United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant Allstate Insurance
Company's motion for summary judgment (doc. 24), and
motion to strike a portion of Plaintiff's brief in
opposition to the motion for summary judgment (doc. 31 at 6).
Plaintiff Danny Thompson was in a car accident that injured
him and wrecked the car he was driving. Allstate, the insurer
of the car at fault in the accident, sent Mr. Thompson a $300
check, which stated on its face that it was in full
settlement of all bodily injury claims, and Mr. Thompson
cashed that check. After cashing the check, Mr. Thompson made
a bodily injury claim to Allstate, which Allstate denied
because the check was a full settlement of any bodily injury
claims arising from that accident. Mr. Thompson, however,
contends that Allstate's insurance adjuster had told him
that, despite the language printed on the check, it was for
the inconvenience of having to rent a replacement car, not
for his bodily injuries. He sues Allstate for fraud. (Doc. 1
court WILL DENY the motion to strike part of Mr.
Thompson's brief. To the extent Mr. Thompson relies on
additional misrepresentations to support the fraudulent
misrepresentation claim he raised in his complaint, the court
rejects the argument that Federal Rule of Civil Procedure
9(b) requires a plaintiff to allege every misrepresentation
on which he will rely. To the extent Mr. Thompson argues that
the facts support a fraudulent suppression claim he did not
plead in his complaint, the court will disregard that
court WILL DENY the motion for summary judgment because
genuine disputes of material fact exist about whether
Allstate's agent made misrepresentations about the
release language, and whether Mr. Thompson reasonably relied
on those misrepresentations in cashing the
deciding a motion for summary judgment, the court must view
all evidence and factual inferences drawn from it in the
light most favorable to the non-moving party. Augusta
Iron & Steel Works, Inc. v. Emp'rs Ins. of
Wausau, 835 F.2d 855, 856 (11th Cir. 1988). The court
will describe the facts in the light most favorable to the
non-movant here, Mr. Thompson. The court draws its facts from
the statements of undisputed facts as well as evidentiary
submissions made by Allstate and Mr. Thompson.
January 24, 2016, Mr. Thompson and his then-wife, Erica
Mixon, were in Ms. Mixon's car when Justin Curry, driving
a car insured by Allstate, rear-ended them. (Doc. 25 at 2;
Doc. 26-1 at 35, 58-62). Two days later, on January 26, 2016,
Ms. Mixon and Mr. Thompson called Allstate to notify them of
the accident and request a rental car, because their only car
had been wrecked in the accident. (Doc. 26-1 at 78, 86, 97;
Doc. 30-1 at 127). Mr. Thompson testified that Ms. Mixon
always spoke with the Allstate representative while he
listened on speakerphone, and he never had a conversation
with any Allstate representatives.(Doc. 26-1 at 83, 88).
Thompson and Ms. Mixon made several phone calls to Allstate
the next day, January 27, 2016. (See Doc. 30-1 at
128). At 10:21 and 10:39 am, Ms. Mixon reported to Allstate
that Enterprise required a deposit before renting out a car,
but she could not afford to pay a deposit. (Id.;
Doc. 26-1 at 84-85). The Allstate representatives told them
that Allstate does not provide deposits for rental cars.
(Doc. 26-1 at 85; Doc. 30-1 at 128). Mr. Thompson testified
that “the insurance adjuster” also told them:
“we going to send you guys some money for the rental
car, for . . . inconvenienced [sic]. The money was for our
inconvenience.” (Doc. 26-1 at 85).
the same day, January 27, at 12:30 pm, Ms. Mixon and Mr.
Thompson spoke for the first time to an Allstate adjuster
named Penelope Butler. (Doc. 30-1 at 129; Doc. 28-2 at 57).
According to both Mr. Thompon and Ms. Butler, during that
phone call, Ms. Mixon told Ms. Butler that, although she and
Mr. Thompson were sore and had neck pain, neither of them
were injured and they would not be seeking medical treatment.
(Doc. 26-1 at 86; Doc. 28-2 at 57-58). Ms. Butler's notes
in Allstate's claim history file state that, during the
January 27 phone call, Ms. Butler “offered [Ms. Mixon
and Mr. Thompson] each 300.00 for non treated [sic] injuries,
” and that they “accepted offers.” (Doc.
30-1 at 129). The notes also indicate that Ms. Mixon could
not rent a car because she lacked a credit card. Mr. Thompson
testified that, during the January 27 phone call with Ms.
Butler, she offered him and Ms. Mixon each $300 “[f]or
inconvenience” related to their trouble obtaining a
rental car. (Doc. 26-1 at 85-86).
same day as those phone calls, January 27, Allstate issued a
$300 check to Mr. Thompson. (Doc. 27-1 at 143). The check has
the following words printed in all caps on the upper left
hand side: “IN PAYMENT OF: FULL AND FINAL SETTLEMENT OF
ANY AND ALL CLAIMS FOR BODILY INJURY ARISING FROM LOSS OF
1/24/2016.” Mr. Thompson testified that on February 1,
2016, when he and Ms. Mixon received the checks, they called
Allstate and asked about the language printed on top because
the checks were supposed to be for their inconvenience in
renting a replacement car. (Doc. 26-1 at 89). He testified
that someone-presumably Ms. Butler, who was handling their
claim-said “oh, don't worry about it, that's
how all our checks come.” He testified that, based on
that assurance, he and Ms. Mixon cashed their checks and
rented a car on February 1. (Id. at 90; Doc. 30-2 at
Allstate's claim history log does not show any phone
calls from Ms. Mixon or Mr. Thompson on February 1. (Doc.
30-1 at 128-30). Instead, according to Allstate's log, on
February 1, Allstate received three phone calls from check
cashing companies seeking to verify the checks. Ms. Butler
testified that the claim history would document every phone
call and conversation she had with Mr. Thompson and Ms.
Mixon, but she did not testify about whether the system
automatically logs every call, or if she had to log those
phone calls herself. (Doc. 28-2 at 58-59).
although Ms. Mixon had told Ms. Butler on January 27 that
neither she nor Mr. Thompson were injured in the accident and
were not planning to seek medical treatment, Mr. Thompson had
gone to a medical center “a couple of days” after
the accident, “around the time that Ms. Mixon got in
touch with the insurance company.” (Doc. 26-1 at
75-76). Someone at the medical center prescribed him some
painkillers. (Id. at 77). Then, on March 10, 2016-
more than a month after he cashed the $300 check on February
1-he sought medical treatment at a different medical center.
(Id. at 104). Mr. Thompson testified that he had
suffered a fractured ankle in the car accident, and he
received physical therapy and “prescriptions.”
(Id. at 58, 105-06). Dana Ogletree, a claims service
leader with Allstate, testified that the value of a fractured
ankle would be “substantially more” than $300.
(Doc. 30-1 at 49).
moves for summary judgment and to strike part of Mr.
Thompson's brief in opposition to the motion for summary
judgment. The court will address the motion to strike first.
Motion to Strike Part of Mr. Thompson's Brief
Thompson's complaint alleged only one misrepresentation
by Allstate. (See Doc. 1 at 5-6). Specifically, the
complaint alleged that on January 26, 2016, Ms. Butler
misrepresented to Ms. Mixon that the $300 checks were for
their “inconvenience” in obtaining a rental car.
The complaint alleged that Ms. Butler's false
representation constituted fraud on Mr. Thompson. But at his
deposition, Mr. Thompson testified that Ms. Butler made an
additional misrepresentation on February 1, 2016, before he
cashed his $300 check. (Doc. 26-1 at 89). According to Mr.
Thompson, he and Ms. Mixon called on February 1 to ask about
the bodily injury language printed on the check, and Ms.
Butler said, “oh, don't worry about it, that's
how all our checks come.” In his brief opposing summary
judgment, Mr. Thompson argues that Ms. Butler's
statements constitute fraudulent misrepresentation and
fraudulent suppression. (Doc. 30 at 5-6).
requests that the court strike the part of Mr. Thompson's
brief in which he contends that Allstate fraudulently
misrepresented and suppressed facts. (Doc. 31 at 6). It
contends that, because Mr. Thompson's complaint did not
allege that Ms. Butler made a misrepresentation of February
1, Mr. Thompson's current reliance on that statement is
an impermissible attempt to amend the complaint through
briefing. In support of its position, Allstate points to
Federal Rule of Civil Procedure 9(b), which provides that
“[i]n alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or
mistake.” Fed.R.Civ.P. 9(b). Allstate seems to assert
that, because Rule 9(b) ...