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Morrow v. Allstate Indemnity Co.

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

March 29, 2017

BARBARA MORROW and BENNY MORROW, individually and on behalf of those similar situated, Plaintiffs,



         The Defendants have moved to dismiss the claims of Plaintiffs Barbara Morrow and Benny Morrow pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. 13). The motion is GRANTED in part and DENIED in part.


         Plaintiffs Barbara Morrow and Benny Morrow seek relief on behalf of themselves and others similarly situated for Defendants' alleged refusal to assess and pay damages for diminished value for claims made under their homeowners' insurance policies. As recognized by both parties, this case is part of a series of cases seeking to certify in this district a class-action for diminished value in the real-property-insurance context. (See, e.g., Doc. 18, p. 15; Doc. 19, p. 8).

         Plaintiffs' Complaint contains four counts: Count 1 (Doc. 1, ¶¶ 85-96), breach of contract for failure to assess diminished value; Count 2 (Doc. 1, ¶¶ 97- 106), breach of contract for failure to pay diminished value; Count 3 (Doc. 1, ¶¶ 107-116), declaratory judgment that the Defendants have an obligation to their insureds to assess and pay for diminished value “when policyholders present first-party physical damage claims arising from direct physical losses to their insured properties” (Doc. 1, p. 36); and Count 4 (Doc. 1, ¶¶ 117-119), attorneys' fees and costs.

         Plaintiffs allege that they “timely reported two claims for direct physical loss to their home-one involving water damage and the other involving foundational and/or structural support damage.” (Doc. 1, ¶ 2). Plaintiffs argue that “Defendants breached their insurance contract with Plaintiffs by (1) failing to assess [their] property for diminution in value resulting [from] the damage giving rise to the covered claims and (2) failing to pay Plaintiffs for such diminution in value.” (Doc. 1, ¶ 2). The foundational and/or structural support damage occurred on April 15, 2010, and the water damage occurred on July 14, 2015. (Doc. 1 ¶¶ 39, 44). Following the incidents of damage, Allstate Indemnity Company (“Allstate Indemnity”) “adjusted Plaintiffs' claim arising out of the . . . loss[es], authorized repairs to [their] home, and subsequently paid certain repair costs, ” but “took no action to assess any diminution in the fair market value of [their] property.” (Doc. 1, ¶¶ 40-41, 45-46).

         Although Plaintiffs identify Allstate Indemnity as the issuer of the policy, (Doc. 1, ¶ 4), Plaintiffs seek to hold additional defendants liable by invoking theories of agency, apparent agency, alter ego, joint venture, and the juridical link doctrine. (Doc. 1, ¶¶ 23-26).

         Allstate Indemnity's policy covers “sudden and accidental direct physical loss to [the insured's dwelling] . . . except as limited or excluded in this policy.” (Doc. 13-1, p. 23).[2] Defendants argue that Plaintiffs' diminished value claim fails because of the limiting language of Section (5)(c) of the Section I Conditions included in the policy, the “Building Structure Reimbursement” provision. This provision appears immediately after and is related to Sections (4) and (5)(b). These provisions state, in relevant part, the following:

         4. Our Settlement Options

         In the event of a covered loss, we have the option to:

a) repair, rebuild or replace all or any part of the damaged, destroyed or stolen property with property of like kind and quality within a reasonable time; or
b) pay for all or any part of the damaged, destroyed or stolen property as described in Condition 5 "How We Pay For a Loss." . . . .

         5. How We Pay For A Loss

. . . [P]ayment for covered loss will be by one or more of the following methods: . . . .
b) Actual Cash Value. If you do not repair or replace the damaged, destroyed or stolen property, payment will be on an actual cash value basis. This means there may be a deduction for depreciation . . . .
You may make claim for additional payment as described in paragraph "c" and paragraph "d", if you repair or replace the damaged, destroyed or stolen covered property within 180 days of the actual cash value payment.
c) Building Structure Reimbursement . . . [W]e will make additional payment to reimburse you for cost in excess of actual cash value if you repair, rebuild or replace damaged, destroyed or stolen covered property within 180 days of the actual cash value payment . . . .

         Building Structure Reimbursement will not exceed the smallest of the following amounts:

1) the replacement cost of the part(s) of the building structure(s) for equivalent construction for similar use on the same residence premises;
2) the amount actually and necessarily spent to repair or replace the damaged building structure(s) with equivalent construction for similar use on the same residence premises; or
3) the limit of liability applicable to the building structure(s) as shown on the Policy Declarations for Coverage A - Dwelling Protection or Coverage B - Other Structures Protection, regardless of the number of building structures and structures other than building structures involved in the loss.

(Doc. 13-1, pp. 33-34) (emphasis in original).


         A. Motion to Dismiss Standard

         The Federal Rules of Civil Procedure require that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To avoid dismissal pursuant to Fed.R.Civ.P. 12(b)(6), a complaint must allege sufficient factual matter to “‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “At the motion to dismiss stage, all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006) (internal quotation marks and citation omitted). However, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). “[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). The complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and citation omitted). Where there are dispositive issues of law, a court may dismiss a claim regardless of the alleged facts. Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

         B. Counts 1 and 2: Breach of Contract for Failure to Assess and Pay Diminished Value

         Defendants contend that Plaintiffs' breach of contract claims should be dismissed because (1) Plaintiffs have not “allege[d] sufficient facts to show that Defendants had a contractual obligation to assess and pay for diminution in value;” (2) Plaintiffs “attempt to overcome the contractual deficiencies by misstating mere legal conclusions;” (3) Plaintiffs “fail to allege sufficient facts to show that they suffered any damages entitling them to recovery”; and (4) Plaintiffs' “claim based on the 2010 loss is time barred.” (Doc. 13, pp. 3-9). Defendants further argue that Plaintiffs' alternative request for relief in the form of specific performance and/or an injunction should be dismissed. (Doc. 13, pp. 8-9).

         1. Whether the policy covers diminished value

         Defendants contend that the policy between Plaintiffs and Allstate Indemnity does not cover diminished value, and thus Allstate Indemnity did not breach the contract when it failed to assess or pay for diminished value to Plaintiffs' home. (Doc. 13, p. 3). Plaintiffs argue that based on the policy's coverage of “sudden and accidental direct physical loss, ” Allstate Indemnity is required under Georgia law to pay diminished value. (Doc. 18, p. 10). Plaintiffs primarily rely on two cases: State Farm Mutual Automobile Insurance Company v. Mabry, 556 S.E.2d 114 (Ga. 2001) and Royal Capital Development, LLC v. Maryland Casualty Company, 728 S.E.2d 234 (Ga. 2012).

         In Mabry, the Georgia Supreme Court addressed “whether Georgia law, as applied to the contract at issue, requires insurers to assess vehicles presented with first-party physical damages claims for diminution in value and, if found, pay it; and, if so, whether State Farm has sought to avoid that obligation.” 556 S.E.2d at 117. The physical damage coverage in State Farm's policies provided that it would “pay for loss to your car” with a limitation of liability provision providing the insurer will pay the “lower of the actual cash value of the vehicle or the cost of repair or replacement.” Id. at 118. Reviewing 75 years of Georgia case law, the Georgia Supreme Court concluded that “Georgia . . . has been consistent in interpreting the physical damage coverage of automobile insurance policies to require that the insured be made whole, basing the measure of damages on the value of the vehicle.” Id. at 122. Thus, the Georgia Supreme Court held that “State Farm is obligated to pay for diminution in value when it occurs, ” noting that “what is lost when physical damage occurs is both utility and value, ” and that “[r]ecognition of diminution in value as an element of loss to be recovered on the same basis as other elements of loss merely reflects economic reality.” Id. Further, the Georgia Supreme Court held that the trial court correctly determined that State Farm was obligated to assess diminution in value “along with the elements of physical damage when a policyholder makes a general claim of loss.” Id. at 122-23.

         In Royal Capital, the Georgia Supreme Court held that Mabry is not limited to automobile insurance policies. Specifically, the Georgia Supreme Court answered this certified question from the Eleventh Circuit: Does “an insurance contract providing coverage for ‘direct physical loss of or damage to' a building” require compensation “for the diminution in value of the property resulting from stigma due to its having been physically damaged?” Royal Capital, 728 S.E.2d at 235. The Georgia Supreme Court answered the question in the affirmative, holding that Mabry “is not limited by the type of property insured, but rather speaks generally to the measure of damages an insurer is obligated to pay.” Id. at 235. The Georgia Supreme Court reiterated the “long-standing contract interpretation rule in Georgia” that it followed in Mabry: “[W]here ‘[an] insurance policy, drafted by the insurer, promises to pay for the insured's ...

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