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Bryant v. Progressive Mountain Insurance Co.

United States District Court, M.D. Georgia, Albany Division

March 20, 2017




         Before 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.


         Plaintiff, 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).

         This 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).

         As a 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 12(c).


         Federal 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 proper.

         “In 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 Cir. 1998)).

         “A 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.


          On or 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).

         Officer 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).

         On or 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 disassembly. (Id.).

         After 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).

         Mr. 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.).

         On or 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 ...

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