Joiner v. Cotton States Mutual Insurance Company et al

Filing 15

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 12/5/12. (KGE, )

FILED
2012 Dec-05 AM 11:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
MISTY JOINER,
Plaintiff;
vs.
COTTON STATES MUTUAL
INSURANCE COMPANY,
Defendant.

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6:12-cv-1959-LSC

MEMORANDUM OF OPINION
Before the Court is a Motion to Dismiss, or in the Alternative, for a More
Definite Statement (Doc. 4), filed by Defendant Cotton States Mutual Insurance
Company (“Cotton States”), on May 31, 2012. For reasons described below,
Defendant’s Motion is due to be GRANTED in part and DENIED in part.
According to the Notice of Removal (Doc. 1), Cotton States is a corporation
organized under the laws of Georgia with its principal place of business in Georgia.
Cotton States insured Plaintiff’s home at the time of the events at issue in this lawsuit.
On April 21, 2011, Plaintiff’s home was severely damaged by a fire. On April 27, 2011,
her property was further damaged by a tornado and severe weather. As a result of these

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two incidents, Plaintiff alleges that her home and personal property were a total loss.
Plaintiff’s insurance policy provides limited coverage for her dwelling, personal
property, and auxiliary private structures. She asserts that the costs to repair her
dwelling, adjacent structures, and replace her personal property exceed both the policy
limits and the amount Cotton States has already paid. The amount paid represents
Cotton States’ estimate of the actual value of Plaintiff’s losses. Plaintiff is seeking the
remaining amount of the policy limits and brought suit alleging Breach of Contract,
Bad Faith, Misrepresentation, Negligence, and Emotional Distress or Mental Anguish.
Cotton States challenges three counts of the Plaintiff’s Complaint: Misrepresentation,
Negligence, and Emotional Distress or Mental Anguish. Plaintiff concedes that her
Negligence claim is inappropriate and due to be dismissed. (Doc. 10 at 5.) Likewise,
she concedes there is no separate cause of action under Alabama law for Emotional
Distress or Mental Anguish. (Id. at 5–7.)
In her responsive submission, Plaintiff asks that this Court order any dismissal
of her claim for Emotional Distress or Mental Anguish so that it does not preclude the
proper recovery thereof as damages flowing from her other claims. (Doc. 10 at 6.)
However, in its brief in support of the motion to dismiss, Cotton States does not
challenge Plaintiff’s ability to recover emotional distress or mental anguish damages

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flowing from her other claims; therefore, the Court will not make a determination of
whether Plaintiff can recover such damages at this time.
The Court now turns to the Misrepresentation claim. The Federal Rules of Civil
Procedure provide that for a claim “alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b).
In order to satisfy the particularity required by this rule, a plaintiff’s complaint must
allege:
(1) precisely what statements were made in what documents or oral
representations or what omissions were made, and (2) the time and place
of each such statement and the person responsible for making (or, in the
case of omissions, not making) same, and (3) the content of such
statements and the manner in which they misled the plaintiff, and (4)
what the defendants obtained as a consequence of the fraud.
U.S. ex rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1310 (11th Cir. 2002)
(quoting Ziemba v. Cascade Int’l Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)).
Upon due consideration of Plaintiff’s Complaint, the Court agrees that the
pleadings do not satisfy the requirements of Rule 9(b). Allegations that are merely
general or conclusory do not plead fraud with sufficient specificity. See Ziemba v.
Cascade Int’l, Inc., 256 F.3d 1194 (11th Cir. 2001). Here, Plaintiff’s allegations of
misrepresentation state only that “Defendants willfully and intentionally defrauded
[her] by inducing her to purchase a Policy, accepting her payment of the premiums,
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and then, refusing, without justification, to pay the full value of the claim.” These
allegations lack sufficient detail concerning the content, method of communication,
and timing of Defendant’s representations. (Doc. 1 at 34.) Moreover, the Plaintiff
failed to clarify who made the alleged misrepresentations–a particularly salient fact,
as Plaintiff has already dismissed the Howie Fell Agency from this case. (Doc 14.) The
Eleventh Circuit has affirmed the dismissal with prejudice of similarly vague fraud
allegations. See Centennial Bank v. Noah Group, LLC, 445 Fed. App’x. 277 (11th Cir.
2011) (finding an amended cross-complaint to be deficient because–although it
included the content of allegedly fraudulent statements and who made them–it failed
to include how and when they were communicated). At this time, however, it is not
appropriate to dismiss the Misrepresentation claim outright.
For the foregoing reasons, Cotton States’ motion is due to be GRANTED in
part and DENIED in part. Cotton States’ request to dismiss Plaintiff’s Negligence and
Emotional Distress or Mental Anguish claims is due to be GRANTED. Cotton States’
request to dismiss Plaintiff’s Misrepresentation claim is due to be DENIED. Plaintiff
will be DIRECTED to amend her Complaint in order to plead facts with sufficient
particularity. A separate order will be entered consistent with this opinion .

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Done this 5th day of December 2012.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
171032

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