Full Opinion

Third District Court of Appeal State of Florida Opinion filed September 9, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1922 Lower Tribunal No. 18-13796 ________________ Stevie Howard, Appellant, vs. Greenwich Insurance Company, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Michael A. Hanzman, Judge. Weinstein Law, P.A., and Morgan L. Weinstein (Fort Lauderdale), for appellant. Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A., and Isaac R. Ruiz-Carus and Katherine Gannon (Tampa), for appellee. Before EMAS, C.J., and FERNANDEZ and HENDON, JJ. HENDON, J. Stevie Howard (“Howard”), plaintiff below, appeals from a final judgment in favor of Greenwich Insurance Company (“Greenwich”). We reverse and remand for further proceedings. Facts Howard was injured outside a T-Mobile/Metro PCS store property. In April 2018 Howard filed a complaint alleging several counts of negligence against T- Mobile USA d/b/a MetroPCS (“T-Mobile”), and two other defendants. T-Mobile was covered by a liability policy issued by Greenwich. Howard filed his second amended complaint in October 2018, adding for the first time one count against Greenwich for breach of contract, alleging that he was a third-party beneficiary of medical payment benefits as an omnibus insured under the T-Mobile/Greenwich insurance agreement.1 A month after filing his second amended complaint, Howard filed a proposal for settlement with T-Mobile, which T-Mobile accepted. In December 2018, Howard and T-Mobile executed a release discharging T-Mobile stating that payments for medical treatment rendered as a result of the accident were covered in the settlement payment made by T-Mobile USA. Howard received payment, and in January 2019, the trial court rendered its order on a joint stipulation dismissing the 1 See Maxwell v. S. Am. Fire Ins. Co., 235 So. 2d 768 (Fla. 3d DCA 1970) (holding that the medical payment coverage provision of a liability policy is separate and independent coverage from the bodily injury liability coverage). 2 case with prejudice as to defendant T-Mobile only. In May 2019, Greenwich moved to dismiss count VII of the second amended complaint, the sole count against it. Greenwich argued in its motion to dismiss that the second amended complaint failed to attach the insurance policy and failed to state a cause of action by failing to allege a duty. The trial court denied Greenwich’s motion to dismiss and ordered it to file an answer to the second amended complaint. The court, in the same order, also required Howard and Greenwich to file supplemental memoranda of law discussing the medical payments provision of the insurance policy and whether the second amended complaint violated Florida’s non- joinder statute, section 627.4136, Florida Statutes (2019).2 Greenwich filed its answer, and both parties filed supplemental legal memoranda on the issue of the applicability of section 627.4136(1). Greenwich 2 Section 627.4136, Florida Statutes (2019), Nonjoinder of insurers, provides: (1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy. (2) . . . No person who is not an insured under the terms of a liability insurance policy shall have any interest in such policy, either as a third- party beneficiary or otherwise, prior to first obtaining a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy. 3 asserted in its answer that Howard is not a beneficiary under the insurance policy, and is barred from seeking recovery under the medical payments provision of the insurance policy because he was already compensated for his medical expenses from the T-Mobile settlement agreement and release of liability. Because Howard’s settlement with T-Mobile did not yet exist when Howard filed his second amended complaint,3 the trial court took judicial notice of those documents and concluded that the settlement and release of all claims against T-Mobile also extinguished Howard’s claim against Greenwich as a matter of law, relying on Rosen v. Fireman’s Fund Insurance Company, 189 So. 2d 395 (Fla. 3d DCA 1966). The trial court granted Greenwich’s motion to dismiss and entered final judgment in favor of Greenwich. Howard appeals. Standard of review A trial court’s ruling on a motion to dismiss is reviewed de novo because a motion to dismiss examines the legal sufficiency of the complaint, not factual determinations. Llanso v. WNF Law, P.L., 45 Fla. L. Weekly D1401 (Fla. 3d DCA June 10, 2020); Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So. 2d 1078, 1080 (Fla. 2d DCA 2002). 3 Howard filed his second amended complaint on October 31, 2018. The final order of dismissal with prejudice as to Howard and MetroPCS was entered on January 22, 2019. Greenwich did not file its motion to dismiss count VII of the second amended complaint until May 3, 2019, and the trial court denied Greenwich’s motion on June 5, 2019. 4 Discussion Entry of the final judgment stemming from a pre-trial motion to dismiss that did not raise the issue on appeal as a basis for dismissal—let alone dismissal with prejudice—constitutes reversible error. The trial court’s consideration of the settlement and release of T-Mobile was a matter outside of the four corners of the second amended complaint, as those documents did not exist at the time the second amended complaint was filed. This court has followed the general rule that a court may not look beyond a complaint and its attachments to take judicial notice of a separate legal proceeding when ruling on a motion to dismiss. Llanso, 45 Fla. L. Weekly D1401 (holding the trial court was not permitted to consider or take judicial notice of matters outside of the complaint and attachments to which the motion to dismiss was directed); Papa John’s Int’l, Inc. v. Cosentino, 916 So. 2d 977, 983 (Fla. 4th DCA 2005). Further, in evaluating a motion to dismiss that alleges an action is barred by a previous adjudication –or, as here, a settlement and release of claims— where there is no reference in the complaint to the prior action and no stipulation that documents from the earlier claim can be considered—the court’s analysis is restricted to the allegations of the complaint. Newberry Square Fla. Laundromat, LLC v. Jim’s Coin Laundry & Dry Cleaners, Inc., 296 So. 3d 584, 589 (Fla. 1st DCA 5 2020). 4 The error was further compounded by the trial court considering Greenwich’s affirmative defenses advanced in Greenwich’s answer to the second amended complaint, which demanded trial by jury and raised both factual and legal issues – after the trial court had initially denied Greenwich’s motion to dismiss. The court essentially transformed a motion to dismiss into an un-articulated motion for summary judgment where, as far as the appellate record shows, no motion for summary judgment had been made or argued by either Greenwich or Howard after Greenwich filed its answer. A motion to dismiss is not a substitute for a motion for summary judgment. Consuegra v. Lloyd’s Underwriters at London, 801 So. 2d 111, 112 (Fla. 2d DCA 2001); Fla. Farm Bureau Gen. Ins. Co. v. Ins. Co. of N. Am., 763 So. 2d 429, 432 (Fla. 5th DCA 2000) (“[a] motion to dismiss should not be used ‘to 4 On a motion to dismiss, “the trial court must confine its review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept as true all well-pleaded allegations.” Sobi v. Fairfield Resorts, Inc., 846 So. 2d 1204, 1206 (Fla. 5th DCA 2003) (citation omitted). “The question for the trial court . . . is simply whether, assuming all the allegations in the complaint to be true, the plaintiff would be entitled to the relief requested.” Cintron v. Osmose Wood Preserving, Inc., 681 So. 2d 859, 861 (Fla. 5th DCA 1996). Thus, “‘[w]here a motion to dismiss . . . rests on facts outside the scope of the allegations contained in the complaint, the trial court commits reversible error in dismissing the complaint based on those extraneous matters.’” Hewett-Kier Constr., Inc. v. Lemuel Ramos & Assocs., Inc., 775 So. 2d 373, 375 (Fla. 4th DCA 2000) (citation omitted). 6 determine issues of ultimate fact’ and ‘may not act as a substitute for summary judgment.’”) (citing Roberts v. Children’s Med. Servs., 751 So. 2d 672, 673 (Fla. 2d DCA 2000). As explained by the court in Newberry Square, “[e]ven a relatively straightforward affirmative defense, such as one based upon the statute of limitations, is not a basis for dismissal unless the complaint affirmatively and clearly shows the conclusive applicability of the defense.” Id. (citation omitted). Or, stated differently, “[a] motion to dismiss should not be granted on the basis of . . . defenses unless the . . . defenses appear on the face of the pleading.” Mettler, Inc. v. Ellen Tracy, Inc., 648 So. 2d 253, 255 (Fla. 2d DCA 1994) (alteration added). It follows then that if “the basis for [the affirmative defense] does not appear on the face of the complaint, those grounds cannot be determined by way of a motion to dismiss.” Garnac Grain Co. v. Mejia, 962 So. 2d 408, 410 (Fla. 4th DCA 2007); Attias v. Faroy Realty Co., 609 So. 2d 105 (Fla. 3d DCA 1992) (holding that an affirmative defense cannot be raised by a motion to dismiss if the motion requires the court to consider matters outside the four corners of the complaint); see also Williams v. Gaffin Indus. Servs., Inc., 88 So. 3d 1027, 1029 (Fla. 2d DCA 2012). In the case before us, the second amended complaint specifically alleged that the plaintiff was entitled to coverage pursuant to the medical benefits provision of the insurance contract issued by Greenwich. The trial court did not address that 7 issue or give Howard an opportunity to further amend the complaint in order to attach the insurance policy containing the medical payment provision. As stated in Simonin v. Sims, 456 So. 2d 499, 500 (Fla. 4th DCA 1984), While dismissal of the complaint may have been appropriate for failure to state a cause of action due to certain unsupported allegations, we agree that the complaint should not have been dismissed with prejudice and that the appellant should have been given an opportunity to amend. The complaint need not anticipate affirmative defenses. The affirmative defense . . . should not preclude the possibility of amendment of the appellant's complaint, especially in light of the liberality afforded in permitting amendments. (emphasis added). Accordingly, “a trial court should grant leave to amend, rather than dismiss a complaint with prejudice, unless a party has abused the privilege to amend, an amendment would prejudice the opposing party, or the complaint is clearly not amendable.” Fla. Nat’l Org. for Women, Inc. v. State, 832 So. 2d 911, 915 (Fla. 1st DCA 2002). If a pleader “‘may be able to allege additional facts to support its cause of action or support another cause of action under a different legal theory’ [the pleader] should be allowed to amend [its] complaint.” Id. (alterations added) (citation omitted). Finally, the final judgment prematurely addressed the merits, on a motion to dismiss, to conclude that the T-Mobile settlement operates to extinguish count VII against Greenwich, relying on Rosen v. Fireman’s Fund Insurance Company, 189 So. 2d 395 (Fla. 3d DCA 1966). By ruling on the merits by way of a motion to dismiss, the trial court deprived Howard of the opportunity to fully respond to 8 Greenwich’s affirmative defenses.5 It was error to treat Greenwich’s motion to dismiss as one for summary judgment.6 As explained in Behnam v. Zadeh, 132 So. 3d 951, 952 (Fla. 1st DCA 2014), [c]ounsel must remember that [a motion for summary judgment and a motion to dismiss have] separate purpose[s] under our rules of civil procedure. A motion to dismiss is customarily designed to test the legal sufficiency of a complaint to state a cause of action, not to determine issues of ultimate fact. The function of a motion for summary judgment is to determine if the parties can offer sufficient proof to support the issues framed in their pleadings. (quoting Holland v. Anheuser Busch, Inc., 643 So.2d 621, 623–24 (Fla. 2d DCA 1994)); Baycon Indus., Inc. v. Shea, 714 So. 2d 1094, 1095 (Fla. 2d DCA 1998) (holding the trial court, by treating the proceedings as a summary judgment, both parties were deprived of traditional procedural opportunities provided by Florida 5 As explained in State Farm Fire & Cas. Co. v. Kambara, 667 So. 2d 831, 833 (Fla. 4th DCA 1996), An individual can be both an omnibus insured seeking first-party benefits under an insurance contract and also be a third-party beneficiary under the liability provisions of the coverage when suing the tortfeasor. In the case of the omnibus insured, the individual’s rights are derived directly from his or her status under a clause of the insurance policy without regard to the issue of liability; if the individual fits within the class he or she is entitled to first-party benefits. 6 “Even if we were to treat the motion as a motion for summary judgment, the record is as yet insufficiently complete to support such a motion.” Winter v. Miami Beach Healthcare Grp., Ltd., 917 So. 2d 973, 974–75 (Fla. 3d DCA 2005). 9 Rule of Civil Procedure 1.510). Because the trial court specifically declined to make any legal conclusions regarding applicability of the non-joinder statute, we do not address that issue. For the foregoing reasons, we reverse the trial court’s final judgment and remand for further proceedings. Reversed and remanded. 10