Eleventh Circuit Finds Failure to Challenge Sinks Insurance Contract Claims

In Sapuppo v. Allstate Floridian Ins. Co., No. 13-11558 (Jan. 7, 2014), the Eleventh Circuit affirmed the FRCP 12(b)(6) dismissal of four contract claims stemming from alleged violations of Chapter 2007-1 of the Laws of Florida, a consumer relief bill aimed at containing the costs of private insurance costs in the wake of a series of hurricanes that struck Florida in 2004 and 2005.

The district court relied on several alternative grounds to determine that the appellants failed to state a claim on which relief could be granted, first finding the “filed rate doctrine” (See Taffet v. Southern Co., 967 F.2d 1483, 1494 (11th Cir. 1992)) barred suits that challenge the reasonableness of rates filed with a regulatory agency, and second holding that the Florida Legislature had not created a private right of action to enforce 2007-1.  The appellants challenged both of these holdings in their opening brief.

However, the district court also gave independent grounds for dismissal of each of the claims of unjust enrichment, breach of contract, breach of fiduciary duty and breach of the implied covenant of good faith and fair dealing.  The appellants failed to challenge, “treat[ing] those holdings as though they do not exist.”  Adhering to Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1306 (11th Cir. 2012), the court held that as an appellant must convince the court that every stated ground against him is incorrect, the appellants failed to do so, as “when an appellant fails to challenge properly…one of the grounds on which the district court based its judgment, he is judged to have abandoned any challenge…and the judgment is to be affirmed.”

The court further found that these challenges were abandoned as the appellants made “only passing references to it or raise[d] it in a perfunctory manner without supporting arguments and authority.”  This abandonment could not be corrected by the appellants later adding challenges to these grounds in their responsive brief, following Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008).

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