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 Denying Motion to Dismiss 

This matter is before the Court on Plaintiff Security National Insurance 

Company’s (“SNIC”) motion to dismiss the amended counterclaim filed by the 

Defendant City of Miami Beach (the “City”). (Mot. to Dismiss Am. Countercl., 

ECF No. 83.) The City has responded (ECF No. 89), and SNIC timely replied 

(ECF No. 92.) Having reviewed the briefing, the record, and the relevant legal 

authorities, the Court denies SNIC’s motion to dismiss and stays all 

proceedings in this matter relating to indemnification. (ECF No. 83.) 

1. Background 

This case centers around an insurance dispute between SNIC, the City, 

and Defendant A&A Drainage, Inc. (“A&A,” a contractor for the City) 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 Defendant Monica 

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 (the “Underlying Action”). (Compl. ¶ 9.) The Court need not 

recount every detail behind this action here, having previously done so. (See, 

e.g., Omn. Order at 1-3, ECF No. 40.) 

More relevant to SNIC’s motion to dismiss is the procedural path this 

matter has taken since it was filed. SNIC filed this action against the City, as 

well as A&A and O’Chaney, seeking four counts of declaratory relief relating to 

whether it has a duty to defend and indemnify the City under A&A’s insurance 

policy with SNIC (the “Policy,” which SNIC attached to its complaint as Exhibit 

“B”). (Compl. ¶¶ 33-72; Compl. Ex. B, ECF No. 1-6.) 

 In response, the City counterclaimed against SNIC and crossclaimed 

against A&A, bringing claims for declaratory judgment and breach of contract 

relating to SNIC and A&A’s alleged duty to defend and indemnify the City 

under the terms of the Policy. (Countercl. ¶¶ 37-83, ECF No. 13.) SNIC moved 

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to dismiss the City’s counterclaim, arguing that the Underlying Action did not 

allege a claim of vicarious liability, so the Policy’s “Additional Insured” 

provision was not triggered under Florida law (among other arguments). (SNIC 

Mot. to Dismiss Countercl., ECF No. 27.) The Court granted that motion, 

finding that the terms of the Policy were not triggered by the complaint in the 

underlying action because Ms. O’Chaney did not allege a claim for vicarious 

liability. (Omn. Order at 10-11.) A&A, meanwhile, moved to dismiss the City’s 

crossclaim, arguing that the City’s claims for declaratory judgment could not 

be pleaded alongside its claims for breach of contract. (A&A Mot. to Dismiss 

Crosscl., ECF No. 26.) The Court denied A&A’s motion, finding that the City’s 

claims for declaratory judgment could be pleaded alongside its claims for 

breach of contract, both as alternative pleadings and because the declaratory 

judgment claim sought “forward-looking relief” while the breach of contract 

claim sought “backwards-looking relief.” (Omn. Order at 12-13.) 

 After significant motion practice and multiple amendments to the 

pleadings in the Underlying Action, the Court finally allowed the City to amend 

its counterclaim against SNIC because O’Chaney had amended her state-court 

complaint to include a count for vicarious liability against the City. (Order 

Granting Leave to Am., ECF No. 75.) The City then filed its amended 

counterclaim, which is at issue here. In the amended counterclaim, the City 

brings claims for declaratory judgment (Count I) and breach of contract (Count 

III) against SNIC, again relating to SNIC’s refusal to defend and indemnify the 

City in the Underlying Action under the terms of A&A’s Policy. (Am. Countercl. 

¶¶ 59-63, 71-81.)1 

 SNIC moves to dismiss the amended counterclaim, arguing that the 

City’s declaratory judgment claim cannot be pleaded alongside its breach of 

contract claim, that both claims fail to state a claim upon which relief may be 

granted because the City fails to identify a specific contract provision that it 

alleges requires interpretation or was breached, and that the City’s claims for 

indemnification are premature because the Underlying Action remains ongoing. 

(Mot. to Dismiss Am. Countercl. at 5-10.) The City responds to each argument. 

It states that the Court has already determined that its declaratory judgment 

claim may be properly pleaded alongside a breach of contract claim in its order 

denying A&A’s motion to dismiss. (Resp. at 1-4.) It argues that it has 

sufficiently pleaded both claims because it identifies the contract that it alleges 

to have been breached, and it incorporates that contract (the Policy) by 

1 The City also continues to assert crossclaims for declaratory judgment, breach of contractual 

indemnification, common-law indemnification, and breach of contract against A&A, which are 

not at issue here. (Id. ¶¶ 59-70, 82-95.)

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reference in its amended counterclaim, and SNIC attached the Policy to its 

complaint. (Id. at 4-8.) Finally, the City asserts that the Court should stay its 

claims as they relate to indemnification rather than dismissing them. (Id. at 8-

9.) 

2. Legal Standard

A court considering a motion to dismiss, filed under Federal Rule of Civil 

Procedure 12(b)(6), 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). Although a pleading need 

only contain a short and plain statement of the claim showing that the pleader 

is entitled to relief, a plaintiff must nevertheless articulate “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). “But where the well-pleaded facts do not permit the 

court to infer more than the mere possibility of misconduct, the complaint has 

alleged—but it has not shown—that the pleader is entitled to relief.” Ashcroft v. 

Iqbal, 556 U.S. 662, 679 (2009) (internal punctuation omitted) (quoting Fed. R. 

Civ. P. 8(a)(2)). A court must dismiss a plaintiff’s claims if she fails to nudge her 

“claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 

570. Regardless of a plaintiff’s allegations, “the court may dismiss a complaint 

pursuant to Federal Rule of Civil Procedure 12(b)(6) when, on the basis of a 

dispositive issue of law, no construction of the factual allegations will support 

the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 

992 F.2d 1171, 1174 (11th Cir. 1993). 

3. Analysis 

The Court finds the City’s amended counterclaim to be sufficiently 

pleaded. First, the City does identify the provision of the Policy that it alleges 

SNIC breached and is in dispute—the “additional insured” provision, under 

which the City pleads it qualifies for coverage. Second, the Court has already 

determined that the City’s declaratory judgment and breach of contract claims 

are properly pleaded alongside each other. Third, the Court finds that the 

appropriate action on the City’s claims for indemnification is to stay those 

claims, pending the outcome of the Underlying action. 

A. The City Sufficiently Identifies the Provision of the Policy that Is 

Alleged to Be in Dispute and to Have Been Breached

The weight of SNIC’s motion to dismiss is focused on its argument that 

the City fails to identify a specific provision of the Policy that the Court must 

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construe to resolve the City’s declaratory judgment claim, or that SNIC is 

alleged to have breached in the breach of contract claim. (Mot. to Dismiss Am. 

Countercl. at 5-8.) Curiously, in response, the City only argues that it need 

only identify the contract at issue (the Policy) and incorporate it by reference to 

avoid dismissal. (Resp. at 1-4.) 

SNIC’s legal argument is correct, but SNIC fails to consider the amended 

counterclaim in its entirety. “It is a basic tenet of contract law that a party can 

only advance a claim of breach of written contract by identifying and 

presenting the actual terms of the contract allegedly breached.” Herssein L. 

Grp. v. Reed Elsevier, Inc., 594 F. App’x 606, 608 (11th Cir. 2015). Courts in 

the Eleventh Circuit regularly dismiss complaints that plead claims for breach 

of contract but fail to identify a provision of the contract that was allegedly 

breached. See, e.g., Pierce v. State Farm Mut. Auto. Ins. Co., No. 14-22691-CIV, 

2014 WL 7671718, at *4 (S.D. Fla. Dec. 17, 2014) (Williams, J.) (dismissing 

breach of contract claim where the plaintiff “failed to identify which specific 

provision of the contract was allegedly breached”); accord St. Michaels Anglican 

Cath. Church of Panama City Fla. Inc. v. Church Mut. Ins. Co., No. 20-235-CIV, 

2020 WL 9209711, at *1 (N.D. Fla. Oct. 15, 2020) (dismissing breach of 

contract claim where the plaintiff attached the contract at issue but “never 

cites any particular provision” as having been breached). 

Although the City never identifies the fact in its arguments and does not 

specifically cite the relevant provision of the Policy in its individual claims for 

relief, the City does plead a specific provision of the Policy that is at issue for 

both claims—the “Additional Insured” provision. (Am. Countercl. ¶ 56 

(“Accordingly, the Policy’s ‘Additional Insured – Owners, Lessees or Contractors 

– Automatic Status When Required in Construction Agreement with You’ 

Endorsement has been triggered by the Second Amended Complaint [in the 

Underlying Action].”). 

The City incorporates the Policy by reference in its amended 

counterclaim and identifies this specific provision as the provision at issue. 

Jordan v. Miami-Dade Cnty., 439 F. Supp. 2d 1237, 1240 (S.D. Fla. 2006) 

(King, J.) (“On a motion to dismiss, the Court may consider documents 

attached to the Complaint or directly referred to in the Complaint.”). The 

provision the City references may only be the “Additional Insured” provision 

found at page 46 of the Policy and identified as endorsement “CG 20 33 07 04.” 

(Compl. Ex. B at 46.)2 And the City incorporates this factual allegation into 

both claims. (Am. Countercl. ¶¶ 60, 71.) The City would doubtlessly have been 

2 For ease of reference, the Court refers to page number 46 of 121, as stamped on Exhibit B to 

the Complaint (ECF No. 1-6) by CM/ECF’s electronic page numbering system. 

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better served by expressly identifying the provision in its pleadings (or even 

making the argument that it sufficiently pleaded the provision in its response), 

but the pleadings point directly to the provision at issue nonetheless. 

B. The City’s Declaratory Judgment and Breach of Contract Claims Are 

Not Duplicative 

SNIC’s argument that the City’s declaratory judgment claim may not be 

pleaded alongside a breach of contract claim is without merit. The Court has 

already decided this issue in resolving A&A’s motion to dismiss. (Omn. Order at 

12-13.) Declaratory judgment claims may be pleaded in the alternative, and 

they may be properly pleaded where they seek relied unavailable in a breach of 

contract claim. Fed. R. Civ. P. 8(d)(2); 550 Seabreeze Dev., LLC v. Ill. Union Ins. 

Co., No. 19-24611-Civ, 2020 WL 473610, at *2 (S.D. Fla. Jan. 29, 2020) (Scola, 

J.) (“Declaratory judgment claims may properly coexist with breach of contract 

claims when they provide the plaintiff a form of relief unavailable under the 

breach of contract claim.”). The Court found that the City’s separate claims for 

breach of contract and declaratory judgment were properly pleaded against 

A&A. (Omn. Order at 12-13.) So too here, against SNIC. 

C. The City’s Claims for Indemnification Should be Stayed, Not 

Dismissed 

Finally, as the City observes, Courts routinely stay proceedings as to 

indemnification where claims relating to the duty to defend and the duty to 

indemnify are both asserted. See, e.g., Penn/ Mfrs.’ Ass’n Ins. Co. v. N. Am. 

Auto. Servs., Inc., No. 19-81248-CIV, 2020 WL 6364999, at *2 (S.D. Fla. Mar. 

12, 2020) (Dimitrouleas, J.) (staying all proceedings, including discovery, 

relating to indemnification while underlying lawsuits were ongoing); accord AIX

Specialty Ins. Co. v. Everett, 543 F. Supp. 3d 1321, 1333 (M.D. Fla. 2021), 

aff’d, No. 21-12386, 2022 WL 950936 (11th Cir. Mar. 30, 2022) (same). 

Notably, SNIC does not reply to this argument at all. (See generally Reply.) 

Accordingly, the Court finds that staying all proceedings, including discovery, 

that relate to indemnification (rather than the duty to defend) is the 

appropriate course here. 

4. Conclusion

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

the City’s amended counterclaim. (ECF No. 83.) Further, the Court stays all 

proceedings, including discovery, in this matter relating to indemnification 

until the conclusion of the Underlying Lawsuit. The City is directed to file 

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status reports regarding the status of the Underlying Lawsuit every sixty days, 

with the first report to be filed on July 1, 2023. 

Done and ordered in Miami, Florida, on May 2, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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