BARRY

v.

QBE SPECIALTY INSURANCE COMPANY

Defendant. /

OPINION AND ORDER1

Plaintiffs, Greg Barry and Michelle Serruya, have sued QBE Specialty Insurance Company (“QBE”) for breach of their insurance contract after Hurricane Ian allegedly damaged their covered property (Count One); they also seek declaratory relief (Count Two). (Doc. 3). QBE seeks dismissal of Count Two (Doc. 17), and Plaintiffs oppose dismissal. (Doc. 21). For the following reasons, the Court denies the motion. Plaintiffs are property owners in Lee County, Florida, who obtained a property insurance policy (“Policy”) from QBE.2 Hurricane Ian allegedly

Plaintiffs allege QBE failed to acknowledge coverage for their loss, to acknowledge that it will pay for that loss, and to issue payment for the loss. Count One alleges breach of contract, and Count Two seeks a declaratory judgment of Plaintiffs’ rights under the Policy.³

A complaint must recite “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This pleading standard “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “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). A facially plausible claim allows a “court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Hurricane Ian, but QBE has refused. The existence of Policy coverage is a live and unresolved issue, and the parties’ disagreement is not hypothetical. Because the parties dispute whether the Policy covers Plaintiffs’ property damage, Count Two survives dismissal. See Massey Constr. Grp., Inc. v. Hartford Ins. Co. of the Midwest, No. 2:19-CV-708-SPC-NPM, 2019 WL 5863897, at *2 (M.D. Fla. Nov. 8, 2019). QBE’s duplicity argument fares no better. This argument is often raised in this context, and (for several reasons) it is consistently rejected by this

Court. E.g., 500 La Peninsula Condo. Ass’n, Inc. v. Landmark Am. Ins. Co., No. 2:20-CV-767-FtM-38NPM, 2020 WL 6273699, at *1 (M.D. Fla. Oct. 26, 2020). First, a court’s decision whether to hear a declaratory judgment claim is discretionary; second, a motion to dismiss tests the plausibility of a claim but not redundancy; and third, the federal Declaratory Judgment Act and Federal Rule of Civil Procedure 57 allow a party to seek a declaratory judgment even if there is another adequate remedy. Jiro Beachwear Inc. v. Foremost Ins. Co., No. 6:20-CV-425-ORL-22-DCI, 2020 WL 5983830, at *8 (M.D. Fla. Apr. 8, 2020) (citations omitted). And, as in Tiro, defending both claims will not burden QBE because, if the declaratory judgment claim duplicates the breach of contract claim, there will be no additional discovery to conduct. See id., at *8. The Court rejects QBE’s duplicity argument. Plaintiffs have plausibly alleged a declaratory judgment claim. And whether that claim 1s subsumed by the breach of contract claim can better be resolved at summary judgment. The Court thus denies QBE’s motion to dismiss Count Two. Accordingly, it is now ORDERED: QBE’s MOTION to Dismiss Count IT (Doc. 17) is DENIED. DONE and ORDERED in Fort Myers, Florida on June 18, 2023.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record