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Garcia v. Certain Underwriters at Lloyd's, London

United States District Court, S.D. Alabama, Southern Division

February 6, 2018




         This matter is before the Court on the Defendants Certain Underwriters at Lloyds, London et. al.'s (“Defendants”) motion for judgment on the pleadings and brief in support of (Docs. 58 & 59), Plaintiff Felipe Garcia's (“Plaintiff”) response (Doc. 72), and Defendants' reply (Doc. 73). Also before the Court is Defendants' motion for summary judgment and brief in support of (Docs. 62 & 63), Plaintiff's opposition thereto (Doc. 70), and Defendants' reply (Doc. 75). Defendants have also moved this Court to strike Plaintiff's expert designations and preclude expert testimony (Docs. 60 & 61).

         For the reasons explained below, the Court finds that Defendants' motion for judgment on the pleadings is due to be denied. Defendants' motion for summary judgment is due to be granted and Defendants' motion to strike Plaintiff's expert designations and preclude expert testimony is moot.

         I. Background

         In 2006, Plaintiff purchased a warehouse at 3002 Mill Street in Mobile, Alabama. (Doc. 70, p. 3). Plaintiff insured the warehouse with a Commercial Property policy (“the Policy”) issued by Defendants. Id. The “Limit of Insurance” on the policy is $573, 200.00 subject to a 5% wind deductible (or $28, 660.00). (Doc. 32-1, p. 7).

         On December 25, 2012, the warehouse sustained roof and water damage from a tornado. (Doc. 70, p. 4). The day after the storm, Plaintiff contacted his insurance agent to report the damage and assert a claim. (Doc. 71-2, p. 4). Plaintiff's agent then reported the claim to the selling broker, who subsequently reported it to Defendants' Third Party Administrator, Engle Martin. (Doc. 70, p. 4-5).

         After Plaintiff reported his claim, Nan Seay (“Seay”), a claims specialist for Engle Martin, retained Bryan Watts (“Watts”), a field adjuster, to physically inspect the property. Id. at p. 5. Watts was responsible for documenting the damage, preparing an estimate for the cost of repair, and scoping the claim. Id. Watts visited the site, in the presence of Plaintiff, on December 28, 2012, and documented the damage. Watts photographed the roof and water damage and prepared a report enclosing the costs to repair the damage. (Doc. 64-4). Watts determined the repair cost of Plaintiff's warehouse was $2, 858.03. (Doc. 64-6, p. 6 ¶ 14). Because that price fell below the Policy's wind deductible, Defendants sent Plaintiff a letter on May 6, 2013, declining payment on the basis that there was no payable loss. (Doc. 64-7, p. 1). Plaintiff never informed Defendants that he disagreed with the estimated repair costs until approximately more than three years later, on August 11, 2016, when Plaintiff's counsel sent Defendants' claims specialist a letter attaching two estimates. (Doc. 71-3). The first estimate, dated 5/2/16, from Charlie Lammons at Dobson Sheet Metal & Roofing & Specialties, Inc., estimated the costs of labor, materials, equipment, insurance, permits and taxes to make repairs to the roof to be $80, 545.00. (Doc. 71-3, p. 6). The second estimate, dated 6/10/16, from Christopher A. Smith at Lanier Construction, Inc, estimated certain construction costs to be $143, 085.00. Neither estimate gave an indication that the proposed repairs and construction had any connection to the storm damage caused in 2012, nor did either say when the examination of the premises for these estimates took place. Counsel's letter represented that they were for repairs of damage from the storm, but at least the construction estimate clearly contained items unrelated to the storm damage, including plumbing for a future kitchen and architect fees and plans.

         Plaintiff disagrees with Defendants' contention that the damages are less than the wind deductible. (Doc. 70, p. 7). Based on these estimates, Plaintiff contends the cost to repair the storm damage is $223, 630.00. Id.

         Plaintiff filed this breach of contract action for Defendants' alleged failure to pay for Plaintiff's direct physical loss.

         II. Motion for Judgment on the Pleadings

         A. Standard of Review

         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.” See Fed. R. Civ. P. 12(c). “Judgment on the pleadings is appropriate when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.” Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008) (citing Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001)). “A motion for judgment on the pleadings is subject to the same standard as [a] Rule 12(b)(6) motion to dismiss.” Provident Mut. Life Ins. Co. of Philadelphia v. City of Atlanta, 864 F.Supp. 1274, 1278 (N.D.Ga. 1994).

         A claim should not be dismissed under Federal Rule of Civil Procedure 12(c) if it contains 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).

         B. Analysis

         Defendants assert the Complaint (Doc. 1-1) is devoid of allegations to sufficiently support Plaintiff's breach of contract claim. (Doc. 59, p. 4). The elements of a breach of contract claim under Alabama law are “(1) a valid contract binding the parties; (2) the plaintiff's performance under the contract; (3) the defendant's nonperformance; and (4) resulting damages.” Moore v. Seterus, Inc., 2017 WL 4708163, *4 (11th. Cir. Oct. 19, 2017) (citing Shaffer v. Regions Fin. Corp., 29 So.3d 872, 880 (Ala. 2009)). Defendants argue that Plaintiff has failed to allege the second prong of the contract claim - i.e. Plaintiff's “own performance under the insurance contract; or, stated another way, his own compliance with the policy's conditions precedent.” (Doc. 59, p .4).

         Conditions precedent are “fact[s] (other than the lapse of time) that, unless excused, must exist or occur before a duty of performance of a promise arises.” Shufford v. Integon Indem. Corp., 73 F.Supp.2d 1293, 1299 (M.D. Ala. 1999) (citation omitted). They “may relate either to formation of a contract or to liability under it.” Id. In pleading conditions precedent, Plaintiff must “allege generally that all conditions precedent have occurred or been performed.” Fed.R.Civ.P. 9(c) (“Rule 9(c)”).

         Defendants assert Plaintiff has failed to make any general allegations that all conditions precedent have been fulfilled. (Doc. 59, p. 5). They argue that their duty under the policy does not arise until conditions precedent are met so Plaintiff's demand for ...

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