Catlin Syndicated Limited v. Ramuji, LLC et al

Filing 105

MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 53 63 MOTIONS to Dismiss as set out herein. Signed by Judge Virginia Emerson Hopkins on 8/18/2017. (JLC)

FILED
2017 Aug-18 AM 09:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
CATLIN SYNDICATE LIMITED,

)
)
Plaintiff,
)
)
v.
)
)
RAMUJI, LLC d/b/a BUDGET INN and
)
PEOPLES INDEPENDENT BANK,
)
)
Defendants.
)
_______________________________
)
RAMUJI, LLC and PEOPLE’S
)
INDEPENDENT BANK,
)
)
Counterclaim/Third-Party
)
Plaintiffs,
)
)
v.
)
RANDY JONES & ASSOCIATES, INC., )
)
JON PAIR, CERTAIN
)
UNDERWRITERS AT LLOYD’S,
)
LONDON SUBSCRIBING
)
SEVERALLY TO POLICY NO. ULL
20018, named as “SYNDICATE 1414 AT )
LLOYD’S (ASCOT UNDERWRITING )
LIMITED), SYNDICATE 5820 AT
)
LLOYD’S (ANV SYNDICATES
)
LIMITED), SYNDICATE 727 AT
)
LLOYD’S (S.A. MEACOCH &
)
COMPANY LIMITED), and
)
SYNDICATE 1861 at LLOYD’s (ANV
)
SYNDICATED LIMITED),
)
)
Third-Party Defendants.

Case No.: 4:16-CV-1331-VEH

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION AND PROCEDURAL HISTORY
On August 16, 2016, Catlin Syndicated Limited (“Catlin”) initiated a

declaratory judgment action against Ramuji, LLC (“Ramuji”) and Peoples
Independent Bank (“PIB”) concerning a commercial insurance policy issued to
Ramuji by Catlin and four other underwriters at Lloyd’s of London. (Doc. 1). On
September 19, 2016, PIB answered the complaint, filed counterclaims against
Catlin, and filed third-party claims against Jon Pair and Randy Jones &
Associates, Inc. (Doc. 12).
On January 24, 2017, PIB filed amended counterclaims against Catlin and
amended third-party claims against Jon Pair and Randy Jones & Associates, Inc.
(Doc. 46, the “Amended Pleading”).1 In the same pleading, PIB also filed new
third-party claims against the four other underwriters for the policy, namely
Syndicate 1414 at Lloyd’s (Ascot Underwriting Ltd.); Syndicate 5820 at Lloyd’s
(ANV Syndicates Ltd.); Syndicate 727 at Lloyd’s (S.A. Meacoch & Co. Ltd.);
Syndicate 1861 at Lloyd’s (ANV Syndicates Ltd.) (together, the “Added
Syndicates”).
According to PIB, Catlin and the Added Syndicates “are all syndicates that
1

PIB’s amended third-party claims against Jon Pair and Randy Jones & Associates are
not the subject of this memorandum opinion.
2

transact business in the marketplace known as Lloyd’s of London,” and all five
syndicates (including Catlin) “underwrote and subscribed to risk on the
commercial insurance policy issued to Ramuji by Lloyd’s of London” that serves
as the basis of this litigation. (Doc. 46 at 2).
PIB argues that joinder of the Added Syndicates is proper pursuant to
Federal Rule of Civil Procedure 19(a)(1), which states as follows:
(a)

Persons Required to Be Joined if Feasible.
(1)

Required Party. A person who is subject to service of
process and whose joinder will not deprive the court of
subject-matter jurisdiction must be joined as a party if:
(A)

in that person’s absence, the court cannot accord
complete relief among existing parties; or

(B)

that person claims an interest relating to the subject
of the action and is so situated that disposing of the
action in the person’s absence may:
(i)

as a practical matter impair or impede the
person’s ability to protect the interest; or

(ii)

leave an existing party subject to a substantial
risk of incurring double, multiple, or
otherwise inconsistent obligations because of
the interest.

FED. R. CIV. P. 19(a)(1)(A-B). PIB alleges that this Court “cannot accord complete
relief among the existing parties as any judgment against Catlin would not result
in full payment under the Lloyd’s Policy by all of the Lloyd’s entities,” which
3

would potentially impair PIB’s ability to protect its interests and might leave all
parties subject to a substantial risk of multiple and inconsistent obligations. (Doc.
46 at 3).
Neither Catlin nor the Added Syndicates dispute PIB’s characterization of
the positioning of the parties in this action, nor do they oppose the joinder of the
Added Syndicates as required parties pursuant to Rule 19(a)(1). The interests of
Catlin and the Added Syndicates are aligned for the purposes of the claims filed by
PIB against them, as all five syndicates underwrote and subscribed to the risk on
the policy in question. However, despite the similarity of their interests, Catlin and
the Added Syndicates separately filed Motions To Dismiss the claims brought
against them by PIB. (Docs. 53 and 63, respectively).2
On February 7, 2017, PIB responded to Catlin’s Motion To Dismiss, and on
February 13, 2017, Catlin filed its reply. (Docs. 59, 60). On March 1, 2017, PIB
responded to the Added Syndicates’ Motion To Dismiss. (Doc. 64).3 Both

2

While PIB refers to Catlin and the Added Syndicates together as
“Lloyd’s/Underwriters/Syndicates,” and Catlin refers to all five syndicates as the “Underwriters,”
the Court will refer to Catlin independently from the Added Syndicates, at least for the purposes
of addressing their separate Motions in this Order.
3

Though this filing is styled as a reply in the Court’s CM/ECF docketing system, it is
substantively a response to the Added Syndicates’ Motion To Dismiss. In that three-page
response, PIB states that “since every single fact, argument and citation used by [the Added
Syndicates] in Doc. 63 is word for word the same as those filed by Catlin in Doc. 53, PIB sees no
point in wasting this Court’s time repeating the same counter-arguments, and instead hereby
presents to this Court that, for the same reasons set forth [in its response to Catlin’s MTD, this]
4

Motions are ripe for this Court’s disposition.
II.

MOTION TO DISMISS STANDARD4
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See

FED. R. CIV. P. 12(b)(6) (“[A] party may assert the following defenses by motion:
(6) failure to state a claim upon which relief can be granted[.]”). The Federal Rules
of Civil Procedure require only that the complaint provide “‘a short and plain
statement of the claim’ that will 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, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting
FED. R. CIV. P. 8(a)(2)), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 556, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007); see also FED. R. CIV.
P. 8(a) (setting forth general pleading requirements for a complaint including
providing “a short and plain statement of the claim showing that the pleader is
entitled to relief”).
While a plaintiff must provide the grounds of his entitlement to relief, Rule
8 does not mandate the inclusion of “detailed factual allegations” within a
motion to dismiss should be denied.” (Doc. 64 at 2). Essentially, PIB has incorporated all of
those arguments that it made in response to Catlin’s Motion To Dismiss (doc. 53) in response to
the Added Syndicates’ Motion To Dismiss (doc. 63).
4

A counterclaim is treated under the same motion to dismiss standards as a complaint.
Whitney Info. Network, Inc. v. Gagnon, 353 F. Supp. 2d 1208, 1210 (M.D. Fla. 2005); Fabricant
v. Sears Roebuck, 202 F.R.D. 306, 308 (S.D. Fla. 2001).
5

complaint. Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355
U.S. at 47, 78 S. Ct. at 103). However, at the same time, “it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a
claim has been stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Twombly, 550 U.S. at 563, 127
S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950.
“While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations.” Id. “When there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. (emphasis added). “Under
Twombly’s construction of Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[]
[any] claims’ . . . ‘across the line from conceivable to plausible.’ Ibid.” Iqbal, 556
U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable

6

for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556, 127 S. Ct. at 1965).
III.

FACTUAL BACKGROUND
A.

The Complaint and the Insurance Policy5

On or about May 8, 2015, Ramuji, though Randy Jones & Associates,
submitted a signed Commercial Insurance Application for commercial property
coverage for its motel located in Boaz, Alabama. (Doc. 1 at 3).
Underwriters at Lloyd’s of London (namely, Catlin and the Added
Syndicates) issued a policy to Ramuji effective from May 9, 2015, through May 9,
2016. (See Doc. 1-4, the “Policy”). The Policy provided $1,732,136.00 in building
coverage for the motel, in addition to $150,000.00 in business personal property
coverage, $200,000.00 in business income with extra expense coverage, and
$15,000.00 in coverage for an outdoor sign, totaling to an insurance limit of
$2,097,136.00. (Doc. 1 at 4).
A fire loss occurred at the insured motel on April 2, 2016. (Id. at 6). Catlin

5

Although the Motions To Dismiss are directed to the Amended Pleading, the
allegations in the complaint (doc. 1) and the provisions of the insurance policy (doc. 1-4)
attached thereto are helpful in understanding the nature of the case.
7

and the Added Syndicates acknowledged Ramuji’s claim, commenced an
investigation, and reserved their rights under the Policy by letter dated April 7,
2016. (Id.). On April 25, 2016, three weeks after the fire loss, Ramuji requested
that PIB be added to the Policy as a mortgagee “effective at inception.” (Id.).
Ramuji was advised that PIB could not be added retroactively as a mortgagee but
could be added by endorsement effective as of the day of the request. (Id.).
Accordingly, PIB was added as a mortgagee effective as of April 25, 2016. (Id. at
7). Though PIB has made a verbal request for coverage under the Policy as a
mortgagee, no written claim or Proof of Loss has been tendered by PIB as of the
date of the filing of the complaint. (Id.).
Based on their investigation, Catlin and the Added Syndicates determined
that the Policy was subject to rescission based upon material misrepresentations in
its application, including the nondisclosure of two unsatisfied and unreleased liens
against Ramuji, as well as violations of Policy provisions and endorsements. (Id.).
On August 16, 2016, Catlin and the Added Syndicates advised Ramuji that the
Policy was subject to rescission, and they refunded Ramuji’s premium (Id. at 9).
B.

The Amended Counterclaim and Third-Party Claims

Back in 2004, PIB extended a loan to Ramuji in exchange for the execution
of a mortgage on Ramuji’s motel property in Boaz, Alabama. (Doc. 46 at 3). At all

8

relevant times, PIB has been the mortgagee on the Property and is the equitable
title holder to the property. Id.; see also Exhibit 1, (Doc. 46 at 27-29) (mortgage
deed between Ramuji and PIB).6
Ramuji has maintained insurance on the Property since the mortgage was
executed by PIB in 2004. (Id. at 3). As of August 8, 2014, PIB was listed as an
“Additional interest . . . Mortgagee” on a standard “Evidence of Property
Insurance” form prepared by Randy Jones & Associates, Inc. (Id. at 4).

6

Catlin attached five exhibits to its initial complaint (doc. 1), and PIB included four
exhibits in the body of its Amended Pleading (doc. 46). Because these exhibits were attached to
pleadings, the Court will treat them as part of the pleadings and will consider the statements
contained therein as true for the purposes of this Motion. See Grossman v. Nationsbank, N.A.,
225 F.3d 1228, 1231 (11th Cir. 2001) (in considering a motion to dismiss, “the court limits its
consideration to the pleadings and exhibits attached thereto”) (internal citation omitted). As the
Eleventh Circuit has explained,
Our duty to accept the facts in the complaint as true does not require us to ignore
specific factual details of the pleading in favor of general or conclusory allegations.
Indeed, when the exhibits contradict the general and conclusory allegations of the
pleading, the exhibits govern. See Associated Builders, Inc. v. Ala. Power Co., 505
F.2d 97, 100 (5th Cir. 1974) ("Conclusory allegations and unwarranted deductions
of fact are not admitted as true, especially when such conclusions are contradicted by
facts disclosed by a document appended to the complaint. If the appended document,
to be treated as part of the complaint for all purposes under Rule 10(c), Fed. R. Civ.
P., reveals facts which foreclose recovery as a matter of law, dismissal is
appropriate." (citation omitted)); Simmons, 113 F.2d at 813 ("Where there is a
conflict between allegations in a pleading and exhibits thereto, it is well settled that
the exhibits control.").
Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205-06 (11th Cir. 2007) (emphases supplied).
Furthermore, the insurance policy is (1) central to the claims and (2) its authenticity is not
challenged, as evidenced by the fact that PIB re-attached the policy (doc. 59-3) as an exhibit in
response to Catlin’s Motion To Dismiss. See SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600
F.3d 1334, 1337 (11th Cir. 2010). Therefore, these exhibits will control in any situation where
they contradict any general or conclusory assertions made by PIB.
9

On June 5, 2015, another “Evidence of Property Insurance” form also listed
PIB as an “Additional Interest . . . Mortgagee,” effective from May 9, 2015, to
May 9, 2016 . (Id.). The date of the fire loss, April 2, 2016, fell within the
coverage period listed on this form. (Id.). After the fire, PIB contacted the Jones
Agency and was told that a Proof of Claim had been filed. (Id.). No one at the
Jones Agency either told PIB that it needed to file a Proof of Claim or otherwise
indicated that there was any problem with the claim. (Id. at 4-5).
On August 16, 2016, a letter from Promont Advisers, LLC, “on behalf of
Certain Underwriters at Lloyd’s London” informed Ramuji, with a formal copy
being sent to PIB, that insurance coverage for the loss had been denied. (Id. at 5).
IV.

ANALYSIS
The counterclaims asserted against Catlin include claims for declaratory

relief (Count I), breach of contract (Count II), negligent and wanton procurement
of insurance (Counts III and IV), bad faith (Count V), fraud (Count VI), and
conspiracy to commit fraud. (Count VII). (Doc. 46 at 5-15). The third-party claims
asserted against the Added Syndicates include claims for declaratory relief (Count
I), breach of contract (Count II), negligent and wanton procurement of insurance
(Counts III and IV), fraud (Counts V and VI), and conspiracy to commit fraud.
(Count VII). (Doc. 46 at 15-25).

10

A.

Breach of Contract Claims

In Count II of the amended counterclaims against Catlin and Count II of the
third-party claims against the Added Syndicates, PIB pursues recovery for breach
of contract. (Doc. 46 at 6-7, 16-17). The elements of a breach of contract claim
under Alabama law are “(1) a valid contract binding the parties; (2) the plaintiffs’
performance under the contract; (3) the defendant’s nonperformance; and (4)
resulting damages.” Reynolds Metals Co. v. Hill, 825 So.2d 100, 105 (Ala. 2002)
(internal citation omitted). In its Amended Pleading, PIB asserts both that Catlin
and the Added Syndicates directly breached a contract with PIB and that PIB
should be able to recover as a third-party beneficiary of the insurance contract.
1.

Direct Theory

In Alabama, recovery of proceeds under an insurance policy is typically
limited to the named insureds who are a party to the insurance contract. This is due
in part to the fact that a contract of insurance is “a personal contract that inures to
the benefit of the party with whom it is made and by whom the premiums are
paid.” Gay v. Hubbard, 678 So.2d 1156, 1157 (Ala. Civ. App. 1996) (citing
Dickerson v. Stewart, 473 So. 2d 1078, 1080 (Ala. Civ. App. 1985)); see also
Commercial Fire Ins. Co. v. Capital City Ins. Co., 81 Ala. 320, 323-24, 8 So. 222,
223 (1886) (property insurance is “a contract of indemnity personal to the

11

assured”).
Further, the general rule is that a mortgagee “has no claim to the benefit of
a[n] insurance policy unless he has been named loss-payee or the or the policy has
otherwise been assigned to him.” Calvert Fire Ins. Co. v. Environs Development
Corp., 601 F.2d 851, 858 (5th Cir. 1979).7 Accordingly, when not named in the
policy, a mortgagee is merely an equitable lienholder as to the insurance proceeds
whose right to recover is contingent on the insured’s ability to recover. Id. at 858.
Courts look to the language of an insurance policy to determine whether a
particular party is named as an insured. See, e.g., Lambert v. Coregis Ins. Co., 950
So. 2d 1156 (Ala. 2006) (construing policy language to determine whether a party
was an insured). Alabama law makes clear that “[i]nsurance contracts are to be
enforced as they are written, as long as there is no ambiguity in the provisions
involved.” Progressive Specialty Ins. Co. v. Green, 934 So.2d 364, 367 (Ala.
2006) (citations omitted); Shrader v. Employers Mut. Cas. Co., 907 So.2d 1026,
1034 (Ala. 2005) (“If there is no ambiguity, courts must enforce insurance
contracts as written and cannot defeat express provisions in a policy...by making a
new contract for the parties.”) (citation omitted).

7

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to 1981.
12

The terms of the Policy are clear that the insurer is required to pay claims to
a mortgagee only if the mortgagee is named either in the Declarations of the Policy
or by endorsement. The Mortgage Clause of the Policy states as follows:
31.

Mortgage Clause.

Loss or damage shall be payable to the mortgagee (or trustee) named in
the Declarations or by endorsement, as interest may appear under all
present or future mortgages upon the property herein described, in order
of precedence of said mortgages. This insurance, as to the interest of the
mortgagee (or trustee) only, shall not be invalidated by:
a.

Any act or neglect of the mortgagor or owner of the herein
described property;

b.

Any foreclosure or other proceedings or notice of sale
relating to the property;

c.

Any change in the title or ownership of the property; or

d.

Any occupation of the premises for purposes more
hazardous than are permitted by this policy;
....

If we pay the mortgagee or trustee any sum for loss or damage under this
policy and deny payment to you because of your acts or because you
have failed to comply with the policy terms, the mortgagee’s or trustee’s
rights will be transferred to us for the amount of our payment. The
mortgagee’s or trustee’s right to recover the amount of their claim will
not be impaired. At our option, we may pay to the mortgagee or trustee
the whole principal due plus any accrued interest. In this event, your
mortgage and note will be transferred to us and you will pay your
remaining mortgage debt to us.
(Doc. 1-4 at 9) (emphases added).
13

PIB hangs its hat on the language in the Mortgage Clause providing that
“interest may appear under all present or future mortgages upon the property
herein described” and that the mortgagee’s “right to recover the amount of their
claim will not be impaired.” Id. However, PIB completely ignores the fact that the
Mortgage Clause only applies to those entities who are named in the Declarations
or by endorsement. As neither the Declarations or nor any endorsement in effect as
of the date of the loss includes PIB, the mortgagee clause included above simply
does not confer any contract rights upon it. The mere fact that PIB is a mortgagee
of or has an interest in the property does not meant that it has any legally
recognized and direct contractual interest in the Policy.8
PIB’s breach of contract claims also rely heavily on the three “Evidence of
Property Insurance” forms issued prior to the fire loss. One of those forms was
created on August 8, 2014, nine months prior to when the Policy became effective
on May 9, 2015. See Exhibit 2, (Doc. 46 at 31). Another form was created on May

8

PIB cites to two cases to support its claim that it has an insurable interest in the
property. See Baldwin Mut. Ins. Co. v. Henderson, 580 So.2d 574 (Ala. 1991) and Cavalier Ins.
Corp. v. Hulsey, 333 So. 2d 594 (Ala. Civ. App. 1976). (Doc. 59 at 14-15). However, both cases
addressed whether a mortgagee has an insurable interest in a property following a loss, not
whether an mortgagee who is not listed in a policy may bring a direct breach of contract claim
against an insurer under that policy. See Baldwin, 580 So. 2d at 575 (concluding that a party
named as the loss payee in the insurance policy had a “valid insurable interest in the house”);
Cavalier, 333 So. 2d at 596 (concluding that a bank, which was a secured creditor on the
property but which was not listed as a loss payee in the policy, was a “party in interest under Rule
19(a)” of the Alabama Rules of Civil Procedure). Accordingly, these cases are inapplicable to
PIB’s contractual claims.
14

8, 2015, one day prior to the Policy’s effective date. See Exhibit 4, (Doc. 46 at 33).
The third form was created on June 5, 2015, which falls within the coverage dates
of the Policy. See Exhibit 3, (Doc. 46 at 32). However, this form, and in fact all
three forms, explicitly state at the top of the form:
THIS EVIDENCE OF PROPERTY INSURANCE IS ISSUED AS A
MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS
UPON THE ADDITIONAL INTEREST NAMED BELOW. THIS
EVIDENCE DOES NOT AFFIRMATIVELY OR NEGATIVELY
AMEND, EXTEND, OR ALTER THE COVERAGE AFFORDED BY
THE POLICIES BELOW. THIS EVIDENCE OF INSURANCE DOES
NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING
INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,
AND THE ADDITIONAL INTEREST.
(Doc. 46 at 31-33).9
Accordingly, coverage was governed exclusively by the terms of the Policy,
which does not list PIB as an insured or additional insured. In fact, in its response
brief, PIB implicitly acknowledges that it was not listed in the Policy Declarations
or by endorsement as of the date of the loss. See (Doc. 59 at 7) (“PIB understands

9

The parties also vigorously dispute the applicability of these Evidence of Property
Insurance forms for an alternate reason: the policy number on each of the three forms does not
match the number of the applicable Policy, ULL20018, which was in effect as of the date of the
loss. While PIB contends that the lack of continuity between the policy number of the Policy
itself and the policy number listed on the Evidence of Property Insurance forms is merely a result
of a mistake or error (doc. 59 at 7), Catlin and the Added Syndicates counter that the discrepancy
further bolsters their claim that PIB cannot and should not rely on the three forms instead of the
Policy and its endorsements. However, the Court need not resolve this dispute, given the explicit
disclaimer on each form that it “confers no rights upon the additional interest below” and is
“issued as a matter of information only.”
15

that [Catlin and the Added Syndicates] mistakenly refused to add PIB to the
Policy, as the Policy should have reflected all along that PIB was the
mortgagee.”).
PIB also argues that Catlin and the Syndicates issued an endorsement to the
Policy in order to list PIB as a mortgagee. (Doc. 46 at 6). However, the
endorsement adding PIB as a mortgagee was effective as of April 25, 2016, three
weeks after the fire loss occurred on April 2, 2016. PIB was not a named insured
on the Policy or on any endorsement as of the date of the loss, thereby precluding
direct recovery under the contract. See First Fed. Sav. & Loan Ass’n of Hamilton
v. Haley, 377 So. 2d 1082, 1085-85 (Ala. Civ. App. 1979), writ quashed sub nom
Ex parte First Fed. Sav. & Loan Ass’n of Hamilton, Ala., 377 So. 2d 1086 (Ala.
1979) (“The liability of the insurer becomes fixed as of the date of the loss[.]”);
Allstate Ins. Co. v. James, 779 F.2d 1536, 1540 (11th Cir. 1986) (applying
Alabama law, “the amount of the debt for which [the insurer] is liable is fixed on
the date of the fire”).
Accordingly, as PIB was not a named insured on the date of loss, and as the
endorsement adding it to the Policy after the loss did not make PIB a party to the
contract at the time of the loss, Catlin and the Added Syndicates’ Motions To
Dismiss are due to be GRANTED as to PIB’s breach of contract claim under a

16

direct theory of recovery.
2.

Third-Party Beneficiary Theory

Though PIB may not recover under a direct theory of liability as a non-party
to the contract of insurance, an exception exists when the claimant is a third-party
beneficiary to a contract between the insurer and another person or entity. The
Alabama Supreme Court has recounted the law governing contractual third-party
beneficiary status in relevant part as follows:
“[i]f one person makes a promise for the benefit of a third party, such
beneficiary may maintain an action thereon, though the consideration
does not move from the latter.” Franklin Fire Ins. Co. v. Howard, 230
Ala. 666, 667-68, 162 So. 683, 684 (1935).
“ ‘ “To recover under a third-party beneficiary theory, the
complainant must show: 1) that the contracting parties
intended, at the time the contract was created, to bestow a
direct benefit upon a third party; 2) that the complainant
was the intended beneficiary of the contract; and 3) that the
contract was breached.” ’ ”
H.R.H. Metals, Inc. v. Miller, 833 So.2d 18, 24 (Ala. 2002)(quoting
Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So.2d 99,
101-02 (Ala. 1987)). Further, “ ‘ “[i]t has long been the rule in Alabama
that one who seeks recovery as a third-party beneficiary of a contract
must establish that the contract was intended for his direct, as opposed
to incidental, benefit.” ’ ” Morris Concrete, Inc. v. Warrick, 868 So.2d
429, 434 (Ala. Civ. App. 2003)(quoting McGowan v. Chrysler Corp.,
631 So.2d 842, 848 (Ala. 1993)(quoting in turn Mills v. Welk, 470 So.2d
1226, 1228 (Ala. 1985))). “[W]e look[] to the complaints and the
surrounding circumstances of the parties to ascertain the existence of
that direct benefit.” Holley v. St. Paul Fire & Marine Ins. Co., 396 So.2d
75, 80 (Ala.1981) (citing Zeigler v. Blount Bros. Constr. Co., 364 So.2d
17

1163 (Ala.1978)); see also Anderson v. Howard Hall Co., 278 Ala. 491,
179 So.2d 71 (1965).
Locke v. Ozark City Bd. of Educ., 910 So. 2d 1247, 1250 (Ala. 2005) (precluding
summary judgment because a genuine issue of material fact existed as to whether
the claimant was an intended beneficiary of the contract).
The Court observes that the only case cited by Catlin and the Added
Syndicates in their Motions for the proposition that PIB is not entitled to assert a
third-party beneficiary claim was a district court case from the Eastern District of
Pennsylvania, applying New York law, that is in no way binding on this Court.
(See Doc. 53 at 17, Doc. 63 at 17) (citing Galecor, Inc. v. Institute of London
Underwriters, 729 F. Supp. 1101 (E.D. Pa. 1990)). Though Catlin cites, in its
reply brief, a Supreme Court of Alabama case which addressed third-party
beneficiary contractual claims, that court was presented with summary judgment
records and relied substantially on factual evidence when determining that there
was no material support for the plaintiff’s third-party beneficiary claim. See
Bernals, Inc. v. Kessler Greystone, LLC, 70 So. 3d 315, 320 (Ala. 2011).
At this preliminary stage, the Court is not persuaded that PIB has not
plausibly stated a claim for relief under Alabama law for a breach of contract
claim under a third-party beneficiary theory, particularly given PIB’s allegation
that the coverage “was intended to cover the interests of the mortgagee, PIB.”
18

(Doc. 46 at 7) (emphasis added). Accordingly, Catlin and the Added Syndicates’
Motions To Dismiss are due to be DENIED as to PIB’s third-party beneficiary
contractual claims.
B.

Negligent and Wanton Procurement of Insurance Claims

In Counts III and IV of PIB’s amended counterclaims against Catlin and
Counts III and IV of PIB’s third-party claims against the Added Syndicates, PIB
alleges claims of negligent and wanton procurement of insurance. (Doc. 46 at 7-9,
17-19). Catlin and the Added Syndicates have moved for dismissal on the basis
that they owed no duty to procure insurance to PIB. Given that Ramuji, not PIB,
was the party that actually applied for insurance in connection with the motel
property, they allege that any duty to procure insurance was owed to Ramuji, as
the insured, rather than to PIB, as the mortgagee.
The Alabama Supreme Court has stated that “when an insurance agent or
broker, with a view to compensation, undertakes to procure insurance for a client,
and unjustifiably or negligently fails to do so, he becomes liable for any damages
resulting therefrom.” Maloof v. John Hancock Life Ins. Co., 60 So.3d 263, 272
(Ala. 2010) (citation omitted) (affirming dismissal of negligent and wanton
procurement of insurance claims).
Moreover, like any negligence claim, “a claim in tort alleging a negligent

19

failure of an insurance agent to fulfill a voluntary undertaking to procure
insurance...requires demonstration of the classic elements of a negligence theory,
i.e., (1) duty, (2) breach of duty, (3) proximate cause, and (4) injury.” Alfa Life Ins.
Corp. v. Colza, 159 So. 3d 1240, 1248 (Ala. 2014) (internal citations and
quotations omitted). Once an insurance agent “undertakes to procure insurance for
a client,” the agent owes a duty “to exercise reasonable skill, care and diligence in
effecting” the coverage. Highlands Underwriters Ins. Co. v. Elegante Inns, Inc.,
361 So. 2d 1060, 1065 (Ala. 1978) (citation omitted).
The Court is persuaded by Catlin and the Added Syndicates’ argument that
PIB’s negligent and wanton procurement claims should be dismissed because PIB
did not complete the insurance application. PIB has not alleged that it applied for
insurance at any point in time relevant to this action; rather, it alleges that “Ramuji
has maintained insurance on the Property since the mortgage was executed by PIB.
At all times, Ramuji has insured the property and listed PIB as an additional
insured.” (Doc. 46 at 3-4). PIB has alleged no facts demonstrating that either
Catlin or the Added Syndicates owed PIB a duty to procure insurance. PIB has
also cited no authority recognizing that a party who did not apply to procure
insurance, and who is not a named insured of the property in question, could
pursue a negligent or wanton procurement of insurance claim against either the

20

agent of an underwriter or the underwriters themselves.10
Furthermore, contributory negligence is a complete defense to a negligence
claim under Alabama law. Colza, 159 So. 3d at 1248 (citing Mitchell v. Torrence
Cablevision USA, Inc., 806 So.2d 1254, 1257 (Ala. Civ. App. 2000)). Applying
Alabama’s strict contributory negligence standard to procurement claims, the
Alabama Supreme Court held that “any negligent-procurement claim is barred by
the doctrine of contributory negligence” and judgment as a matter of law is
required “when documents available to the insured clearly indicate that the
insurance in fact procured for the insured is not what the insured subsequently
claims he or she requested the agent to procure.” Colza, 159 So. 3d at 1255; see
also id. at 1252 (“By not reading the documents, they took a risk and put
themselves in danger’s way. We do not think it unreasonable to conclude as a
matter of law that, in this day and age, any adult of sound mind capable of
executing a contract necessarily has a conscious appreciation of the risk associated
with ignoring documents containing essential terms and conditions related to the

10

PIB cites to two cases to support its negligent procurement of insurance claims. See
(Doc 59 at 19-20) (citing Vick v. H.S.I. Management, Inc., 507 So.2d 433 (Ala. 1987) and State
Farm Fire and Cas. Co. v. Green, 624 So.2d 538, 539 (Ala. 1993)). However, neither of these
cases addresses or even mentions procurement of insurance claims and, accordingly, they are
inapposite.
21

transaction that is the subject of the contract.”).11
Even assuming, arguendo, that Catlin and the Syndicates did owe a duty to
obtain insurance for PIB, PIB’s negligent procurement claims fail because the
Policy that was in full force and effect at the time of the loss did not list PIB as an
additional named insured. Had PIB reviewed the Policy, it would have known that
it was not listed as a mortgagee under the Declarations page or by endorsement.
PIB’s own contributory negligence bars recovery under a negligent procurement
theory. Accordingly, Catlin and the Added Syndicates’ Motions are due to be
GRANTED as to the negligent and wanton procurement claims in Counts III and
IV of the counterclaims and third-party claims.
C.

Fraud Claims

In Count VII of the amended counterclaims against Catlin and Counts V and
VI12 of the third-party claims against the Added Syndicates, PIB asserts, without

11

As Catlin and the Added Syndicates point out, Colza involved a claim made against an
agent rather than against a principal. However, PIB predicates its claims against Catlin and the
Added Syndicates in part on agency law, claiming that “in this case, under general principles of
agency law, [Randy] Jones & Associates should be considered agents of Lloyd’s, or at a
minimum, in this case should be considered as such.” (Doc. 59 at 13). The Court need not
actually reach the question of whether Jones & Associates and Jon Pair were agents of Catlin and
the Added Syndicates. For the purpose of the Motions To Dismiss, and specifically the negligent
procurement of insurance claims, PIB’s reliance on the purported agency relationship positions
the parties in this case comparably with those in Colza.
12

Counts V and VI of the third-party claims against the Added Syndicates are identical
and therefore duplicative.
22

distinguishing between the causes of action, that they committed “fraud,
fraudulent misrepresentation and/or suppression, reckless indifference, or innocent
misrepresentation.” (Doc. 46 at 11-12, 19-21). Catlin and the Added Syndicates
have moved to dismiss PIB’s fraud claims on the basis that PIB could not have
reasonably relied on the Evidence of Property Insurance forms. PIB’s response in
defense of its fraud claims is, in its entirety, as follows:
If the assertions made by [Catlin and the Added Syndicates] are true,
then someone has lied to PIB, because the representations in Exs. 2, 3,
and 4 in Doc. 4613 are untrue.
(Doc. 59 at 21).
Reasonable reliance is an essential element of a misrepresentation claim.
Alabama Elec. Co-op., Inc. v. Bailey’s Const. Co., Inc., 950 So. 2d 280, 283 (Ala.
2006). First, like in the context of a negligent procurement of insurance claim, an
insured has a duty to read an insurance policy. The Alabama Supreme Court has
affirmed the entrance of judgment as a matter of law with regard to a fraud claim
when “plaintiffs have ignored clear written terms in documents provided them in
association with a transaction” and has stated that it is “almost never reasonable
for an individual to ignore the contents of documents given him or her in
association with a transaction.” Colza, 159 So. 3d at 1251-52 (citation omitted).
13

PIB’s reference to Exhibits 2, 3, and 4 corresponds with the three Evidence of
Property Insurance forms attached to PIB’s Amended Pleading. (See Doc. 46 at 31-33).
23

In Bailey’s, the Alabama Supreme Court cited with substantial approval a
federal district court case, applying Texas law, that held as a matter of law that a
client could not have reasonably relied upon a certificate of insurance in order to
prevail on a claim of negligent or fraudulent misrepresentation. Baileys, 950 So.
2d at 284-285 (citing TIG Insurance Co. v. Sedgwick James of Washington, 184 F.
Supp. 2d 591 (S.D. Tex. 2001)), aff’d, 276 F.3d 754 (5th Cir. 2002)). The court in
Bailey’s summarized the holding in TIG as follows:
“[t]he Court concludes that [the client], claiming to be an additional
‘insured’ under [the policy], should be held to the same obligation as a
named insured to review a policy of insurance on which it seeks to rely,
and its reliance solely on the agent's certificate of insurance is not
reasonable under the circumstances presented by the admissible
evidence. While the cited cases do not involve additional insureds, there
is no admissible evidence to suggest that [the client], had it made the
request, would have been unable to obtain and read the insurance policy
in issue....
“Moreover, [the client], the holder of a certificate of insurance, was
warned it was not entitled to rely on the certificate itself for coverage.
The certificate stated to the holder that the certificate did not create
coverage. See Granite[ Constr. Co. v. Bituminous Ins. Cos.], 832
S.W.2d [427,] 429 [(Tex. Ct. App.1992)].... The certificate of insurance
issued by [the insurance broker] prominently stated that it was ‘issued
as a matter of information only’ and did not ‘amend, extend or alter’
coverage provided by the listed policies. Had Plaintiffs taken the
reasonable step of obtaining a copy of [the policy] ... Plaintiffs would
have learned there was no additional insured coverage in the policy at
all.
“Thus, the Court finds that Plaintiffs' reliance upon [the insurance
broker's] representation of [the client's] additional insured status was not
24

reasonable. Accordingly, as a matter of law, Plaintiffs' claims for
negligent and fraudulent misrepresentation fail.”
Bailey’s, 950 So. 2d at 285 (citing TIG, 184 F. Supp. 2d at 603-04) (emphases
added). Simply put, the court in TIG determined, and the court in Bailey’s
affirmed, that it is unreasonable for a party to rely on a certificate of insurance that
is issued as a matter of information only as proof that the party is named as an
additional insured on a policy.
In further support of its holding, the Alabama Supreme Court quoted, with
approval, the following language:
See also 17 Lee R. Russ & Thomas F. Segalla, Couch on Insurance §
242:33 (3d ed. 1997) (“Where an entity requires another to procure
insurance naming it an additional insured, that party should not rely on
a mere certificate of insurance, but should insist on a copy of the policy.
A certificate of insurance is not part of the policy—if it states that there
is coverage but the policy does not, the policy controls.”); Richard H.
Glucksman & Glenn T. Barger, Additional Insured Endorsements: Their
Vital Importance in Construction Defect Litigation, 21 Construction
Law. 30, 33 (Winter 2001) (“A developer or general contractor generally
should demand more proof [than just a certificate of insurance],
including a specific additional insured endorsement, to confirm their
additional insured status.”).
Id. at 285 (emphasis added); see also Webb v. Reese, 505 So. 2d 321 (Ala. 1987)
(under the reasonable reliance standard, a fraud claim cannot be sustained when
the allegations of fraud run counter to the language of the document governing the
rights of the parties to that contract). In Webb, the Alabama Supreme Court

25

decided a case where the plaintiff alleged fraud based on a misrepresentation that
was contrary to contractual terms. The court concluded that “[n]o useful purpose
would be served by reciting the facts here” because even if the alleged
misrepresentation occurred, the plaintiff “had no legal right to rely on that
statement” and “[wa]s not authorized to disregard the express terms of the contract
and rest her claim on fraud, claiming that she relied on a statement which is
contrary to the contract terms.” Id. at 322.
PIB claims that Catlin and the Added Syndicates misrepresented or
suppressed the correct nature and extent of the coverage and asserts that PIB relied
on the representations in the Evidence of Property Insurance forms, which list PIB
as an “additional interest.” See Ex. 2-4, (Doc. 46 at 31-33). However, like the
plaintiffs in Bailey’s and TIG, PIB was clearly warned by a disclaimer that it could
not rely on statements therein for proof of coverage but rather must look to the
Policy itself. As discussed previously in the context of PIB’s breach of contract
claims, these Evidence of Property Insurance forms expressly state that they did
not “affirmatively or negatively amend, extend, or alter” coverage afforded by the
Policy. (Id.). Each disclaimer on each form further provided that it was created “as
a matter of information only” and “confer[red] no rights.” (Id.).
Given that the policy controls when a conflict as to coverage exists between

26

a policy and a certificate of insurance, see Couch on Insurance § 242:33 (3d ed.
1997), and keeping in mind that the forms relied on by PIB expressly stated they
were “for informational purposes only,” this Court concludes that it was not
reasonable for PIB to rely on the Evidence of Property Insurance forms rather than
on the Policy itself. Accordingly, Catlin and the Added Syndicates’ Motions To
Dismiss are due to be GRANTED as to PIB’s fraud claims.
D.

Civil Conspiracy to Commit Fraud Claims

In Count VII of the amended counterclaims against Catlin and Count VII of
the third-party claims against the Added Syndicates, PIB alleges that they
conspired, both directly and acting through Jon Pair and Randy Jones &
Associates, Inc., to defraud PIB (Doc. 46 at 12-15, 22-25). Catlin and the Added
Syndicates have moved this Court to dismiss PIB’s civil conspiracy claims
because (1) a civil conspiracy claim must fail when the underlying tort fails and
(2) Catlin and the Added Syndicates were not “legally capable” of committing the
underlying tort of fraud.
“Alabama recognizes civil conspiracy as a substantive tort.” DGB, LLC v.
Hinds, 55 So.3d 218, 234 (Ala. 2010) (internal citation and alteration omitted).
“‘In essence, civil conspiracy is a combination of two or more persons to do: (a)
something that is unlawful; [or] (b) something that is lawful by unlawful means.’”

27

Id. (citing Purcell Co. v. Spriggs Enters., Inc., 431 So. 2d 515, 522 (Ala. 1983)).
However, a plaintiff alleging a conspiracy must have a valid underlying cause of
action. Id. (citing Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So. 2d 1280 (Ala.
1993)). A civil conspiracy claim fails if the underlying act or acts do not support
an action. Triple J. Cattle, Inc. v. Chambers, 621 So. 2d 1221, 1225 (Ala. 1993);
Callens v. Jefferson Cty. Nursing Home, 769 So. 2d 273, 280 (Ala. 2000) (same).
For the reasons already set forth in this opinion, PIB has not alleged valid
underlying causes of action for fraud. Accordingly, PIB has also failed to state a
claim of civil conspiracy to commit fraud because there is no “actionable wrong”
to support a conspiracy theory. See Purcell, 431 So.2d at 522. Therefore, the
Motions are due to be GRANTED as to the claims of conspiracy to commit fraud.
E.

Bad Faith Claims

In Count V of the amended counterclaims, PIB asserts that Catlin and the
Added Syndicates acted in bad faith by refusing to cover the damage caused by the
fire loss.14 However, as this Court has determined earlier in this opinion, PIB was
not a direct party to the contract. Therefore, as a matter of law, PIB cannot recover
14

In its Amended Pleading, PIB brings a claim for bad faith only in its counterclaims
against Catlin and does not appear to have asserted any bad faith third-party claims against the
Added Syndicates. Cf. (Doc. 46 at 9-10) with (id. at 15-25). However, for the purposes of
completeness, and to the extent that PIB intended to assert a claim against the Added Syndicates,
this Court will analyze PIB’s bad faith claims as if they were asserted against the Added
Syndicates as well as Catlin.
28

on its bad faith failure to pay claim. See Colza, 159 So. 3d at 1247 (quoting State
Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293, 304 (Ala. 1999) (recognizing that
“the plaintiff in a bad faith refusal case has the burden of proving: (a) an insurance
contract between the parties and a breach thereof by the defendant . . . .”) (internal
citation omitted)); see also Aplin v. American Sec. Ins. Co., 568 So. 2d 757, 758
(Ala. 1990) (“proof of the existence of an insurance contract between the parties is
a threshold requirement in a bad faith claim.”).
Furthermore, even if construed as a third-party beneficiary, PIB cannot
maintain a bad faith insurance claim under Alabama law. As another district court
within this Circuit has explained,
[a]s a general rule, Alabama law confines bad faith claims to situations
where there is an insurance contract between the parties. See Stewart v.
State Farm Ins. Co., 454 So.2d 513, 514 (Ala.1984) (under Alabama
law, “the tort of bad faith refusal to pay is that refusal to pay valid
claims made by the insured of his insurance carrier”); Preis v. Lexington
Ins. Co., 508 F. Supp. 2d 1061, 1077 (S.D. Ala.2007) (explaining that,
for both ordinary and extraordinary bad faith claims, Alabama law
requires plaintiff to show, inter alia, “the existence of an insurance
contract between the parties”). Indeed, the Alabama Supreme Court has
explained in no uncertain terms that “a party cannot bring an action
against an insurance company for bad-faith failure to pay an insurance
claim if the party does not have a direct contractual relationship
with the insurance company.” Williams v. State Farm Mut. Auto. Ins.
Co., 886 So.2d 72, 75–76 (Ala. 2003) (emphasis added). The limitations
on the scope of the bad faith tort in Alabama, and the Alabama Supreme
Court's marked reluctance to relax those limitations, are accurately
summarized as follows:

29

“The tort of bad faith refusal to pay a claim has heretofore
been applied only in those situations where a typical
insurer/insured relationship existed; that is, where the
insured or his employer entered into a written contract of
insurance with an insurer and premiums were paid into a
central fund out of which claims were to be paid. We are
very hesitant to expand the tort beyond these narrow
circumstances.”
Peninsular Life Ins. Co. v. Blackmon, 476 So.2d 87, 89 (Ala. 1985)
(emphasis added); see also Metmor Financial, Inc. v. Commonwealth
Land Title Ins. Co., 645 So.2d 295, 297 (Ala. 1993) (for tort cause of
action for bad faith to arise, “[a]n insurer-insured relationship must
exist”); Berry v. United of Omaha, 719 F.2d 1127, 1128 (11th Cir.1983)
(explaining that Alabama gives “insurance policy holders (but not third
party beneficiaries) an action in tort, in addition to their contract action,
against an insurance company that refused payment of a claim ...”).
Thus, Alabama courts have circumscribed the tort of bad-faith refusal to
pay to circumstances in which there is a direct contractual relationship
between plaintiff and insurer, and a typical insurer/insured relationship
exists. Nothing in plaintiff's filings or the Court's own research supports
a conclusion that third-party beneficiaries such as Jones may invoke the
tort of bad faith against insurers in Alabama. In fact, Jones' briefs are
devoid of any argument or analysis that third-party beneficiaries are
entitled to bring bad faith claims under Alabama law. Simply put, Jones
proffers no authorities and makes no arguments that, despite the
Eleventh Circuit's opinion to the contrary in Berry, the necessity of a
direct contractual relationship identified in Williams, and the Alabama
Supreme Court's hesitance to enlarge the tort as described in Peninsular
Life, Alabama courts would expand the tort of bad faith to allow
third-party beneficiaries to assert such a claim against insurers.
Jones v. General Ins. of America, 2009 WL 1537866, at *12-13 (S.D. Ala. May
29, 2009) (Steele, J.) (bolding in original, underline added).
Like in Jones, PIB has presented no analysis and has cited no authority to
30

support its bad faith claim, stating only that it is an “insured under the terms of the
Policy, and as such it has standing to pursue its claims of bad faith.” (Doc. 59 at
21-22). This Court disagrees with PIB’s contention that it is a named insured
under the Policy, and PIB has offered no argument in favor of the cognizability of
a bad faith claim brought by a third-party beneficiary. Furthermore, the abovecited authority in Jones controls this situation, particularly given that the Eleventh
Circuit in Berry found that Alabama law explicitly bars third-party beneficiaries
from bringing bad faith causes of action. Accordingly, this Court finds that PIB is
ineligible to bring bad faith claims against Catlin, and the Added Syndicates to the
extent these claims are asserted against them, because it is, at most, a third-party
beneficiary that lacks a direct contractual relationship with them. The Motions are
due to be GRANTED as to PIB’s bad faith claims.
F.

Declaratory Relief

Finally, in Count I of the amended counterclaims against Catlin and Count I
of the third-party claims against the Added Syndicates, PIB requests that this
Court (1) declare that “PIB is the owner of equitable title to the Property and is
indeed a named mortgagee under [Catlin and the Added Syndicates’] policy of
insurance on the Property for the April 2, 2016, fire loss,” and (2) “direct [Catlin
and the Added Syndicates’] to pay PIB for its loss.” (Doc. 46 at 6, 15-16). Catlin

31

and the Syndicates, in turn, assert that PIB does not allege a substantial, real and
immediate controversy between the parties. (Doc. 53 at 11-15; Doc. 63 at 11-15).
PIB brings its claims for declaratory relief pursuant to the Declaratory
Judgment Act, which provides that “[i]n a case of actual controversy within its
jurisdiction... any court of the United States... may declare the rights and other
legal relations of any interested party seeking such declaration, whether or not
further relief is or could be sought.” 28 U.S.C. § 2201(a). The “case of actual
controversy” must be (1) “definite and concrete, touching the legal relations of
parties having adverse legal interests”; (2) “real and substantial”; and (3) “admi[t]
of specific relief through a decree of a conclusive character, as distinguished from
an opinion advising what the law would be upon a hypothetical state of facts.”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (citation omitted).
Under Section 2201(a), this Court has “unique and substantial discretion in
deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515
U.S. 277, 286-87 (1995); see also MedImmune, 549 U.S. at 126 (“The Declaratory
Judgment Act provides that a court may declare the rights and other legal relations
of any interested party, not that it must do so.”) (internal citation omitted,
emphasis in original).
At this 12(b)(6) stage, a dismissal of PIB’s declaratory relief claims would

32

be premature. Catlin and the Added Syndicates essentially argue that these claims
should be dismissed because no direct contractual relationship exists between PIB
and themselves. However, to state a claim for declaratory relief, all that is required
is for PIB to allege that there are adverse legal interests at issue in a “definite and
concrete” dispute. MedImmune, 549 U.S. at 127. PIB has sufficiently alleged that a
real, substantial, and concrete dispute exists over whether PIB has standing to
bring a breach of contract claim as a third-party beneficiary. Accordingly, Catlin
and the Added Syndicates’ Motions are due to be DENIED as to PIB’s declaratory
judgment claims.
V.

CONCLUSION
For the foregoing reasons, the Motions To Dismiss are hereby GRANTED

in part and DENIED in part.
Catlin’s Motion (doc. 53) is hereby GRANTED as to the negligent and
wanton procurement, bad faith, fraud, and conspiracy to commit fraud claims
brought against Catlin in Counts III-VII of PIB’s amended counterclaims. (Doc.
46 at 7-15). Catlin’s Motion is hereby DENIED as to the declaratory relief and
third-party beneficiary contractual counterclaims brought against Catlin in Counts
I and II of PIB’s counterclaims. (Doc. 46 at 5-7).
The Added Syndicates’ Motion (doc. 63) is hereby GRANTED as to the

33

negligent and wanton procurement, fraud, and conspiracy to commit fraud claims
brought against the Added Syndicates in Counts III-VII of PIB’s third-party
claims. (Doc. 46 at 17-25). The Added Syndicates’ Motion is hereby DENIED as
to the declaratory relief and third-party beneficiary contractual claims brought
against the Added Syndicates in Counts I-II of PIB’s third-party claims. (Doc. 46
at 15-17).
DONE and ORDERED this the 18th day of August, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

34