
    MARYLAND CASUALTY CO. v. MIAMI TRANSIT CO.
    No. 3321-M-Civil.
    District Court, S. D. Florida, Miami Division.
    March 26, 1951.
    Dixon, Dejarnette & Bradford, Miami, Fla., for plaintiff.
    Blackwell, Walker & Gray, Miami, Fla., for defendant.
   HOLLAND, Chief Judge.

This case comes before the Court upon the plaintiff’s motion to dismiss the defendant’s amended counterclaim, and upon the defendant’s motion to dismiss the plaintiff’s supplemental claim for relief.

The amended counterclaim is based upon the supposed illegality of the plan of retrospective rate calculation incorporated in the two policies of automobile liability insurance issued by the plaintiff upon the defendant’s fleet of buses. The Court has heretofore stricken certain defenses filed by the defendant based upon the same contention, and the Court now adheres to its former ruling that the restrospective rating plan embodied in the policies is valid and legal under the Florida statute. The motion to dismiss the amended counterclaim is therefore granted, without leave to amend further with respect to the said plan of retrospective rating.

The Court construes the amended counterclaim as based solely upon the aforesaid contention of the defendant, but counsel for the defendant, at the hearing, stated that it was the desire of the defendant to amend the counterclaim further to allege mishandling by the plaintiff of claims arising during the two policy terms. The defendant is granted leave to serve a second amended counterclaim, limited to this feature, within thirty (30) days from this date.

The plaintiff’s supplemental claim for relief sets up calculations of the premium on the retrospective plan made, in accordance with the policies, after the institution of this suit, and introduces no legal principles not involved in the original claim for relief, as to which the Court has already denied a motion to dismiss. The motion to dismiss the supplemental claim for relief is denied, and the defendant is allowed thirty (30) days in which to file its defenses thereto.  