Vicknair et al v. Hartford Insurance Company of the Midwest

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-cv-81155-Cannon/McCabe
SUSAN VICKNAIR and
LINDA UNGERLEIDER,
Plaintiffs,
v.
HARTFORD INSURANCE
COMPANY OF THE MIDWEST,
Defendant.
____________________________________/
REPORT & RECOMMENDATION
THIS CAUSE comes before the Court on Defendant’s Amended Motion to Dismiss and/or
for More Definite Statement, which was referred to the undersigned by United States District Judge
Aileen M. Cannon. 	(DE 11, DE 15). 	For the reasons set forth below, the undersigned
RECOMMENDS that the motion be GRANTED and that the Complaint be DISMISSED
WITHOUT PREJUDICE.
I. 	BACKGROUND
This is an insurance case. 	The Court accepts the following facts as true, taken from
Plaintiffs’ Complaint. (DE 1-1). Plaintiffs own property located at 6869 Sun River Rd., Boynton
Beach, FL 33437 (the “Property”). (DE 1-1 ¶ 4). At some point in the past, Defendant issued an
insurance policy on the Property (the “Policy”). (DE 1-1 ¶ 2). The Policy identified the named
insured as “Shirley Kushner.” (DE 1-4 at 6).1
1 Defendant attached a copy of the Policy to the Notice of Removal. (DE 1-4). During the hearing
on this motion, Plaintiffs’ counsel stipulated to the authenticity of the Policy. As such, the Court
will consider it in connection with this motion. 	See Day v. Taylor, 400 F.3d 1272, 1276 (11th
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On or about October 9, 2024, Hurricane Milton damaged the Property, causing a loss (the
“Loss”). 	(DE 1-1 ¶ 5). 	As a result, Plaintiffs made a claim on the Policy. 	(DE 1-1 ¶¶ 6-7).
Defendant thereafter “failed to adjust the Loss pursuant to the unambiguous terms of the Policy.”
(DE 1-1 ¶ 8). Although Defendant paid a portion of the claim, Defendant failed to pay the “actual
cash value and replacement cost value of the claim.” (DE 1-1 ¶ 9).
Based on these allegations, Plaintiffs bring a single count for breach of the Policy. (DE 1-
1 ¶¶ 13-16). Plaintiffs seek damages, interest, court costs, and reasonable attorneys’ fees. (DE 1-
1 at 8).
II. 	DISCUSSION
Defendant makes several arguments in support of dismissal and/or a more definite
statement. (DE 11). The Court will address each argument in turn.
A. 	Article III Standing
Defendant first urges dismissal pursuant to Fed. R. Civ. P. 12(b)(1) based on lack of
standing under Article III, section 2 of the U.S. Constitution, which extends the jurisdiction of
federal courts only to actual “Cases” or “Controversies.” (DE 11 at 3). To have standing under
Article III, a plaintiff must demonstrate (1) an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016). The term “standing,” as used in its
jurisdictional sense, refers to a court’s power to hear a case. Wiand v. ATC Brokers, Ltd., 96 F.4th
1303, 1311 (11th Cir. 2024).
Cir.2005) (noting that district courts may consider an extrinsic document on a motion to dismiss
when (1) the document is central to the plaintiff’s claim, and (2) its authenticity is not challenged).
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Defendant argues that Plaintiffs lack Article III standing here because the Policy names
Shirley Kushner as the named insured, not the Plaintiffs. 	In the Court’s view, Defendant’s
argument confuses Article III standing with contractual standing. The Second Circuit explained
the difference between the two concepts as follows:
Contractual standing is distinct from Article III standing and does not implicate
subject-matter jurisdiction. Article III standing speaks to the power of a court to
adjudicate a controversy; contractual standing speaks to a party’s right to relief for
breach of contract.
SM Kids, LLC v. Google LLC, 963 F.3d 206, 211 (2d Cir. 2020); see also Dinicola-Ortiz v. GEICO
Indem. Co., No. CV-22-6228, 2023 WL 5623237, at *4 (D.N.J. Aug. 31, 2023) (noting that
“GEICO conflates a challenge to standing’s injury in fact requirement with a challenge to the
merits of a breach of contract claim’s damages element”); SFR Services, LLC v. Indian Harbor
Ins. Co., 529 F. Supp. 3d 1285, 1298 (M.D. Fla. 2021) (noting the difference between contractual
standing and Article III standing).
Applying this standard here, the Court finds that Defendant’s argument goes to contractual
standing, not Article III standing. 	Defendant argues that Plaintiffs—as non-parties to the
contract—have no right to receive payments under the Policy. This argument goes to the merits
of the dispute, not this Court’s power to hear the dispute. As such, the Court rejects any arguments
concerning Article III standing. Instead, the Court will construe Defendant’s argument as a merits-
based attack on contractual standing pursuant to Fed. R. Civ. P. 12(b)(6).
B. 	Failure to State a Claim
Defendant raises two merits-based arguments for dismissal, each of which the Court will
address in turn.
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1. 	Named Insured
First, as set forth above, Defendant argues that Plaintiffs cannot state a plausible claim for
relief because the Policy does not identify Plaintiffs as the named insureds; instead, the Policy
identifies Shirley Kushner as the sole named insured. (DE 11 at 4). As a general rule, “[a] person
not a party to nor in privity with a contract has no right to enforce it.” Gallagher v. Dupont, 918
So. 2d 342, 347 (Fla. 5th DCA 2005). Florida law recognizes several exceptions to this general
rule, including circumstances where a party holds an assignment from the original party in privity,
or where a party can be deemed a third-party beneficiary to the contract. See Fawkes v. Balboa
Ins. Co., No. 8:10-CV-2844-T-30TGW, 2011 WL 557322, at *2 (M.D. Fla. Feb. 11, 2011) (noting
that “Plaintiff is correct that she can proceed against Defendant for breach of contract as a third-
party beneficiary of the insurance policy”).
At oral argument on this motion, Plaintiffs’ counsel conceded that the Policy does not
identify Plaintiffs as named insureds. Counsel nevertheless argues that Plaintiffs have contractual
standing because the named insured, Shirley Kushner, passed away, leaving the Property and her
interest in the Policy to Plaintiffs. 	As a result, Plaintiffs argue they “stand in the shoes” of the
named insured for purposes of this lawsuit.
Plaintiffs’ counsel may well be correct, but the current Complaint does not contain any of
the facts proffered by counsel during the hearing on this matter. The Complaint contains no facts
concerning Mrs. Kushner’s death, her estate, her beneficiaries, or Plaintiffs’ relationship to the
estate. Accordingly, the undersigned recommends that the current Complaint be dismissed without
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prejudice so that Plaintiffs can allege facts, by way of an Amended Complaint, to show contractual
standing via the testamentary process or by other means.2
2. 	Ownership at Time of Loss
Defendant next argues that Plaintiffs cannot state a plausible claim for relief because they
did not own the Property on the date that Hurricane Milton caused the Loss. 	(DE 11 at 4).
Defendant asks the Court to take judicial notice of the fact that Shirley Kushner owned the Property
on the key date, i.e., October 9, 2024. (DE 14 at 4, DE 14-1). Defendant cites Fla. Stat. § 627.405
for the proposition that a party cannot recover under an insurance policy without an “insurable
interest” in the property. Moreover, the insurable interest must be determined at the time of loss.
Schlehuber v. Norfolk & Dedham Mut. Fire Ins. Co., 281 So.2d 373, 375 (Fla. 3d DCA 1973).
In response, Plaintiffs again concede that Shirley Kushner owned the Property on the date
of the loss. Plaintiffs contend they stand in Mrs. Kushner’s shoes as the beneficiaries of her estate.
Again, Plaintiffs may well be correct on this legal position, but the current Complaint contains no
facts that would allow the Court to reach that conclusion. 	Accordingly, the undersigned
recommends that the Complaint be dismissed without prejudice so that Plaintiffs can attempt to
allege facts, by way of an Amended Complaint, to overcome Fla. Stat. § 627.405 and Schlehuber,
281 So.2d at 375.
C. 	More Definite Statement
Finally, Defendant seeks a more definite statement pursuant to Fed. R. Civ. P. 12(e), which
allows parties to request a more definite statement when a pleading “is so vague or ambiguous that
2 During oral argument, counsel for Defendant also conceded that Defendant already paid a portion
of the disputed Policy proceeds to Plaintiffs. The Court questions how an insurance company can
pay a portion of the policy proceeds to a party yet simultaneously argue to a court of law that the
same party lacks contractual standing.
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the party cannot reasonably prepare a response.” Here, Defendant seeks a more definite statement
concerning the parties’ “citizenship” and “ownership of the Property on the date of loss.” (DE 11
at 5).
The Court denies the request for two reasons. First, as to the parties’ citizenship, Defendant
removed this case to federal court based on diversity of citizenship. (DE 1). Defendant conducted
jurisdictional discovery in state court prior to removal and presumably removed the case in good
faith, representing to the Court that complete diversity of citizenship exists between the parties.
(DE 1 at 3). 	As such, Defendant has no need for a more definite statement as to the parties’
citizenship.
Second, as to ownership of the Property on the date of loss, the Court has already
recommended dismissal without prejudice so that Plaintiffs can explain, by way of an Amended
Complaint, their basis for contractual standing and their basis to overcome Fla. Stat. § 627.405 and
Schlehuber, 281 So.2d at 375. 	Given this ruling, Defendant has no need for a more definite
statement as to ownership of the Property on the date of loss.
III. 	RECOMMENDATION & NOTICE OF RIGHT TO OBJECT
For the reasons stated above, the undersigned RECOMMENDS that the motion (DE 11)
be GRANTED as follows:
1. 	The Complaint (DE 1-1) should be DISMISSED WITHOUT PREJUDICE.
2. 	Plaintiffs should be afforded an opportunity to submit an Amended Complaint to
cure pleading deficiencies on whatever timeline the District Judge deems appropriate.
3. 	The parties shall have fourteen (14) days from the date of being served with a copy
of this Report and Recommendation within which to file written objections, if any, with United
States District Judge Aileen M. Cannon. Failure to file objections timely shall bar the parties from
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a de novo determination by the District Judge of an issue covered in the Report and
Recommendation and shall bar the parties from attacking on appeal unobjected-to factual and legal
conclusions contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); 11th Cir.
R. 3-1.
4. 	Pending the District Judge’s resolution of this Report and Recommendation,
Plaintiffs may only file an Amended Complaint in full compliance with Fed. R. Civ. P. 15.
5. 	IF A PARTY DOES NOT INTEND TO OBJECT TO THIS REPORT AND
RECOMMENDATION, THE PARTY SHALL FILE A NOTICE TO THAT EFFECT
WITHIN FIVE (5) DAYS.
RESPECTFULLY SUBMITTED in Chambers at West Palm Beach in the Southern
District of Florida, this 31st day of December 2025.
RYON M. MCCABE
U.S. MAGISTRATE JUDGE
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