United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
M. BORDEN, UNITED STATES MAGISTRATE JUDGE.
before the court is the Partial Motion to Dismiss filed by
Defendant New Hampshire Insurance Company
(“NHIC”). Doc. 39. Plaintiff Michelle Stephenson
asserts claims for underinsured motorist (“UIM”)
benefits, breach of contract, and wrongful
deathrelating to a motor vehicle accident
involving her husband, Gerald W. Stephenson, who is deceased.
Docs. 1 & 22. NHIC has moved to dismiss the breach of
contract claim for lack of subject matter jurisdiction. Doc.
39 at 1. After careful consideration of the parties'
filings and the relevant law, and for the reasons stated
below, the court concludes that the Partial Motion to Dismiss
(Doc. 39) is due to be GRANTED.
JURISDICTION AND VENUE
court has jurisdiction over the claims in this lawsuit
pursuant to 28 U.S.C. § 1332. The parties do not contest
personal jurisdiction, nor do they contest that venue is
proper in the Middle District of Alabama. The court finds
adequate allegations to support both jurisdiction and venue.
FACTUAL AND PROCEDURAL BACKGROUND
following is a recitation of the facts as alleged in the
complaint and amendment to complaint. On February 24, 2017,
Gerald Stephenson was driving southbound on County Road 49 in
Geneva County near a four-way stop. Doc. 1 at 2. At the same
time, Donald Harry Rhein was driving eastbound at an unlawful
speed. Doc. 1 at 2. Rhein failed to halt at the stop sign and
collided with Stephenson's vehicle, causing
Stephenson's vehicle to be struck by another vehicle
driven by Lindsay Sparks. Doc. 1 at 2. All three vehicles
caught on fire. Doc. 1 at 2. The collision seriously injured
Stephenson and he ultimately died as a result of his
injuries. Doc. 1 at 2.
time of the collision, Gerald Stephenson was employed by
GroSouth, Inc. (“GroSouth”), a company located in
Montgomery, Alabama, and was driving a vehicle issued to him
by his employer. Doc. 1 at 3. That vehicle was covered by
NHIC under an insurance policy issued to GroSouth. Doc. 1 at
4. The NHIC policy included both uninsured and UIM coverage.
Doc. 1 at 4. Rhein was insured by Geico Insurance Company,
which entered into a settlement with Plaintiff Michelle
Stephenson, Gerald Stephenson's wife, and has since
tendered its policy limits. Doc. 1 at 4. NHIC acquiesced to
that settlement and waived any subrogation claim. Docs. 1 at
5 & 6 at 4.
Michelle Stephenson commenced this action as the
administrator of Gerald Stephenson's estate. Doc. 1 at 2.
She alleges that her damages exceed the available UIM
coverage, and that NHIC has breached its contract by failing
to tender its UIM policy limits in a timely manner. Docs. 1
at 5 & 22 at 4. NHIC challenges Stephenson's breach
of contract claim, arguing that it is unripe because
Rhein's liability and Stephenson's damages have not
been established. Doc. 39 at 5.
STANDARD OF REVIEW
motion filed under Federal Rule of Civil Procedure 12(b)(1)
challenges the district court's subject matter
jurisdiction and takes one of two forms: a facial attack or a
factual attack. A facial attack challenges subject matter
jurisdiction without disputing the facts alleged in the
complaint. Lawrence v. Dunbar, 919 F.2d 1525, 1529
(11th Cir. 1990). When evaluating a facial attack, the court
considers the allegations in the plaintiff's complaint as
true. Id. “Such protections do not attach when
the district court's jurisdictional decision is based
upon the court's resolution of disputed facts.”
Eaton v. Dorchester Dev. Inc., 692 F.2d 727, 731-32
(11th Cir. 1982). A factual attack challenges the factual
allegations underlying the assertion of subject matter
jurisdiction. Lawrence, 919 F.2d at 1529. When
evaluating a factual attack, there is no presumption in favor
of the plaintiff and the court may weigh the evidence and
consider “matters outside the pleadings, such as
testimony and affidavits.” Id. “Under a
factual attack, the court may hear conflicting evidence and
decide the factual issues that determine jurisdiction.”
Kuhlman v. United States, 822 F.Supp.2d 1255, 1257
(M.D. Fla. 2011) (citing Colonial Pipeline Co. v.
Collins, 921 F.2d 1237, 1243 (11th Cir. 1991)).
ripeness pertains to a federal court's subject matter
jurisdiction, it is appropriately analyzed under Rule
12(b)(1).” Graves v. City of Montgomery, 807
F.Supp.2d 1096, 1100 (M.D. Ala. 2011). “A dismissal for
lack of subject matter jurisdiction is not a judgment on the
merits and is entered without prejudice.” Stalley
ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc.,
524 F.3d 1229, 1232 (11th Cir. 2008).
plaintiff need not establish liability against a UIM before
bringing a claim against her insurance carrier to recover UIM
benefits. Ex parte State Farm Mut. Auto. Ins. Co.,
893 So.2d 1111, 1115 (Ala. 2004). But a breach of contract
action is different from a claim for UIM benefits.
“Alabama law holds that such a claim is premature
before the fact and extent of the insurer's payment
obligation has been satisfactorily established.”
Collins v. Nationwide Mut. Ins. Co., 2017 WL
1901630, at *1 (S.D. Ala. May 9, 2017). “Without a
determination of whether liability exists on the part of the
underinsured motorist and the extent of the plaintiff's
damages, ” a breach of contract claim is not ripe for
adjudication. Id. (citing Pontius v. State Farm
Mut. Auto. Ins. Co., 915 So.2d 557, 564 (2005)). That is
because there can be no breach of a UIM contract unless the
insured first proves that she is legally entitled to recover
damages under the UIM policy. Pontius, 915 So.2d at
564; Quick v. State Farm Mut. Auto. Ins. Co., 429
So.2d 1033, 1035 (Ala. 1983). To demonstrate that she is
legally entitled to recover, a plaintiff must show (1) fault
on the part of the UIM, (2) that the fault gives rise to
damages, and (3) the extent of those damages.
Collins, 2017 WL 1901630, at *2. For the reasons
stated below, the court concludes that the extent of
Stephenson's damages is not established, making the
breach of contract claim unripe.
Whether Subject Matter ...