OMNI HEALTH SOLUTIONS, LLC v. ZURICH AMERICAN INSURANCE COMPANY
ORDER denying 8 Motion to Dismiss Complaint; granting 13 Motion for Leave to File. Plaintiff is hereby DIRECTED to file the Amended Complaint as a separate document on the docket, and the Amended Complaint will supersede the original Complaint. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 11/14/2017 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
OMNI HEALTH SOLUTIONS, LLC,
No. 5:17‐CV‐168 (CAR)
ZURICH AMERICAN INSURANCE :
ORDER ON DEFENDANT’S MOTION TO DISMISS AND PLAINTIFF’S
MOTION FOR LEAVE TO AMEND COMPLAINT
Before the Court are Defendant Zurich American Insurance Company’s Partial
Motion to Dismiss, and Plaintiff Omni Health Solutions, LLC’s Motion for Leave to
Amend Complaint. Having considered the pleadings, the parties’ arguments, and
relevant legal authority, Defendant’s Partial Motion to Dismiss [Doc. 8] is DENIED, and
Plaintiff’s Motion to for Leave to Amend [Doc. 13] is GRANTED.
Plaintiff originally filed this action against Defendant, the insurer for four of
Plaintiff’s medical offices, in the Superior Court of Bibb County, Georgia. Defendant
timely removed the case to this Court pursuant to the Court’s diversity jurisdiction
under 28 U.S.C. § 1332(a)(1). Plaintiff asserts two claims for breach of contract and one
claim for bad faith, stemming from Defendant’s delay in deciding coverage and
determining the amount of loss Plaintiff suffered when one of Plaintiff’s medical offices,
841 Mulberry Street, Macon, Georgia, 31201, sustained hail damage. Plaintiff also
contends that once Defendant decided coverage and determined the amount of loss,
Defendant did not pay Plaintiff the full amount Plaintiff was owed under the policy,
and Defendant’s delay and failure to pay were in bad faith, entitling Plaintiff to
damages under O.C.G.A § 33‐4‐6.
1. Defendant’s Partial Motion to Dismiss
Although Defendant entitled its Motion a Partial Motion to Dismiss, because it is
after the pleadings have closed, Defendant is seeking a Judgment on the Pleadings
under Fed. R. Civ. P. 12(c). Defendant argues Plaintiff’s breach of contract claims fail as
a matter of law because (1) O.C.G.A § 33‐4‐6, Georgia’s statute providing damages for
an insurer’s bad faith refusal to pay claims, provides Plaintiff’s exclusive remedy, and
(2) Plaintiff fails to identify the particular contractual provision Defendant violated in
Count II of its Complaint.
“After the pleadings are closed—but early enough not to delay trial—a party
may move for judgment on the pleadings” pursuant to Rule 12(c) of the Federal Rules
of Civil Procedure.1 “Judgment on the pleadings is appropriate where there are no
material facts in dispute and the moving party is entitled to judgment as a matter of
law.”2 Thus, the standard of review for a motion for judgment on the pleadings is
“almost identical to that used to decide motions to dismiss.”3
When considering a motion for judgment on the pleadings, the Court must
accept all well‐pleaded facts in the complaint as true and draw all reasonable inferences
in favor of the plaintiff, the non‐movant.4 However, “the court need not accept
inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in
the complaint. Nor must the court accept legal conclusions cast in the form of factual
allegations.”5 A complaint will survive judgment on the pleadings if it contains
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
Defendant first seek to dismiss Plaintiff’s breach of contract claims by arguing
that Plaintiff cannot claim both breach of contract and bad faith under O.C.G.A § 33‐4‐6,
Fed. R. Civ. P. 12(c).
2 Palmer & Cay, Inc. v. Marsh & McLennan Cos., Inc., 404 F.3d 1297, 1303 (11th Cir. 2005) (internal
3 Doe v. Bd. of Cnty. Comm’rs, 815 F. Supp. 1448, 1449 (S.D. Fla. 1992).
4 Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006).
5 Long v. Fulton Cnty. Sch. Dist., 807 F. Supp. 2d 1274, 1282 (N.D. Ga. 2011) (internal quotation
6 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570
because the claims are duplicative and preempted by O.C.G.A § 33‐4‐6. Citing Howell v.
Southern Heritage Insurance Company,7 Defendant contends that damages under O.C.G.A
§ 33‐4‐6 must be Plaintiff’s exclusive remedy. Defendant’s reliance on Howell, however,
is misguided. Howell does not address a plaintiff’s ability to assert a breach contract
claim and a bad faith claim under O.C.G.A § 33‐4‐6.8 On the contrary, since “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
Plaintiffʹs breach of contract claim.”9
Defendant next argues the Court must dismiss Plaintiff’s second breach of
contract claim because Plaintiff fails to identify the specific contract provision
Defendant allegedly violated. Under Georgia law, to state a claim for breach of contract
a plaintiff must allege (1) a valid contract; (2) material breach of its terms; and (3)
damages arising therefrom.10 Defendant is correct that in order “[t]o survive a motion to
dismiss, a plaintiff asserting a breach of contract claim must allege a particular
214 Ga. App. 536 (1994).
Howell, 214 Ga. App. at 536 (“[plaintiff]’s claim for attorney fees and expenses of litigation
under OCGA § 13‐6‐11 is not authorized. The penalties contained in OCGA § 33‐4‐6 are the
exclusive remedies for an insurerʹs bad faith refusal to pay insurance proceeds.”).
9 Bryant v. Progressive Mountain Ins. Co., 243 F. Supp. 3d 1333, 1339 (M.D. Ga. 2017) (quoting
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. 54, 576 S.E.2d 38 (2002)).
10 Brooks v. Branch Banking & Tr. Co., 107 F. Supp. 3d 1290, 1295 (N.D. Ga. 2015).
contractual provision that the defendant violated.”11 However, the Court disagrees that
Plaintiff has failed to do so.
In the section of its Complaint entitled “Facts Common to All Counts,” Plaintiff
cites Section E of the insurance policy and states that this section “requires that Zurich
make a coverage decision and notify its insured as to whether Zurich will repair the
property, pay for the repair of the property, take possession and pay for the property, or
simply pay the value of the property within 30 days of receiving a proof of loss.”12 In
the copy of the policy Plaintiff attaches to its Complaint, Section E not only states
Defendant will give notice of its intentions within 30 days of receiving proof of loss, but
it also states in the event of loss or damage covered by this “Coverage Part,” Defendant
will, at its option, pay the value of the loss or damages property, pay the cost of repair
or replacement, take the property at an agreed or appraised value, or repair, rebuild, or
replace the property.13
Plaintiff alleges that it fulfilled the conditions precedent necessary to entitle
Plaintiff to payment under the policy, but Defendant refused to pay the full value of the
property, thereby breaching the contract. Section E, the contract provision Plaintiff cites
in the Complaint, which is common to all counts, obligates Defendant to either pay for
Allstate Ins. Co. v. ADT, LLC, No. 1:15‐CV‐517‐WSD, 2015 WL 5737371, at *7 (N.D. Ga. Sept. 30,
12 Complaint [Doc. 1‐2] at pg. 2.
13 Id. at 50.
covered property that has been damaged or provide similar reimbursement. Plaintiff
alleges Defendant did not do so. Thus, Plaintiff sufficiently alleges the contractual
provision it claims Defendant breached and states a claim for breach of contract.
2. Plaintiff’s Motion for Leave to Amend Complaint
In Plaintiff ‘s Motion for Leave to Amend its Complaint, Plaintiff seeks to add an
additional claim for breach of the insurance policy based on information exchanged
between the parties in the course of discovery. Additionally, Plaintiff seeks leave to
identify an expert witness as to the proposed additional claim. Plaintiff has filed the
proposed First Amended Complaint, and Defendant has not responded.
Plaintiff contends that Federal Rule of Civil Procedure 15(a) governs its Motion
for Leave to Amend. However, the Scheduling Order in this case mandates that motions
to amend “be filed no later than August 16, 2017.”14 Plaintiff filed this Motion on
October 6, 2017. Because Plaintiff’s Motion was filed after the deadline outlined in the
Scheduling Order, Rule 16 and its “good cause standard” governs the Court’s
Scheduling Order [Doc. 7] at pg. 5.
See Sosa v. Airport Systems, Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (“However, because Sosaʹs
motion to amend was filed after the scheduling orderʹs deadline, she must first demonstrate
good cause under Rule 16(b) before we will consider whether amendment is proper under Rule
Rule 16 requires a district court to enter a scheduling order that dictates the time
within which the parties must join additional parties, file motions, and complete
discovery.16 Under Rule 16, “a schedule shall not be modified except upon a showing of
good cause and by leave of the district judge. . . .”17 “This good cause standard
precludes modification unless the schedule cannot be met despite the diligence of the
party seeking the extension.”18 It is proper to deny a motion to amend under Rule 16(b)
if the movant failed to show good cause and failed to pursue the case with diligence.19
The decision whether to grant leave to amend a complaint is within the sound
discretion of the district court.20
In determining whether Plaintiff meets the good cause standard under Rule 16,
this Court considers three factors: (1) if the moving party neglected to determine facts
before filing pleadings or within discovery; (2) if the subject matter of the motion to
amend was readily available to the moving party; and (3) if the moving party delayed
filing the motion to amend.21 If Plaintiff can meet this standard, then the Court moves
on to the Rule 15(a) analysis.22
FED. R. CIV. P. 16(b).
18 Sosa, 133 F.3d at 1418 (quotation omitted).
19 Id. at 1419.
20 Nat’l Serv. Indus., Inc. v. Vafla Corp., 694 F.2d 246, 249 (11th Cir. 1982).
21 Sosa, 133 F.3d at 1419.
Generally under Rule 15 , leave to amend “shall be freely given when justice so
requires.”23 The Eleventh Circuit has held:
This policy of [R]ule 15(a) in liberally permitting amendments to facilitate
determination of claims on the merits circumscribes the exercise of the
district courtʹs discretion; thus, unless a substantial reason exists to deny
leave to amend, the discretion of the district court is not broad enough to
However, factors such as undue delay, undue prejudice to defendants, and futility of
the amendments are sufficient to justify denying a motion to amend.25 When an
amended complaint fails to state a viable claim as a matter of law, it is not an abuse of
discretion to deny a motion to amend.26
Plaintiff contends it only determined the need to add the additional claim after
reviewing Defendant’s discovery responses. It does not appear Plaintiff has delayed in
filing its Motion, and the parties are still engaging in discovery which does not end
until December 14, 2017. Additionally, having read and considered Plaintiffs’ First
Amended Complaint, it does not appear that any of the other substantial reasons for
denying the Motion to Amend exist. Defendant does not oppose the amendment, and
this Court can find no reason Defendant would be unduly prejudiced by the
Shipner v. E. Air Lines, Inc., 868 F.2d 401, 407 (11th Cir. 1989) (internal citations omitted).
25 Foman v. Davis, 371 U.S. 178, 182 (1952).
26 Coventry First, LLC v. McCarty, 605 F.3d 865, 870 (11th Cir. 2010).
amendment or that the amendment is futile. Plaintiff’s Motion for Leave to Amend
[Doc. 13] is GRANTED.
Based on the foregoing, Defendant’s Partial Motion to Dismiss [Doc. 8] is
DENIED, and Plaintiff’s Motion for Leave to Amend Complaint [Doc. 13] is
GRANTED. Plaintiff is hereby DIRECTED to file the Amended Complaint as a
separate document on the docket, and the Amended Complaint will supersede the
SO ORDERED, this 14th day of November, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
See Lowery v. Ala. Power Co., 483 F.3d 1184, 1219‐20 (11th Cir. 2007) (unless an amendment
specifically refers to or adopts the earlier pleading, an amended complaint supersedes and
replaces the original complaint).
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