Musashi AZ, LLC v. MarineMax East, Inc.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO: 1:24-CV-24250-GAYLES/SHAW-WILDER
MUSASHI AZ, LLC,
Plaintiff,
v.
MARINEMAX EAST, INC.,
FORTUN INSURANCE, LLC, and
AZIMUT BENETTI SERVICE USA, INC.,
Defendants.
/
REPORT AND RECOMMENDATION ON DEFENDANT
FORTUN INSURANCE, LLC’S MOTION TO DISMISS
THIS CAUSE is before the Court on the Motion to Dismiss Plaintiff’s Second Amended
Complaint and Demand for Jury Trial (“Motion”) filed by Defendant Fortun Insurance, LLC
(“Fortun”). [ECF No. 65].1 Plaintiff Musashi AZ, LLC (“Plaintiff”) opposed Fortun’s Motion
[ECF No. 69], and Fortun filed a Reply [ECF No. 71]. Upon careful consideration of Fortun’s
Motion, Plaintiff’s Response, Fortun’s Reply, and a review of the record, the undersigned
respectfully recommends that Fortun’s Motion be DENIED, as set forth below.
1 This case was referred to the undersigned by the Honorable Darrin P. Gayles, United States
District Judge, for ruling on all pretrial non-dispositive matters and a report and recommendation
on all dispositive matters. [ECF No. 20].
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I. BACKGROUND2
This action stems from a fire aboard Plaintiff’s 47-foot Azimut Verve yacht (“Vessel”)
while at Defendant MarineMax’s facility, which resulted in a total loss of the Vessel. [ECF No.
58]. Plaintiff is a Florida limited liability company whose sole asset is the Vessel. [Id. ¶ 11].
Plaintiff purchased the Vessel from MarineMax, an Azimut dealer, for $1,575,000. [Id.]. Less than
two years later, while the Vessel was undergoing warranty repairs at MarineMax’s facility, the
Vessel caught fire and was destroyed. [Id. ¶ 13].
Defendant Fortun acted as Plaintiff’s insurance broker in procuring insurance coverage for
the Vessel. [Id. ¶ 151]. In connection with preparing the insurance application, Fortun asked
Plaintiff’s yacht broker for the Vessel’s value. The yacht broker provided a value that exceeded
the Vessel’s actual purchase price. [Id. ¶¶ 156–157]. Fortun then completed the insurance
application on Plaintiff’s behalf, using the value provided by the yacht broker rather than the actual
purchase price. [Id.]. Fortun later sent the completed application to Plaintiff, who signed it. [Id. ¶
157]. After the Vessel’s fire, Plaintiff submitted an insurance claim, but the insurer denied
coverage because the application misstated the Vessel’s purchase price. [Id. ¶¶ 158–159].
In Count IV of its Second Amended Complaint, Plaintiff asserts a claim against Fortun for
negligent procurement (“Count IV”). [ECF No. 58 ¶¶ 118–136]. 	Fortun now moves to dismiss
Count IV. [ECF No. 65]. Fortun contends that Plaintiff fails to state a plausible negligent
procurement of insurance claim. [Id. at 5-11]. Fortun further argues that Plaintiff cannot assert
such claim based on Fortun’s failure to obtain insurance, because a policy was issued for the Vessel
2 As the Court proceeds on a motion to dismiss, it accepts the allegations in Plaintiff’s Second
Amended Complaint [ECF No. 58] as true. See Brooks v. Blue Cross & Blue Shield of Fla. Inc.,
116 F.3d 1364, 1369 (11th Cir. 1997) (per curiam).
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and later renewed, despite the alleged inaccuracies that Plaintiff expressly approved and signed.3
[Id.]. Finally, Fortun further contends Plaintiff’s claim is barred by the admiralty doctrine of
uberrimae fidei. [Id. at 7-11].
In its Response, Plaintiff argues the Second Amended Complaint plausibly asserts a
negligent procurement claim against Fortun, as Plaintiff asserts that Fortun undertook to complete
Vessel’s insurance application, negligently filled it out, and transmitted it to Plaintiff for execution.
[ECF No. 69 at 5-6]. Plaintiff further alleges it signed the application in reliance on Fortun’s
competence and accuracy and suffered damages when coverage for Vessel’s loss was denied. [Id.].
Plaintiff also argues that the admiralty doctrine of uberrimae fidei is inapplicable here because the
doctrine governs the relationship between an insured and the insurer, rather than the duties an
insurance agent owes its client. [Id. at 8]. Finally, Plaintiff asserts that no “special relationship” is
required for Fortun to owe Plaintiff a duty of reasonable care once it undertook responsibility for
preparing the insurance application. [Id. at 10-12].
II. LEGAL STANDARD
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must
accept a plaintiff's allegations as true and construe them in the light most favorable to the plaintiff.
See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although Rule 8(a)(2) requires
only “a short and plain statement of the claim showing that the pleader is entitled to relief,” a mere
“formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). Instead, “a complaint must contain sufficient factual matter, accepted
3 In support, Fortun requests that the Court take judicial notice of the subject insurance application
and renewal signed by Plaintiff, contained in a filing from a related action, Musashi AZ LLC v.
Accelerant Specialty Insurance Company, et al., No. 1:23-cv-22781-RS (S.D. Fla. 2023). [ECF
No. 31 at 3; ECF No. 65 at 5-11].
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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (cleaned up). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.
III. DISCUSSION
Fortun moves to dismiss Count IV of the Second Amended Complaint on three grounds:
(1) Plaintiff fails to state a claim for negligent procurement of insurance as Plaintiff signed the
application containing the alleged misstatement of the purchase price, (2) the doctrine of
uberrimae fidei assigns the duty of disclosure to Plaintiff as the insured and thus forecloses
Plaintiff’s claim, and (3) Fortun owed no duty “beyond its limited obligations under Florida law”
and therefore did not breach any duty to Plaintiff. The Court will first consider Plaintiff’s
arguments (1) and (3), which go to the sufficiency of Plaintiff’s Count IV allegations, and then
will address Fortun’s uberrimae fidei defense.
A. Count IV Plausibly Alleges a Negligent Procurement of Insurance Claim Against
Fortun.
“It is well settled in this state that where an insurance agent or broker undertakes to obtain
insurance coverage for another person and fails to do so, he may be held liable for resulting
damages to that person for . . . negligence.” Kendall S. Med. Ctr., Inc. v. Consol. Ins. Nation, Inc.,
219 So. 3d 185, 188 (Fla. 3d DCA 2017) (citing Klonis for Use & Benefit of Consol. Am. Ins. Co.
v. Armstrong, 436 So. 2d 213, 216 (Fla. 1st DCA 1983)); see also Wachovia Ins. Services, Inc. v.
Toomey, 994 So. 2d 980, 990 n.4 (Fla. 2008) (noting that “negligent failure to procure requested
insurance coverage is a valid claim in Florida”). “To establish a cause of action for [negligent
procurement of insurance] under Florida law, a party must plead the following elements: existence
of a legal duty of the defending party to protect the party seeking relief under the circumstances;
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negligent failure by the defending party to comply with the duty; injury to the party seeking relief
as a result; and damages.” Southtrust Bank & Right Equip. Co. of Pinellas Cnty., Inc. v. Exp. Ins.
Services, Inc., 190 F. Supp. 2d 1304, 1309 (M.D. Fla. 2002).
First, the Court finds that Plaintiff has properly alleged the existence of a duty running
from Fortun to Plaintiff in procuring the insurance coverage for the Vessel. “Insurance brokers and
agents have a duty ‘to use reasonable skill and diligence’ when procuring insurance coverage
requested by insureds.” Kendall S. Med. Ctr., Inc., 219 So. 3d at 188. Further, “[r]eliance by the
insured on the insurance agent's undertaking . . . is sufficient to trigger a duty upon the agent to
exercise the reasonable skill and care to obtain the appropriate coverage.” Great Lakes
Reinsurance (UK) PLC v. Glass Design of Miami, Inc., No. 09-21815-CIV, 2011 WL 2669629, at
*3 (S.D. Fla. July 7, 2011) (citing Klonis, 436 So.2d at 217). Here, Plaintiff alleges that Fortun
undertook a duty “to properly complete the insurance application,” which Plaintiff “relied upon.”
[ECF No. 58 ¶¶ 154, 158]. These allegations are sufficient to establish the existence of a duty at
this stage.
Second, Plaintiff has sufficiently alleged that Fortun breached its duty. Specifically,
Plaintiff alleges that Fortun “undertook a duty to properly complete the insurance application,”
including “to provide the carrier with information as to the actual purchase price of the Vessel,”
and that Plaintiff “relied on Fortun’s expertise and trusted that the insurance application was
completed accurately on Plaintiff’s behalf.” [Id. ¶¶ 147, 153-154]. Plaintiff further alleges that
Fortun breached that duty, as evidenced by the insurer’s denial of coverage for the Vessel due to
“Fortun’s negligence and mistakes in improperly completing the application.” [Id. ¶ 156].
Accordingly, these allegations are sufficient to plausibly allege that Fortun breached its duty to
Plaintiff. See Great Lakes Reinsurance (UK) PLC, 2011 WL 2669629, at *2 (allowing negligent
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procurement of insurance claim to proceed where plaintiff alleged that defendant insurance broker
breached its duty “to ensure the documentation which it submitted to [insurer] was acceptable to
[insurer] and would not be used to deny coverage.”).
Lastly, Plaintiff has adequately pled facts supporting an injury and damages resulting from
Fortun’s alleged breach of duty. Plaintiff alleges that “[a]s a result of Fortun’s negligence and
failure to obtain the necessary information and Fortun’s negligence to procure the proper insurance
coverage, Plaintiff suffered losses, damages and injuries when coverage [for the Vessel] was
denied,” and that Plaintiff “has been damaged in the amount of $1,575,000.00.” [Id. ¶ 158].
Accordingly, Plaintiff has sufficiently alleged injury and damages arising from Fortun’s alleged
failure to fulfill its duty to procure insurance coverage for the Vessel.
Fortun also argues that Count IV should be dismissed on the ground that Plaintiff executed
the insurance application and renewal questionnaire, and Plaintiff therefore is “bound” by any
inaccuracies in those materials, such that Plaintiff cannot “shift” responsibility to Fortun. [ECF
No. 65 at 7]. In support, Fortun asks the Court to consider the Vessel’s insurance application
materials filed in a related action, invoking judicial notice and the incorporation by reference
doctrine.4 [ECF No. 31 at 3; ECF No. 65].
Even assuming the Court may consider Plaintiff’s application materials, Fortun’s argument
that Plaintiff signed the insurance application containing the inaccurate purchase price of the vessel
does not warrant dismissal of Count IV at this stage. Courts have rejected the proposition that a
broker’s alleged negligence is “overcome” simply because the insured failed to read or catch
4 At the motion to dismiss stage, the Court may consider documents outside the complaint where
the documents are central to the claim and their authenticity is not disputed, Day v. Taylor, 400
F.3d 1272, 1276 (11th Cir. 2005), and may take judicial notice of public records for their existence,
but not for the truth of disputed factual assertions. Bryant v. Avado Brands, Inc., 187 F.3d 1271,
1278–80 (11th Cir. 1999).
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inaccuracies in their insurance documentation. See Southtrust Bank & Right, Inc., 190 F. Supp. 2d
at 1310–11 (denying motion to dismiss where an agent’s negligent failure “is not overcome by the
insured’s failure to read the underlying documentation”); Great Lakes Reinsurance (UK) PLC,
2011 WL 2669629, at *3 (declining to consider insured’s “failure to investigate” and “complicity”
where the insured alleged reliance on the broker to submit paperwork “timely and accurately,” as
such arguments by defendant “will not be addressed … on a motion to dismiss”).
Accordingly, taking all of Plaintiff’s allegations as true, the Court finds that Plaintiff
plausibly states a claim for negligent procurement against Fortun based on Fortun’s duty as an
insurance broker to procure insurance for the Vessel, Plaintiff’s reliance on that duty, and Fortun’s
breach of its duty by failing to obtain the correct information and by inaccurately completing the
insurance application, which proximately caused the denial of coverage and resulting damages.
B. The Doctrine of Uberrimae Fidei is not Applicable.
Fortun separately argues that Count IV fails as a matter of law under the marine insurance
doctrine of uberrimae fidei, which generally requires the insured to disclose all material facts to
the insurer and may permit rescission or avoidance of coverage for material misrepresentations or
nondisclosures. See HIH Marine Servs., Inc. v. Fraser, 211 F.3d 1359, 1362 (11th Cir. 2000).
Fortun relies on Certain Underwriters at Lloyd’s, London v. Giroire, a rescission action between
an insured and insurer, in which the court explained that an insured cannot avoid rescission by
“passing this responsibility on to his agent.” 27 F. Supp. 2d 1306, 1313 (S.D. Fla. 1998). However,
Fortun’s reliance on Giroire does not support dismissal of Plaintiff’s negligent procurement claim.
Giroire addresses the insured’s disclosure obligations and the insurer’s right to deny coverage
based on an insured’s failure to properly disclose. Id. It does not purport to resolve, much less
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foreclose, a separate claim by an insured against their broker for negligent procurement of
insurance in connection with the erroneous preparation of an insurance application.
Further, courts applying the doctrine of uberrimae fidei in marine insurance disputes have
recognized that an insurer may successfully deny coverage, while the insured may pursue separate
remedies against the broker whose negligence caused the denial. See, e.g., Great Lakes
Reinsurance (UK) PLC v. Morales, 760 F. Supp. 2d 1315, 1326 (S.D. Fla. 2010) (illustrating that
rescission did not bar insured’s potential negligence claim against broker, which was dismissed
without prejudice as premature, while still recognizing insurer’s right to rescind under uberrimae
fidei); see generally Royal Ins. Co. of Am. v. Cathy Daniels, Ltd., 684 F. Supp. 786, 790–91
(S.D.N.Y. 1988) (allowing insured’s third-party negligence claim against its broker to proceed for
failure to communicate prior loss information but still holding that insurer properly rescinded
marine insurance policy based on such nondisclosure). Accordingly, the doctrine of uberrimae
fidei does not bar Plaintiff’s negligent procurement claim against Fortun.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned respectfully recommends that Fortun’s Motion
to Dismiss Count IV of Plaintiff’s Second Amended Complaint be DENIED.
V. OBJECTIONS
Within seven (7) days after being served with a copy of this Report and Recommendation,
any party may serve and file written objections to any of the above findings and recommendations
as provided by the Local Rules for this district. 28 U.S.C. § 636(b)(1). Any response shall be filed
within seven (7) days of the objections. The parties are hereby notified that a failure to timely
object waives the right to challenge on appeal the district court’s order based on unobjected-to
factual and legal conclusions contained in this Report and Recommendation. See 28 U.S.C. §
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636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th
Cir. 1989); 11th Cir. R. 3-1 (2016).
RESPECTFULLY SUBMITTED in Chambers in Fort Lauderdale, Florida, on this 23rd
day of February 2026.
_____________________________________
DETRA SHAW-WILDER
UNITED STATES MAGISTRATE JUDGE
cc: Counsel of Record
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