Thephithack v. Allstate Indemnity Company

Filing 45

ORDER denying without prejudice 40 Motion to Dismiss but that Plaintiff must again amend her claim. Signed by Judge Kristi K. DuBose on 6/6/2013. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PHET THEPHITHACK,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION NO. 12-00398-KD-M
)
ALLSTATE PROPERTY AND CASUALTY )
INSURANCE COMPANY
)
)
Defendant.
)
ORDER
This action is before the Court on Defendant’s Motion to Dismiss Amended Complaint
(Doc. 40) and Plaintiff’s Response (Doc. 42) in opposition. Upon consideration, the Court finds
that the motion is due to be DENIED without prejudice but that Plaintiff must again amend her
claim.
In its Order denying the parties’ cross-motions for summary judgment, the Court found
that Plaintiff “ha[d] not sufficiently pled a direct action [for uninsured/underinsured motorist
coverage]

against”

Defendant

in

her

initial

Complaint

and

that

her

claim

for

uninsured/underinsured motorist coverage “merely restate[d] [her] breach-of-contract claim[,]”
which the Court found was premature. (Doc. 38 at 14-15). Accordingly, the Court ordered
Plaintiff to “file an amended complaint that adequately claims a direct action for UM/UIM
coverage” against Defendant under Alabama law. (Id. at 16). Plaintiff’s Amended Complaint
(Doc. 39) omitted her previous counts for bad faith and breach of contract, leaving only one
count entitled “Uninsured Motorist,” which reads:
8. Plaintiff had an insurance contract with Defendant which provided for
underinsured motorist benefits if plaintiff was injured by an underinsured
motorist.

9. After plaintiff made a claim for UIM benefits with Defendant, Defendant
denied plaintiff’s claims for benefits under the UIM insurance contract between
defendant and plaintiff.
10. Defendant, has breached the UIM contract between plaintiff and defendant.
11. Plaintiff is due UIM benefits under UIM contract with defendant.
WHEREFORE, plaintiff demands
compensatory and punitive damages.

damages

against

the

defendant

for

(Doc. 39 at 3).
In its present motion, Defendant argues that this sole count does not in fact state a claim
for uninsured motorist coverage but instead “is again in the nature of a claim for ‘breach of
contract . . . which this Court has clearly addressed as being improper under Alabama law.’ ”
(Doc. 40 at 3-4, ¶¶ 5-6).

Thus, Defendant argues, the Amended Complaint is due to be

dismissed for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P.
12(b)(6).
In opposition, Plaintiff cites to the Alabama Pattern Jury Instruction regarding a claim for
uninsured motorist insurance coverage. That instruction states, in relevant:
Ladies and gentlemen of the jury, this case is based on a policy of insurance in
which the defendant insurance company issued to the plaintiff a policy of
automobile liability insurance which contained a provision affording what is
commonly known as uninsured motorist coverage. The plaintiff's complaint
contains the following averments, namely:
1 That the defendant insurance company issued a policy of automobile liability
insurance coverage which afforded uninsured motorist coverage and that said
policy was in full force and effect on the ___ day of _____, the date of the alleged
accident;
2 That on said date the plaintiff was injured by the operation of the motor vehicle
(owned) or (operated) by _______ ;
3 That the said _______ on the occasion of the accident had no liability insurance
coverage;
4 That the plaintiff is legally entitled to recover damages of the said _____. The
term “legally entitled to recover damages of the said ______” means: the plaintiff

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must establish fault on the part of the said ______ which gives rise to damages
and must prove the extent of those damages.
The specific charge of “fault” on the part of ______ as alleged by the plaintiff is:
(here state the charge of negligence or wantonness and define those terms.) . . .
. . . Since the defendant has denied the material averments of the complaint the
burden is on the plaintiff to reasonably satisfy you of the truthfulness of each of
those averments, namely:
(1) The policy was issued and was in force on the day of the accident.
(2) That the plaintiff was injured by the operation of a vehicle by ________, who
was an uninsured motorist.
(3) That the said ________ is legally responsible for said injuries.
(4) The extent of plaintiff's injury and damage . . .
1 Ala. Pattern Jury Instr. Civ. 20.50 (3d ed.).
The Court must agree with Defendant’s assertion that Plaintiff has again stated a claim
for breach of contract rather than for uninsured/underinsured motorist benefits.1 Based on the
above-quoted Pattern Jury Instruction, Plaintiff is correct that “failure to prove a
contract/insurance policy is fatal to a UIM claim.” (Doc. 42 at 2, ¶ 4). However, the Pattern
Jury Instruction says nothing about proving breach of that policy in order to be successful on an
uninsured motorist coverage claim.
Moreover, Plaintiff has failed to allege other stated elements from the Pattern Jury
Instruction anywhere in her Amended Complaint.

She does not allege that her

uninsured/underinsured motorist policy with Defendant was in full force and effect at the time of
the subject car accident. She does not allege that the alleged tortfeasor was uninsured or
underinsured at the time of the accident.2 She also does not allege that she is legally entitled to
1

In fact, the Court finds the sole count in the Amended Complaint to be substantially
similar to the defective uninsured motorist coverage claim in the original Complaint (Doc. 1-1 at
27).
2

Rather, Plaintiff simply alleges that the money she received in the underlying state
(Continued)
3

recover damages from the alleged tortfeasor.3
“Under Federal Rule of Civil Procedure 15(a), a court should give leave to amend freely
when justice so requires. Ordinarily, a party must be given at least one opportunity to amend
before the district court dismisses the complaint. The district court, however, need not allow an
amendment (1) where there has been undue delay, bad faith, dilatory motive, or repeated failure
to cure deficiencies by amendments previously allowed; (2) where allowing amendment would
cause undue prejudice to the opposing party; or (3) where amendment would be futile.” Corsello
v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005) (citations and quotations omitted).
Moreover, “[a] district court is not required to grant a plaintiff leave to amend his complaint sua
sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor
requested leave to amend.” Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542
(11th Cir. 2002) (en banc) (on plaintiff’s appeal of the dismissal of his case pursuant to Rule
12(b)(6)). Additionally, “[w]hether to dismiss a complaint for failure to comply with an order of
the court is a matter committed to the district court's discretion.” Equity Lifestyle Properties,
Inc. v. Florida Mowing And Landscape Serv., Inc., 556 F.3d 1232, 1240 n.14 (11th Cir. 2009)
(citing Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999)).
It is true that the Court has already given Plaintiff an opportunity to cure her deficient
claim for uninsured/underinsured motorist benefits against Defendant under Alabama law and

interpleader action was insufficient to compensate her for her injuries. Plaintiff also appears to
assert that it is she, rather than the alleged tortfeasor, who is the underinsured motorist. (See
Doc. 39 at 2, ¶ 7 (“Plaintiff was awarded money interplead into Court which was inadequate.
Therefore, she is an underinsured motorist for purposes of Alabama law.”)).
3

Instead, Plaintiff only alleges that she is “legally entitled” to recover from Defendant.
(See Doc. 39 at 2, ¶¶ 6-7 (“Plaintiff is legally entitled to recover UIM benefits in excess of
$75,000 . . . Plaintiff is legally entitled to UIM benefits from Defendant in excess of $75,000
because her recovery in the interpleader action is inadequate for compensatory and punitive
damages.”).

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that Plaintiff has failed in this regard. However, in exercise of its discretion, the Court will allow
Plaintiff one more opportunity to state her claim appropriately by agreeing to the elements of the
claim in the Joint Pretrial Document to be filed pursuant to the Court’s “Standing Order
Governing Final Pretrial Conference.”4 The Court finds that Defendant will not be unduly
prejudiced by this last chance at amendment, as the issue of uninsured/underinsured motorist
coverage as it relates to this case has been clearly set out in the Court’s Order on summary
judgment (Doc. 38).
Accordingly, it is ORDERED that the motion to dismiss (Doc. 40) is DENIED without
prejudice.
DONE and ORDERED this the 6th day of June 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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The Court typically adopts the Joint Pretrial Document as part of its final Pretrial Order.
(See Doc. 9-1 at 4-5, ¶ 5). “The pretrial order supersedes the pleadings.” Delta Health Grp. Inc.
v. Royal Surplus Lines Ins. Co., 327 F. App'x 860, 867 (11th Cir. 2009) (citing Jackson v.
Seaboard Coast Line R.R. Co., 678 F.2d 992, 1012 (11th Cir.1982)).

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