United States District Court, S.D. Alabama, Southern Division
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE
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).
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.
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).
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).
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.
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.
filed this breach of contract action for Defendants'
alleged failure to pay for Plaintiff's direct physical
Motion for Judgment on the Pleadings
Standard of Review
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).
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).
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).
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)
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 ...