Opinion
Case No. 04-60926-CIV-SEITZ/BANDSTRA.
March 23, 2005
ORDER GRANTING AEGON DEFENDANTS' MOTION TO DISMISS AND GRANTING ALLSTATE DEFENDANTS' MOTION TO DISMISS
THIS MATTER is before the Court on the Motions to Dismiss filed by Defendants Transamerica Occidental Life Insurance Company, Transamerica Securities Sales Corporation, Transamerica Financial Advisors, Inc., and AFSG Securities Corporation (collectively, "the AEGON Defendants") [DE-5] and Defendants Allstate Life Insurance Company and Allstate Distributors, Inc. (collectively, "the Allstate Defendants") [DE-9]. Plaintiff Douglas Behrman commenced this action by filing a twelve count complaint alleging counts of common law fraud (Counts I-II), negligent misrepresentation and omission (Counts III-IV), breach of contract (Counts V-VI), rescission of an annuity contract (Counts VII-VIII), negligent hiring (Counts IX-X), and breach of fiduciary duty (Counts XI-XII) against both the AEGON Defendants and the Allstate Defendants. Both groups of Defendants move to dismiss the complaint for, inter alia, failure to state a claim upon which relief can be granted, failure to allege fraud with particularity under Fed.R.Civ.P. 9(b), and pursuant to the economic loss rule. Upon careful consideration of the Motions, the responses and replies thereto, and the applicable case law, the Court grants the Defendants' Motions to Dismiss, dismisses Counts I-VI and IX-XII without prejudice, and dismisses Counts VII and VIII with prejudice.
The AEGON Defendants and the Allstate Defendants are referred to collectively as "Defendants."
I. Factual Background
The allegations of Plaintiff's Complaint, taken as true for purposes of this motion, are as follows: At some unspecified time, Plaintiff met Edwards Matthews Quigley, III ("Quigley"), a non-party to this action who Plaintiff alleges is "an authorized agent for all the defendants." See Compl. at ¶ 12. Plaintiff states that Quigley has a "troubling history of customer abuse," and that his employer, A.G. Edwards, had been compelled by securities industry rules to place Quigley under "special supervision." Id. at ¶¶ 14, 16. Plaintiff, however, was not aware of Quigley's past at the time that they met or at the time that he ultimately invested in certain annuities that he purchased through Quigley.
At the time that he met Quigley, Plaintiff had recently sold his business for $6 million and was interested in investing his "retirement nest egg" in a manner that would protect his principal while generating a steady income stream and affording him favorable tax treatment. Id. at ¶¶ 11, 24-25. Based on Plaintiff's stated interests, Quigley put together a portfolio of municipal bonds for Plaintiff that Plaintiff believed was "well calculated to achieve [his] goals." Id. at ¶ 25.
According to Plaintiff, in the summer of 2000, certain unnamed wholesalers associated with the Defendants arranged a PowerPoint presentation with the entire sales force of the Fort Lauderdale office of A.G. Edwards. Id. at ¶ 26. The presentation was to introduce new annuity products. Id. at ¶ 27. Plaintiff states that Defendants offered Quigley an additional 1% in commissions for all sales made within three months of the PowerPoint presentation. Id. at ¶ 29. Within three months of the presentation, Quigley approached Plaintiff about liquidating his portfolio and using the proceeds to purchase four million dollars worth of variable annuities. Id. at ¶ 30. Plaintiff was apprehensive about the change, and only agreed after Quigley explained to him that the annuities "guaranteed" him a monthly income until age 59 ½, at which point he could choose to continue receiving monthly payments for the rest of his life, or to receive his four million dollars in a lump sum distribution. Id. at ¶ 35. Plaintiff states that those "guarantees" are set forth in a March 27, 2002, letter for Quigley to Plaintiff. Id. at ¶ 36.
In June 2000, Plaintiff invested one million dollars in "the Allstate annuity." Id. at ¶ 42. Shortly thereafter, on July 19, 2000, Plaintiff invested three million dollars in "the Transamerica annuity." Id. at ¶ 43. Plaintiff, following Quigley's advice, began taking immediate distributions pursuant to an IRS payment plan. Id. at ¶ 48. Plaintiff states that "[b]ecause of defendants' misrepresentations about how the annuities operate and about their suitability for an investor with Mr. Behrman's need for immediate income, the annuities will soon be worth nothing." Id. at ¶ 49. Specifically, Plaintiff alleges that Quigley, whom he represents as "Defendants' agent," never read the annuity contract, instead basing his "sales pitch" on the 2000 PowerPoint presentation. Id. at ¶¶ 26-28, 44.
II. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides that dismissal of a claim is appropriate when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Blackstone v. Ala., 30 F.3d 117, 120 (11th Cir. 1994). Ordinarily, to survive a Rule 12(b)(6) motion, a complaint need only provide a short and plain statement of the claim and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47 (1957). When a complaint alleges fraud, the plaintiff must go beyond mere notice pleading and must state "with particularity" the circumstances constituting fraud. See Fed.R.Civ.P. 9(b). In either situation, a motion to dismiss under Rule 12(b)(6) tests not whether the Plaintiff will ultimately prevail on the merits, but rather whether the Plaintiff has properly stated a claim. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Therefore, at this stage of the proceedings, the Court must accept the Plaintiff's allegations in the Complaint as true, and view those allegations in a favorable light to determine whether the Complaint fails to state a claim for relief. S Davis Int'l v. Republic of Yemen, 218 F.3d 1292, 1298 (11th Cir. 2000).
III. Plaintiff's Fraud Claims Are Deficient Under Fed.R.Civ.P. 9(b)
In Counts I and II of his Complaint, Plaintiff seeks recovery against the Defendants for common law fraud. The elements of a claim for common law fraud are: (1) a false statement concerning a material fact; (2) knowledge by the person making the statement that the representation is false; (3) the intent by the person making the statement that the representation will induce another to act on it; and (4) injury sustained by a person acting in justifiable reliance on the fraudulent statement. See Fowler v. Towse, 900 F.Supp. 454, 460-61 (S.D. Fla. 1995) (citing Royal Typewriter Co., Div. of Litton Bus, Sys., Inc. v. Xerographic Supplies Corp., 719 F.2d 1092 (11th Cir. 1983)). Recovery for fraud requires proof of intentional and knowing misrepresentation of material fact, designed to cause detrimental reliance. See Blue Cross/Blue Shield v. Weiner, 543 So.2d 794, 796 (Fla. 4th DCA 1989).
Rule 9(b) of the Federal Rules of Civil Procedure requires that when asserting a claim of fraud, the plaintiff must state "with particularity" the circumstances constituting the alleged fraud. At a minimum, Rule 9(b) requires that the Complaint set forth "what statements or omissions were made in what documents or oral representation; the time and place of the statements or omissions; who made the statements; the content of the statement and the manner in which they misled the plaintiffs; and what the defendant obtained as a consequence of the fraud." Druskin v. Answerthink, Inc., 299 F.Supp. 2d 1307, 1321 (S.D. Fla. 2004) (citing Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.), reh'g denied, 116 F.3d 1495 (11th Cir. 1997)); see also Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001). This requirement of specificity "serves an important purpose in fraud actions by alerting defendants to the precise misconduct with which they are charged and protecting defendants against spurious charges of immoral and fraudulent behavior." Brooks, 116 F.3d at 1370-71 (citing Durham v. Business Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988)).
Plaintiff's Complaint lacks the particularity required under Fed.R.Civ.P. 9(b). As the factual basis for his claim of common law fraud, Plaintiff states that Quigley, as the alleged agent of the Defendants, made incorrect representations to him regarding how variable annuities work; that due to Quigley's misrepresentations, the annuities "will soon be worth nothing": that Defendants withheld information from him regarding the numerous customer complaints that were lodged against Quigley; and that Defendants failed to inform him of the incentive commissions that Quigley was offered for selling the annuities quickly. Plaintiff has not, however, identified with specificity the particular statements or omissions that are alleged to be fraudulent, nor has he specified the documents or oral representations in which such statements or omissions were allegedly made. Indeed, it is not clear that Plaintiff is alleging fraud with respect to both Quigley's statements about the annuities and Defendants' "omissions" about Quigley's history and the incentive payments, nor is the time frame of the allegedly fraudulent statements pled with any degree of particularity. Further, "where multiple defendants are alleged to be involved in a fraud, [Rule] 9(b) requires that the Complaint allege the actual involvement and role of each defendant in the fraud." First Am. Bank Trust Levitt v. Frogel, 726 F.Supp. 1292, 1295 (S.D. Fla. 1989); see also Leisure Founders v. CUC Int'l, 833 F.Supp. 1562, 1575 (S.D. Fla. 1993). In this case, Plaintiff has simply lumped together all of the Defendants, and has not alleged how any particular AEGON or Allstate Defendant defrauded him through any identifiable misstatement or omission made directly or indirectly to him.
This listing of the basis for Plaintiff's fraud claim was provided in Plaintiff's response to the AEGON Defendants' Motion to Dismiss [DE-13], not in the Complaint. One of the problems with Plaintiff's Complaint is that it contains nine page of factual allegations, and then the particular counts do not provide any specificity as to which facts form the basis of those counts. For instance, in his common law fraud count against the AEGON Defendants, Plaintiff simply states that "[t]he above-described misrepresentations and omissions by defendants Transamerica Life, Transamerica Sales, Transamerica Financial, and AFSG through their agent constitute common law fraud." See Compl. at ¶ 56. The Defendants, and the Court, are then left to guess as to which of the 51 paragraphs of factual allegations specifically form the basis for the common law fraud count. Such vagueness is at odds with the requirements of Rule 9(b).
Plaintiff has not identified with specificity the dates of the alleged statements or omissions supporting his fraud claim. As the Allstate Defendants note, it is critical that Plaintiff plead "with particularity" and provide specific dates here, as Plaintiff's Complaint is based on a fact pattern that, at the time the Complaint was filed, was approximately four years old. A four year statute of limitations applies to nearly all of the causes of action in the Complaint. If Plaintiff was required to set forth the timing of the allegedly defective transactions and fraudulent representations, it may become apparent that the Complaint or many of its causes of action are barred on limitations grounds. See Allstate Defs.' Mot. to Dismiss, [DE-9] at 14. Although Plaintiff is not expected to specify the exact time and place of each factual omission or misrepresentation, he "must provide a sufficiently narrow time frame from which defendants could derive notice as to when the misrepresentations were made." Flamenbaum v. Orient Lines, Inc., No. 03-22549-CIV-ALTONAGA, 2004 U.S. Dist. LEXIS 14718, at *18 (S.D. Fla. July 28, 2004).
Plaintiff correctly states that "Rule 9(b) does not require plaintiffs to plead facts to which they lack access prior to discovery." see Katz v. Household Int'l, Inc., 91 F.3d 1036, 1040 (7th Cir. 1996). However, many of the specifics that Plaintiff has failed to allege in his complaint are facts that should be known to him without further discovery. Accordingly, Counts I and II of Plaintiff's complaint are dismissed, and Plaintiff must supplement the allegations regarding his fraud causes of action to bring these claims into compliance with Rule 9(b).
IV. Plaintiff's Negligent Misrepresentation and Omission Claims Must Be Dismissed
Next, in Counts III and IV, Plaintiff asserts claims of negligent misrepresentation and omission against both groups of Defendants. To state a claim for negligent misrepresentation or omission, a plaintiff must allege: (1) a misrepresentation of material fact; (2) that the representor either knew or should have known was false or made without knowledge of truth or falsity; (3) the representor intended to induce another to act on the misrepresentation; and (4) that injury resulted to plaintiff acting in justifiable reliance on the misrepresentation. Gold X-Press Corp. v. Very Beary Venture I, No. 03-60176-CIV-ALTONAGA, 2003 U.S. Dist. LEXIS 19747, at *8 (S.D. Fla. Oct. 3, 2003) (citing Fla. Women's Med. Clinic, Inc. v. Sultan, 656 So.2d 931, 933 (Fla. 4th DCA 1995)).
In their Motions to Dismiss, the Defendants argue that these counts should be dismissed because: (1) all contacts that Plaintiff had regarding the sales of annuities were through Quigley, who was acting as Plaintiff's agent when he procured the annuities at issue; and (2) none of the essential elements of this tort claim are pled. See [DE-5] at 14; [DE-9] at 15. As to the first argument, Plaintiff has sufficiently pled an agency relationship between Quigley and the Defendants, and at the very least, Plaintiff (in the event that he amends his complaint in accordance with this Order) is entitled to discovery on this issue to establish that such an agency relationship existed. However, the Court agrees with the Defendants' second argument. Plaintiff's complaint is unclear as to the nature of the misrepresentation of material fact upon which this claim rests. Further, the complaint does not allege facts sufficient to establish the remaining elements of a claim of negligent misrepresentation and omission. Counts III and IV of the complaint are, therefore, dismissed without prejudice.
V. Plaintiff's Breach of Contract Claim Must Be Dismissed
In Counts V and VI, Plaintiff seeks recovery on a breach of contract claim, the elements of which are: (1) a valid contract; (2) a material breach; and (3) damages. Abbott Labs., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000); see also Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994). However, Plaintiff has failed to attach or otherwise identify a valid contract at issue with any degree of specificity. Plaintiff has further failed to identify how any such contract was materially breached by each of the Defendants and what damages, if any, he suffered as a consequence of the alleged breach. Therefore, Counts V and VI are dismissed without prejudice.
Plaintiff states that the Defendants have cited to no rule requiring that the contract upon which a breach of contract claim is premised be attached to the complaint. A close reading of the AEGON Defendants' Motion to Dismiss, in which this issue was raised, reveals that they are not necessarily stating that failure to attach the contract is grounds for dismissal; instead, the AEGON Defendants appear to argue that the absence of specifics in the complaint regarding which contract was allegedly breached could have been ameliorated had Plaintiff attached the contract. The Court agrees.
Plaintiff's response to the Motion to Dismiss appears to the suggest that the "contract" that was breached was the annuity that he purchased through Quigley. He then states that the March 2002 letter that he attached to his Complaint "memorializes an agreement between plaintiff and the defendants," and that he has therefore attached a contract to the complaint. Pl.'s Resp. at 5. This explanation even further complicates matters. It is completely unclear whether Plaintiff is alleging a material breach of the annuity contract itself, or of some other purported "agreement" that is "memorialized" in the March 2002 letter (which, notably, is dated nearly two years after the date on which Plaintiff purchased the subject annuities).
VI. Plaintiff's Action to Rescind Annuity Contract Must Be Dismissed
In Counts VII and VIII, Plaintiff alleges that because the Defendants made misrepresentations and omissions, he is entitled to rescind the variable annuity contract. Rescission is an elected equitable remedy which seeks to void a contract. Billian v. Mobil Corp., 710 So.2d 984, 990 (Fla. 4th DCA 1998); see also Hustad v. Edwin K. Williams Co., 321 So.2d 601, 603 (Fla. 4th DCA 1975). A party's right to rescind a contract is subject to waiver if he retains the benefits of a contract after discovering the grounds for rescission. The party must promptly notify the other party of his election to rescind or he loses the right to rescind and is limited to the remedy of damages. Gov't of Aruba v. Sanchez, 216 F.Supp.2d 1320, 1365-66 (S.D. Fla. 2002) (citing Mazzoni Farms, Inc. v. E.I. DuPont de Nemours Co., Inc., 761 So.2d 306, 313 (Fla. 2002)); see also Scocozzo v. Gen. Dev. Corp., 191 So.2d 572, 579 (Fla. 4th DCA 1966).
Plaintiff is deemed to be aware of any infirmities in, or any purported misrepresentations about, the variable annuity contracts at least by the time he received the last related disclosure document or the contract itself. See Franze v. Equitable Assurance, 296 F.3d 1250, 1254 (11th Cir. 2002) (finding that the time for "inquiry notice" for the purchaser of a contract or policy to discover misrepresentations was the date when the purchaser obtained the prospectus and the contract). Plaintiff was therefore required to notify the Defendants of his intention to seek rescission of the contract and then to surrender the contract to return the companies to the status quo that existed before the contracts were entered into. See Mazzoni, 761 So.2d at 313. Plaintiff should have elected this remedy back in 2000, when he was put on "inquiry notice," not in 2004 when he has enjoyed the benefits of the contracts for over four years. Id. (noting that "a party's right to rescind is subject to waiver if he retains the benefits of a contract after discovering the grounds for rescission.") (citing Rood Co. v. Bd. of Pub. Instruction, 102 So.2d 139, 141-42 (Fla. 1958)). Accordingly, Plaintiff has waived his right to seek rescission of the variable annuity agreements. Counts VII and VIII are, therefore, dismissed with prejudice.
VII. Plaintiff's Negligent Hiring Claim Must Be Dismissed
The cause of action asserted in Counts IX and X, negligent hiring, allows for recovery against an employer for acts of an employee committed outside the course and scope of his employment. Garcia v. Duffy, 492 So.2d 435, 438 (Fla. 2d DCA 1986). To state a claim for negligent hiring, a plaintiff must allege that: (1) the employer was required to make an appropriate investigation of the employee and failed to do so; (2) an appropriate investigation would have revealed the unsuitability of the employee for the particular duty to be performed or for employment in general; and (3) it was unreasonable for the employer to hire the employee in light of the information he knew or should have known. See Malicki v. Doe, 814 So.2d 347, 362 (Fla. 2002) (citing Garcia, 492 So.2d at 440). Further, a claim for negligent hiring arises when, before the time the employee is hired, the employer knew or should have known that the employee was unfit. Id. at n. 15 (citing Garcia, 492 So.2d at 438).
Here, Plaintiff alleges throughout the Complaint that Quigley was a licensed or authorized agent of the Defendants at the time that he made the alleged misrepresentations. There are no allegations, however, indicating that Quigley was an employee of any of the Defendant companies; in fact, the complaint alleges that Quigley was an employee of A.G. Edwards, a non-party to this action. Further, even if Plaintiff did allege an employment relationship, he is required to allege that the Defendants knew or should have known, before hiring Quigley, that he had a history of poor professional conduct and was unfit for employment. Malicki, 814 So.2d at n. 15. The Complaint, as currently pled, fails to identify a basis for Defendants' imputed knowledge of Quigley's allegedly colorful background. Indeed, there is no allegation that Quigley's purported history of customer complaints, strict employment supervision by A.G. Edwards, or purported disciplinary history were matters of public record or had been communicated to the Defendants. Accordingly, Counts IX and X are dismissed without prejudice, in the event that Plaintiff can in good faith allege facts sufficient to state a claim under this theory of recovery.
VIII. The Factual Allegations of the Complaint Do Not Support a Breach of Fiduciary Duty Cause of Action
Plaintiff asserts claims for breach of fiduciary duty against Defendants in Counts XI and XII. A claim for breach of fiduciary duty requires the existence of a fiduciary relationship, which is a relationship built based upon the trust and confidence between the parties where confidence is reposed by the weaker party and a trust accepted by the party in a position of superiority and influence. See Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., Etc., 850 So.2d 536 (Fla. 5th DCA 2003); see also Argonaught Dev. Group v. SWH Funding Corp., 150 F.Supp.2d 1357, 1363 (S.D. Fla. 2001) (citing Casielles v. Taylor Rolls Royce, Inc., 645 F.2d 498 (5th Cir. 1981)). A complaint "`must allege some degree of dependency on one side and some degree of undertaking on the other side to advise, counsel, and protect the weaker party.'" Taylor Woodrow Homes, 850 So.2d at 540-41 (citing Watkins v. NCNB Nat'l Bank of Fla., N.A., 622 So.2d 1063, 1065 (Fla. 3d DCA 1993), review denied, 634 So.2d 629 (Fla. 1994)). However, in an arms-length transaction, there is no duty imposed on either party to act for the benefit or protection of the other party, or to disclose facts that the other party could, by his own diligence, have discovered. Id. (citing Lanz v. Resolution Trust Corp., 764 F.Supp. 176, 179 (S.D. Fla. 1991)).
Here, Counts XI and XII fail to allege sufficient facts to support a claim of a fiduciary relationship and a breach thereof. Plaintiff makes no allegation that any of the Defendants — or Quigley, for that matter — had a special relationship with Plaintiff that triggered the application of the fiduciary responsibilities. Nor does the complaint allege facts supporting a claim that Plaintiff is a "weaker party." Plaintiff alleges that he holds an M.B.A. and a Ph.D. in marketing, was a professor of marking at FSU for 17 years. and ran a chain of oil change stations for 18 years netting him $6 million upon sale. See Compl. at ¶¶ 10-11. The facts asserted on the face of the complaint, therefore, indicate that Plaintiff is sophisticated in business matters, that this was an arms-length transaction, and that Plaintiff did not repose trust and confidence in the Defendants. Therefore, Counts XI and XII are dismissed without prejudice, with leave to amend if there is a good faith factual basis for this claim.
In so ruling, the Court is not concluding that there are no facts under which Plaintiff could be construed as a "weaker party," simply because he is an educated professional. However, given the scarce allegations in the Complaint, the breach of fiduciary duty claims — as currently pled — cannot survive.
IX. Plaintiff's Present Tort Claims Are Also Barred by the Economic Loss Rule, But Plaintiff May Reassert Those Claims in His Amended Complaint if They Have a Factual Basis Independent From His Contract Claim
The Defendants also argue that the Court should dismiss all of Plaintiff's tort claims under the economic loss rule. The economic loss rule provides that contract principles are more appropriate than tort principles for resolving economic loss claims without accompanying physical injury or injury to property other than that which is the subject of the contract. Medalie v. FSC Securities Corp., 87 F.Supp.2d 1295, 1299-1300 (S.D. Fla. 2000). Consequently, a party to a contract generally may not pursue an independent tort claim for solely economic losses unless the party breaching the contract has committed a tort which is distinguishable from, or independent of, the breach of contract. HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238, 1239 (Fla. 1996). Based on this principle, the Defendants seek dismissal on the grounds that (1) the Complaint does not plead a separate loss or personal injury to support any tort claims separate and apart from Plaintiff's claim for breach of contract; and (2) the exception to the economic loss rule for professional negligence or other torts, as set forth in Moransais v. Heathman, 744 So.2d 973 (1999), does not apply.
As an initial matter, the parties disagree as to whether the economic loss rule applies to this case. Both parties acknowledge that the Moransais decision was a turning point in Florida courts' interpretation of the economic loss rule. In Moransais, the Florida Supreme Court, considering a negligence claim of professional malpractice, held that "the economic loss rule does not bar a cause of action against a professional for his or her negligence even though the damages are purely economic in nature and the aggrieved party has entered into a contract with the professional's employer." See Moransais, 744 So.2d at 983-84. Plaintiff, relying primarily on two post- Moransais district court cases decided in 2000, argues that courts have extended the Moransais holding to permit tort claims brought by investors against stock brokers. See Pl.'s Resp. to Mot. to Dismiss, [DE-15] at 12-13 (citing Crowell v. Morgan, Stanley, Dean Witter Services Co., Inc., 87 F.Supp.2d 1287, 1292 (S.D.Fla. 2000); Hilliard v. Black, 125 F.Supp.2d 1071, (N.D. Fla. 2000)). In turn, Defendants point to the string of recent opinions from the Southern District of Florida which have continued to apply the economic loss rule to dismiss tort claims intertwined with breach of contract claims. See Allstate Defs.' Reply Mem., [DE-24] at 4 (citing Flamenbaum v. Orient Lines, Inc., 2004 U.S.Dist. LEXIS 14718; Targia v. U.S. Alliance Mgmt. Corp., 2003 U.S. Dist. LEXIS 21799 (S.D. Fla. 2003); Omega Res. Group, L.C. v. Jakobot, 2003 U.S. Dist. LEXIS 15906 (S.D. Fla. 2003); Warter v. Boston Securities, No. 03-81026-CIV-RYSKAMP, 2004 WL 691787 at *13 (S.D. Fla. Mar. 22, 2004)).
The Court agrees with the Defendants that the more recent case law favors limiting Moransais to its professional negligence context, and applying the economic loss rule to the instant case. The Court, therefore, turns to Defendants' two asserted bases for dismissal of the tort claims under the economic loss rule, namely that (1) the Complaint does not plead a separate loss or personal injury to support any tort claims separate and apart from Plaintiff's claim for breach of contract; and (2) the Moransais exception to the economic loss rule for professional negligence or other torts does not apply. Addressing first the Moransais exception, other courts, interpreting Moransais, have found that a stock broker is not a "professional" within the meaning of the exception because stock brokers are not required to obtain a four-year degree for licensing in Florida. See Medalie, 87 F.Supp.2d at 1302 (citing Moransais, 744 So.2d at 976 (concluding that a "profession" is "any vocation requiring at a minimum a four-year college degree before licensing is possible in Florida")); see also Warter, 2004 WL 691787 at *13 (citing In re Flagship Healthcare, Inc., 269 B.R. 721, 730 (S.D. Fla. 2001)). Here, Plaintiff has not alleged that Quigley was such a professional, nor do the facts set forth in the Complaint appear to support such a conclusion. Therefore, under the same analysis as that employed in Warter, the Court finds that Plaintiff's case does not qualify for the professional exception set forth in Moransais.
Next, the Defendants argue that Plaintiff's Complaint does not plead a separate loss or personal injury. In particular, the Allstate Defendants argue that because the injury alleged is to the product itself, which in this case is alleged to be the declining value of the variable annuity contract, Plaintiff cannot proceed on his tort claims. See Computech Int'l, Inc. v. Milam Commerce Park, Ltd., 753 So.2d 1219, 1224 (Fla. 1999). The Court agrees. Plaintiff's complaint does not appear to allege any injury other than to the value of his annuities, and absent "physical injury or injury to property other than that which is the subject of the contract." Plaintiff's tort claims will be barred.
In so ruling, the Court reiterates that tort claims that are independent from a contract claim are not precluded by the economic loss rule. See Air Turbine Tech., Inc. v. Atlas Copco AB, 295 F.Supp.2d 1334, 1348 n. 11 (S.D. Fla. 2003) (citing HTP, 685 So.2d at 1239). In this case, as currently pled, most of Plaintiff's tort claims appear to be inextricably linked with Plaintiff's purported contract claim. However, to the extent that Plaintiff, upon filing an Amended Complaint, clarifies his tort claims (as outlined above) and demonstrates that they are independent from his contract claim, those claims may survive application of the economic loss rule.
X. Conclusion
Based upon the foregoing, it is hereby
ORDERED that:
(1) The AEGON Defendants' Motion to Dismiss [DE-5] is GRANTED;
(2) The Allstate Defendants' Motion to Dismiss [DE-9] is GRANTED;
(3) Counts I-VI and IX-XII are DISMISSED WITHOUT PREJUDICE. To the extent that Plaintiff can allege facts sufficient to state a claim for relief under these Counts, Plaintiff may file an Amended Complaint within ten (10) days of this Order;
(4) Counts VII-VIII are DISMISSED WITH PREJUDICE.
DONE AND ORDERED.