United States District Court, S.D. Georgia
GODBEY WOOD, CHIEF JUDGE
before the Court is Defendant Liberty Mutual Insurance
Company's Renewed Motion to Dismiss or in the
Alternative, Judgment on the Pleadings (Dkt. No. 23) . The
motion has been briefed and is now ripe for decision. For the
reasons stated below, the Defendant's motion is GRANTED.
A Restoration, Inc. ("Plaintiff") is a corporation
which provides repairs for property damaged by nuisance
wildlife. Dkt. No. 29 p. 2. In March 2014, Larry and Nancy
Mitchell (the "Mitchells") became aware that
raccoons had occupied their attic and were causing damage.
Id. Defendant Liberty Mutual Fire Insurance Company
("Defendant") provided a homeowner's insurance
policy (the "Policy") to the Mitchells' home.
Id. On March 31, 2014, the Mitchells contracted with
Plaintiff to provide restoration services to clean and
remediate the damage caused by the raccoons. Id.. at 3. The
agreement allowed Plaintiff to collect payments directly from
Defendant for services rendered and the right to initiate
legal proceedings against Defendant. Id. After
completing the job, Plaintiff alleges Defendant refused to
pay the entire amount due. Id.
early August 2014, Defendant notified Plaintiff that it was
refusing to pay any additional sum. Id. Plaintiff
filed its complaint on April 20, 2016, seeking unpaid
services totaling $98, 794.79. Id. Plaintiff alleges
that it became aware of the loss on March 31, 2014. Dkt. No.
1 ¶ 8. Defendant claims that since Plaintiff did not
file its complaint until April, 2016, Plaintiff's claims
on the Policy are time-barred by the suit limitations
provision. The Court previously denied Defendant's Motion
to Dismiss (Dkt. No. 4) partially because the Court could not
dismiss this matter without consideration of the assignment
contract between Plaintiff and the Mitchells (Dkt. No. 22) .
Defendant has now renewed its Motion to Dismiss, this time
with the assignment contract attached as an exhibit.
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), a district court must accept as true the facts as
set forth in the complaint and draw all reasonable inferences
in the plaintiff's favor. Randall v. Scott, 610
F.3d 701, 705 (11th Cir. 2010). Although a complaint need not
contain detailed factual allegations, it must contain
sufficient factual material "to raise a right to relief
above the speculative level." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). At a minimum, a
complaint should "contain either direct or inferential
allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory."
Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500
F.3d 1276, 1282-83 (11th Cir. 2007) (per curiam)
(quoting Roe v. Aware Woman Ctr. for Choice, Inc.,
253 F.3d 678, 683 (11th Cir. 2001)).
primary issues on Defendant's renewed Motion to Dismiss
are 1) whether Plaintiff can alter the suit limitations
period in the Policy through an assignment contract with the
Mitchells and 2) if not whether or not Plaintiff's claims
are time-barred. First, the Court turns to the plain language
of the assignment contract. Importantly, the Defendant is not
a signatory to the assignment:
THIS AGREEMENT IS NOT INTENDED TO ASSIGN RIGHTS
BEYOND THAT NECESSARY TO COLLECT, OR ENFORCE COLLECTION, OF
THE CHARGES FOR SERVICES RENDERED BY A Restorations, Inc.
AND IS NOT AN ASSIGNMENT OF, NOR AN ATTEMPT TO ASSIGN THE
INSURANCE POLICY ITSELF
Dkt. No. 24-1.
provision plainly indicates an intention to assign only the
rights related to the collection of insurance payments from
Defendant. Plaintiff, as assignee to the Policy, could only
take the Policy subject to all of its provisions or none of
it. S. Telecom v. TW Telecom of Ga., LP, 741 S.E.2d
234, 237-38 (Ga.App. 2013) (citation omitted). Indeed,
Plaintiff "stands in the shoes" of the Mitchells
and therefore is subject to the same contract provisions and
defenses. Id. Part of the "rights . . .
necessary to collect or enforce collection" is the
window enabling such collection to proceed. Therefore,
Plaintiff was assigned the Policy subject to the two-year
suit limitations provision. Plaintiff makes few arguments to
rebut the applicability of the suit limitations provision.
Instead, Plaintiff argues this provision is unenforceable.
urges the Court to apply the six-year statute of limitations
regarding breach of contract actions. Dkt. No. 29 p. 5.
See Ga. Code Ann., § 9-3-24. Defendant argues
that the Policy's two-year suit limitation provision
should' apply. Applying the Policy's two-year suit
limitation would warrant dismissal because Plaintiff failed
to bring this action "within two years after the date of
loss" under the Policy. Dkt. No. 23 p. 4 ¶ 8.
Georgia law, a suit limitation provision in an insurance
contract is valid and enforceable. Little v. Allstate
Ins. Co., 258 Ga. 404, 369 S.E.2d 248, 248-49 (1988). A
suit limitation provision within an insurance policy may
supersede the applicable statute of limitations regarding
actions based upon that policy. SunTrust Mtg. v. Ga. Farm
& Ins. Co., 416 S.E.2d 322 (Ga.App. Ct. 1992);
Darnell v. Fireman's Fund Ins. Co., 154 S.E.2d
741 (Ga.App. Ct. 1967). Therefore, the ...