United States District Court, M.D. Georgia, Macon Division
BARBARA MORROW and BENNY MORROW, individually and on behalf of those similar situated, Plaintiffs,
ALLSTATE INDEMNITY COMPANY, Defendant.
LAWSON, SENIOR JUDGE
before the Court is Defendant Allstate Indemnity
Company's (“Allstate”) Motion to Dismiss
Plaintiffs' Amended Complaint pursuant to Fed.R.Civ.P.
12(b)(6). (Doc. 22). The motion is DENIED.
Barbara Morrow and Benny Morrow seek relief on behalf of
themselves and others similarly situated for Allstate's
alleged refusal to assess and pay damages for diminished
value for claims made under their homeowners' insurance
policies. 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.
March 29, 2017, the Court granted in part and denied in part
Allstate's Motion to Dismiss Plaintiffs' original
complaint. (Doc. 20). Specifically, the Court held that
Plaintiffs failed to state a claim for declaratory relief,
and also dismissed certain Allstate entities from the action
because they had no contractual relationship with Plaintiffs.
As to the remaining Defendant, Allstate Indemnity Company,
the Court found that Allstate's one-year contractual
limitations period was applicable and enforceable, and that
“Plaintiffs [had] failed to allege facts sufficient to
constitute a waiver of the limitations period with respect to
the 2010 loss.” (Doc. 20, p. 15). The Court granted
Plaintiffs an opportunity to amend their complaint to state
allegations of waiver. (Doc. 20, pp. 15-16).
filed an Amended Complaint on April 18, 2017. (Doc. 21).
Plaintiffs' Amended Complaint contains three counts:
Count 1 (Doc. 21, ¶¶ 65- 76), breach of contract
for failure to assess diminished value; Count 2 (Doc. 21,
¶¶ 77-86), breach of contract for failure to pay
diminished value; and Count 3 (Doc. 21, ¶¶ 87-89),
attorneys' fees and costs. Allstate filed a Motion to
Dismiss Plaintiffs' Amended Complaint on May 2, 2017,
arguing that the new allegations still fail to establish
Allstate's waiver of the contractual limitations period,
and thus that Plaintiffs' claims relating to the 2010
loss should be dismissed.
Motion to Dismiss Standard
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).
“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).
Plaintiffs Have Adequately Alleged Waiver
Motion to Dismiss Plaintiffs' Amended Complaint, Allstate
argues that the Amended Complaint is “utterly devoid of
facts sufficient to allege that Allstate waived the one-year
contractual limitations period in the Policy, ” and
accordingly, Plaintiffs' claims relating to the 2010 loss
should be dismissed for failure to state a claim. (Doc. 22,
pp. 3, 5). The Court disagrees.
waiver . . . may be inferred from actions, conduct, or a
course of dealing . . . [where] all the attendant facts,
taken together, . . . amount to an intentional relinquishment
of a known right . . . .” Forsyth Cty. v.
Waterscape Servs., LLC, 694 S.E.2d 102, 109-10
(Ga.Ct.App. 2010) (citations omitted). A jury can infer
waiver where “the insurer never denie[s] liability and
[takes] actions (including issuing checks for payment) which
represent that it intend[s] to pay the claim without
suit.” Balboa Life & Cas., LLC v. Home Builders
Fin., Inc., 697 S.E.2d 240, 244 (Ga.Ct.App. 2010). A
waiver . . . may result when the insurance company's
“‘investigations, negotiations, or assurances . .
. up to and past the period of limitation . . . led the
insured to believe the limitation would ...