Underwriters at Interest v. All Logistics Grp., Inc.
United States District Court for the Southern District of Florida
September 17, 2019, Decided; September 17, 2019, Entered on Docket
Case No. 19-cv-21889-KMM

Reporter
2019 U.S. Dist. LEXIS 160033 *
UNDERWRITERS AT INTEREST a/s/o HIGH LINER FOODS (USA) INC., Plaintiff, v. ALL LOGISTICS GROUP, INC. d/b/a LARAS TRUCKING & LOGISTICS, Defendant.

ORDER ON MOTION TO DISMISS
THIS CAUSE came before the Court upon Defendant All Logistics Group, Inc. d/b/a Laras Trucking & Logistics’ (“Defendant”) Motion to Dismiss (“Mot.”) (ECF No. 15). Plaintiff Underwriters at Interest a/s/o High Liner Foods (USA) Inc. (“Plaintiff”) filed a response (“Resp.”) (ECF No. 16) and Defendant replied (“Reply”) (ECF No. 17). The motion is now ripe for review.

I. BACKGROUND1
This is a breach of contract and negligence action. See generally Compl. Plaintiff is an insurance company who was authorized to and who issued an insurance policy to insured High Liner Foods (USA) Inc. (“High Liner Foods”). Id. ¶¶ 1-2. Defendant is a local cartage and trucking company specializing in moving refrigerated cargo and providing interstate and local transportation. Id. ¶¶ 4-5, [*2] 8. On or about May 10, 2017, Plaintiff contacted Defendant through Ambassador Brokers Inc. to retrieve a shipment of frozen salmon arriving at Miami International Airport. Id. ¶¶ 10-11. Plaintiff attached an email confirming that Defendant’s employee Luis Arguello from the dispatch department agreed to handle the delivery. Id. ¶ 12. Defendant did not pick up the shipment at the scheduled time on May 10, 2017 and the shipment was left at the airport for three days. Id. ¶ 14. Defendant did not advise Plaintiff’s insured, High Liner Foods, that it would not pick up the shipment and it was not until May 13, 2017 that Plaintiff’s insured learned that the shipment had not been picked up by Defendant. Id. ¶¶ 16-18. Defendant eventually picked up the shipment on May 13, 2017 and delivered it to Slade Gorton’s storage facility on May 14, 2017. Id. ¶¶ 19-22. However, the shipment was no longer fit for human consumption because it had been exposed to warmer temperatures. Id.
In Count I of the Complaint, Plaintiff alleges that Defendant breached its contract with Plaintiff by failing to pick up the shipment on May 10, 2017. Id. ¶ 42. In Count II, Plaintiff alleges that Defendant was negligent in [*3] failing to advise Plaintiff’s insured that it would not or could not make the pickup as it was instructed. Id. ¶ 46. Now before the Court is Defendant’s Motion to Dismiss wherein Defendant argues that (1) Plaintiff fails to state a cause of action for breach of contract; and (2) the negligence count fails as a matter of law and is barred by the independent tort doctrine. Mot. at 1-3.

II. LEGAL STANDARD
“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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citation and internal quotation marks omitted). This requirement “give[s] the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (internal citation and alterations omitted). The court takes the plaintiff’s factual allegations as true and construes them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
A complaint must contain enough facts to plausibly allege the required elements. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1302 (11th Cir. 2007). A pleading that offers “a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will [*4] not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

III. DISCUSSION
A. BREACH OF CONTRACT CLAIM
Defendant moves to dismiss the breach of contract claim, arguing that Plaintiff’s breach of contract claim fails as a matter of law. Mot. at 1-2. Specifically, Defendant states that Plaintiff has not pled the existence of a valid contract because Plaintiff fails to (1) identify the proper parties to the contract and (2) identify Defendant as the party responsible for caring for and refrigerating the cargo prior to it being picked up by the Defendant. Id. In support of its argument, Defendant makes the following legal conclusions: (1) “a local trucker issues a bill of lading or similar form of receipt to the customer which forms the basis of a breach of contract”; (2) “if a business entity is acting as an agent on behalf of another entity, Plaintiff must specifically allege that in its complaint”; and (3) “[a]s a common carrier and by logic, Defendant only becomes responsible for the shipment when the cargo is in its care, custody, and control.” Id. However, Defendant does not cite any authority in support of these statements. Instead, Defendant cites one Eleventh Circuit Court of Appeals case, Beck v. Lazard Freres & Co., LLC, 175 F.3d 913 (11th Cir. 1999), which Defendant cites [*5] only for the general breach of contract standard. See Mot. at 2. Local Rule 7.1(a)(1) requires every motion, subject to certain exceptions, to incorporate a memorandum of law citing supporting authorities for the relief requested. See S.D. Fla. L.R. 7.1(a)(1). Because none of the legal conclusions made by Defendant were supported by any authority, the Court is unable to discern the legal basis for the relief sought. Thus, Defendant’s Motion to Dismiss the breach of contract claim in Count I of the Complaint is DENIED.
B. NEGLIGENCE CLAIM
Defendant argues that the negligence claim (1) fails as a matter of law and (2) is barred by the independent tort doctrine. Mot. at 3. In the negligence claim, Plaintiff alleges that Defendant was instructed to pick up the shipment and as such, had a duty to inform Plaintiff’s insured that it could or would not pick up the shipment. Compl. ¶ 46-53. Further, Plaintiff alleges that Defendant knew that failing to pick up the shipment would result in damage and loss and that the breach of such duty did in fact cause a loss to Plaintiff. Id.
Defendant first argues that the negligence claim fails as a matter of law because Plaintiff does not and cannot allege that (1) “Defendant had a duty to refrigerate [*6] and care for the subject cargo prior to the cargo coming into the possession of the Defendant”; (2) “Defendant breached that duty of care”; or (3) “any such breach caused the subject damage.” Mot. at 3. Again, Defendant cites one case for the negligence standard but fails to cite any specific authority to support the argument that Plaintiff has failed to properly allege a negligence claim. Because none of Defendant’s arguments are supported by any authority, the Court is unable to discern whether the claim does, in fact, fail as a matter of law.
Defendant next argues that “[i]n addition to failing to state a valid cause of action in Negligence, Plaintiff’s Negligence Count is barred by the Independent Tort Doctrine.” Id. Specifically, Defendant argues that “a party may not plead a cause of action sounding in tort for duties based upon a contract.” Id. In response, Plaintiff argues that “the failure to pick up on time and the failure to give notice of an inability to pick up or forewarn the insured, may constitute additional breaches of duty that should allow both counts to stand.” Resp. at 8.
The independent tort doctrine “bars a contracting party from recovery in tort where the act [*7] complained of relates to the performance of the contract.” Matonis v. Care Holdings Grp., LLC, No. 1:19-CV-20247-UU, 2019 U.S. Dist. LEXIS 125905, 2019 WL 3386378, at *3 (S.D. Fla. June 25, 2019) (citation and quotation marks omitted); Nat’l Fire Ins. Co. of Hartford v. Johnson Controls Fire Prot. LP, No. 19-14050-CIV, 2019 U.S. Dist. LEXIS 67157, 2019 WL 3428552, at *2 (S.D. Fla. Apr. 18, 2019) (recognizing that the independent tort doctrine continues to apply even though Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Cos. Inc., 110 So. 3d 399, 408-09 (Fla. 2013) “limits the Economic Loss Rule (a different rule but having the same practical effect) to the products liability context”); King v. Bencie, 752 F. App’x 881, 883 (11th Cir. 2018) (even though Florida law is “somewhat unsettled in this area,” “[w]e have acknowledged that ‘Tiara may . . . have left intact [this] separate hurdle'”) (citing Lamm v. State St. Bank & Tr., 749 F.3d 938, 947 (11th Cir. 2014)). “However, the independent tort doctrine does not bar claims where the plaintiff has alleged conduct that is independent from acts that breached the contract and does not itself constitute breach of the contract at issue.” Matonis, 2019 U.S. Dist. LEXIS 125905, 2019 WL 3386378, at *3.
Here, although Plaintiff argues that the failure to give notice “may constitute additional breaches of duty that should allow both counts to stand,” the allegations relating to the negligence claim are the same as those relating to the breach of contract claim. See generally Compl. Because Plaintiff’s negligence claim is related to and depends upon the breach of a contractual [*8] duty, the negligence claim is not separate and independent from any potential breach of contract claim and Florida’s independent tort doctrine bars Plaintiff’s negligence claim. See Johnson Controls Fire Prot. LP, 2019 U.S. Dist. LEXIS 67157, 2019 WL 3428552, at *2 (“Simply put, a plaintiff may not pursue a tort theory of relief where a contract created the duty to act, performance is measured against the contractual obligations, and the contract provides the remedy for defective performance . . . [f]or a tort claim to stand, it must be independent of the breach of contract claim.”); see also Azure, LLC v. Figueras Seating U.S.A., Inc., No. 12-CV-23670-UU, 2013 U.S. Dist. LEXIS 202691, 2013 WL 12093811, at *6 (S.D. Fla. July 18, 2013). Thus, Defendant’s Motion to Dismiss the negligence claim in Count II of the Complaint is GRANTED.

IV. CONCLUSION
UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss (ECF No. 15) is GRANTED IN PART AND DENIED IN PART. The breach of contract claim alleged in Count I remains, but the negligence claim alleged in Count II is dismissed.
DONE AND ORDERED in Chambers at Miami, Florida, this 17th day of September, 2019.
/s/ K. Michael Moore
K. MICHAEL MOORE
UNITED STATES CHIEF DISTRICT JUDGE [*9]