United States District Court 

for the 

Southern District of Florida 

Joan Riley and Linda Scott, 

individually and on behalf of all 

others, similarly situated, Plaintiffs, 

v. 

Heritage Property & Casualty 

Insurance Company, Defendant. 

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Civil Action No. 22-22893-Civ-Scola 

Order Granting Motion to Dismiss 

 Plaintiffs Joan Riley and Linda Scott, each purchasers of residential 

property insurance policies from Defendant Heritage Property & Casualty 

Insurance Company, seek to recover interest they say they are owed on claims 

that they acknowledge were otherwise fully paid by Heritage. (Compl., ECF No. 

1.) In response, Heritage has filed a motion to dismiss (Def.’s Mot. to Dismiss, 

ECF No. 15), submitting, among other things, that the Plaintiffs’ claims are 

barred because they are based solely on Florida Statute section 

627.70131(5)(a).1 Fla. Stat. § 627.70131(5)(a) (“failure to comply with this 

subsection does not form the sole basis for a private cause of action”). The 

Plaintiffs, in opposing the motion, argue that their claims are for breach of 

contract, not for a statutory violation, and, therefore, section (5)(a)’s prohibition 

on private causes of action is inapplicable. (Pls.’ Resp., ECF No. 21.) Heritage has 

timely replied, and the motion is ripe for review. Having considered the parties’ 

briefing, the record, and the relevant legal authorities, the Court, for the 

following reasons, grants Heritage’s motion (ECF No. 15) and dismisses this 

case.2

1 The relevant language now appears in section 627.70131(7)(a), after the section was amended, 

effective January 1, 2022. The pre-amendment version of the provision contained the language in 

section (5)(a), as opposed to (7)(a), and it is that version that is applicable to the facts of this 

case. Regardless, the language pertinent to this case, regarding the preclusion of a private right 

of action, is identical in the two versions.

2 The Court also denies the Plaintiffs’ motion requesting oral argument. (ECF No. 30.) The 

request is both procedurally and substantively deficient under Local Rule 7.1(b)(2). The Plaintiffs 

did not make their request “within the motion or opposing memorandum in a separate section 

titled ‘request for hearing’” nor did they “set forth in detail the reasons why a hearing is desired

and would be helpful to the Court.” L.R. 7.1(b)(2).

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1. Background3

Riley and Scott both purchased residential property insurance from 

Heritage for their respective homes. After both their homes were damaged by 

Hurricane Irma, in 2017, they both sought coverage from Heritage under their 

policies. When the Plaintiffs and Heritage were unable to agree on the value of 

the losses for each home, the parties submitted their claims to an appraisal 

panel, as provided for under the corresponding policies. Although Heritage 

ultimately paid the amounts awarded by the panels, the Plaintiffs say Heritage’s 

delay in issuing payment triggered an obligation to pay interest on the award 

amount. Heritage has failed to pay the Plaintiffs any of the interest the Plaintiffs 

say is due. 

Based on this nonpayment of interest, the Plaintiffs have sued Heritage for 

breach of contract, contending they are entitled to the interest under their 

policies. According to the Plaintiffs, this entitlement is based on the policies’ 

loss-payment provisions combined with what they describe as the policies’ 

implicit incorporation of a Florida statutory provision that imposes interest on 

certain untimely insurance payments. 

2. Legal Standard 

A court considering a motion to dismiss, filed under Rule 12(b)(6), must 

accept all the complaint’s allegations as true, construing them in the light 

most favorable to the plaintiff. 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. Iqubal, 556 U.S. 662, 679 

(2009) (quoting Fed. R. Civ. P. 8(a)(2)) (internal punctuation omitted). 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. 

3. Analysis 

Although neither policy at issue in this case contains an explicit provision 

triggering the insurer’s obligation to pay interest on late payments, such interest, 

3 The Court accepts the complaint’s factual allegations, as set forth below, as true for the 

purposes of evaluating the motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 

F.3d 1364, 1369 (11th Cir. 1997).

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in specified circumstances, is required under Florida statutory law. Under 

Florida Statute section 627.70131(5)(a), an insurer must pay its insured interest 

on certain late payments, accruing as of the date the insurer receives notice of 

the claim. Fla. Stat. § 627.70131(5)(a) (“Any payment of a . . . claim . . . made 

more than 15 days after there are no longer factors beyond the control of the 

insurer which reasonably prevented such payment . . . bears interest at the rate 

set forth in s. 55.03. Interest begins to accrue from the date the insurer receives 

notice of the claim.”). Within this same provision, however, litigants are expressly 

barred from lodging a private cause of action that is based solely on an insurer’s 

“failure to comply with this subsection.” Id. Another Florida Statute section 

requires that an insurance policy “be construed and applied in accordance with” 

Florida’s insurance code. Fla. Stat. § 627.418(1). Based on this provision, the 

Plaintiffs maintain that the interest-triggering part of § 5(a) is incorporated into 

their Heritage policies. But, they say, because they are suing under a breach-ofcontract theory, rather than for a violation of the statute itself, the private-action 

bar is inapplicable. The Court finds the Plaintiffs’ attempt to dodge the privatecause-of-action bar unavailing.

As an initial matter, the requirement that Florida insurance policies that 

contain provisions “not in compliance with the requirements of this code” be 

“construed and applied” as if they are in full compliance with the insurance 

code, does not mean the interest-triggering provision of section 5(a) is 

incorporated, by implication or otherwise, into the policies. First, the Plaintiffs 

fail to point out any aspect of their Heritage policies that are actually in conflict

with Florida’s insurance code. Nor have they identified anything in the policies 

that acts to “waive[], void[], or nullif[y]” any of the provisions of section (5)(a). 

Instead, the Plaintiffs complain that a policy provision barring private causes of 

action based on untimely payments “improperly alters the statute’s language 

prohibiting the statute from ‘forming the sole basis for a private cause of action’”

(Pls.’ Compl. ¶ 11 (emphasis in original) (quoting section 5(a)).) The Court 

disagrees. The Plaintiffs fail to connect the policy provision barring private 

causes of action for late payments to the statutory provision barring private 

causes of action for an insurer’s failure to pay interest. Further, even if this 

policy provision was in conflict with Florida’s insurance code, it would simply be

construed as if it wasn’t. The Plaintiffs provide no support, and the Court is 

aware of none, for their contention that a conflict between the policy’s clause 

barring causes of action for late payments, on the one hand, and the insurance 

code, on the other, results in the importation of the interest-payment 

requirement into the parties’ policies. Accordingly, the Court agrees with 

Heritage that neither policy provides for interest on claims payments, even if 

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untimely. This alone is enough to dismiss the Plaintiffs’ case, sounding only in 

breach of contract.

Additionally, however, even if the Court did find that the payment-ofinterest requirement in Florida’s insurance code was implicitly incorporated into 

the policies here, the Plaintiffs’ position is still meritless. First, as the Plaintiffs

themselves acknowledge, meaning must be afforded “to all relevant provisions of 

§ (5)(a).” (Pls.’ Resp. at 5.) It would thus be illogical for the interest-payment 

requirement of section (5)(a) to be imported into the policy, by operation of

section 627.418(1), without also incorporating section (5)(a)’s private-cause-ofaction bar. It would be similarly nonsensical to, on the one hand, bar a private 

cause of action based solely on a failure to comply with the terms of section 

(5)(a)—which the Plaintiffs concede would be appropriate—while, on the other, 

allowing a private cause of action to proceed that is also based on a failure to 

comply with those very same terms, just because those terms are deemed 

incorporated into a policy.

In a similar vein, the Plaintiffs maintain that since they have at least 

framed their lawsuit as sounding in breach of contract, Heritage’s failure to pay 

interest is not technically the “sole basis” for their action. This argument too

misses the mark. Based on the plain language of the subsection, the Plaintiffs 

cannot pursue a cause of action based only on a violation of section (5)(a). 

“Black’s Law Dictionary defines a cause of action as ‘the fact or facts which give 

a person a right to judicial redress or relief against another.’” QBE Ins. Corp. v. 

Dome Condo. Ass’n, Inc., 577 F. Supp. 2d 1256, 1261–62 (S.D. Fla. 2008) (Seitz, 

J.) (quoting Black’s Law Dictionary 221 (6th ed. 1990)). And the only facts the 

Plaintiffs plead as forming the basis of their “right to redress are the facts that 

would establish a violation of section [(5)(a)].” Id. Accordingly, the Plaintiffs’ claim 

is barred because their cause of action is based solely on Heritage’s alleged 

failure to comply with section (5)(a)’s interest-payment requirement. 

Lastly, the Plaintiffs’ policy-oriented argument, that precluding private 

causes of action seeking interest under section (5)(a) would “improperly render 

[the statute] meaningless” (Pls.’ Resp. at 7), is also unavailing. The Plaintiffs have 

not pointed to a single authority supporting their theory that the legislature did 

not mean exactly what it said: private causes of action solely seeking to enforce 

(5)(a)’s interest provision are barred. Furthermore, the Court agrees with other 

courts in this district that have concluded that, even without a private cause of 

action, section (5)(a) can serve to “bind the insurer to its provisions in response 

to a Department of Insurance review or a bad faith claim.” Buckley Towers 

Condo., Inc. v. QBE Ins. Corp., 07-22988-CIV, 2008 WL 2490450, at *11 (S.D. 

Fla. June 18, 2008) (Torres, Mag. J.) (“[T]he legislature did not intend to create 

any private cause of action against the insurer that is based merely upon a 

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violation of the statute.”), report and recommendation adopted, 07-22988-CIV, 

2008 WL 2856457 (S.D. Fla. July 24, 2008) (Moreno, J.); see also Berkower v. 

USAA Cas. Ins. Co., 15-23947-CIV, 2016 WL 4574919, at *4 (S.D. Fla. Sept. 1, 

2016) (Goodman, Mag. J.). The Court finds no basis for reaching a contrary 

conclusion: giving effect to the plain meaning of the statute does not render it 

meaningless. 

4. Conclusion 

For the reasons set forth above, the Court grants Heritage’s motion (ECF 

No. 15) and dismisses the Plaintiffs’ case, with prejudice, based on their failure 

to state a claim.4 The Court’s dismissal of the Plaintiffs’ complaint is without 

leave to amend. The Plaintiffs have not requested leave to amend; nor have they 

indicated any inclination to do so. See Wagner v. Daewoo Heavy Industries Am. 

Corp., 314 F.3d 541, 542 (11th Cir. 2002) (“A district court is not required to 

grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who 

is represented by counsel, never filed a motion to amend nor requested leave to 

amend before the district court.”); Avena v. Imperial Salon & Spa, Inc., 740 F. 

App’x 679, 683 (11th Cir. 2018) (“[W]e’ve rejected the idea that a party can await 

a ruling on a motion to dismiss before filing a motion for leave to amend.”); 

compare with Carter v. HSBC Mortg. Services, Inc., 622 F. App’x 783, 786 (11th 

Cir. 2015) (“A pro se plaintiff, however, must be given at least one chance to 

amend the complaint before the district court dismisses the action with 

prejudice, at least where a more carefully drafted complaint might state a 

claim.”) (cleaned up) (emphasis in original). 

Finally, the Clerk is directed to close this case. Any pending motions are 

denied as moot. 

Done and ordered in Miami, Florida, on April 18, 2023. 

 ________________________________ 

 Robert N. Scola, Jr. 

 United States District Judge 

4 Because the Court dismisses this case for the reasons set forth above, it declines to address

Heritage’s other argument, that the Plaintiffs have failed to sufficiently allege a triggering event 

implicating their entitlement to interest. 

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