UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-23705-BLOOM/Otazo-Reyes

AMERICAN NATIONAL INSURANCE COMPANY, 

Plaintiff, 

v. 

ERICA FORTUN, 

 Defendant. 

_________________________________________________/ 

ORDER ON MOTION TO DISMISS

THIS CAUSE is before the Court upon Defendant Erica Fortun’s (“Fortun”) Motion to 

Dismiss or in the Alternative, Motion for a More Definite Statement, ECF No. [15] (“Motion”), 

filed on January 17, 2023. Plaintiff American National Insurance Company (“ANICO”) filed a 

Response in Opposition, ECF No. [17], to which Fortun filed a Reply, ECF No. [18]. The Court 

has carefully reviewed the Motion, the Response, the Reply, the record in this case, the applicable 

law, and is otherwise fully advised. For the reasons set forth below, the Motion is denied. 

I. BACKGROUND

On November 11, 2022, ANICO initiated this action against Fortun, asserting a single 

claim under the Declaratory Judgment Act, 28 U.S.C. § 2201. ECF No. [1]. ANICO seeks a 

declaration that ANICO is entitled to rescind the life insurance policy of Jose Herrera (“Herrera”) 

pursuant to Florida Statute 627.409(1). See id. ¶ 26.

In the Complaint, ANICO alleges that, in June 2021, Herrera applied for and was issued 

an ANICO life insurance policy (“Policy”) in the amount of $999,999.00. Id. ¶ 7. Defendant Fortun 

was designated as the Policy’s beneficiary. Id. ¶ 7. Following Herrera’s death on February 19, 

Case 1:22-cv-23705-BB Document 28 Entered on FLSD Docket 03/10/2023 Page 1 of 7
Case No. 22-cv-23705-BLOOM/Otazo-Reyes

2

2022, Fortun made a claim for the Policy’s benefit. Id. ¶ 10. ANICO asserts that the Policy is 

subject to rescission because Herrera’s Application for Individual Life Insurance (“Application”) 

contained three material misrepresentations. See id. at 3-5.

First, when asked whether Herrera had “EVER used tobacco,” Herrera answered “No,” 

when in fact Herrera was a tobacco user. Id. ¶¶ 14-15. Second, when asked whether he had ever 

been “diagnosed, received treatment for, or been advised by a licensed member of the medical 

profession to seek treatment regarding . . . disease or disorder of the . . . liver,” Herrera answered 

“No,” when in fact Herrera’s doctor recorded a diagnosis of “Liver Function tests Abnormal . . 

Active . . . Chronic.” Id. ¶¶ 17-18. Third, when asked whether Herrera had “any consultation, 

testing . . . scheduled or recommended by a licensed member of the medical profession that has 

not yet been completed,” Herrera answered “No,” when in fact his treating physician had advised 

him to undergo an abdominal ultrasound. Id. ¶¶ 19-20.

ANICO alleges that Herrera “had actual knowledge of the information he misrepresented 

and omitted,” and ANICO relied on Herrera’s statements when issuing him the life insurance 

policy of $999,999. Id. ¶¶ 21-22. ANICO alleges Herrera’s misrepresentations were material, and 

that, if Herrera had responded truthfully, ANICO would not have issued the Policy. Id. ¶¶ 23-25.

In her Motion, Fortun argues that ANICO’s Complaint is deficient for failing to allege that 

Herrera intentionally made false statements in his Application. ECF No. [15] at 10. Fortun further 

contends that dismissal is required because statements within an exhibit attached to ANICO’s 

Complaint contradict allegations within the Complaint. Id. at 4-5. In the alternative, Fortun 

requests an Order for ANICO to provide a more definite statement of its claim. Id. at 12. 

ANICO responds that Fortun sufficiently alleged all elements of rescission, and Fortun’s 

arguments are more appropriately addressed at the summary judgment stage. ECF No. [17] at 5.

Case 1:22-cv-23705-BB Document 28 Entered on FLSD Docket 03/10/2023 Page 2 of 7
Case No. 22-cv-23705-BLOOM/Otazo-Reyes

3

ANICO contests Fortun’s assertion that statements within its exhibit contradict allegations within 

its Complaint. Id. at 10. Lastly, ANICO argues that there is no need for a more definite statement. 

Id. at 12.

In Reply, Fortun contends that ANICO attempted to “improperly inject unpled theories into 

this action via its Response,” ECF No. [18] at 1, and ANICO did not attach its underwriting 

guidelines to its Complaint. Id. at 4. 

II. LEGAL STANDARD

A pleading in a civil action must contain “a short and plain statement of the claim showing 

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need 

detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s 

pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me 

accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual 

enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). 

“To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 

570). When a defendant moves to dismiss for failure to state a claim upon which relief can be 

granted under Rule 12(b)(6), the court must accept the plaintiff’s allegations as true and evaluate 

all possible inferences derived from those facts in favor of the plaintiff. See American Marine 

Tech, Inc. v. World Group Yachting, Inc., 418 F. Supp. 3d 1075, 1079 (S.D. Fla. 2019).

Case 1:22-cv-23705-BB Document 28 Entered on FLSD Docket 03/10/2023 Page 3 of 7
Case No. 22-cv-23705-BLOOM/Otazo-Reyes

4

III. DISCUSSION

Fortun’s primary argument is that ANICO’s Complaint is deficient for not alleging that 

Herrera intentionally made false statements in his ANICO Life Insurance Application. ECF No. 

[15] at 10. The Court agrees with ANICO that the Complaint’s allegations are sufficient and the 

majority of Fortun’s arguments are factual issues to be resolved at the summary judgment stage.

See generally ECF No. [17].

An insurer may rescind its policy when a “misrepresentation, omission, concealment, or 

statement” in an application “is material to the acceptance of the risk or to the hazard assumed by 

the insurer.” Fla. Stat. § 627.409(1)(a). Alternatively, an insurer may rescind when, “the insurer in 

good faith would not have issued the policy or contract, [or] would not have issued it at the same 

premium rate” had “the true facts” been known to the insurer pursuant to a policy requirement. Id.

at (1)(b).

“An insurer seeking to rescind a policy bears the burden to plead and prove the 

misrepresentation, its materiality, and the insurer's detrimental reliance.” Northfield Ins. Co. v. 

Ayyad Bros Enters., LLC, No. 2:19-cv-482, 2020 WL 1308195, at *4 (M.D. Fla. Mar. 19, 2020) 

(citing Griffin v. Am. Gen. Life & Accident Ins. Co., 752 So. 2d 621, 623 (Fla. 2d DCA 1999)).

Here, Fortun appears to contest that misrepresentations occurred and additionally challenges the 

materiality of the alleged misrepresentations. Neither of these arguments are appropriate at the 

Motion to Dismiss Stage. See Casadona v. Trustees of I.B.E.W. Local 490 Pension Plan, 19-cv80051, 2019 WL 13235432, at *1 (S.D. Fla. Aug. 22, 2019) (“At this point in the litigation, . . . 

Plaintiff has alleged facts sufficient to satisfy Rule 8(a).”).

ANICO’s Complaint alleges three material misrepresentations that ANICO relied upon in 

issuing the Policy to Herrera. To the extent Fortun is arguing that ANICO must additionally allege 

Case 1:22-cv-23705-BB Document 28 Entered on FLSD Docket 03/10/2023 Page 4 of 7
Case No. 22-cv-23705-BLOOM/Otazo-Reyes

5

that Herrera did not believe his statements to be untrue, ECF No. [15] at 11, Fortun is incorrect. 

Miguel v. Metro. Life Ins. Co., 200 F. App’x 961, 966-67 (11th Cir. 2006). It is sufficient that the 

Complaint alleges that Herrera “had actual knowledge of the information he misrepresented and 

omitted[.]” ECF No. [1] ¶ 21. See Miguel, 200 F. App’x at 966 (“What the applicant in fact 

believed to be true is the determining factor in judging the truth or falsity of his answer, but only 

so far ast hat belief is not clearly contradicted by the factual knowledge on which it is based.” 

(quoting Hauser v. Life Gen. Sec. Ins. Co., 56 F.3d 1330, 1334 (11th Cir.1995) (alteration added 

in Miguel).

Fortun additionally argues that statements within an exhibit to the Complaint contradict 

allegations within the Complaint, so the Court should not accept the Complaint’s allegations as 

true. ECF No. [15] at 8 (citing Ellen S. v. Fla. Bd. of Bar Examiners, 859 F. Supp. 1489, 1492 

(S.D. Fla. 1994)). The exhibit in question is a letter from ANICO to Fortun, explaining why 

ANICO was rescinding Herrera’s Policy. ECF No. [1-3]. Having carefully reviewed that letter in 

light of Fortun’s arguments, the Court finds no contradictions between the letter and the 

Complaint. The fact that the Complaint contains more statements than the letter regarding the 

condition of Herrera’s liver does not render the two documents contradictory. See ECF No. [15] 

at 5. Fortun’s arguments boil down to the contention that Herrera did not “intentionally and 

materially misrepresent[ ] his medical history.” ECF No. [15] at 6 (emphasis removed). Those are 

factual issues that are not to be resolved at this stage of the case. 

Turning to Fortun’s alternative Motion for a More Definite statement, “[s]uch a motion 

should be granted only when the pleading to which the motion is directed is so vague or ambiguous 

that the party cannot reasonably be expected to respond.” Coach, Inc. v. Swap Shop, Inc., 916 F. 

Supp. 2d 1271, 1283 (S.D. Fla. 2012) (quoting Joseph v. Nuno, Inc. II, 2008 WL 2726918, *2 

Case 1:22-cv-23705-BB Document 28 Entered on FLSD Docket 03/10/2023 Page 5 of 7
Case No. 22-cv-23705-BLOOM/Otazo-Reyes

6

(S.D. Fla. July 10, 2008)). Fortun has not shown that ANICO’s Complaint is vague or ambiguous. 

The Complaint clearly sets forth three alleged material misrepresentations within Herrera’s 

Application. As Fortun has demonstrated with the factual arguments within her Motion, the 

Complaint sufficiently puts Fortun on notice of ANICO’s claim so that Fortun can formulate a 

response. 

Concluding with the two arguments within Fortun’s Reply, Fortun “objects to ANICO’s 

subtle attempt to improperly inject unpled theories into this action via its Response.” ECF No. [18] 

at 1. Fortun takes issue with the following statement within ANICO’s Response: “ANICO alleges 

that Herrera made at least three material misrepresentations in the Application.” ECF No. [17] at 

7 (emphasis added). Fortun correctly points out that ANICO’s Complaint does not allude to any 

additional misrepresentations beyond the three discussed above. ECF No. [18] at 2. However, the 

appropriate remedy is not to dismiss ANICO’s Complaint, as Fortun requests, ECF No. [18] at 2, 

but rather to ignore ANICO’s statement in its brief to the extent it suggests that other 

misrepresentations occurred.

Lastly, Fortun complains that ANICO “has not attached to its Complaint its underwriting 

guidelines[.]” ECF No. [18] at 4. While Fortun cites convincing authority for the proposition that 

ANICO will have to disclose at least some of its underwriting guidelines over the course of this 

case, ECF No. [18] at 4-5, Fortun has cited no authority for the dubious proposition that those 

underwriting guidelines must be attached to ANICO’s Complaint. The Court finds that the 

Complaint is not deficient for lacking those documents.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Fortun’s Motion, ECF No. [15], 

is DENIED. Fortun shall file an Answer to ANICO’s Complaint no later than March 21, 2023. 

Case 1:22-cv-23705-BB Document 28 Entered on FLSD Docket 03/10/2023 Page 6 of 7
Case No. 22-cv-23705-BLOOM/Otazo-Reyes

7

DONE AND ORDERED in Chambers at Miami, Florida, on March 9, 2023.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Case 1:22-cv-23705-BB Document 28 Entered on FLSD Docket 03/10/2023 Page 7 of 7