Suit Against State With No Duty of Care Owed by State

By Barry Zalma on October 7, 2026

Fraudster’s Suit Dismissed Because State Owes No Duty

A Person Arrested for Insurance – Fraud Later Dismissed – Cannot Maintain Suit Against Officer and the State

Post 4858

In Trevor Jared Smith v. Robert J. Perrault, Jr., and Florida Department Of Financial Services, No. 8:25-cv-804-KKM-AEP, United States District Court, M.D. Florida, Tampa Division (October 1, 2026) Trevor Smith, an independent roofing-company salesman, was investigated in three undercover matters by Robert Perrault, Jr., a detective in the Florida Department of Financial Services’ Bureau of Insurance Fraud.

Perrault submitted affidavits alleging that Smith acted as an unlicensed public adjuster and initiated a fraudulent insurance claim. The State charged Smith but later filed notices of nolle prosequi after discovery allegedly showed that the prosecutions lacked evidentiary support.

Smith sued Perrault under 42 U.S.C. § 1983 for malicious prosecution and asserted three negligent-investigation counts against DFS, alleging that DFS failed to supervise Perrault, verify the affidavits, and ensure probable cause before referral for prosecution.

Smith provides no basis to conclude that DFS owed an ordinary statutory or common-law duty to Smith.

LAW

Under Rules 8(a)(2) and 12(b)(6), a complaint must plead sufficient nonconclusory facts to state a facially plausible claim. Florida negligence law requires a duty of care before immunity is considered. Under section 768.28(5)(a), Florida Statutes, a governmental entity is liable only where a comparable common-law or statutory duty would bind a private person.

DISCUSSION

DFS moved to dismiss, arguing that Smith alleged no specialized duty and that sovereign immunity independently barred the claims.

The court found no ordinary duty because private citizens have no comparable obligation to enforce criminal law. Further, the allegations showed only that DFS supplied information to prosecutors; they did not show that DFS itself arrested, detained, or directly exposed Smith to danger.

Federal Rule of Civil Procedure 8(a)(2) requires a short and plain statement of the claim showing that the pleader is entitled to relief. This pleading standard does not require ‘detailed factual allegations, but it demands more than an unadorned defendant-unlawfully-harmed-me accusation.

All that Smith alleges is that DFS investigated Smith and turned over documents to prosecutors that turned out to be false. That is insufficient to establish a special tort duty that DFS owed to Smith.

ANALYSIS

The duty issue was dispositive, so the court did not need to reach sovereign immunity. Merely alleging that an investigation was wrong or that submitted materials later proved false does not plausibly establish that DFS knew of the falsity or assumed a special duty to Smith. Because Smith had already amended and identified no additional facts that could cure the duty defect, further amendment would be futile.

CONCLUSION

The court granted DFS’s motion to dismiss. Counts IV, V, and VI for negligent investigation were dismissed with prejudice, leave to amend was denied as futile, and the clerk was directed to terminate DFS as a party.

Smith failed to plausibly allege that DFS owed him a duty of care in overseeing his criminal investigation and thus does not state a negligence claim. The court also concluded that further amendment would be futile. Accordingly:

1. The Florida Department of Financial Services’ Motion to Dismiss is granted.

2. Smith’s claims for negligent investigation in Counts IV, V, and VI of the Second Amended Complaint are dismissed with prejudice.

ZALMA OPINION

When someone is arrested for insurance fraud the court will set a trial date and begin the criminal prosecution. Failure to have enough evidence to prosecute the person arrested may not sue, for damages, the governmental entity without a basis to prove the fraud was outside the scope of the arrest.

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