BERT W. MILLING, Jr., Magistrate Judge.
The Motion to Dismiss filed by Defendant Liberty Insurance Corporation (hereinafter Liberty) (Doc. 4) has been referred for report and recommendation, under 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2. Diversity jurisdiction has been invoked in this Court under 28 U.S.C. § 1332. After consideration, it is recommended that Liberty's Motion (Doc. 4) be granted in its entirety.
The facts are, briefly, as follows. Plaintiff Jimmie Hood is the owner of a mobile home in Camden, Alabama that he purchased in January 2010 (Amended Complaint, ¶¶ 1-2, 6).
On May 23, 2012,
On May 22, 2013, Defendant removed the action to this Court (Doc. 1). One week later, Liberty filed a Motion to Dismiss, seeking to dismiss all but the breach of contract claim (Doc. 4). Plaintiff has responded to the Motion (Doc. 7) to which Defendant has replied (Doc. 8).
The Court notes, initially, that "[w]hen considering a motion to dismiss, all facts set forth in the plaintiff's complaint `are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.'" Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir. 1993)). In order to state a claim for relief, the Federal Rules of Civil Procedure state that a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The U.S. Supreme Court explained that the purpose of the rule was to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
Defendant Liberty first claims that Hood's claims for bad faith (claim 2), misrepresentation (claim three), suppression (claim four), and negligence (claim five) are all tort claims subject to the two-year statute of limitations period under Alabama law (Doc. 4, pp. 5-12). Alabama
The evidence shows that Liberty, in a letter dated January 20, 2011, denied Plaintiff's claim for insurance coverage (Doc. 4, Exhibit C). For statute of limitations purposes, the clock began to run from the time Hood received this letter. Though Plaintiff brought an action on October 3, 2011, Liberty was not named as a Defendant until the First Amended Complaint was filed on April 12, 2013, more than two years after coverage had been denied.
In response, Hood asserts that he named Fictitious Parties A-F in the original Complaint and the re-filed Complaint and that, in filing the First Amended Complaint, he has named—and substituted—Liberty as one of those fictitious parties (Doc. 7, pp. 3-4). Plaintiff asserts that his "substituting" Liberty for one of the Fictitious Parties relates
The evidence shows that, in the re-filed original Complaint, Hood names Fictitious Defendants A-F in the caption (Doc. 1, p. 67). In the text of the Complaint, Plaintiff made the following assertions:
(Doc. 1, p. 68, ¶¶ 3-4). No other mention of Fictitious Defendants is made anywhere in the balance of the Complaint.
Defendant has countered this argument, however, by pointing to an Alabama Supreme Court decision holding that "merely naming the fictitious party in the style and/or body of the complaint is insufficient; the complaint must describe the actions that form the basis of the cause of action against the fictitiously named defendant." Ex parte International Refining & Mfg. Co., 972 So.2d 784, 789 (Ala. 2007). The International Refining Court held that the plaintiffs had only provided specific factual assertions relating to one claim against the fictitious defendants and dismissed the rest, finding that a general statement in the complaint that "[r]eferences to `defendants' in this complaint will be understood to include fictitious party defendants" was inadequate to put them on notice of claims against them. International Refining, 972 So.2d at 790-91.
In this action, Hood did not make assertions describing "the actions that form the basis of the cause of action against the fictitiously named defendant" as required in International Refining. More specifically, the Court finds that Hood did not make specific allegations about the Fictitious Parties in any of the four claims in issue in this Report. Therefore, the Court finds no merit in Plaintiff's assertion that his substituting Defendant Liberty for Liberty Mutual Insurance Corporation or Fictitious Defendant A satisfies the requirements of Alabama law regarding fictitious parties and the relation-back of pleadings.
Defendant Liberty has also argued that Hood cannot assert ignorance of its true identity (Doc. 4, pp. 10-12). While Liberty may be ultimately correct in this argument, the Court notes that the documents are confusing;
Nevertheless, in spite of the confusing names scattered throughout the insurance contract and claim rejection letter, the Court finds that Plaintiff should have, over a period of two years, figured out the real party in interest, Liberty Insurance Corporation, and sued it before the statute of limitations period ran. The Court finds it of no moment that Plaintiff has asserted that the attorney for a non-party did not tell him that he had sued the wrong entity or that the state court did not tell him that service had not been perfected on the wrong entity (see Doc. 7, pp. 3, 5, 6). Hood had information, though not without obfuscation, as to who should have sued. For whatever reasons, he did not do so in a timely manner.
This reasoning is supported by a case brought to the Court's attention by Plaintiff that is directly on point with the facts herein. In Davison v. Pogue, 735 So.2d 1240 (Ala. Civ. App. 1999), the plaintiff sued a defendant and fictitious parties for injuries sustained in a motor vehicle accident; plaintiff named the wrong defendant, however, and, in an amended complaint, attempted to "substitute" the correct defendant for the originally-named Defendant. The trial court allowed the substitution even though the amended complaint was filed after the two-year statute of limitations had run and 214 days after the original complaint had been filed. The Alabama Court of Criminal Appeals reversed, finding that the "substitution" was improper under Ala.R.Civ.P. 9(h) and did not relate back under Ala.R.Civ.P. 15(c)(4).
The Davison decision clearly instructs this Court that it would be improper to allow Plaintiff to substitute Liberty Insurance Corporation for the improperly named Liberty Mutual Insurance Corporation or a fictitious party. That decision also leads to the inescapable conclusion that there is no relation-back of the First Amended Complaint to the time the original complaint was filed under the Alabama Rules of Civil Procedure. Having already determined that Plaintiff's tort claims are all barred by the statute of limitations, it is recommended that Plaintiff's second, third, fourth, and fifth claims be dismissed.
Defendant has also argued that, in bringing claims three, four, and five, Plaintiff is attempting to convert his breach of contract claim into separate tort claims (Doc. 4, pp. 12-14). Liberty has correctly noted the Alabama Supreme Court's holding that "[a] mere failure to perform a contract obligation is not a tort, and it furnishes no foundation for an action on the case." C & C Products, Inc. v. Premier Indus. Corp., 275 So.2d 124, 130 (Ala. 1972) (citations omitted). More to the point, in a concurring opinion, Justice Houston, in an Alabama Supreme Court case, stated as follows:
Hunt Petroleum Corp. v. State, 901 So.2d 1, 12-13 (Ala. 2004) (concurring opinion) (citing Deupree v. Butner, 522 So.2d 242 (Ala. 1988)).
In response, Plaintiff argues that the breach of faith
As for Hood's negligence claim, the Alabama Supreme Court "has consistently refused to recognize a cause of action for the negligent handling of insurance claims." Pate v. Rollison Logging Equipment, Inc., 628 So.2d 337, 345 (Ala. 1993) (citations omitted).
In summary, Plaintiff has brought five different claims in this action. It is recommended that claims two (bad faith), three (misrepresentation), four (suppression), and five (negligence) all be dismissed as they are barred by the Alabama statute of limitations. It is further recommended that claims three, four, and five should be dismissed as they fail to state a claim under Alabama law. To that end, it is recommended that Defendant's Motion to Dismiss (Doc. 4) be granted in its entirety and that judgment be entered in favor of Defendant Liberty Insurance Corporation and against Plaintiff Jimmie Hood as to claims two, three, four, and five.
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
The Court further notes that an amendment of a pleading may relate back to the date of an original pleading pursuant to Ala.R.Civ.P. Rule 15(c) which states as follows: "An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, except as may be otherwise provided in Rule 13(c) for counterclaims maturing or acquired after pleading, or
(3) the amendment, other than one naming a party under the party's true name after having been initially sued under a fictitious name, changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party, or
(4) relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h)."
In the letter notifying Hood that his claim was being rejected, the "Liberty Mutual" emblem, in huge letters, appears at the top of the page; below it appears the address for "Liberty Mutual Group" (Doc. 4, Exhibit C). Only in the text of the letter does one learn that the claim is being rejected by "Liberty Insurance Corporation" (id.). The letter goes on to explain that Hood's payments will be refunded by "the Company;" though that entity is mentioned three times, it is never identified (id.). At the bottom of the letter is a logo: "Liberty Mutual: Helping People Live Safer, More Secure Lives" (id.).
