BRYANT v. PROGRESSIVE MOUNTAIN INSURANCE COMPANY et al
ORDER granting 4 Motion to Dismiss Complaint. Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 3/20/2017 (bcl)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
JOHN DOES (1-30)
CASE NO.: 1:16-CV-086 (LJA)
Before the Court is Defendant Progressive Mountain Insurance Company’s Partial
Motion to Dismiss Plaintiff’s claims 1-4 and 6-11. (Doc. 4). For the reasons set forth below,
Defendant’s Motion is GRANTED.
Plaintiff, Charles Bryant, commenced this action on April 5, 2016 in the Superior
Court of Grady County, State of Georgia. (Doc. 1-2). Defendant filed its Answer on May 11,
2016 (Doc. 1-3), and thereafter filed a Notice of Removal to this Court on May 19, 2016
pursuant to 28 U.S.C. § 1332, invoking this Court’s diversity jurisdiction. (Doc 1). Pursuant
to Fed. R. Civ. P. 12(b)(6), Defendant filed the present Motion on June 7, 2016. (Doc. 4-1).
This action arises out of Defendant’s refusal to pay a first-party insurance claim made
by Plaintiff against Defendant. (Doc. 1-2). The Complaint asserts twelve causes of action: (1)
breach of contract to pay claim; (2) breach of contract – consequential damages; (3) fraud;
(4) fraud – consequential damages; (5) bad faith; (6) violation of the Georgia Uniform
Deceptive Trade Practices Act and violation of the Fair Business Practices Act; (7) negligent
misrepresentation; (8) unjust enrichment; (9) statutory damages and negligence per se; (10)
punitive damages; (11) attorney’s fees; and (12) statutory attorney’s fees. (Doc. 1-2 ¶¶ 40–
118). Defendant moves to dismiss claims 1–4 and claims 6-11. (Doc. 4-1).
As a threshold issue, Plaintiff notes that Defendant’s Answer, which was filed prior
to the present Motion, raises the defense of failure to state a claim. (Doc. 5 citing Doc. 1-3).
Therefore, Plaintiff argues, Defendant’s Motion is a “nullity and must be stricken.” (Doc. 5
citing Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) (holding that a motion pursuant to Fed.
R. Civ. P. 12(b)(6) filed after an answer which states failure to state a claim as a defense is a
nullity)). However, the Court “may construe the Rule 12(b)(6) motion as one seeking
judgment on the pleadings under Rule 12(c). Whitehurst v. Wal-Mart Stores East, L.P., 329 F.
App’x 206, 208 (11th Cir. 2008). Defendant preserved the defense of failure to state a claim
by raising it in its answer. See (Id.). “In so doing, however, [Defendant cannot] assert the
defense in a Rule 12(b)(6) motion.” See (Id.). “Nevertheless, when construed as a Rule 12(c)
motion for judgment on the pleadings, [Defendant’s] motion [is] timely.” See (Id.). Thus, in
the interest of judicial economy, the Court construes the Defendant’s Motion as a motion
for judgment on the pleadings pursuant to Rule 12(c).
Federal Rule of Civil Procedure 12(c) provides that, “[a]fter the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on the
pleadings.” Fed. R. Civ. P. 12(c). The pleadings in this case are closed as Plaintiff filed the
Complaint, Defendants answered, and no counterclaims, crossclaims, or third-party
complaints have been filed. See Perez v. Wells Fargo N.A., 774 F.3d 1329, 1336 (11th Cir.
2014); see also Fed. R. Civ. P. 7(a). Accordingly, a motion pursuant to Rule 12(c) is proper.
“In determining whether a party is entitled to judgment on the pleadings, we accept
as true all material facts alleged in the non-moving party’s pleading, and we view those facts
in the light most favorable to the non-moving party. Perez, 774 F.3d at 1335 (internal citation
omitted). Because “judgment on the pleadings is limited to consideration of ‘the substance
of the pleadings and any judicially noticed facts,’” the Court cannot consider facts
introduced in the parties’ briefing on Defendants’ Motion. Armstrong v. Cummins, 2009 WL
2709954, at *2 (M.D. Ala. Aug. 26, 2009) (quoting Bankers Ins. Co. v. Fla. Residential Prop. &
Cas. Joint Underwriting Ass’n, 137 F.3d 1293, 1295 (11th Cir. 1998)).
“A motion for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c) is subject to the same standard as a Rule 12(b)(6) motion to dismiss.” U.S.
v. Wood, 925 F.2d 1580, 1581 (11th Cir. 1991); see also Everidge v. Wells Fargo Bank, 2015 WL
5786738, at *8 n.8 (M.D. Ga. Sept. 29, 2015). Therefore, “a complaint must contain specific
factual matter, accepted as true to state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face if the complaint alleges
enough facts to “allow[ ] the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint must plead “enough
fact[s] to raise a reasonable expectation that discovery will reveal evidence” of the
defendant’s liability. Twombly, 550 U.S. at 556. While “all well pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most favorable to
the plaintiff,” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999), the same
liberal reading does not apply to legal conclusions. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252,
1260 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Auth., 132 S. Ct. 1702
(2012). “[A] plaintiff armed with nothing more than conclusions” cannot “unlock the doors
of discovery.” Iqbal, 556 U.S. at 678-79. Additionally, “[t]hreadbare recitals of the elements
of a cause of action supported by mere conclusory statements, do not suffice.” Id. at 678.
On or about October 2, 2015, Plaintiff purchased an automobile liability and
collision insurance policy from Defendant for Plaintiff’s 1995 Peterbilt 379 truck
(“Truck”). (Doc. 1-2 ¶ 10). Plaintiff paid all premiums due on the policy. (Id. ¶ 11). On
November 14, 2015, Plaintiff parked his Truck at Susie Q’s BP Service Station at 45 U.S.
Highway 84 East, Cairo, Georgia. (Id. ¶ 12). Plaintiff left the Truck in neutral, set the brake,
Unless specifically indicated, the facts are taken from the allegations in Plaintiff’s Complaint (Doc. 12), which are accepted as true for purposes of this Motion.
and went into the station. (Id.). The brakes failed to hold, and the Truck went down a hill,
across Highway 84, and crashed into a Dairy Queen restaurant. (Id. ¶ 13).
Officer Shannon Lang of the Cairo Police responded, and under his direction,
Plaintiff attempted to drive the Truck from the scene. (Id. ¶ 14). However, the Truck
would not move as it was stuck on concrete from barriers in front of the Dairy Queen, and
the rear differential was broken. (Id.). The Cairo Police then called Mr. Rusty Evans to tow
the truck from the scene because it was blocking Highway 84. (Id. ¶ 15). Two steel posts
set in concrete had been installed in front of the Dairy Queen to protect the Dairy Queen
from runaway vehicles such as Plaintiff’s. (Id. ¶ 16). At the time of Plaintiff’s accident, the
posts did indeed protect the Dairy Queen building, but the force of Plaintiff’s truck
knocked the posts down, and the concrete in which they were set came out of the ground.
(Id.). Plaintiff’s Truck rode up on the concrete, and this prevented the Truck from moving
under its own power. (Id. ¶ 17). Mr. Evans was able to drag the truck off the concrete
where it was stuck. (Id. ¶ 18). After Mr. Evans removed the Truck from the concrete,
Plaintiff attempted to drive the Truck away, but the truck would not move because the rear
differential was broken. (Id. ¶ 19). Mr. Evans ultimately towed the Truck to Plaintiff’s
home. (Id. ¶ 20).
On or about November 20, 2015, Mr. Evans spoke to Mr. Daniel Howard, a
Commercial Claims Adjuster for Defendant. (Id. ¶ 21). Mr. Howard requested that Mr.
Evans tow Plaintiff’s Truck to Mr. Evan’s shop for diagnosis and repair. (Id.). Mr. Howard
asked that Mr. Evans disassemble the differential for inspection. (Id.). Mr. Evans agreed to
disassemble the differential, but first asked for assurance of payment from Defendant. (Id.).
Mr. Howard replied that he had been instructed by “higher ups” to deny the claim for the
differential at this time, and he suggested that Mr. Evans request authorization for payment
from Plaintiff. (Id. ¶ 22). As an accommodation to Plaintiff, Mr. Evans disassembled the
differential without charge. (Id. ¶ 23). Defendant refused to pay for the disassembly of the
differential after Defendant denied coverage, and Mr. Evans has not been paid for the
After the disassembly, Mr. Howard asked Mr. Evans if he would be willing to
provide a statement that the damage to the rear differential was caused by wear and tear
rather than by the accident. (Id. ¶ 24). Mr. Evans declined to do so, and he informed Mr.
Howard that it would be impossible to determine what caused the damage through an
internal examination of the parts. (Id.). Mr. Evans explained that the parts might appear to
be in perfect condition, but a bearing could seize and cause extensive damage without any
evidence; on the other hand, according to Mr. Evans, the parts might look quite worn, but
work perfectly for thousands of miles. (Id.). Mr. Evans informed Mr. Howard that he
believed it highly improbable that the differential failed catastrophically at the exact time of
the accident without any effect from the accident. (Id. ¶ 25). In Mr. Evans’ opinion, the
differential was broken after the accident when the police and Plaintiff attempted to move
the Truck before the tow truck arrived. (Id.). Alternatively, Mr. Evans believed the
differential was broken during the accident when the Truck struck the steel poles in front
of the Dairy Queen. (Id. ¶ 26).
Mr. Evans sent a bill for towing to Defendant. (Id. ¶ 27). Mr. Evans informed Mr.
Howard that he would not release the Truck until the bill for towing and storage was paid.
(Id.). Defendant paid the bill on or about January 15, 2016. (Id.). At that time, the Truck
was released to Plaintiff. (Id.).
On or about November 20, 2015, Plaintiff filed a claim with Defendant for
indemnification of his insured losses under his policy. (Id. ¶ 29). Plaintiff complied with all
policy requirements and deadlines when filing his claim. (Id. ¶ 30). On January 19, 2015, the
Defendant denied Plaintiff’s claim. (Id. ¶ 31). Defendant’s denial stated:
We completed an inspection of the vehicle. There was no physical damage to
the rear differential. The damage to the torn down housing indicates the
damage was the result of an internal failure and caused the puncture to the
housing. Our investigation found the damages to the rear differential was
caused by an internal (mechanical failure) not a collision event but wear and
tear from use before and after this loss occurred. Your policy contains an
exclusion for damages resulting from mechanical failure. Therefore, coverage
does not apply.
No one examined the differential except Mr. Howard, who is not an expert
mechanic. (Id. ¶ 32). Defendant did not offer any facts from which it concluded that the
damages to the rear differential was caused by an internal mechanical failure, and the letter
did not contain a method by which Plaintiff could contest or request review of the denial.
(Id. ¶¶ 33 and 34). On or about January 29, 2016, Plaintiff sent a demand letter for the
amount of $24,000.00, specifically citing O.C.G.A. § 33-4-6. (Id. ¶ 35). No portion of the
demand has been paid. (Id. ¶ 36).
On March 14, 2016, Defendant sent a letter to Mr. Melvin Horne, attorney for
Plaintiff, which stated, “Progressive will honor the damages to [Plaintiff’s] rear differential.
A payment in the amount of $3,036.85 will be issued for the damages sustained to the
differential.” (Id. ¶ 37). The letter further stated:
Our offer to resolve the damages to the differential is an offer of settlement to
resolve this claim. Mr. Bryant does not have loss of use/rental/down time on
his policy. Progressive reserved its right for coverage denial on this loss and
were well within our rights to do so. The reasoning for the denial stands. In an
attempt to settle the claim, Progressive is agreeing to pay for the differential.
(Id. ¶ 38). Plaintiff rejected Defendant’s settlement offer. (Id. at 38).
Plaintiff alleges twelve causes of action in violation of Georgia state law. (Doc. 1-2).
Defendant moves for the dismissal of all of Plaintiff’s causes of action, with the exception of
Plaintiff’s fifth cause of action for bad faith and Plaintiff’s twelfth cause of action for
attorney’s fees. The fifth and twelfth claims are brought pursuant to O.C.G.A § 33-4-6.
(Doc. 4-1). Defendant argues that O.C.G.A § 33-4-6, which addresses liability of insurers for
damages and attorney’s fees in the case of a bad faith refusal to pay claims, is Plaintiff’s
exclusive remedy, and thus, all other claims are barred. (Id.). Alternatively, Defendant argues
that dismissal is appropriate because Plaintiff has failed to state appropriate claims. (Id.).
Plaintiff’s First and Second Causes of Action: Breach of Contract to Pay
Claim and Consequential Damages
Plaintiff alleges that Defendant has breached its contract with Plaintiff by
(a) Refusing to deliver a complete copy of the Policy of Insurance to the
insured when it was requested; (b) Failing to disclose that the services supplied
by Defendant and purchased by Plaintiff were not what Defendants
represented them to be; (c) Failing to disclose that the services supplied by
Defendants and purchased by Plaintiff were not what Plaintiff requested from
the Defendant; (d) Failing to act in good faith; (e) Breaching warranties
existing because of the contracts; (f) Failing to perform as required by the
contract; (g) Refusing to indemnify Plaintiff for his covered loss; (h) Such
other actions now unknown but to be proven at trial.
(Doc. 1-2 ¶ 42).
Defendant argues that Plaintiff’s breach of contract should be dismissed because
O.C.G.A § 33-4-6 is the exclusive remedy against an insurance company that denies benefits.
(Doc. 4). Because, however, Georgia courts have “implicitly recognized the ability of an
insured to bring a breach of contract claim and a claim for bad faith simultaneously,”
O.C.G.A. § 33-4-6 does not bar Plaintiff’s breach of contract claim. Estate of Thornton v. Unum
Life Ins. Co. of America, 445 F.Supp.2d 1379, 1382 (N.D. GA 2006) (citing Assurance Co.
America v. BBB Service Co., Inc., 259 Ga. App. 52 (2002)).
“In Georgia, the essential elements of a breach of contract claim are (1) a valid
contract; (2) material breach of its terms; and (3) damages arising therefrom.” Brooks v. Branch
Banking and Trust Co., 107 F.Supp.3d 1290, 1295 (N.D. GA 2015) (internal quotation marks
omitted). “A plaintiff asserting a breach of contract claim must allege a particular contractual
provision that the defendants violated to survive a motion to dismiss.” Id. at 1296. In this
case, Plaintiff has made broad allegations regarding Defendant’s alleged breach, but Plaintiff
has failed to allege a particular contractual provision that the Defendant has violated.
Because a motion for judgment on the pleadings relies upon the same standard as a motion
to dismiss, Wood, 925 F.2d at 1581, Plaintiff’s breach of contract claim does not survive a
motion for judgment on the pleadings. Further, as Plaintiff’s second cause of action, “Breach
of Contract – Consequential Damages,” is premised upon Plaintiff’s breach of contract
claim, Plaintiff has failed to plead this claim adequately. As such, both claims are subject to
Plaintiff’s Third and Fourth Causes of Action: Fraud and Consequential
Plaintiff alleges a claim for fraud, stating that “Defendants made a series of false
representations to Plaintiff Charles Bryant regarding the insurance offered and the method
the Defendant used in paying its claims associated with the Policy he purchased for his
truck.” (Doc. 1-2 ¶ 56). Further, Plaintiff states, “Defendants falsely represented that
premiums paid would entitle him to prompt payment of claims which were obviously due
and payable, such as towing charges and damages from a collision, without the Defendant
withholding valid payments as pressure to cause Plaintiff Charles Bryant to settle any
disputed items.” (Id. ¶ 57).
Defendant argues that Plaintiff’s fraud claim rests on Defendant’s “alleged failure to
properly adjust and promptly pay out on Plaintiff’s first party property damage claim.
[Plaintiff’s] claimed damages are based on Defendant’s alleged refusal to ‘pay the towing
charges until Plaintiff agreed to drop his claim for the differential.’” Plaintiff argues that
because of this refusal, “he lost 8 weeks use of the vehicle.” (Doc. 4-1 at 5 quoting Doc. 1-2
¶ 65). Defendant again contends that Plaintiff’s fraud claims are “duplicative of Plaintiff’s
bad faith claim, and that remedy provides Plaintiff’s exclusive avenue for recovery for that
allegedly wrongful conduct.” (Id.).
In response, Plaintiff cites McGowan v. Progressive Ins. Co., 637 S.E. 2d 27 (Ga. 2006), in
which the Georgia Supreme Court allowed a plaintiff’s claim for fraud against an insurer to
go forward. (Doc. 5 at 9). In McGowan, the court noted that “this case does not involve a
good faith dispute over what State Farm needed to pay [plaintiff] for her totaled vehicle, but
an alleged pre-existing scheme between State Farm and [a third party] to ensure that no one
would be properly paid under State Farm’s insurance contracts.” Id. at 172. Plaintiff appears
to allege that his claim for fraud should be allowed to proceed because, similar to the facts of
McGowan, Defendant has established a pre-existing scheme to ensure that no one will receive
the benefits to which they are entitled under Defendant’s contracts. Specifically, Plaintiff
alleges, “[a]s a business model, Defendant intends, at the time they issue the contract of
insurance, to not perform on the promises they make.” (Doc. 1-2 ¶ 61). Plaintiff further
states, “Defendants made said promises to Plaintiff Charles Bryant at the time he purchased
the insurance, without any intention to keep them. Defendants made these false
representations with knowledge of their falsity and with the intent to deceive Plaintiff into
purchasing the policy, or inducing him from purchasing a different policy.” (Id. ¶¶ 62 and
In Georgia, the tort of fraud has five elements: (1) false representation by a
defendant; (2) scienter; (3) intention to induce the plaintiffs to act or refrain from acting; (4)
justifiable reliance by plaintiffs; and (5) damage to plaintiffs. Klusack v. Ward, 234 Ga. App.
178, 179 (1998). While Plaintiff alleges that Defendants committed fraud in its issuance of
Plaintiff’s insurance contract because of a pre-existing scheme, Plaintiff fails to state
sufficient factual information to state a claim. Plaintiff relies solely on broad legal
conclusions, and therefore, Plaintiff’s claim for fraud does not survive a motion for
judgment on the pleadings. See Sinaltrainal, 578 F.3d at 1260; Iqbal, 556 U.S. at 678-79 (“[A]
plaintiff armed with nothing more than conclusions” cannot “unlock the doors of
discovery.”). Since Plaintiff’s fourth cause of action, “Fraud – Consequential Damages,” is
premised upon Plaintiff’s fraud claim, Plaintiff has also failed adequately to allege fraud –
consequential damages. Accordingly, both claims are subject to dismissal
Plaintiff’s Sixth Cause of Action: Violation of the Georgia Uniform
Deceptive Trade Practices Act (GUDTPA) and Violation of the Fair
Business Practices Act (FBPA)
As a sixth cause of action, Plaintiff alleges that Defendants have violated both
GUDTPA, O.C.G.A. § 10-1-370 et seq., and the FBPA, O.C.G.A § 10-1-390 et seq. (Doc. 1-2
¶ 78). Defendant contends once again that Plaintiff’s exclusive remedy is found in O.C.G.A.
§ 33-4-6, arguing that Plaintiff’s cause of action is premised upon Defendant’s denial of
Plaintiff’s claim. (Doc. 4-1 at 7). However, Plaintiff presents its cause of action as an
“independent tort” arising as the result of “the fraud of the [Defendants] prior to the
contract between the parties, in devising a business model which would deny to their
customers that which they paid for.” (Doc. 1-2 ¶ 79).
In alleging its cause of action, Plaintiff incorporates facts regarding Defendant’s denial of
Plaintiff’s claim, then states the following allegations:
Plaintiff is informed and believes, and therefore alleges, that as a regular
practice, and as a business model, Defendants sell a product which makes
promises that Defendants have no intention of honoring. Defendants have
and continue to falsely advertise in the State of Georgia, through such
channels of trade as the Internet and in print advertisements. Defendants’
false advertising and irresponsible business model is likely to deceive
consumers in the State of Georgia. Defendants’ false advertising in
commercial advertising and/or promotion also misrepresents the nature,
characteristics, or qualities of Defendants’ products. Defendants, by the
aforesaid acts, have engaged in conduct that creates confusion and
misunderstanding in the State of Georgia.
(Id. ¶¶ 80-84). Those allegations essentially constitute the whole of Defendant’s sixth cause
Though Plaintiff incorporates facts describing Defendant’s denial of Plaintiff’s claim,
those facts do not support the broad allegations of state-wide deceptive practices discussed
above. Therefore, Plaintiff’s allegations are conclusory and without sufficient factual support
to maintain a claim for either a violation of the GUDTPA or the FBPA. See Sinaltrainal, 578
F.3d at 1260; Iqbal, 556 U.S. at 678-79 (“[A] plaintiff armed with nothing more than
conclusions” cannot “unlock the doors of discovery.”). As such, Plaintiff has failed
adequately to allege facts supporting his sixth cause of action, which therefore cannot
survive a motion for judgment on the pleadings.
Plaintiff’s Seventh Cause of Action: Negligent Misrepresentation
Plaintiff alleges that Defendants “negligently and/or recklessly misrepresented and
concealed from consumers the true nature of their services, which made false, deceptive and
illusory the sale of such policies.” (Doc. 1-2 ¶ 90). Plaintiff’s allegations seem to reference a
broad scheme of negligent misrepresentation to all potential consumers rather than the
isolated denial of Plaintiff’s claim described in Plaintiff’s Complaint.
In Georgia, the elements of a claim for negligent misrepresentation are: “(1) the
defendant's negligent supply of false information to foreseeable persons, known or
unknown; (2) such persons' reasonable reliance upon that false information; and (3)
economic injury proximately resulting from such reliance.” Liberty Capital, LLC v. First
Chatham Bank, 338 Ga. App. 48 (2016). Here, Plaintiff again fails to plead enough factual
support to state a claim. While the facts in Plaintiff’s Complaint describe Defendant’s denial
of Plaintiff’s insurance claim, Plaintiff does not provide any factual information regarding
Defendant’s alleged misrepresentations to its consumers. Plaintiff’s allegations are legal
conclusions lacking any support, and therefore, Plaintiff has failed adequately to allege facts
supporting his claim of negligent misrepresentation, which therefore, cannot survive a
motion for judgment on the pleadings. See Sinaltrainal, 578 F.3d at 1260; Iqbal, 556 U.S. at
678-79 (“[A] plaintiff armed with nothing more than conclusions” cannot “unlock the doors
Plaintiff’s Eighth Cause of Action: Unjust Enrichment
Plaintiff argues that “[a]s a result of the conduct described above, Defendants have been
and will be unjustly enriched at the expense of Plaintiff.” (Doc. 1-2 ¶ 94). “Unjust
enrichment is an equitable concept and applies when as a matter of fact there is no legal
contract, but when the party sought to be charged has been conferred a benefit by the party
contending an unjust enrichment which the benefitted party equitably ought to return or
compensate for.” Wachovia Ins. Servs., Inc. v. Fallon, 299 Ga. App. 440, 449 (2009). Plaintiff
does not dispute the existence of a legal contract. Therefore, the equitable concept of unjust
enrichment does not apply, and Plaintiff’s claim for unjust enrichment is subject to dismissal.
Plaintiff’s Ninth Cause of Action: Statutory Damages and Negligence Per
In his ninth cause of action, Plaintiff cites O.C.G.A. § 33-24-14, which requires that
“[s]ubject to the insurer’s requirement as to payment of premiums, every policy shall be
mailed or delivered to the insured or to the person entitled to the policy within a reasonable
period of time.” Plaintiff notes that “Defendants failed to mail or deliver the policy to the
insured or to the person entitled to the policy within a reasonable period of time after its
issuance.” (Doc. 1-2 ¶ 102). Plaintiff argues that “[t]his is a violation of a statute establishing
a duty to take precautions to protect a particular class of persons from a particular injury or
type of injury, constituting negligence per se.” (Id. ¶ 104).
Generally, a plaintiff may assert a claim of negligence per se arising from violations of
federal or state statutes as long as (1) that plaintiff falls within the class of persons the statute
was intended to protect; (2) the harm complained of was the same harm the statute was
intended to guard against; and (3) the violation of the statute proximately caused the
plaintiff's injury. McLain v. Mariner Health Care, Inc., 279 Ga. App. 410 (2006). Here, while
Plaintiff alleges that Defendants violated the cited statute by failing to deliver Plaintiff’s
policy, Plaintiff fails to allege facts sufficient to satisfy the harm and injury elements of
negligence per se. Plaintiff does not indicate what, if any, harm resulted, and further, Plaintiff
does not establish that Plaintiff suffered any injury as a result of Defendants’ failure to
deliver the policy. Therefore, Plaintiff has failed to state a claim of negligence per se, and the
cause of action does not survive a motion for judgment on the pleadings.
Plaintiff’s Tenth and Eleventh Causes of Action: Punitive Damages and
In Plaintiff’s tenth cause of action, Plaintiff alleges that “[t]he facts averred constitute
aggravated circumstances authorizing the imposition of punitive damages under O.C.G.A. §
51-12-5.1 (b) and (c).” (Doc. 1-2 ¶ 110). In Plaintiff’s Eleventh cause of action, Plaintiff
alleges he is entitled to attorney’s fees because of Defendants’ bad faith “aris[ing] from an
independent tort.” (Id. ¶ 114). However, Plaintiff’s claims for punitive damages and
attorney’s fees are premised upon “causes of action alleged . . . as independent tort[s] arising
from the Statutory rights established by the GUDPTA and violation of the FBPA, among
other statutes and common law rights, and not by rights established by the contract between
the two parties.” See (Id. ¶ 110). As discussed supra, Plaintiff’s causes of action alleged as
independent torts do not survive the motion for judgment on the pleadings, and
consequently, Plaintiff’s claims for punitive damages and attorney’s fees based upon those
“independent torts” also fail.
VIII. Defendants John Does (1-30)
Plaintiff names John Does (1-30) as Defendants in this action. (Doc. 1-2 ¶ 40). The
Court dismisses sua sponte these John Does (1-30). Fictitious party pleading is not permitted
in federal court, unless a plaintiff describes the defendants with enough specificity to
determine their identities. Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir.2010). Plaintiff
has not made any attempt to amend the complaint or substitute the proper parties, and
dismissal is appropriate. Rosenhaft v. Citibank, N.A., 2012 WL 1080388, at *1 (N.D. Ga. Mar.
For the foregoing reasons, Defendant’s Partial Motion for Judgment on the Pleadings
(Doc. 4-1) regarding Plaintiff’s claims 1-4 and 6-11 is GRANTED.
SO ORDERED, this
day of March, 2017.
/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT
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