1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

JOSE GONZALEZ,

Plaintiff,

v.

THE INDEPENDENT ORDER OF 

FORESTERS,

Defendant.

________________________________/

Case No.: 1:22-cv-23513-BB

RESPONSE IN OPPOSITION TO DEFENDANT’S PARTIAL MOTION TO DISMISS 

COUNT V AND COUNT VI OF PLAINTIFF’S COMPLAINT

COMES NOW, Plaintiff, JOSE GONZALEZ, through undersigned counsel, and files 

his Response to THE INDEPENDENT ORDER OF FORESTERS (hereinafter 

“FORESTERS”) Partial Motion to Dismiss Plaintiff’s Complaint, and states as follows. 

INTRODUCTION AND BRIEF STATEMENT OF THE FACTS

This is an action against Defendant for Breach of Contract, Fraud in the Inducement, 

Unjust Enrichment (pled in the alternative), Fraudulent Misrepresentation and Negligent 

Misrepresentation against Foresters under two life insurance policies with the option to 

accelerate benefits under a chronic illness rider. Defendant seeks to dismiss Count V for 

fraudulent misrepresentation and Count VI for negligent misrepresentation on the basis that 

there was no independent tort aside from the breach of contract and because there was no

reasonable or justifiable reliance based upon oral representations by the Plaintiff.

Plaintiff has clearly alleged a proper cause action for fraudulent misrepresentation and 

negligent misrepresentation because Defendant’s agents made statements the Plaintiff relied 

upon regarding the Life Insurance Policy with the intent that Plaintiff would purchase the 

Case 1:22-cv-23513-BB Document 24 Entered on FLSD Docket 12/27/2022 Page 1 of 11
2

Policies. Multiple statements were made by Defendant’s agents which the Plaintiff relied upon,

and which were acts independent of the Policies at issue. 

STANDARD FOR DISMISSAL UNDER RULE 12(B)(6)

Rule 12(b) (6) of the Federal Rules of Civil Procedure provides that dismissal of a claim is 

appropriate “only if it is clear that no relief could be granted under any set of facts that could be 

proved consistent with the allegations.” Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994). 

On a motion to dismiss, the Court must accept as true all facts alleged and draw all inferences 

therefrom in the light most favorable to the plaintiff. Danley v. Allen, 540 F.3d 1298, 1304 (11th 

Cir. 2008); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir.1994). A very low sufficiency 

threshold is necessary for a complaint, or counterclaim, to survive a motion to dismiss. See Ancata 

v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985). Moreover, a complaint should 

not be dismissed for failure to state a claim upon which relief can be granted “unless it appears 

beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would 

entitle [it] to relief.” M/V Sea Lion v. Reyes, 23 F.3d 345, 347 (11th Cir.1994) (emphasis added). 

However, a plaintiff must do more than merely “label” its claims. See Blumel v. Mylander, 919 F. 

Supp. 423, 425 (M.D.Fla.1996). Dismissal is appropriate only when no construction of the factual 

allegations of a complaint will support the cause of action. See Marshall County Bd. of Educ. v. 

Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993). 

Here, Plaintiff has clearly laid out the facts of his Complaint, and the facts showing that 

the Defendant’s agents misrepresented facts to induce the Plaintiff to buy the First Policy as a life 

insurance and to secure the Second Policy as life insurance and mortgage protection. 

Case 1:22-cv-23513-BB Document 24 Entered on FLSD Docket 12/27/2022 Page 2 of 11
3

ARGUMENT

I. Plaintiff’s Claims for Fraudulent and Negligent Misrepresentation Survive as an 

Independent Tort

Defendant alleges that Plaintiff’s Count V and VI should be dismissed because he did not 

assert an “independent tort” as required by Florida Law, however, the specific facts pled clearly 

establish that there were independent torts committed separate and apart from the breach of 

contract claims. See ¶¶1-32,76-83,87-92, ECF No. 1-1. Thus, because the actions amount to torts 

that are independent from the Breach of Contract claims, Plaintiff’s causes of action for fraudulent 

misrepresentation and negligent misrepresentation survive. See Peebles v. Puig, 223 So.3d 1065, 

1068 (Fla. 3d DCA 2017). To have a breach of contract, there must first be an actual contract. 

Under his claims, the plaintiff alleges that the Defendant and its agents made pre-contract false 

representations that caused the Plaintiff to enter into the contracts. See ¶¶9-13, ECF No. 1-1. “[I]f 

a fraud is perpetrated which induces someone to enter into a contract, there is a cause of action for 

fraud and the remedies attendant to that particular tort are available.” La Pesca Grande Charters, 

Inc. v. Moran, 704 So. 2d 710, 712 (Fla. 5th DCA 1998). If there is no fraud inducing someone to 

enter into contract, but the contract is breached, the cause of action sounds in contract and contract 

remedies are available. Id.

As asserted in the Plaintiff’s Complaint, Counts V and VI, are separate and distinct claims 

from the breach of contract claims. Furthermore, Plaintiff has properly pled his claims, as such, 

Defendant’s Motion to Dismiss should be denied.

A. Count V - Fraudulent Misrepresentation Claim is Properly Pled

The plaintiff has properly pled a cause of action for fraudulent misrepresentation. The 

fraudulent representation here stems from the oral representations made by agents to the Plaintiff. 

There are four elements to establish fraudulent misrepresentation: (1) a false statement concerning 

Case 1:22-cv-23513-BB Document 24 Entered on FLSD Docket 12/27/2022 Page 3 of 11
4

a material fact; (2) the representor’s knowledge that the representation is false; (3) an intention 

that the representation induce another to act on it; and (4) consequent injury by the party acting in 

reliance on the representation. Butler v. Yusem, 44 So.3d 102 (Fla. 2010); Moriber v. Dreiling, 194 

So.3d 369 (Fla. 3d DCA 2016). See also M/I Schottenstein Homes, Inc. v. AzamEyeglasses, 813 

So.2d 91 (Fla. 2002) (holding that the question of whether a cause of action for fraudulent 

misrepresentation exists where the putatively misrepresented information is contained in the public 

record is one of fact that should not be resolved through a motion to dismiss and the use of a brightline rule of preclusion). Moreover, the Florida Supreme Court held that a recipient may rely on the 

truth of a representation, even though its falsity could have been ascertained had he made an 

investigation unless he knows the representation to be false or its falsity is obvious to him. Besset 

v. Basnett, 389 So.2d 998 (Fla. 1980); See also Butler, 44 So. 3d at 105. 

“Fraud is ordinarily inappropriate for summary disposition; only after a full explanation of 

the facts and circumstances can the occurrence of fraud be determined.” Burton v. Linotype Co., 

556 So.2d 1126, 1128 (3d DCA 1998). When fraud occurs in connection with misrepresentations, 

statements, or omissions which cause the complaining party to enter into a transaction, then such 

fraud is fraud in the inducement and survives as an independent tort. D & M Jupiter, Inc. v. 

Friedopfer, 853 So. 2d 485, 487-88 (Fla. 4th DCA 2003)(emphasis added).

In the present case, Plaintiff has clearly and properly alleged each of the elements required 

to sustain a cause of action for fraudulent misrepresentation as an independent tort. Plaintiff 

acquired the First and Second Policies based on Defendant’s insurance agents’ unequivocal oral 

representations to him that he could use the policies as mortgage protection prior to entering into 

the contract. See ¶¶ 10,76-77, ECF No. 1-1. Thereafter, Foresters did not pay out the policy 

proceeds as promised after Plaintiff relied on the representations by Defendant and its agent’s that 

Case 1:22-cv-23513-BB Document 24 Entered on FLSD Docket 12/27/2022 Page 4 of 11
5

the proceeds would be paid in an amount sufficient to pay off his mortgage. See ¶¶ 76-77, ECF 

No. 1-1. After the First Policy was acquired, Plaintiff consulted with the Insurance Company to 

increase the face value of his Policy, an agent assisted him, and expressed him that it was not 

possible to do the requested service, but instead she could help him to acquire a Second Policy that 

would work as a mortgage protection and would pay out up to 90%. See ¶¶ 11-13, ECF No. 1-1.

The plaintiff relied on the truth of the representations, the falsity was not obvious to him, 

and he was not required to investigate this as the agents were experts in the insurance products he 

sought. Besset v. Basnett, 389 So.2d 998 (Fla. 1980); See also Butler, 44 So. 3d at 105. Defendant’s 

agents knew or should have known that the information provided to the Plaintiff to induce him to 

sign the Policies was false and therefore they induced him to buy the Policies based on false 

statements. As a consequence, the Plaintiff relied on the statements of the agents and has been

injured. As such, Defendant’s Motion to Dismiss Count V should be denied. 

B. Count VI – Negligent Misrepresentation is Properly Pled

The Plaintiff has properly pled a cause of action for negligent misrepresentation. A claim 

for negligent misrepresentation requires the Plaintiff to prove the following four elements: (i) the 

defendants committed a false statement of material fact that they believed to be true but was in 

fact false (a misrepresentation); (ii) the defendants should have known the representation was false; 

(iii) the defendants intended to induce the Plaintiff to act on the misrepresentation; and (iv) the 

Plaintiff acted in justifiable reliance on the misrepresentation causing injury to the Plaintiff. See 

Arlington Pebble Creek, LLC v. Campus Edge Condominium Association Inc., 42 Fla. L. Weekly 

D2370a (Fla. 1st DCA 2017). 

Plaintiff alleges that the Defendant and its agents made materially false statements

regarding the payment of proceeds under the chronic illness rider of the life insurance policy and 

Case 1:22-cv-23513-BB Document 24 Entered on FLSD Docket 12/27/2022 Page 5 of 11
6

the calculation of the Accelerated Death Benefit. See ¶¶10,12,13,87,88,90, ECF No. 1-1. The 

Defendant and its agents should have known the representation was false. See ¶¶89,90, ECF No. 

1-1. Knowing the statements were false, they induced the Plaintiff to buy the First and the Second 

Policy and, as a result of the reliance, he was injured. See ¶¶14-15, 91,92, ECF No. 1-1.

In the present case, Plaintiff has clearly and properly alleged each of the elements required 

to sustain a cause of action for negligent misrepresentation as an independent tort because the 

allegations underlying Plaintiff’s claims are prior to existence of the contract. The elements for a 

Negligent Misrepresentation action are met and therefore, the claims do not deal exclusively with 

the performance of the contract. 

Furthermore, Plaintiff was entitled to a full disclosure of all material facts known by the 

Defendant’s agents before he decided to buy the Policies. The agents did not make a full disclosure 

of the facts. Defendant and its agents had access to the Policies and were experts as to the terms 

and conditions the Policy. Had the policy conditions been full disclosed by the Defendant, Plaintiff 

would have never bought the First and the Second Policies. “A fact is material if, but for the 

misrepresentation, the aggrieved party would not have entered into the contract.” See Balaschak 

v. Royal Caribbean Cruises, Ltd., No. 09-21196-CIV, 2010 WL 457137 at *1 (S.D. Fla. Feb 4, 

2010). As such, Defendant’s Motion to Dismiss Count VI should be denied.

II. Plaintiff Clearly Alleged Justifiable and Reasonable Reliance in Counts V 

(Fraudulent Misrepresentation) and Count VI (Negligent Misrepresentation) of 

the Complaint

Defendant avers that Plaintiff’s claims for fraudulent and negligent misrepresentation fail 

because he cannot allege justifiable or reasonable reliance on the oral representations alleged in 

the face of an explicitly contradictory written agreement. The Court must also make all reasonable 

inferences arising out of the allegations in favor of the plaintiff(s). Simon v. Tampa Elec. Co., 202 

Case 1:22-cv-23513-BB Document 24 Entered on FLSD Docket 12/27/2022 Page 6 of 11
7

So.2d 209, 211 (Fla. 2d DCA 1967). The Court may not speculate as to what the true facts may be 

or what facts may ultimately be proven in the trial of the cause. Lopez-Infante v. Union Cent. Life 

Ins. Co., 809 So. 2d 13, 15 (Fla. 3d DCA 2002); Dunnell v. Malone and Hyde, Inc., 425 So. 2d 

646, 648 (Fla. 3d DCA 1983). The Defendant is asking the Court to make evidentiary findings 

regarding whether or not the Plaintiff would be entitled to policy benefits. This is not something

establish case law directs the Court to do at the Motion to Dismiss stage. On a motion to dismiss, 

the Court must accept as true all facts alleged and draw all inferences therefrom in the light most 

favorable to the plaintiff. Allen, 540 F.3d at 1304; Texaco, Inc., 29 F.3d at 1483. As stated 

previously, Plaintiff has clearly alleged a cause of action for fraudulent and negligent 

misrepresentation.

Second, Plaintiff relied on and believed in the agent’s statements and representations because 

they were experts in insurance and had better knowledge than him regarding the policies, the life 

insurance benefit and the accelerated death benefit payment. See ¶¶14,16,20,23,26,78, 

80,87,90,91, ECF No.1-1. The agents induced him to buy the policies to gain commission 

payments, and made false statements that they knew, or should have known, were false because 

they had the access to the documents, the information, and the policies. Plaintiff acted with the 

reasonableness of a lay person that is not in the business of insurance.

Nevertheless, Plaintiff has clearly alleged justifiable and reasonable reliance in his 

Complaint. See ECF No. 1-1. Furthermore, justifiable reliance is not a necessary element for a 

fraudulent misrepresentation claim to proceed. Butler v. Yusem, 44 So.3d 102 (Fla. 2010). As it is 

clearly stated in Butler, justifiable reliance is not a necessary element of fraudulent

misrepresentation. See also, Johnson v. Davis, 480 So.2d 625 (Fla. 1985). 

Case 1:22-cv-23513-BB Document 24 Entered on FLSD Docket 12/27/2022 Page 7 of 11
8

Third, the Supreme Court of Florida has held in numerous cases that a recipient of 

information may rely on the truth of a representation, even though its falsity could have been 

ascertained had he made an investigation, unless he knows the representation to be false or its 

falsity is obvious to him. See Besset v. Basnett, 389 So.2d 998 (Fla. 1980). Here, the Plaintiff relied 

on Defendant’s agents’ statements of facts and believed what they said and acted as a reasonable 

man would have acted in his position. “[A] person is justified in relying on a representation of fact 

although he might have ascertained the falsity of the representation had he made an investigation.” 

See Field v. Mans, 516 U.S. 59, 70 (1995). Justification is a matter of the qualities and 

characteristics of the particular Plaintiff and the circumstances of the particular case. Id. at 70.

As such, Defendant’s arguments should not apply to the circumstances of this case, because 

he relied on trained insurance agents who knew, or should have known, the true terms and 

conditions of the policies they sold and justifiable reliance is not a necessary element of fraudulent 

misrepresentation. Lastly, the allegations of the Plaintiff’s complaint, are sufficient to meet the 

required elements for a cause of action for fraudulent and negligent misrepresentation based on 

the facts of this case.

It is a well-settled principle that in ruling on a motion to dismiss, a federal court must view 

the complaint in the light most favorable to the plaintiff and assume “all the allegations in the 

complaint are true” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S. Ct. 1955, 1964-65, 

167 L. Ed. 2d 929 (2007); Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007); HoffmanPugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002). The sufficiency of the complaint is 

assessed against the legal standard set forth in Federal Rule of Civil Procedure 8 which requires 

“a short and plain statement of the claim showing that the pleader is entitled to relief.” The short 

Case 1:22-cv-23513-BB Document 24 Entered on FLSD Docket 12/27/2022 Page 8 of 11
9

and plain statement “requires more than labels and conclusions.” Twombly, 550 U.S. at 555; Watts, 

495 F.3d at 1295.

Under the Twombly standard, factual allegations in a complaint need not be overly detailed, 

but “must be enough to raise a right to relief above the speculative level. . . on the assumption that 

all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555. 

“The Supreme Court’s formulation of the pleading specificity standard is that ‘stating such a claim 

requires a complaint with enough factual matter (taken as true) to suggest’ the required element.” 

Watts, 495 F.3d at 1295 (quoting Twombly, 550 U.S. at 556). The Plaintiff does not need to 

establish that he/she will prevail on a particular claim. Id. at 1296 (emphasis added). The 

standard “simply calls for enough facts to raise a reasonable expectation that discovery will reveal 

evidence” of a required element. Id. at 1296 (quoting Twombly, 550 U.S. at 556). “It is sufficient 

if the complaint succeeds in ‘identifying facts that are suggestive enough to render [an element] 

plausible.” Id. (quoting Twombly, 550 U.S. at 556). A claim has facial plausibility when a plaintiff 

pleads 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, 129 S. Ct. 1937, 1949, 173 L. 

Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 556). 

Here it is plausible that the Defendant is liable for the misconduct alleged as Plaintiff has 

clearly set forth his claim. He is not required to establish that he will prevail on the fraudulent or 

negligent misrepresentation claim at this juncture. 

CONCLUSION 

WHEREFORE, Plaintiff, respectfully requests that this honorable Court deny Defendant’s Partial

Motion to Dismiss, or in the alternative allow Plaintiff to amend his complaint, and grant such 

other and further relief as it may deem just and proper. 

Case 1:22-cv-23513-BB Document 24 Entered on FLSD Docket 12/27/2022 Page 9 of 11
10

Dated this 27th day of December 2022.

Respectfully submitted, 

Your Insurance Attorney, PLLC

Health and Medicine Law Division

Counsel for Plaintiff

2601 S. Bayshore Drive, 5th Floor

Miami, FL 33133

Ph: (888) 570-5677

Service email: 

health@yourinsuranceattorney.com

Attorney email:

msanti@yourinsuranceattorney.com

xb@yourinsuranceattorney.com

By: /s/ Maria T. Santi

MARIA T. SANTI, ESQ.

 Florida Bar No.: 117564

 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via the 

EC/CMF system via electronic delivery this 27th day of December 2022 to: 

Jeannine C. Jacobson, Esq. 

Florida Bar No.: 58777

MAYNARD, COOPER & GALE, P.C.

9100 S. Dadeland Blvd., Suite 1500

Miami, FL 33156

Tel: 305-735-3752

E-mail: jjacobson@maynardcooper.com

Attorneys for Defendant,

The Independent Order of Foresters 

Thomas J. Butler (pro hac vice)

Destinee C. Small, Esq. 

Florida Bar No.: 1036554

MAYNARD, COOPER & GALE, P.C.

1901 6th Avenue N., Suite 1700

Birmingham, AL 35203

Tel: 205-254-1063

E-mail: tburtler@maynardcooper.com

dsmall@maynardcooper.com

Case 1:22-cv-23513-BB Document 24 Entered on FLSD Docket 12/27/2022 Page 10 of 11
11

Attorneys for Defendant,

The Independent Order of Foresters 

/s/ Maria T. Santi

Case 1:22-cv-23513-BB Document 24 Entered on FLSD Docket 12/27/2022 Page 11 of 11