State Farm Mutual Automobile Insurance Company v. At Home Auto Glass LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

STATE FARM MUTUAL

AUTOMOBILE INSURANCE

COMPANY, and STATE FARM FIRE

AND CASUALTY COMPANY,

Plaintiffs,

v. Case No. 8:21-cv-239-TPB-AEP

AT HOME AUTO GLASS LLC,

WILLIAM CAMP, and NICHOLAS

ALEXANDER,

Defendants.

/

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS

PLAINTIFFS’ COMPLAINT WITHOUT PREJUDICE

This matter is before the Court on Defendants’ motions to dismiss the

complaint, filed on March 16, 2021, and March 24, 2021. (Docs. 26; 27; 28).

Plaintiffs filed responses in opposition on April 27, 2021, April 29, 2021, and May 4,

2021. (Docs. 34; 36; 37). Upon review of the motions, responses, court file, and

record, the Court finds as follows:

Background1

Plaintiffs State Farm Mutual Automobile Insurance Company and State

Farm Fire and Casualty Company (together, “State Farm”) provide their Florida

insureds who have comprehensive coverage with no-deductible coverage for motor

vehicle windshield repairs or replacements. Defendant At Home Auto Glass, LLC

(“At Home”) is a Florida windshield repair company. Defendants William Camp

and Nicholas Alexander are members of At Home. From October 2018 through

December 2020, At Home performed windshield repairs for State Farm insureds

and submitted claims to State Farm for the cost of these repairs under assignments

of benefits from the insureds. State Farm has paid At Home up to $1.4 million on

these claims.

State Farm alleges that At Home obtained these assignments and insurance

payments by unlawfully soliciting and contracting with State Farm’s insureds in

violation of Florida consumer protection laws. The misconduct by At Home

included: falsifying information its application to register as a repair shop,

concealing information about its business operations, failing to provide customers

with written estimates, misrepresenting the nature of the repair charges and the

hours spent on repairs, and falsely telling the customer that the repairs would be

free or at no cost to them, all in violation of the Florida Motor Vehicle Repair Act, §

1 The Court accepts as true the facts alleged in Plaintiff’s complaint for purposes of ruling

on the pending motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen

ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual

allegations contained in the complaint.”). The Court is not required to accept as true any

legal conclusions couched as factual allegations. See Papasan v. Allain, 478 U.S. 265, 286

(1986).

559.901 et seq., F.S. (“FMVRA”). At Home’s invoices submitted to State Farm in

connection with the insurance claims included the inflated charges and

misrepresentations regarding the hours worked. At Home also failed to provide

customers with the required notice of their right to cancel their contracts with At

Home within three days, in violation of the Federal Trade Commission’s Rule

Concerning Cooling-Off Period for Sales Made at Homes or at Certain Other

Locations, 16 C.F.R. § 429.0-429.3 (the “FTC Rule”) and the Florida Home

Solicitation Sales Act, 501.021 et seq., F.S (“FHSSA”). State Farm alleges that the

foregoing conduct rendered the resulting insurance claims noncompensable and

violated the Florida Deceptive and Unfair Trade Practices Act, § 501.201, et. seq.,

F.S. (“FDUTPA”). State Farm alleges that it has been damaged, and that

Defendants have been unjustly enriched, by State Farm’s making over $1.4 million

in payments to At Home.

On February 1, 2021, Plaintiff filed a four-count complaint against At Home,

Camp, and Alexander, asserting claims for: (1) damages under FDUTPA, based on

allegedly false and deceptive practices and on violations of FMVRA; (2) damages

under FDUTPA based on violations of the FTC Rule and FHSSA; (3) damages for

unjust enrichment; and (4) declaratory judgment. Defendants have moved to

dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1), arguing that State Farm

lacks standing to bring these claims, and pursuant to Fed. R. Civ. P. 12(b)(6),

arguing that the complaint fails to state a claim for relief.

Legal Standard

Under Rule 12(b)(1), the plaintiff bears the burden to establish the district

court’s subject matter jurisdiction. See, e.g., Thompson v. McHugh, 388 F. App’x

870, 872 (11th Cir. 2010). A party may attack subject matter jurisdiction through a

facial attack or a factual attack. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir.

1999) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). “Facial

attacks . . . ‘require the court merely to look and see if the plaintiff has sufficiently

alleged a basis of subject matter jurisdiction, and the allegations in [plaintiff’s]

complaint are taken as true for the purposes of the motion.’” Id. (quoting Lawrence,

919 F.2d at 1529). Alternatively, “[f]actual attacks challenge ‘the existence of

subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside

of the pleadings, such as testimony and affidavits, are considered.’” Id. (quoting

Lawrence, 919 F.2d at 1529).

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a

short and plain statement of the claim showing the [plaintiff] is entitled to

relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual

allegations,” it does require “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, factual

allegations must be sufficient “to state a claim to relief that is plausible on its

face.” Id. at 570.

When deciding a Rule 12(b)(6) motion, review is generally limited to the four

corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233

(M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a

court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the

[c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the

complaint’s legal sufficiency, and is not a procedure for resolving factual questions

or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic

Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9,

2009) (Lazzara, J.).

Analysis

Article III Standing

At Home argues that State Farm lacks Article III standing to maintain this

action, presenting a facial attack on subject matter jurisdiction.2 Article III of the

Constitution grants the federal courts the judicial power to resolve actual cases or

controversies. U.S. Const. art. III §§ 1-2; see also Trichell v. Midland Credit Mgmt.,

Inc., 964 F.3d 900, 996 (11th Cir. 2020) (“‘No principle is more fundamental to the

judiciary’s proper role in our system of government than the constitutional

limitation of federal-court jurisdiction to actual cases or controversies.’”) (quoting

Raines v. Byrd, 521 U.S. 811, 818 (1997)). A plaintiff possesses constitutional

2 Because the arguments asserted in the motions to dismiss filed by At Home and the

individual Defendants overlap, for the sake of simplicity this Order will refer

interchangeably to “Defendants” and to “At Home,” except in addressing arguments unique

to the individual Defendants.

standing to maintain a suit only where he or she has suffered some injury in fact

caused by the defendant, and “it must be likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife,

504 U.S. 555, 560-561 (1992) (internal quotation omitted). To meet this

requirement, a plaintiff must “present ‘specific, concrete facts’ showing that the

challenged conduct will result in a ‘demonstrable, particularized injury’ to the

plaintiff.” Miccosukee Tribe of Indians v. Fla. State Athletic Comm’n, 226 F.3d

1226, 1229 (11th Cir. 2000) (quoting Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d

1190, 1204 (11th Cir. 1991)). “Whether a plaintiff has Article III standing is a

question distinct from whether she has a statutory cause of action.” Wilding v.

DNC Services Corp., 941 F.3d 1116, 1128 (11th Cir. 2019).

At Home argues that State Farm seeks to assert not its own rights, but rights

of its insureds under their contracts with At Home. The Court rejects this

argument. State Farm’s complaint references those contracts but clearly asserts

State Farm’s own rights under FDUTPA and the law of unjust enrichment. State

Farm also alleges a concrete injury in the form of paying up to $1.4 million for

allegedly noncompensable windshield repair claims. “It’s safe to say that pointing

to a direct harm is the most straightforward way to show a concrete injury . . . .

[F]inancial loss come[s] to mind . . . .” Muransky v. Godiva Chocolatier, Inc., 979

F.3d 917, 926 (11th Cir. 2020); see also Allstate Ins. Co. v. Auto Glass Am., LLC, 418

F. Supp. 3d 1009, 1019 (M.D. Fla. 2019) (recognizing overpaying for windshield

replacements as an injury in fact); Gov’t Employees Ins. Co. v. Clear Vision

Windshield Repair, L.L.C., No 6:16-cv-2077-Orl-28TBS, 2017 WL 1196438, at * 2

(M.D. Fla. Mar. 29, 2017) (holding that plaintiff insurers sufficiently alleged

standing by reason of overpayments and were not asserting rights under insured’s

contracts with windshield repair company). State Farm alleges it paid “‘a specific

amount of money and suffered a corresponding loss.’” Gov’t Employees Ins. Co. v.

Glassco Inc., No. 8:19-cv-1950, Doc. 59, at 7 (M.D. Fla. Apr. 16, 2020) (“Glassco I”)

(quoting Wilding, 941 F.3d at 1125).

At Home next argues that it did not cause whatever injuries may exist.

Importantly, however, “[p]roximate causation is not a requirement of Article III

standing, which requires only that the plaintiff’s injury be fairly traceable to the

defendant’s conduct,” Lexmark Int’l, Inc. v. Static Control Companies, Inc., 572 U.S.

118, 134 n.6 (2014), and traceability is a “relatively modest” burden. Bennet v.

Spear, 520 U.S. 154, 171 (1997). Here, State Farm meets that burden. It alleges

that At Home’s conduct in soliciting and contracting with State Farm’s insureds and

submitted the resulting insurance claims to State Farm led State Farm to make

payments to At Home that it was not required to pay.

At Home argues that State Farm was legally required to make the payments,

but this argument and others advanced by At Home confuse Article III standing

with stating a claim for relief. The question for standing purposes is simply

whether the plaintiff has alleged a factual connection between the defendant’s

conduct and the alleged harm, not whether the conduct renders the defendant

legally responsible for the harm. See Charles H. Wesley Educ. Foundation, Inc. v.

Cox, 408 F.3d 1349, 1352 (11th Cir. 2005) (“Defendants’ causation argument . . .

conflates standing with the merits of the case. Causation in the standing context is

a question of fact unrelated to an action’s propriety as a matter of law.”).3 State

Farm has alleged the requisite factual connection here.

At Home’s arguments that State Farm’s claims lack redressability also fail.

The question is whether the injury will be redressed by a favorable decision. Lujan,

504 U.S. at 561. Here, State Farm could obtain a monetary award which would

sufficiently redress State Farm’s alleged economic harm. See Glassco I, at 7 n.1 (so

ruling on similar facts).

Finally, At Home argues that State Farm lacks prudential standing.

Prudential standing requires that the plaintiff’s claim fall within the zone of

interests protected by the law involved, that the complaint not require the Court to

pass on abstract questions or generalized grievances better addressed by legislation,

and that the plaintiff assert his or her own rights and interests rather than those of

third parties. See, e.g., Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1290

(11th Cir. 2010).

The cause of action provided by FDUTPA is not limited to consumers but

extends to “anyone aggrieved by a violation” (for declaratory relief) and to “a person

who has suffered a loss as a result of a violation” (for damages). § 502.211(1), (2),

3 Ironworkers Local Union 68 v. Astrazeneca Pharm., LP, 634 F.3d 1352 (11th Cir. 2011),

relied on by Defendants, did not address Article III standing; it affirmed the district court’s

dismissal for failure to state a claim upon which relief can be granted. See id. at 1370.

Ironworkers Local Union 68 is discussed further below in connection with Defendants’

arguments under Rule 12(b)(6) that the complaint fails to state a claim.

F.S; Caribbean Cruise Line, Inc., v. Better Bus. Bureau of Palm Beach Cty., Inc., 169

So. 3d 164, 169 (Fla. 4th DCA 2015) (holding that a party need not be a consumer to

file suit under FDUTPA). The common law of unjust enrichment extends to persons

who have conferred a benefit alleged to be unjustly retained by the recipient.

Accordingly, the rights and interests State Farm asserts are within the “zone of

interests” protected by laws involved. As stated above, State Farm asserts its own

legal rights; it is not asserting the rights of third parties or a general grievance with

a statutory scheme. State Farm therefore sufficiently alleges standing to bring its

claims. Defendants’ motions to dismiss are denied as to this ground.

Failure to State a Claim

Defendants move to dismiss all four counts of the complaint for failure to

state a claim. For the reasons set forth below, State Farm has sufficiently alleged

facts to establish that Defendants have violated FDUTPA, but has failed to allege

that the payments State Farm made to At Home on windshield repair claims

constitute “loss” or “actual damages” as required for recovery. Counts I and II

therefore fail to state a claim for relief. Count III fails to state a claim for unjust

enrichment largely for the same reason. The Court also dismisses Count IV,

requesting declaratory relief, which is duplicative of the other counts.

FDUTPA (Counts I and II)

Counts I and II of the complaint assert claims for damages under FDUTPA.

FDUTPA makes illegal “[u]nfair methods of competition, unconscionable acts or

practices, and unfair or deceptive acts or practices in the conduct of any trade or

commerce.” § 501.204(1), F.S. To establish a claim under FDUTPA, a plaintiff

must establish “(1) a deceptive or unfair act; (2) causation; and (3) actual damages.”

Sclar v. OsteoMed, L.P., No. 1:17-cv-23247-FAM, 2018 WL 559137 at *3 (S.D. Fla,

Jan. 24, 2018). A plaintiff need not be a consumer to bring a FDUTPA claim, but

must “prove that there was an injury or detriment to consumers.” Caribbean Cruise

Line, 169 So. 3d at 169.

Deceptive or unfair act

A deceptive act is one “likely to deceive a consumer acting reasonably in the

same circumstances.” Gov’t Employees Ins. Co. v. Glassco Inc., No. 8:19-cv-1950-

KKM-JSS, 2021 WL 4391717, at *16 (Sept. 24, 2021) (“Glassco II”) (quoting Off. of

Atty. Gen., Dep’t of Legal Affs. v Wyndham Int’l, Inc., 869 So. 2d 592, 598 (Fla. 1st

DCA 2004)). An unfair act has been defined as one that offends established public

policy and is immoral, unethical, oppressive, unscrupulous, or substantially

injurious to consumers. Alhassid v. Nationstar Mortgage LLC, 771 F. App’x 965,

969 (11th Cir. 2019) (citing PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So.2d 773,

777 (Fla. 2003)).

Violations of certain statutes or rules may be deemed per se unfair, deceptive,

or unconscionable acts under FDUTPA. Where a per se violation is shown, the

plaintiff is relieved of the burden of independently showing that the defendant’s

conduct is deceptive or unfair. See Hucke v. Kubra Data Transfer Ltd., No. 15-

14232-CIV-ROSENBERG/LYNCH, 2015 WL 12085833, at *7 (S.D. Fla. Oct. 8,

2015), report and recommendation adopted, 160 F. Supp. 3d 1320 (S.D. Fla. 2015).

Per se FDUTPA violations may be either express or implied. An express per se

violation is one in which the statute or rule allegedly violated explicitly states that

violation is a FDUTPA predicate. An implied per se violation is one based on a

violation of “[a]ny law, statute, rule, regulation, or ordinance which proscribes . . .

unfair, deceptive, or unconscionable acts or practices.” § 501.203(3)(c), F.S. Rather

than relying on a statutory violation, a plaintiff may pursue a “traditional”

FDUTPA claim by pleading and proving that the defendant engaged in conduct that

was unfair and deceptive. With either per se or traditional claims, the plaintiff

must prove causation and actual damages.

In Count I, State Farm alleges that Defendants’ conduct violated FMVRA,

giving rise to a per se FDUTPA violation. State Farm’s theory is that each FMVRA

violation, or perhaps multiple, “pervasive” violations taken together, render the

resulting insurance claims noncompensable and therefore fraudulent and “false.”

Florida’s Unfair Insurance Trade Practices Act, § 626.9541, F.S., deems the

submission of “false” insurance claims to be unfair and deceptive. Therefore, State

Farm argues, it follows that the submission of each claim constituted a per se

violation of FDUTPA. Defendants argue that State Farm cannot rely on alleged

FMVRA violations as express or implied per se violations under FDUTPA because

FMVRA nowhere provides that violations constitute FDUTPA predicates or unfair

or deceptive practices.

The Court rejects State Farm’s argument that FMVRA violations necessarily

render all resulting claims noncompensable. This is the linchpin of State Farm’s

argument for recovery of all the payments it has made, but State Farm has pointed

to no provision in the applicable insurance policies and to no authority under

FMVRA, FDUTPA, or principles of insurance law to support it.4 See Glassco II, at

*8, 16 (holding that FMVRA violations do not render insurance claims

noncompensable). Furthermore, FMVRA does not provide that violations of the

statute constitute deceptive and unfair trade practices under FDUTPA, nor does

FMVRA characterize violations as unfair, deceptive, or unconscionable. See §§

559.901-9221, F.S.; see also Glassco II, at *16; Feheley v. LAI Games Sales, Inc., No.

08-23060-CIV, 2009 WL 2474061, at *4 (S.D. Fla. 2009) (noting that the relevant

statute “includes no explicit declaration that a violation constitutes an unfair,

unconscionable, or deceptive trade practice, as do other statutory provisions that

operate as implied predicates.”). “[N]o Florida caselaw hold[s] that technical

violations under the Repair Act constitute FDUTPA violations.” Glassco II, at *16.

At the same time, some FMVRA provisions do “proscribe[] . . . unfair,

deceptive, or unconscionable acts or practices.” § 501.203(3)(c) F.S. For example,

FMVRA specifically prohibits “mak[ing] or authoriz[ing] in any manner or by any

means whatever any written or oral statement which is untrue, deceptive or

4 Florida courts have allowed repair shop customers to withhold payment or recover monies

already paid to repair shops, but FMVRA expressly provides a cause of action to customers.

§ 559.921(1), F.S. State Farm is not a customer of At Home and its reliance on these cases

is therefore misplaced. See Glassco I, at 17 n.5. State Farm also relies on 1616 Sunrise

Motors, Inc. v. A-Leet Leasing of Fla., 547 So. 2d 267 (Fla. 4th DCA 1989). The appellate

court in that case declined to allow a repair shop to enforce its lien against the owner of the

vehicle at issue, who was not a customer of the shop. But FMVRA expressly provides that a

repair shop who has violated FMVRA may not enforce its lien for repairs by refusing to

return the vehicle to the customer or “in any other fashion.” § 559.919, F.S. At Home is not

attempting to enforce a lien and this case is therefore of no help to State Farm.

misleading, and which is known, or which by the exercise of reasonable care should

be known, to be untrue, deceptive or misleading,” as well as making false promises

to induce the customer to authorize the repair of a vehicle. See § 559.920(8), (9),

(17), F.S. While Count I of the complaint alleges what might be characterized as

“technical” violations of FMVRA, it also alleges conduct that could be fairly

characterized as “untrue, deceptive or misleading,” such as misrepresenting the

hours spent on the repairs and charging inflated prices not disclosed to the

customer. These allegations are sufficient to state a FDUTPA violation under

either a traditional theory or an implied per se theory. See Glassco II at *16-17

(denying summary judgment on FDUTPA claim where evidence supported

conclusion that windshield repair company billed for more time than it took to

perform repairs). State Farm may also be able to independently establish that

other alleged actions and omissions by At Home, considered individually or

together, are deceptive or misleading.5 See id. at *17 (noting that whether conduct

is an unfair or deceptive trade practice is generally a question of fact). While the

Court rejects State Farm’s argument based on the theory that FMVRA or FDUTPA

violations automatically rendered all claims noncompensable, State Farm has

otherwise sufficiently pled a FDUTPA violation in Count I.

5 State Farm alleges that in submitting each claim, At Home implicitly but falsely

represented that it was properly licensed. State Farm, however, offers no authority for this

“implicit representation” theory. False representations in the application for registration

do not render a business’s registration void, but only subject to revocation by the

Department of Agriculture and Consumer Services. See §§ 559.921(4)(a)(2),

559.921(4)(b)(4), F.S.

In Count II, State Farm seeks to base a FDUTPA claim on violations of the

FTC Rule and FHSSA. The FTC Rule prohibits selling consumer goods or services

with a purchase price over $130 at a place other than the seller’s place of business

without providing the customer a copy of the contract and both written and oral

notice that the customer has a right to cancel the contract within three days. 16

C.F.R. §§ 429.0(a), 429.1. FHSSA similarly requires a written contract, provides

that the customer has a right to cancel, and requires that the seller provide the

customer with written notice of that right. §§ 501.021, 501.025, 501.031, F.S.

FHSSA also prohibits misrepresentations regarding a customer’s right to cancel and

other matters, and makes it unlawful for anyone to conduct home solicitations

without a permit. § 501.022, F.S. State Farm alleges that At Home solicited State

Farm’s insureds at their homes or other public places though unlicensed

salespeople, failed to provide customers with required copies of contracts and with

notice of their right to cancel, and made misleading representations to customers

concerning the right to cancel and other matters.

At Home argues that State Farm cannot rely on the FTC Rule or FHSSA to

establish per se violations under FDUTPA. The Court disagrees. The FTC Rule

expressly provides that violations are “unfair and deceptive.” 16 C.F.R. §§ 429.0-

429.3. FHSSA imposes the same notice requirement as the FTC Rule; therefore,

violation of this requirement under FHSSA can serve as a per se FDUTPA predicate

as well. To the extent State Farm can demonstrate misleading statements

regarding the right to cancel or other matters, those could constitute unfair or

deceptive practices under a per se or traditional approach. Accordingly, State Farm

in Count II has sufficiently pled the first element of a FDUPTA claim, an unfair,

deceptive, or unconscionable act.6

Harm to Consumers

While both consumers and non-consumers may seek damages under

FDUTPA, a non-consumer plaintiff must “allege facts plausibly suggesting that

Defendants’ actions were likely to cause consumer harm.” Collier HMA Physician

Mgmt., LLC v. NCH Healthcare Sys., Inc., No. 2:18-cv-408-FtM-38MRM, 2019 WL

277733, at *11 (M.D. Fla. Jan. 22, 2019); Caribbean Cruise Line, 169 So. 3d at 169

(“[W]hile the claimant would have to prove that there was an injury or detriment to

consumers in order to satisfy all of the elements of a FDUTPA claim, the

claimant does not have to be a consumer to bring the claim.”).

State Farm’s complaint alleges that At Home concealed and misrepresented

information as part of an orchestrated scheme to induce customers to enter

contracts with At Home for the repair of their windshields at inflated amounts, so

that At Home could recover insurance proceeds from State Farm. Such conduct was

likely to result in harm or detriment to State Farm’s insureds, who were consumers

of At Home’s services. See Glassco II, at *16 (“[F]raudulent conduct in the context

of billing insurance companies qualifies as deceptive acts that harms consumers

6 Defendant Camp argues that the facts alleged fail to show that At Home engaged in a

“home solicitation sale” under FHSSA, on the ground that FHSSA only applies where a

consumer credit arrangement is involved. FHSSA, however, covers cash transactions as

well as credit sales and State Farm alleges that At Home had its customers sign documents

agreeing to pay invoice amounts if State Farm did not pay. The transactions alleged are

covered by FHSSA.

(both the insurance company and its insureds) for FDUTPA purposes.”).7 State

Farm therefore meets the requirement that harm or detriment to consumers be

alleged.

Causation

At Home argues that State Farm’s allegations regarding causation are

speculative, but they plausibly demonstrate a causal link between Defendants’

conduct and State Farm’s payments to At Home. Whether the chain of causation is

sufficiently direct and foreseeable to constitute proximate or legal cause presents a

question of fact better reserved for further proceedings on a more complete record.

See Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1116 (Fla. 2005) (“The

issue of proximate cause is generally a question of fact concerned with ‘whether and

to what extent the defendant's conduct foreseeably and substantially caused the

specific injury that actually occurred.’”) (quoting McCain v. Fla. Power Corp., 593

So. 2d 500, 502 (Fla. 1992)). State Farm has sufficiently alleged causation.

7 State Farm itself falls within FDUTPA’s broad statutory definition of “consumer,” see §

501.203(7), F.S., and State Farm alleges it has been harmed by At Home’s conduct. The

complaint therefore arguably alleges harm to “consumers” on that basis as well. See

Glassco II, at *16 (“Geico fits under FDUTPA's broad definition of ‘consumer,’ which

includes ‘any commercial entity, however denominated.’”). The Court, however, is more

inclined to think that “consumer” as used in Caribbean Cruise Line and other cases

imposing a “consumer harm” requirement refers to one who purchases goods or services.

See, e.g., Badillo v. Playboy Entm’t Grp., Inc., No. 8:04-cv-591-JSM-TBM, 2006 WL 785707,

at *6 (M.D. Fla. Mar. 28, 2006) (holding that “consumer” under FDUTPA refers to a

purchaser of goods or services).

Loss and Actual Damages

The remaining question is whether State Farm’s payments to At Home

constitute an injury cognizable under FDUTPA, that is, whether they represent

“loss” or “actual damages” as required for recovery under § 501.211(2), F.S. The

Court concludes they do not. As an insurance company, State Farm is in the

business of collecting premiums and paying claims in accordance with the terms of

the governing insurance policies. Such payments could constitute “losses” to State

Farm only if State Farm was not obligated to make them or not obligated to pay the

amounts it did. If the governing insurance policies obligated State Farm to pay the

claims, and no other law relieved State Farm of that obligation, then

notwithstanding the existence of FDUTPA violations or other misconduct directed

at its insureds, State Farm suffered no loss when it paid the claims. See

Ironworkers Local Union 68 v. Astrazeneca Pharm., 634 F.3d 1352, 1364 (11th Cir.

2011) (holding that dismissal of the insurers’ complaint was required because,

under the terms of the insurance contracts, the insurers had “assumed the risk of

paying for all prescription drugs covered by their policies, including medically

unnecessary or inappropriate prescriptions – even those caused by fraudulent

marketing.”)

State Farm seeks to recover the entirety of the $1.4 million in insurance

benefits it has paid to At Home on the theory that the claims were noncompensable.

As set forth above, however, the mere existence of FMVRA or FDUTPA violations

does not render insurance claims noncompensable. Nor has State Farm pointed to

relevant policy language or described its claims handling process to show that it

was not required to pay the claims at all or to pay as much as it did. It alleges only

that “the applicable terms of the Insured’s policy . . . govern[] the amount the State

Farm Plaintiffs will pay for the auto glass repair service.” (Doc. 1 at ¶ 34). The

“applicable terms” are not discussed, and there is no allegation of fact showing that

the amounts State Farm paid were impacted by At Home’s alleged

misrepresentations as to the time spent on repairs. State Farm has therefore failed

to allege a loss. Count I and Count II are therefore dismissed without prejudice,

with leave to amend. 8

Unjust Enrichment (Count III)

State Farm claims that Defendants were unjustly enriched through an

“unlawful scheme,” arguing that At Home was never entitled to compensation for

work unlawfully completed and that therefore it would be inequitable for

Defendants to retain those payments. To state a cause of action for unjust

enrichment, a complaint must allege that (1) the plaintiff conferred a benefit on the

defendant; 2) the defendant has knowledge of the benefit; (3) the defendant has

8 FDUTPA damages are “generally” measured by the difference in value of the product or

service as represented versus the product or service as purchased. See Rollins Inc. v.

Heller, 454 So. 2d 580, 585 (Fla. 3d DCA 1984); see also Glassco II, at *17. If State Farm

can successfully allege it overpaid At Home on one or more claims, actual damages could be

measured by the difference between how much At Home billed and how much it should

have billed, assuming a corresponding impact on State Farm’s payments. See Glassco II, at

*17. However, as the recent decision in Tymar Distribution LLC v. Mitchell Group USA,

LLC, No. 21-21976-CIV-ALTONAGA/Torres, 2021 WL 4077966, at *4-7 (S.D. Fla. Sept. 8,

2021), persuasively explains, where, as in this case, the plaintiff is not a purchaser of goods

or services, “actual damages” may be measured in other ways.

accepted or retained the benefit conferred; and (4) the circumstances are such that

it would be inequitable for the defendant to retain the benefit without paying fair

value for it. State Farm Mut. Auto. Ins. Co. v. Performance Orthopaedics &

Neurosurgery, LLC, 278 F. Supp 3d 1307, 1328 (S.D. Fla. 2017).

The complaint appears to allege facts falling within the first three elements

of unjust enrichment: State Farm conferred a benefit on At Home in the form of

payments on insurance claims, and At Home knowingly accepted and retained

them. The remaining issue is whether State Farm alleges facts under which it

would be unjust to allow At Home to retain the alleged benefit without paying for it

by returning the payments. That the payments were made pursuant to an

assignment of benefits by State Farm’s insured to At Home does not preclude an

unjust enrichment claim, because State Farm is not in privity with At Home. See

State Farm Fire & Cas. Co. v. Silver Star Health & Rehab, 739 F.3d 579, 584 (11th

Cir. 2013). But At Home provided consideration for the benefit it received by

repairing the windshields of State Farm’s insureds. A recipient’s providing

adequate consideration “to someone” generally precludes an unjust enrichment

claim. Am. Safety Ins. Serv., Inc. v. Griggs, 959 So. 2d 322, 331-32 (Fla. 5th DCA

2007).

State Farm relies primarily on Silver Star, 739 F.3d at 584-85, in which the

Eleventh Circuit held an insurer could pursue an unjust enrichment claim to

recover insurance payments to a medical provider who had committed statutory

violations while providing the medical services. In Silver Star, however, unlike

here, the statutory scheme expressly provided that insurers were not obligated to

pay claims submitted by noncompliant providers. Id. at 583. Accordingly, the

payments State Farm made to that provider were payments the provider “was not

legally entitled to receive in the first place.” Id. at 584. Here, as discussed above,

the claims At Home submitted were not rendered noncompensable simply because

At Home committed FMVRA, FTC Rule, or FHSSA violations. Accordingly, State

Farm’s unjust enrichment claim seeking to recover the entirety of the $1.4 million

in payments fails. See Performance Orthopaedics, 278 F. Supp. 3d at 1330-31

(holding that insurer’s complaint failed to state a claim for unjust enrichment where

the relevant statutes did not provide that services in violation of the statutes were

noncompensable).

State Farm’s allegations that At Home submitted inflated invoices

overstating the hours At Home worked could in theory support a more limited claim

for unjust enrichment. See Glassco II, at *13-14. To proceed on that theory, State

Farm would have to allege not only that the hours worked or invoice amounts were

inflated, but also that the payments State Farm made to At Home were

correspondingly inflated, which it has not done in the existing complaint.

Accordingly, Count III is dismissed with leave to amend.

Declaratory Judgment (Count IV)

State Farm seeks a judgment pursuant to the Declaratory Judgment Act, 28

U.S.C. § 2201, declaring “all outstanding unpaid, or allegedly underpaid, claims and

charges At Home submitted . . . are not owed.” (Doc. 1 at 42). Given the Court’s

ruling on the other counts of the complaint, State Farm has not shown it is entitled

to the declaration it requests. Further, the Declaratory Judgment Act “only gives

the federal courts competence to make a declaration of rights; it does not impose a

duty to do so.” Aguilera v. Dist. Director, 423 F. App’x 916, 919 (11th Cir. 2016).

Because the Court’s ruling on the other counts will decide the issues at stake in the

count for declaratory judgment, a declaration would serve no useful purpose. Thus,

the Court dismisses State Farm’s declaratory judgment claim with leave to amend.

Alexander’s Individual Liability

In his motion to dismiss, Defendant Alexander raises the additional

argument that State Farm did not plead sufficient facts to raise a right of relief

against him as an individual. To proceed against an individual under FDUTPA, the

plaintiff “must allege that the individual was a direct participant in the improper

dealings.” KC Leisure, Inc. v. Haber, 972 So. 2d 1069, 1074 (Fla. 5th DCA 2008).

State Farm sufficiently alleges that Alexander was a direct participant, as the

complaint notes that Alexander founded and managed At Home and served as

salesperson for at least 56 of the claims at issue. Defendant Alexander also argues

that he cannot be unjustly enriched by State Farm because he received no benefit.

State Farm argues that At Home is “a pass-through entity” that allows Alexander to

profit from the payments of insurance benefits. That At Home is such an entity is

sufficiently alleged, as is Alexander’s benefit under this theory. See State Farm Fire

& Cas. Co. v. Silver Star Health and Rehab Inc., No. 6:10-cv-1103-GAP-GJK, 2011

WL 6338496 at *7 (M.D. Fla Dec. 19, 2011), aff’d, 739 F.3d 579 (11th Cir. 2013).

Alexander’s motion to dismiss will be denied as to these grounds, but granted on the

other grounds set forth above.

It is therefore

ORDERED, ADJUDGED, and DECREED:

1. “Defendant At Home Auto Glass, LLC’s Motion to Dismiss” (Doc. 26) is

GRANTED.

2. “Defendant Camp’s Motion to Dismiss” (Doc. 27) is GRANTED.

3. “Defendant Nicholas Alexander’s Motion to Dismiss” (Doc. 28) is

GRANTED.

4. Plaintiffs’ complaint (Doc. 1) is DISMISSED WITHOUT PREJUDICE.

Plaintiffs may file an amended complaint within 21 days from the date of

this Order. Failure to file an amended complaint as directed will result in

this Order becoming a final judgment. See Auto. Alignment & Body Serv.,

Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 719-20 (11th Cir.

2020).

DONE and ORDERED in Chambers, in Tampa, Florida, this 27th day of

December, 2021.

FY 2A

Yh Cy

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UNITED STATES DISTRICT JUDGE

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