ‘we,’ ‘us,’ and ‘our’ under the policy 

referred to the subsidiary and not the parent.” Motion at 6. Here, of course, the “we,” “us,” and 

“our” under the PAP ambiguously refer only to some nameless “Company.” 

In sum, Plaintiffs have more than sufficiently alleged that liability under the PAP should 

be imputed to State Farm Mutual because the contract is ambiguous as to the identity of the insurer 

and State Farm Mutual exercises complete control over all processes related to PAPs and their 

administration. The FAC’s highly detailed allegations are reinforced by the PAP itself, which 

demonstrates that Defendants intended to create the impression that State Farm Mutual was the 

policy’s insurer. Defendants are asking this Court to ignore Plaintiffs’ allegations, accept their 

own interpretation of the policy’s ambiguities, and draw all inferences in their favor. The Court 

should reject Defendants’ attempt to completely flip the motion to dismiss standard on its head. 

B. State Farm Mutual is Liable for the Acts of its Subsidiary. 

Plaintiffs’ allegations establish that State Farm Mutual is a party to the PAP. But even if 

it were not a party to that contract, the allegations are sufficient to find that it is liable for the acts 

of its subsidiary, State Farm Florida. A parent company can be held liable for the acts of its 

subsidiaries in three ways: “(1) an alter ego theory to ‘pierce the corporate veil;’ (2) vicarious 

liability based on general agency principles; or (3) direct liability where the parent directly 

participated in the wrong complained of.” Salinero v. Johnson & Johnson, No. 18-23643, 2019 

6

 The Sandalwood court also refused to reject the reasoning of Derocher, instead finding it clearly 

distinguishable where “[t]he complaint contains no allegations that [the parent entity] somehow 

took over the policy from [the subsidiary] and the policy itself shows that [the subsidiary] was the 

insurer.” Sandalwood, 665 F. Supp. 2d at 1360 (emphasis added); see also id. at 1360 n.2 (further 

distinguishing Derocher because the Sandalwood policies at issue unambiguously identified the 

subsidiary as the contracting entity). 

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WL 4585215, at *2 (S.D. Fla. Sept. 20, 2019). The allegations in the FAC establish State Farm 

Mutual’s liability on all three of these bases.7

1. Alter Ego. 

Liability based on the alter ego theory applies “where the separate identity of two 

corporations should be disregarded where one corporation becomes the conduit of 

another” and “where the near identity of two corporation should be disregarded in order to prevent 

manifest injustice to third parties.” Talen’s Landing Inc. v. M/V Venture II, 656 F.2d 1157, 1160 

(5th Cir. 1981) (quotations omitted);8 see also Century Sr. Services v. Consumer Health 

Ben. Ass’n, Inc., 770 F. Supp. 2d 1261, 1265–66 (S.D. Fla. 2011) (“A party seeking to pierce the 

corporate veil and prove alter ego liability must show both a blurring of corporate lines, such as 

ignoring corporate formalities or using a corporation for the stockholder’s personal interest, and 

that the stockholder used the corporation for some illegal, fraudulent or other unjust purpose.”) 

(citations omitted). 

In determining whether to pierce the corporate veil, courts consider a variety of factors 

such as: (1) common or overlapping directors and officers; (2) use of same corporate office; (3) 

inadequate capitalization of subsidiary; (4) financing of subsidiary by parent; (5) parent’s use of 

subsidiary’s property and assets as its own; (6) informal intercorporate loan transactions; (7) 

decision-making for subsidiary by parent and principles; (8) non-observance of formal legal 

requirements; (9) existence of fraud, wrongdoing, or injustice to third parties. Talen’s 

Landing, 656 F.2d at *15, n. 12. The FAC sufficiently alleges each of these factors such that the 

Defendants’ motion to dismiss must be denied;9 see Eckhardt v. United States, No. 08-21791-CIV,

7

 Determining whether each of these three bases is applicable requires a factual analysis, making 

dismissal prior to discovery inappropriate. See Eckhardt v. United States, No. 08-21791-CIV, 

2010 WL 11504339, at *6 (S.D. Fla. July 8, 2010), aff’d, 463 Fed. Appx. 852 (11th Cir. 2012) 

(“[T]he issue of whether to disregard the corporate entity involves a fact-specific inquiry, 

depending on the totality of the circumstances.”).  

  

8

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted 

as binding precedent all the decision of the former Fifth Circuit handed down prior to the close of 

business on September 30, 1981. 

9 See, e.g., FAC at ¶¶ 21‒22, 29 (alleging that State Farm Mutual exerted complete control over 

State Farm of Florida, evidenced by its 100% ownership of State Farm Florida and State Farm 

Mutual’s actions of taking over all relevant corporate filings); id. at ¶¶ 24‒28, 44 (alleging State 

Farm Mutual exercises full decision-making and control over the PAPs issued in Florida, including 

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2010 WL 11504339, at *6 (S.D. Fla. July 8, 2010), aff’d, 463 F. App’x. 852 (11th Cir. 

2012) (reasoning that the standard for ignoring the corporate device is a practical one, based 

largely on a reading of the particular factual circumstances) (citing Jarro v. United States, 830 F. 

Supp. 606, 609 (S.D. Fla. 1993)). 

The FAC alleges that State Farm Mutual intentionally sought to market itself as a single 

State Farm entity, FAC at ¶ 36, that State Farm Mutual intended to convey the appearance to 

Florida customers that they were purchasing a PAP from this single-enterprise State Farm entity, 

id., and that this was part of State Farm Mutual’s fraudulent scheme to lure Florida customers into 

a “State Farm” PAP that State Farm Mutual intended to breach while intending to use State Farm 

Florida to improperly limit liability thereon. Id. at ¶¶ 36, 41, 43. These allegations—as a matter 

of law—sufficiently allege a basis to pierce the corporate veil. See Zhejiang Dushen Necktie Co., 

Ltd. v. Blue Med, Inc., 16-24679-CIV, 2017 WL 4119604, at *5 (S.D. Fla. Sept. 18, 2017) (denying 

motion to dismiss after finding that plaintiff sufficiently stated a claim to pierce the corporate veil 

where plaintiff’s “allegations show a ‘blurring of corporate lines’ meant to further an improper 

purpose,” including by alleging that the shareholders have “complete dominion and control over 

their companies and have held themselves out as being inseparable from their companies”) 

in the process regarding premiums and claims); id. at ¶¶ 18, 24 (alleging there is no true separate 

identity between State Farm Mutual and State Farm Florida, and that State Farm Mutual operates 

as a single, integrated enterprise for claims adjustment and administration purposes); id. ¶¶ 19‒20, 

37‒39 (alleging State Farm Mutual exercises complete control and decision-making over the 

employees shared by State Farm Mutual and State Farm Florida, most of which overlap amongst 

the entities’ board of directors and other key roles); id. at ¶ 23 (alleging a lack of corporate 

formalities between State Farm Mutual and State Farm Florida where, aside from sharing 

employees, all books and records are maintained at State Farm Mutual’s principal place of 

business); id. at ¶¶ 30‒35 (alleging State Farm Mutual’s funding of State Farm Florida and State 

Farm Mutual’s provision of other financial assistance, including setting up key processes to reduce 

the need for formal intercorporate loan transactions); id. at ¶ 33 (alleging shared use of insurance 

and underwriting facilities and other facilities); id. at ¶ 35 (alleging State Farm Mutual 

intentionally presents itself, State Farm Florida, and other subsidiaries in the State Farm Group to 

consumers as a single entity—“State Farm”—to induce Florida residents to enter into PAPs with 

State Farms); id. at ¶¶ 45‒48 (alleging that State Farm Mutual issued PAPs to Plaintiffs that 

intentionally created the appearance that Plaintiffs and class members were contracting with a 

single State Farm entity); and id. at ¶¶ 40‒43, 53‒55 (alleging State Farm Mutual’s misuse of State 

Farm Florida as a mere instrumentality to shield itself from liability State Farm 

Mutual knew would arise from its intentional scheme to deprive customers of the returns of their 

unearned premiums pursuant to the deceptive PAPs and subsequent breach of contracts relating 

thereto).

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(citations omitted); Century Sr. Services v. Consumer Health Ben. Ass’n, Inc., 770 F. Supp. 2d 

1261, 1265–66 (S.D. Fla. 2011) (finding there were sufficient allegations to support piercing the 

corporate veil theory where it was alleged that “[the parent entity] failed to keep CSS at an arm’s 

length, that it blurred the lines between the two corporations, such as by having [the parent entity] 

manage CSS directly and by sharing a principal place of business, and that [the parent entity] used 

CSS for a fraudulent purpose by using it to mislead creditors and to shield [the parent entity] from 

liability for conversion and theft”); Eckhardt v. United States, No. 08-21791-CIV, 2010 WL 

11504339, at *6 (S.D. Fla. July 8, 2010), aff’d, 463 F. App’x. 852 (11th Cir. 2012) (piercing 

corporate veil where the corporation “had no meaningful independent existence apart” from the 

shareholder). 

2. Agency. 

State Farm Mutual is also liable under the theory of apparent agency. To establish an 

apparent agency, “a Plaintiff must show (a) a representation by the purported principal; (b) a 

reliance on that representation; and (c) a change of position by the third party in reliance on that 

representation.” Appel v. Liberty American Ins. Co., No. 08-20385, 2008 WL 1133591, at *3 (S.D. 

Fla. Nov. 21, 2008). 

In Appel, the court found those apparent agency elements satisfied under circumstances 

very similar to those present here. Id. at *4. In that case, a parent insurance company sought 

dismissal of breach of contract claims, arguing that the plaintiffs lacked standing because their 

insurance contract was not with the parent, but one of its subsidiaries. Id. at *2. The court denied 

the motion to dismiss, holding that the parent was liable under the theory of apparent agency, 

finding that the language of the policy gave the appearance that the subsidiary was an agent of the 

parent. Id. at 4–5 (“The appearance of [the subsidiary]’s name in the headers and footers of the 

policy and the Declarations Page leads to the conclusion that these forms are [the parent’s] forms. 

The policy language itself was therefore a representation to Plaintiffs that [the subsidiary] was an 

agent of [the parent] and this representation was sufficient to lead to reliance by the Plaintiffs.”);

see also Ilgen v. Henderson Properties, 683 So.2d 513, 514–15 (Fla. 2d DCA 1996) (same). 

As discussed in detail above, the language of the PAP here similarly creates the impression 

that State Farm Mutual is the insurer. Accordingly, this Court should follow Appel and find State 

Farm Mutual liable on the theory of apparent agency. 

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3. Direct Liability. 

The allegations in the FAC also establish that State Farm Mutual directly participated in 

its own wrongful policies and procedures through the direction and control of its subsidiary. FAC 

at ¶ 40–41, 43; see also In re Managed Care Litig., 298 F. Supp. 2d 1259, 1309 (S.D. Fla. 2003) 

(citing United States v. Bestfoods, 524 U.S. 51, 64–65 (1998)), which notes that derivative liability 

is distinguished from direct liability where “the alleged wrong can seemingly be traced to the 

parent through the conduit of its own personnel and management” and the parent directly 

participated in the wrong at issue). Plaintiffs allege that State Farm Florida is required to use the 

practices, policies, and procedures of State Farm Mutual and that the parent and subsidiary engage 

in a routine and uniform systematic practice to avoid refunding their unearned premiums. FAC at 

¶¶ 2, 25–29, 38. These allegations are sufficient to establish State Farm Mutual’s direct liability. 

See AA Suncoast Chiropractic Clinic, P.A. v. Progressive Am. Ins. Co., No. 8:15-CV-2543-T26MAP, 2016 WL 740719, at *2 (M.D. Fla. Feb. 25, 2016) (same). 

Further, Plaintiffs allege State Farm Mutual directly participated in formulating and 

implementing the wrongful acts relevant to Plaintiffs’ claims and was ultimately responsible for 

the uniform and common practice to not refund its unearned premiums while giving consumers 

the impression that they were entering into contracts with State Farm Mutual. See FAC at ¶¶ 2, 

25–29, 36, 38; see also In re Managed Care Litig., 298 F. Supp. 2d at 1309 (holding that plaintiff 

had standing to sue parent corporations because plaintiff alleged “that the parent corporations 

directly participated in formulating and implementing the [alleged harms]”). As the Eleventh 

Circuit has held, “[i]t is not necessary . . . that there be a direct contractual relationship between 

[plaintiff] and [the parent company] for the latter to be liable for the wrongful breach of contract.” 

Jackam v. Hosp. Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1580 (11th Cir. 1986). The complaint 

must only allege that there is “a sufficient connection between the parent organization and the 

contracts in question to maintain the parent organization as a party.” Id. Here, Plaintiffs sufficiently 

allege a connection between State Farm Mutual and the PAPs, including that State Farm Mutual 

prepared the PAPs and offered them to customers via its subsidiary, and the PAPs show that they 

are the copyrighted material of State Farm Mutual. See FAC at ¶¶ 24–28, 47. 

C. Plaintiffs Properly Allege CAFA Subject Matter Jurisdiction.

Defendants argue that, if this Court credits their argument that State Farm Mutual is not a 

party to the PAP, that entity’s dismissal would destroy subject matter jurisdiction pursuant to the 

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Class Action Fairness Act (“CAFA”). As discussed above, however, Plaintiffs’ allegations and 

the terms of the PAP easily establish that the question of State Farm Mutual’s liability cannot be 

resolved at the pleading stage. But subject matter jurisdiction would exist even if State Farm 

Mutual were not a party to this action. 

 CAFA gives district courts subject matter jurisdiction over a class action claim provided 

that: (1) the aggregate amount in controversy of the claims of the individual class members exceeds 

$5,000,000, exclusive of interest and costs; (2) there is minimal diversity where any member of 

the class is a citizen of a State different from any defendant; (3) the action involves claims of 100 

or more plaintiffs; and (4) the plaintiffs’ claims involve common questions of law or fact. 28 U.S.C. 

§ 1332(d). The factors at issue in Defendants’ Motion to Dismiss are whether the aggregate amount 

in controversy exceeds $5,000,000 and whether minimal diversity exists if State Farm Mutual is 

dismissed from this case. 

As a threshold matter, the FAC specifically alleges that the aggregate amount in 

controversy exceeds five million dollars, exclusive of interest and costs. FAC at ¶ 10. This 

allegation is sufficient, and the Court should not second guess it based on Defendants’ unsupported 

assertion that the allegation is inaccurate. Lowery v. Alabama Power Co., 483 F.3d 1184, 1220 

(11th Cir. 2007) (it would be “impermissible speculation” for a court to hazard a guess on the 

jurisdictional amount in controversy without evidence). A party seeking federal jurisdiction “is 

not required to prove the amount in controversy beyond all doubt or to banish all uncertainty about 

it[,]” and the law does not “demand perfect knowledge or depend any less on reasonable inferences 

and deductions than we all do in everyday life.” See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 

744, 754 (11th Cir. 2010). Rather, CAFA jurisdiction is established if the party seeking it makes 

factual allegations combined with reasonable inferences or other reasonable extrapolations. Id. 

If a party makes a good faith claim that the required jurisdictional amount is satisfied, then 

“that claim controls unless it appears ‘to a legal certainty that the claim is really for less than the 

jurisdictional amount.’” Reilly v. Amy’s Kitchen, Inc., 2 F. Supp. 3d 1300, 1302 (S.D. Fla. 2014) 

(quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)). A district court 

can find that a sufficient basis for jurisdictional prerequisites exists, even where a complaint is 

silent as to any specific amount of damages, if it alleges that the aggregate value of the claims of 

the putative class exceeds $5,000,000 and there is no specific, factual dispute on the issue. See

Lopez v. Progressive Select Ins. Co., No. 18-61844-CIV, 2019 WL 7371823, at *4 (S.D. Fla. Mar. 

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15, 2019), report and recommendation adopted, No. 0:18-CV-61844-WPD, 2019 WL 4731644 

(S.D. Fla. May 14, 2019).

Contrary to Defendants’ argument, diversity jurisdiction exists under CAFA even if State 

Farm Mutual is dismissed. In a class, there is diversity jurisdiction when “any member of a class

of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. §1332(d)(2) (emphasis 

added). Accordingly, diversity between any single member of a class of plaintiffs and any 

defendant confers CAFA jurisdiction. Plaintiffs plainly allege that the proposed Class includes 

members that are citizens of a State other than Florida, thereby establishing that diversity even if 

State Farm Mutual is dismissed. FAC at ¶ 10. 

III. THIS COURT HAS PERSONAL JURISDICTION OVER STATE FARM 

MUTUAL.

 Based primarily on its contention that it is not a party to the PAP at issue in this case, State 

Farm Mutual argues that the FAC fails to adequately plead personal jurisdiction. As discussed 

above in Section II(A), however, the allegations in the FAC establish that State Farm Mutual is, in 

fact, a party to the PAP. But personal jurisdiction exists over State Farm Mutual even if it is not 

deemed contractually liable. 

 Defendants do not dispute that personal jurisdiction exists over State Farm Florida. Nor 

can they, as State Farm Florida is a Florida corporation with offices and significant contacts in this 

state. As discussed in Section II(B) above, Plaintiff has sufficiently alleged that State Farm Mutual 

is liable for the acts of State Farm Florida on three independent bases. Accordingly, personal 

jurisdiction over State Farm Mutual exists based on the admittedly sufficient contacts of its 

subsidiary, State Farm Florida. See Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 

1275 (11th Cir. 2002); see also Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 

F.3d 1357, 1363 (11th Cir. 2006). 

 Moreover, because Plaintiffs’ venue allegations are facially sufficient, State Farm Mutual’s 

failure to submit an affidavit factually contesting Plaintiffs’ jurisdictional allegations is fatal to its 

argument that personal jurisdiction is lacking. In Venetian Salami Co. v. Parthenais, 554 So. 2d 

499, 502–03 (Fla. 1989), the Florida Supreme Court outlined the basic procedure for long-arm 

jurisdiction cases. The court held that a plaintiff must first allege a jurisdictional basis in his 

pleading. Then, if the defendant wishes to contest these allegations, he must file an affidavit 

specifically addressing the allegations. Once a defendant submits an appropriate affidavit, the 

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plaintiff must support his allegations with an affidavit of his own. If no disputed factual issues 

appear on the face of the opposing affidavits, the trial court can decide the long-arm issue without 

holding an evidentiary hearing. However, if the opposing affidavits conflict with one another, the 

trial court must “hold a limited evidentiary hearing in order to determine the jurisdiction issue.” Id.; 

see also Clover Sys., Inc. v. Almagran, S.A., No. 05-22539-CIV, 2007 WL 1655377, at *2 (S.D. 

Fla. June 7, 2007) (“To successfully challenge personal jurisdiction, [Defendants] cannot rely on 

conclusory statements but rather must provide specific factual declarations relevant to the court’s 

jurisdictional analysis.”) (citing Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 

2002)). State Farm Mutual’s argument that personal jurisdiction is lacking should be rejected 

because it has failed to factually dispute Plaintiffs’ allegations. 

IV. VENUE IS PROPER IN THIS DISTRICT. 

 Defendants argue that venue is not appropriate in this District based on a 

mischaracterization of Plaintiffs’ allegations and the venue statute. Venue is appropriate here 

because State Farm Florida resides in the Southern District of Florida and its residency must be 

imputed to State Farm Mutual. 

Where, as here, a civil action is brought in a district court, 28 U.S.C. §1391 governs venue. 

Pursuant to 28 U.S.C. §1391(b), venue is proper if any one of the following are satisfied: (1) a 

judicial district in which any defendant resides, if all defendants are residents of the State in which 

the district is located; (2) a judicial district in which a substantial part of the events or omissions 

giving rise to the claim occurred, or a substantial part of property that is the subject of the action 

is situated; or (3) if there is no district in which an action may otherwise be brought as provided in 

this section, any judicial district in which any defendant is subject to the court's personal 

jurisdiction with respect to such action. 28 U.S.C. §1391(b) (emphasis added). Defendants’ 

argument is predicated on the supposition that this case is governed exclusively by §1391(b)(2). 

The venue statue is drafted in the disjunctive, a fact Defendants flatly ignore. See Mobile 

Diagnostic Imaging, Inc. v. Gormezano, No. 12-60888-CIV, 2012 WL 3244664, at *1 (S.D. Fla. 

Aug. 9, 2012). While Plaintiffs have alleged facts showing that venue is proper based on 28 U.S.C.

§ 1391(b)(2) because a “substantial part of the events or omissions giving rise to the claim 

occurred” here, see, e.g., FAC at ¶ 11, 28 U.S.C. § 1391(b)(1) also applies based on Defendants’ 

residence in this District. 

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A defendant “resides” in a district where its contacts would be sufficient to establish 

personal jurisdiction in that district. 28 U.S.C. §1391(d). Defendants do not and cannot dispute 

that State Farm Florida maintains significant contacts in the Southern District of Florida. Venue 

here is, therefore, appropriate under §1391(b)(1). The requirement that “all defendants are 

residents of the State in which the district is located” is also satisfied. Id. Plaintiffs have 

demonstrated above that the conduct and contacts of State Farm Florida in connection with 

Defendants’ scheme to uniformly breach their contractual obligations under the PAPs must be 

imputed to State Farm Mutual, which stands in its shoes. See Meier, 288 F.3d at 1275; see also 

Stubbs, 447 F.3d at 1363. 

Venue exists in this District based on State Farm Florida’s undisputed residency here and 

State Farm Mutual’s liability for its actions in connection with the PAPs. Defendants’ request to 

transfer this action should be denied. SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, 

S.A., 382 F.3d 1097, 1101 (11th Cir. 2004) (noting that a plaintiff’s choice of forum should rarely 

be disturbed “unless the balance is strongly in favor of the defendant”) (citing Gulf Oil Corporation 

v. Gilbert, 330 U.S. 501, 508 (1947)). 

V. THE UNJUST ENRICHMENT CLAIM IS PROPERLY PLED IN THE 

ALTERNATIVE.

It is well settled that a plaintiff may maintain a claim for unjust enrichment arising out of 

a breach of contract if that claim is pled in the alternative. See, e.g., Napa Overseas, S.A. v. Nextran 

Corp., No. 16-20862-CIV-MORENO, 2016 WL 3841677, at *5 (S.D. Fla. July 12, 2016)

(“Nothing prevents Plaintiff from pursuing alternative claims of breach of contract and unjust

enrichment in separate counts.”) (internal citations and quotations omitted); see also Fed. R. Civ.

P. 8(d). Defendants admit this alternative pleading is permissible, but they nevertheless assert that

Plaintiff’s alternative unjust enrichment claim should be dismissed because it is based on “the

express insurance policy between Plaintiffs and his insurer.” Motion at 19. 

But dismissal of an alternatively pled unjust enrichment claim is premature at the motion 

to dismiss stage. Napa, 2016 WL 3841677, at *5. Indeed, an unjust enrichment claim only fails 

when there is no dispute about the existence of an express contract between the parties. Id. 

Defendants, however, dispute that any contract exists between Plaintiffs and State Farm Mutual. 

The authority upon which Defendants rely is inapposite because, in those cases, the 

existence of the contract among the parties was not in dispute. See Zarrella v. Pacific Life Ins. Co., 

Case 2:22-cv-14353-DMM Document 65 Entered on FLSD Docket 03/23/2023 Page 17 of 19
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755 F.Supp.2d 1218, 1227 (S.D. Fla. 2010) (“The parties do not dispute the existence of an express 

contract governing their insurance policy agreement, so the equitable remedy of unjust enrichment 

is not available.”); Arch Specialty Ins. Co. v. Florida Window Co., No. 18-cv-24237-UU, 2018 

WL 11359301, at *2 (S.D. Fla. Dec. 18, 2018) (“Unjust enrichment may only be pleaded in the 

alternative where one of the parties asserts that the contract governing the dispute in invalid.”) 

(citations omitted). Accordingly, dismissal of the alternatively pled unjust enrichment claim here 

is not appropriate. 

VI. DEFENDANTS ARE NOT ENTITLED TO A MORE DEFINITE STATEMENT. 

Finally, Defendants request a more definite statement on the basis that Plaintiffs have 

impermissibly engaged in “group pleading” by jointly referring to Defendants as “Defendants.” 

But that concern is inapplicable here. That FAC sometimes refers to both State Farm Mutual and 

State Farm Florida as “Defendants” because, as is alleged in detail, State Farm Mutual acted 

through State Farm Florida and exercised complete control over it. FAC at ¶¶ 18–40. Accordingly, 

on those occasions when Plaintiffs refer to both entities as “Defendants,” there is no confusion as 

to which entity was acting–they both were. The Court should deny Defendants’ request for a more 

definite statement. See FTC v. Centro Natural Corp., No. 14-23879-CIV, 2014 WL 7525697, *7 

(S.D. Fla. Dec. 10, 2014) (denying motion for more definite statement based where complaint 

referred “Defendants” as a group without specifying what each did in their individual capacities). 

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court deny Defendants’ 

Motion to Dismiss the First Amended Class Action Complaint in its entirety.10

10 If the Court is inclined to grant any part of Defendants’ motion to dismiss, Plaintiffs respectfully 

request that they be granted leave to file a second amended complaint. See Canon Latin Am., Inc. 

v. Lantech (C.R.), S.A., 08-21518-CIV, 2009 WL 10664392, at *6 (S.D. Fla. Apr. 29, 2009) 

(denying in part defendants’ motion to dismiss and granting plaintiff leave to file a second

amended complaint after reasoning that “there is a conceivable factual basis on which [plaintiff’s] 

claims would survive”). 

Case 2:22-cv-14353-DMM Document 65 Entered on FLSD Docket 03/23/2023 Page 18 of 19
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Dated: March 23, 2023 Respectfully submitted, 

PODHURST ORSECK, P.A. 

 By: /s/ Peter Prieto 

 Peter Prieto (Florida Bar # 501492) 

 John Gravante, III (Florida Bar #617113) 

Matthew P. Weinshall (Florida Bar #8478) 

 One S.E. 3rd Avenue, Suite 2300 

 Miami, FL 33131 

 Telephone: (305) 358-2800 

 Fax: (305) 358-2382 

 Email: pprieto@podhurst.com 

 jgravante@podhurst.com 

mweinshall@podhurst.com 

Michael Rudd 

 mrudd@rudddiamond.com 

 Florida Bar No. 782416 

 Rudd & Diamond PA 

 400 Hollywood Blvd. 

 Suite 120-N 

 Hollywood, Florida 33021 

 Phone: (954) 961-5059 

 Fax: (954) 961-8953 

 Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that on March 23, 2023, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system. Notice of this filing will be sent to counsel of record 

by operation of the Court’s electronic filing system. 

 

 By: /s/ Peter Prieto 

Peter Prieto 

Case 2:22-cv-14353-DMM Document 65 Entered on FLSD Docket 03/23/2023 Page 19 of 19