IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JAMES BIRDSONG and

KATHY BIRDSONG,

Plaintiffs,

vs. CASE NO. 5:10-cv-196/RS-MD

THOMAS EHLKE and OCEAN

TERRACE CONDOMINIUM ASS’N,

INC., of PANAMA CITY,

Defendants.

_________________________________________/

THOMAS EHLKE, 

Third-Party Plaintiff,

vs. 

PEOPLES FIRST INSURANCE SVS, LLC,

Third-Party Defendant. 

_________________________________________/

ORDER

Before me is People’s First Insurance Services LLC’s Motion to Dismiss Counts 

III, IV, and V of Third Party Complaint (Doc. 34), and Thomas Ehlke’s Response in 

Opposition (Doc. 39). 
I. Standard of Review

To survive a motion to dismiss, a complaint must contain sufficient facts, which 

accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 127 S. Ct. 

1955, 1974 (2007). Granting a motion to dismiss is appropriate if it is clear that no relief 

could be granted under any set of facts that could be proven consistent with the 

allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 

2229, 2232 (1984). In making this determination, the court must accept all factual 

allegations in the complaint as true and in the light most favorable to Plaintiff. 

Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 2182 (2003).

II. Background

Mr. Ehlke is the owner of real property in Panama City Beach, Florida, that is the 

subject of the underlying personal injury lawsuit. Mr. Ehlke alleges that Peoples First 

Insurance Services, LLC (“Peoples First”) offered and issued liability insurance to cover 

the subject property through a third party insurance carrier. Mr. Ehlke contends that 

before the accident giving rise to the liability occurred, Peoples First canceled the liability 

insurance without his consent or knowledge, and that it was only after contacting Peoples 

First about the incident that he learned of the lapse in coverage. Mr. Ehlke asserts that 

representatives from Peoples First informed him that the cancelation of the policy was 

Peoples First’s mistake, and that Peoples First would nevertheless defend and indemnify 

Mr. Ehlke. (Doc. 27, p. 3). 
These purported facts are the basis for Mr. Ehlke’s five-count Third Party 

Complaint (Doc. 27) against Peoples First. In this Motion to Dismiss, Peoples First does 

not take issue with the first two counts -- the negligence or breach of fiduciary duty 

claims. Peoples First does contest the last three counts -- those based on promissory 

estoppel, fraud, and negligent misrepresentation. 

III. Analysis

A. Fraud - Count IV

The prima facie case for fraud requires (1) a false statement concerning a material 

fact; (2) knowledge by the person making the statement that the representation is false; 

(3) the intent by the person making the statement that the representation will induce 

another to act on it; and (4) detrimental reliance. Lance v. Wade, 457 So. 2d 1008, 1011 

(Fla. 1984). In addition, when alleging fraud, “a party must state with particularity the 

circumstances constituting fraud.” Fed. R. Civ. P. 9(b). To comply with Rule 9(b), a 

complaint must set forth: (1) precisely what statements were made in what documents or 

oral representations or what omissions were made; (2) the time and place of each such 

statement and the person responsible for making them; (3) the content of such statements 

and the manner in which they misled the plaintiff; and (4) what the defendants obtained 

as a consequence of the fraud. Thomas v. Pentagon Fed. Credit Union, 2010 U.S. App. 

LEXIS 17301, 5-6 (11th Cir. 2010) (unpublished). 

In his third-party complaint, Mr. Ehlke bases his fraud allegation on Peoples 

First’s promise to defend and indemnify that occurred after the accident (Doc. 27, para. 
51). Mr. Ehlke has sufficiently alleged that Peoples First, though its agents Cecelia 

McMahon and Warren Middlemas, knowingly made a false statement of material fact 

that he relied upon to his detriment. However, Mr. Ehlke has not alleged or sufficiently 

set forth details concerning what action Peoples First’s misrepresentation was intended to 

induce or what Peoples First obtained as a consequence of the fraud. As such, Mr. Ehlke 

has not met the heightened pleading standards of Rule 9(b), which is a ground for 

dismissal. Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005). 

B. Negligent Misrepresentation - Count V

To establish negligent misrepresentation, a plaintiff must establish (1) 

misrepresentation of a material fact; (2) the representor knew of the misrepresentation, 

made the representation without knowledge as to its truth or falsity, or made the 

representation under circumstances in which he ought to have known of its falsity; (3) the 

representor intended that the representation induce another to act on it; and (4) injury

resulting to the party acting in justifiable reliance. Rocky Creek Ret. Props. v. Estate of 

Fox, 19 So. 3d 1105, 1110 (Fla. Dist. Ct. App. 2d Dist. 2009). 

Here, even under normal pleading standards, Mr. Ehlke failed to address the 

intentional inducement prong. Mr. Ehlke has not alleged that Peoples First intended to 

cause Mr. Ehlke to act in some fashion, nor does Mr. Ehlke address what action the 

misrepresentation was designed to induce. Even in the light most favorable to Mr. Ehlke, 

the negligent misrepresentation claim is, therefore, not plausible. Ashcroft v. Iqbal, 129 

S. Ct. at 1949. 
C. Promissory Estoppel – Count III

Mr. Ehlke has sufficiently set forth allegations that make his theory under promissory 

estoppel plausible. 

IT IS ORDERED: 

1. Peoples First’s Motion to Dismiss (Doc. 34) is GRANTED as to Counts IV and 

V, and DENIED as to Count III.

2. Count IV is dismissed without prejudice.

3. Count V is dismissed without prejudice.

ORDERED on December 13, 2010

 /S/ Richard Smoak

 RICHARD SMOAK

 UNITED STATES DISTRICT JUDGE