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Thompson v. Allstate Insurance Co.

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

May 30, 2018

DANNY L THOMPSON, Plaintiff,
v.
ALLSTATE INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         This 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 at 5-6).

         The 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 argument.

         The 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 check.[1]

         I.BACKGROUND

         In 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.

         On 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.[2](Doc. 26-1 at 83, 88).

         Mr. 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).

         Later 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).

         The 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 2).

         But 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).

         Meanwhile, 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).

         II. DISCUSSION

         Allstate 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.

         1. Motion to Strike Part of Mr. Thompson's Brief

         Mr. 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).

         Allstate 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) ...


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