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A Restorations, Inc. v. Liberty Mutual Fire Insurance Co.

United States District Court, S.D. Georgia

March 15, 2017

A RESTORATIONS, INC., Plaintiff,
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.

          ORDER

          LISA GODBEY WOOD, CHIEF JUDGE

         Pending 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.

         FACTUAL BACKGROUND

         Plaintiff 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.

         In 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.

         LEGAL STANDARD

         When 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)).

         DISCUSSION

         The 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.[1] 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.

         This 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.

         Plaintiff 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.

         Under 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 ...


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