United States District Court, M.D. Georgia, Albany Division
J. ABRAMS, JUDGE UNITED STATES DISTRICT COURT
the Court is Defendant Progressive Mountain Insurance
Company's Partial Motion to Dismiss Plaintiff's
claims 1-4 and 6-11. (Doc. 4). For the reasons set forth
below, Defendant's Motion is GRANTED.
Charles Bryant, commenced this action on April 5, 2016 in the
Superior Court of Grady County, State of Georgia. (Doc. 1-2).
Defendant filed its Answer on May 11, 2016 (Doc. 1-3), and
thereafter filed a Notice of Removal to this Court on May 19,
2016 pursuant to 28 U.S.C. § 1332, invoking this
Court's diversity jurisdiction. (Doc 1). Pursuant to
Fed.R.Civ.P. 12(b)(6), Defendant filed the present Motion on
June 7, 2016. (Doc. 4-1).
action arises out of Defendant's refusal to pay a
first-party insurance claim made by Plaintiff against
Defendant. (Doc. 1-2). The Complaint asserts twelve causes of
action: (1) breach of contract to pay claim; (2) breach of
contract - consequential damages; (3) fraud; (4) fraud -
consequential damages; (5) bad faith; (6) violation of the
Georgia Uniform Deceptive Trade Practices Act and violation
of the Fair Business Practices Act; (7) negligent
misrepresentation; (8) unjust enrichment; (9) statutory
damages and negligence per se; (10) punitive damages; (11)
attorney's fees; and (12) statutory attorney's fees.
(Doc. 1-2 ¶¶ 40- 118). Defendant moves to dismiss
claims 1-4 and claims 6-11. (Doc. 4-1).
threshold issue, Plaintiff notes that Defendant's Answer,
which was filed prior to the present Motion, raises the
defense of failure to state a claim. (Doc. 5 citing Doc.
1-3). Therefore, Plaintiff argues, Defendant's Motion is
a “nullity and must be stricken.” (Doc. 5 citing
Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001)
(holding that a motion pursuant to Fed.R.Civ.P. 12(b)(6)
filed after an answer which states failure to state a claim
as a defense is a nullity)). However, the Court “may
construe the Rule 12(b)(6) motion as one seeking judgment on
the pleadings under Rule 12(c). Whitehurst v. Wal-Mart
Stores East, L.P., 329 F. App'x 206, 208 (11th Cir.
2008). Defendant preserved the defense of failure to state a
claim by raising it in its answer. See
(Id.). “In so doing, however, [Defendant
cannot] assert the defense in a Rule 12(b)(6) motion.”
See (Id.). “Nevertheless, when
construed as a Rule 12(c) motion for judgment on the
pleadings, [Defendant's] motion [is] timely.”
See (Id.). Thus, in the interest of
judicial economy, the Court construes the Defendant's
Motion as a motion for judgment on the pleadings pursuant to
Rule of Civil Procedure 12(c) provides that, “[a]fter
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). The pleadings in this case are closed as
Plaintiff filed the Complaint, Defendants answered, and no
counterclaims, crossclaims, or third-party complaints have
been filed. See Perez v. Wells Fargo N.A., 774 F.3d
1329, 1336 (11th Cir. 2014); see also Fed. R. Civ.
P. 7(a). Accordingly, a motion pursuant to Rule 12(c) is
determining whether a party is entitled to judgment on the
pleadings, we accept as true all material facts alleged in
the non-moving party's pleading, and we view those facts
in the light most favorable to the non-moving party.
Perez, 774 F.3d at 1335 (internal citation omitted).
Because “judgment on the pleadings is limited to
consideration of ‘the substance of the pleadings and
any judicially noticed facts, '” the Court cannot
consider facts introduced in the parties' briefing on
Defendants' Motion. Armstrong v. Cummins, 2009
WL 2709954, at *2 (M.D. Ala. Aug. 26, 2009) (quoting
Bankers Ins. Co. v. Fla. Residential Prop. & Cas.
Joint Underwriting Ass'n, 137 F.3d 1293, 1295 (11th
motion for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c) is subject to the same standard as a
Rule 12(b)(6) motion to dismiss.” U.S. v.
Wood, 925 F.2d 1580, 1581 (11th Cir. 1991); see also
Everidge v. Wells Fargo Bank, 2015 WL 5786738, at *8 n.8
(M.D. Ga. Sept. 29, 2015). Therefore, “a complaint must
contain specific factual matter, accepted as true to state a
claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible on its face if the complaint alleges enough facts
to “allow[ ] the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. A complaint
must plead “enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence” of the
defendant's liability. Twombly, 550 U.S. at 556.
While “all well pleaded facts are accepted as true, and
the reasonable inferences therefrom are construed in the
light most favorable to the plaintiff, ” Bryant v.
Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir.
1999), the same liberal reading does not apply to legal
conclusions. Sinaltrainal v. Coca-Cola Co., 578 F.3d
1252, 1260 (11th Cir. 2009), abrogated on other grounds
by Mohamad v. Palestinian Auth., 132 S.Ct. 1702 (2012).
“[A] plaintiff armed with nothing more than
conclusions” cannot “unlock the doors of
discovery.” Iqbal, 556 U.S. at 678-79.
Additionally, “[t]hreadbare recitals of the elements of
a cause of action supported by mere conclusory statements, do
not suffice.” Id. at 678.
about October 2, 2015, Plaintiff purchased an automobile
liability and collision insurance policy from Defendant for
Plaintiff's 1995 Peterbilt 379 truck
(“Truck”). (Doc. 1-2 ¶ 10). Plaintiff paid
all premiums due on the policy. (Id. ¶ 11). On
November 14, 2015, Plaintiff parked his Truck at Susie
Q's BP Service Station at 45 U.S. Highway 84 East, Cairo,
Georgia. (Id. ¶ 12). Plaintiff left the Truck
in neutral, set the brake, and went into the station.
(Id.). The brakes failed to hold, and the Truck went
down a hill, across Highway 84, and crashed into a Dairy
Queen restaurant. (Id. ¶ 13).
Shannon Lang of the Cairo Police responded, and under his
direction, Plaintiff attempted to drive the Truck from the
scene. (Id. ¶ 14). However, the Truck would not
move as it was stuck on concrete from barriers in front of
the Dairy Queen, and the rear differential was broken.
(Id.). The Cairo Police then called Mr. Rusty Evans
to tow the truck from the scene because it was blocking
Highway 84. (Id. ¶ 15). Two steel posts set in
concrete had been installed in front of the Dairy Queen to
protect the Dairy Queen from runaway vehicles such as
Plaintiff's. (Id. ¶ 16). At the time of
Plaintiff's accident, the posts did indeed protect the
Dairy Queen building, but the force of Plaintiff's truck
knocked the posts down, and the concrete in which they were
set came out of the ground. (Id.). Plaintiff's
Truck rode up on the concrete, and this prevented the Truck
from moving under its own power. (Id. ¶ 17).
Mr. Evans was able to drag the truck off the concrete where
it was stuck. (Id. ¶ 18). After Mr. Evans
removed the Truck from the concrete, Plaintiff attempted to
drive the Truck away, but the truck would not move because
the rear differential was broken. (Id. ¶ 19).
Mr. Evans ultimately towed the Truck to Plaintiff's home.
(Id. ¶ 20).
about November 20, 2015, Mr. Evans spoke to Mr. Daniel
Howard, a Commercial Claims Adjuster for Defendant.
(Id. ¶ 21). Mr. Howard requested that Mr. Evans
tow Plaintiff's Truck to Mr. Evan's shop for
diagnosis and repair. (Id.). Mr. Howard asked that
Mr. Evans disassemble the differential for inspection.
(Id.). Mr. Evans agreed to disassemble the
differential, but first asked for assurance of payment from
Defendant. (Id.). Mr. Howard replied that he had
been instructed by “higher ups” to deny the claim
for the differential at this time, and he suggested that Mr.
Evans request authorization for payment from Plaintiff.
(Id. ¶ 22). As an accommodation to Plaintiff,
Mr. Evans disassembled the differential without charge.
(Id. ¶ 23). Defendant refused to pay for the
disassembly of the differential after Defendant denied
coverage, and Mr. Evans has not been paid for the
the disassembly, Mr. Howard asked Mr. Evans if he would be
willing to provide a statement that the damage to the rear
differential was caused by wear and tear rather than by the
accident. (Id. ¶ 24). Mr. Evans declined to do
so, and he informed Mr. Howard that it would be impossible to
determine what caused the damage through an internal
examination of the parts. (Id.). Mr. Evans explained
that the parts might appear to be in perfect condition, but a
bearing could seize and cause extensive damage without any
evidence; on the other hand, according to Mr. Evans, the
parts might look quite worn, but work perfectly for thousands
of miles. (Id.). Mr. Evans informed Mr. Howard that
he believed it highly improbable that the differential failed
catastrophically at the exact time of the accident without
any effect from the accident. (Id. ¶ 25). In
Mr. Evans' opinion, the differential was broken after the
accident when the police and Plaintiff attempted to move the
Truck before the tow truck arrived. (Id.).
Alternatively, Mr. Evans believed the differential was broken
during the accident when the Truck struck the steel poles in
front of the Dairy Queen. (Id. ¶ 26).
Evans sent a bill for towing to Defendant. (Id.
¶ 27). Mr. Evans informed Mr. Howard that he would not
release the Truck until the bill for towing and storage was
paid. (Id.). Defendant paid the bill on or about
January 15, 2016. (Id.). At that time, the Truck was
released to Plaintiff. (Id.).
about November 20, 2015, Plaintiff filed a claim with
Defendant for indemnification of his insured losses under his
policy. (Id. ¶ 29). Plaintiff complied with all
policy requirements and deadlines when filing his claim.
(Id. ¶ 30). On January 19, 2015, the Defendant
denied Plaintiff's claim. (Id. ¶ 31).
Defendant's denial stated:
We completed an inspection of the vehicle. There was no
physical damage to the rear differential. The damage to the
torn down housing indicates the damage was the result of an
internal failure and caused the puncture to the housing. Our
investigation found the damages to the rear differential was
caused by an internal (mechanical failure) not a collision
event but wear and tear from use before and after this loss
occurred. Your policy ...