Alldredge v. Allstate Insurance Company et al
MEMORANDUM OPINION AND ORDER GRANTING 2 MOTION to Dismiss which will be converted to a Motion for Summary Judgment as set out herein. Defendant Karri Willis is hereby DISMISSED WITHOUT PREJUDICE. Signed by Judge Virginia Emerson Hopkins on 7/23/2014. (JLC)
2014 Jul-23 AM 11:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ALLSTATE INSURANCE CO., et
) Case No.: 4:14-CV-1186-VEH
MEMORANDUM OPINION AND ORDER
This is a civil action originally filed in the Circuit Court of Marshall County,
Alabama, by the plaintiff, Christopher Lashane Alldredge, against the defendants,
Allstate Insurance Company, Allstate Indemnity Company (collectively “Allstate”),
and Karri Willis. (Doc. 1-1 at 2). The complaint sets out counts for breach of
contract (Count One), Negligence (Count Two), and Bad Faith (Count Three). All
counts arise out the sale of a homeowners insurance policy issued by Allstate on the
plaintiff’s home, and the alleged failure of Allstate to pay on a claim made by the
plaintiff when his home was destroyed by fire.
On June 20, 2014, the case was removed to this court. (Doc. 1). It is before
the court now on the Rule 12(b)(6) motion to dismiss filed by Willis. (Doc. 2). The
plaintiff has not responded to the motion. For the reasons stated herein, the motion
will be converted to a motion for summary judgment and GRANTED.
As noted, the instant motion is a Rule 12(b)(6) motion. Rule 12(d) of the
Federal Rules of Civil procedure provides:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56. All parties
must be given a reasonable opportunity to present all the material that
is pertinent to the motion.
Fed. R. Civ. P. 12(d). In the instant case, the movant has proffered for consideration
matters outside the pleadings which the court has considered. Accordingly, the
motion is converted to a motion for summary judgment under Rule 56 of the Federal
Rule of Civil Procedure. Further, the motion was filed on June 20, 2014. (Doc. 2).
Pursuant to the court’s uniform scheduling order, the plaintiff had until July 7, 2014,
to file any response to a motion to dismiss. (Doc. 4 at 23) (“The opponent’s
responsive brief shall be filed no later than fourteen (14) calendar days thereafter.”)
(emphasis in original).1 The plaintiff had until July 11, 2014, to respond to any
motion for summary judgment which was filed. (Doc. 4 at 14) (“The responsive
The time period actually expires on July 4, 2014, a federal holiday. Pursuant to Rule 6,
the plaintiff had until July 7, 2014, to respond as that was “the next day that is not a Saturday,
Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C).
submission of the party opposing the motion for summary judgment shall be filed not
later than 21 days after the motion for summary judgment is filed.”). As all
potentially applicable time periods for response have now expired, the court
determines that all parties have been given a reasonable opportunity to respond to the
motion. Still, the plaintiff has filed no response to the motion.
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary judgment always bears
the initial responsibility of informing the court of the basis for its motion and
identifying those portions of the pleadings or filings that it believes demonstrate the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the
moving party has met its burden, Rule 56(e) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at 324. By its own affidavits – or
by the depositions, answers to interrogatories, and admissions on file – it must
designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance,
the non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
The facts are straightforward. Sometime before July 30, 2012, Allstate “issued
a policy of insurance insuring the plaintiff’s home[.]” (Doc. 1-1 at 3). The complaint
[t]he defendants represented to the plaintiff that the . . . policy was the
best policy offered by Allstate and it would cover any loss associated
with fire or other casualty and that all claims made under the policy
would be promptly paid. The defendants also represented to the
plaintiff that the policy would provide sufficient insurance coverage in
the event the structure and its contents were totally destroyed by fire or
(Doc. 1-1 at 3). After the plaintiff’s home was destroyed by fire, he made a claim on
the policy which Allstate has denied. (Doc. 1-1 at 3).
Willis argues that the complaint “alleges claims of breach of contract [and] bad
faith against Allstate; and a claim of negligence against Willis.” (Doc. 2 at 2).
However, counts one and three, at least technically, are alleged against the
“defendants,” plural. (Doc. 1-1 at 4 (“[t]he defendants refused to pay,” “the
defendants’ breach,” “plaintiff demands judgment against defendants”); doc. 1-1 at
5 (“the defendants intentionally refused to pay,” “[t]he defendants acted in bad faith,”
“[t]he plaintiff claims punitive damages of the defendants,” “plaintiff demands
judgment against defendants”)). The use of the plural arguably makes these counts
applicable to Willis as well. However, the complaint alleged no facts indicating that
Willis entered into a contract with the plaintiff, or that she denied any claims.
Further, there is no evidence indicating as much. Accordingly, if these counts are
alleged against Willis, they are due to be dismissed.
Count Three alleges that Willis, “in her capacity as agent, servant, and
employee of Allstate, negligently failed and/or refused to provide the insurance
coverage agreed upon and provide insurance in an amount adequate to cover
plaintiff’s structure and contents.” (Doc. 1-1 at 5). The Alabama Supreme Court has
stated that an agent or broker can be liable for negligent procurement of insurance
when “with a view to compensation, [he] undertakes to procure insurance for a client
and unjustifiably or negligently fails to do so.” Lewis v. Roberts, 630 So. 2d 355, 357
(Ala. 1993) (citing Montz v. Mead & Charles, Inc., 557 So.2d 1 (Ala.1987)). The
claim cannot be based upon the failure to procure a policy because, as noted in the
complaint “the defendants issued a policy of insurance insuring the plaintiff’s home.”
(Doc. 1-1 at 3). The complaint contains no facts indicating how the coverage
contained in the policy was not what was agreed upon, was less than her claimed loss,
or was otherwise insufficient.
Further, the affidavit of Lisa Barkley, a claim adjuster for Allstate, provides
that there is a policy in effect for the plaintiff on his residence, and that the denial of
the claim was “not in any way related to the absence of a policy or coverage for the
type of loss at issue.” (Doc. 1-3 at 3). The policy itself appears in the record at
document 1-2. It provides, in pertinent part, dwelling protection in the amount of
$250,000, other structures protection in the amount of $25,000, and personal property
protection in the amount of $187,500. (Doc. 1-2 at 6). Barkley states that the policy
“provided those coverage limits sought by [p]laintiff.” (Doc. 1-3).
There is no genuine issue of material fact that Willis procured insurance for the
plaintiff with the coverage that he requested. Accordingly, summary judgment is
Based on the foregoing, it is hereby ORDERED, ADJUDGED, and
DECREED that the motion to dismiss, converted to a motion for summary judgment,
is due to be, and hereby is, GRANTED.
Defendant Karri Willis is hereby
DISMISSED, without prejudice.2
Rule 54(b) addresses judgment on multiple claims or involving multiple parties and
When an action presents more than one claim for relief--whether as a claim,
counterclaim, crossclaim, or third-party claim--or when multiple parties are
involved, the court may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly determines that there is
no just reason for delay. Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any of the claims or parties
and may be revised at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.
Fed. R. Civ. P. 54(b) (emphasis added). “The purpose of Rule 54(b) is to codify the historic
practice of ‘prohibit[ing] piecemeal disposition of litigation and permitting appeals only from
DONE and ORDERED this 23rd day of July, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
final judgments,’ except in the ‘infrequent harsh case’ in which the district court properly makes
the determinations contemplated by the rule.” In re Se. Banking Corp., 69 F.3d 1539, 1547 (11th
Cir. 1995) (quoting Fed. R. Civ. P. 54(b) advisory committee’s note to 1946 amendment).
Here, because claims against another defendant remain pending in this lawsuit, the
dismissal of Willis cannot become a final adjudication on the merits, i.e., a “with prejudice”
dismissal subject to an immediate appeal, unless the ruling is expressly certified by the district
court as warranting and the record confirms that it is deserving of such special treatment. See In
re Se. Banking Corp., 69 F.3d at 1546 (“When a district court is persuaded that Rule 54(b)
certification is appropriate, the district court should support its conclusion by clearly and
cogently expressing its reasoning and the factual and legal determinations supporting that
reasoning.” (citing Explosives Supply Co. v. Columbia Nitrogen Corp., 691 F.2d 486, 486 (11th
Cir. 1982))); see also Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166 (11th Cir.
1997) (“A district court’s Rule 54(b) certification is not conclusive on [the Eleventh Circuit].”)
In this case, the second sentence of Rule 54(b) comes into play and, even if the court were
to dismiss Willis “with prejudice” such a label would not create any appealable “finality” and,
consequently, the dismissal would, despite its designation, instead constitute a “without
prejudice” one. See Huckeby v. Frozen Food Exp., 555 F.2d 542, 545 (5th Cir. 1977)
(recognizing that “partial disposition of a multi-claim . . . action . . . is ordinarily an
unappealable interlocutory order” and consequently “is subject to revision at any time prior to
entry of a final decision”) (emphasis added).
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