United States District Court, S.D. Georgia
WILLIAM T. MOORE, JR. UNITED STATES DISTRICT COURT.
the Court is Defendants Remodeling Depot, Inc. and Kenneth
Wayne Hosti's Motion to Dismiss. (Doc. 28.) For the
following reasons, Defendants' motion is
DENIED. However, Plaintiff Owners Insurance
Company's claim for a declaratory judgment regarding its
duty to indemnify is STAYED.
case involves a dispute over insurance coverage for alleged
acts of negligence with respect to a home renovation. In May
2015, Defendants Joann Lyon and Michael E. Lindsey
("Homeowners") hired Defendant Remodeling Depot,
Inc., owned by Defendant Kenneth Wayne Hosti,  to remodel part
of their home. (Doc. 1 ¶¶ 10-11.) Defendant Hosti
personally supervised and directly participated in the
construction. (Id. ¶ 13.) The project was to
commence on March 18, 2015 and be completed by May 1, 2015.
(Id. ¶ 12.)
issues delayed the start of construction. (Id.
¶ 15.) In addition, Defendant Homeowners were unhappy
with the quality of Defendant Remodeling Depot's work.
(Id. ¶ 16.) Ultimately, Defendant Homeowners
filed suit in the State Court of Chatham County alleging that
Defendant Remodeling Depot "failed to perform its design
and construction work in a timely and workmanlike manner,
failed to ensure that costs of the Project were reasonable
and necessary, failed to apply payments made by Homeowners to
costs of the Project, and failed to complete the work
substantially and in accordance with plans and
specifications." (Id.) Defendant Homeowners
alleged that Defendant Hosti was also responsible for these
shortcomings because he negligently failed to properly
administer, direct, and supervise the project. (Id.
Remodelers is covered by a commercial general liability
insurance policy issued by Plaintiff. (Id. ¶
21.) Based on this policy, Defendant Remodelers seek to have
Plaintiff both defend and indemnify them in the State Court
lawsuit. (Id. ¶ 22.) Plaintiff provided
Defendant Remodelers with a reservation-of-rights letter and
then undertook the defense in that proceeding. (Id.
¶¶ 23-24.) However, Plaintiff filed suit in this
Court seeking a declaratory judgment that it does not have a
duty to either defend or indemnify Defendant Remodelers in
the underlying State Court action because the commercial
general liability policy does not provide coverage for the
alleged wrongful conduct in that case. (Id. ¶
their Motion to Dismiss, Defendant Remodelers argue that the
issue of indemnification is not ripe for adjudication because
no insured has been deemed liable for any loss. (Doc. 28 at
3-4.) Also, Defendant Remodelers contend that the issue
concerning Plaintiff's duty to defend in the underlying
state court case should be dismissed because Plaintiff
prejudicially delayed bringing this declaratory judgment
action. (Id. at 5-6.) Finally, Defendant Remodelers
maintain that this Court should abstain from exercising
jurisdiction over this case in favor of the underlying action
in state court. (Id. at 6-10.)
response, Plaintiff argues that it should be permitted to
present evidence concerning its duty to indemnify. (Doc. 30
at 8-10.) Plaintiff also contends that it has not
unreasonably prejudiced Defendant Remodelers by any delay in
filing this case. (Id. at 10-14.) Finally, Plaintiff
maintains that abstention would be improper in this case
because there is not a parallel state court proceeding that
involves identical parties and issues. (Id. at
STANDARD OF REVIEW
Rule of Civil Procedure 8(a)(2) requires a complaint to
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
"[T]he pleading standard Rule 8 announces does not
require 'detailed factual allegations, ' but it
demands more than an unadorned,
Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). "A pleading that offers 'labels and
conclusions' or a * formulaic recitation of the elements
of a cause of action will not do.' " Id.
(quoting Twombly, 550 U.S. at 555). "Nor does a
complaint suffice if it tenders 'naked assertion[s]'
devoid of 'further factual enhancement.' "
Id. (quoting Twombly, 550 U.S. at 557)
(alteration in original).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.' "
Id. (quoting Twombly, 550 U.S. at 570). For
a claim to have facial plausibility, the plaintiff must plead
factual content that "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Sinaltrainal v. Coca-Cola
Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (quotations
omitted) (quoting Iqbal, 556 U.S. at 678).
Plausibility does not require probability, "but it asks
for more than a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678.
"Where a complaint pleads facts that are "merely
consistent with' a defendant's liability, it
"stops short of the line between possibility and
plausibility of entitlement to relief.' "
Id. (quoting Twombly, 550 U.S. at 557) .
Additionally, a complaint is sufficient only if it gives
"fair notice of what the . . . claim is and the grounds
upon which it rests." Sinaltrainal, 578 F.3d at
1268 (quotations omitted) (quoting Twombly, 550 U.S.
at 555) .
the Court considers a motion to dismiss, it accepts the
well-pleaded facts in the complaint as true.
Sinaltrainal, 578 F.3d 1252 at 1260. However, this
Court is "not bound to accept as true a legal conclusion
couched as a factual allegation." Iqbal, 556
U.S. at 678. Moreover, "unwarranted deductions of fact
in a complaint are not admitted as true for the purpose of
testing the sufficiency of [plaintiff's]
allegations." Sinaltrainal, 578 F.3d at 1268
(citing Aldana v. Del Monte Fresh Produce, N.A.,
Inc., 416 F.3d 1242, 1248 (11th Cir. 2005)). That is,
"[t]he rule 'does not impose a probability
requirement at the pleading stage, ' but instead simply
calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary
element." Watts v. Fla. Int'l Univ., 495
F.3d 1289, 1295-96 (11th Cir. 2007) (quoting
Twombly, 550 U.S. at 545).