A+ Restorations, Inc. v. Liberty Mutual Insurance Company

Filing 22

ORDER denying Defendant Liberty Mutual Insurance Company's 4 Motion to Dismiss or in the Alternative, Judgment on the Pleadings. Signed by Chief Judge Lisa G. Wood on 11/30/2016. (ca)

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for tfie ^ontl^em Siiotntt of 4leorsta
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A+ RESTORATIONS, INC.,

Plaintiff,
CV 416-122

V.

LIBERTY MUTUAL FIRE

INSURANCE COMPANY,
Defendant.

ORDER

Pending
Insurance

before

Company's

Judgment on the

the

Court

Motion

to

is

Defendant

Dismiss

or

Pleadings (Dkt. No. 4).

briefed and is now ripe for decision.

in

Liberty
the

Mutual

Alternative,

The motion has been

For the reasons stated

below, the Defendant's motion is DENIED.
FACTUAL BACKGROUND

Plaintiff

corporation

A+

which

nuisance wildlife.

Restoration,

provides

Inc.

repairs

Dkt. No. 15 p. 2.

for

(^'Plaintiff")

property

is

a

damaged

by

In March 2014, Larry and

Nancy Mitchell {the ""Mitchells") became aware that raccoons had

occupied their attic and were causing damage.

lA,

Defendant

Liberty Mutual Fire Insurance Company (""Defendant") provided a

D72A

ev. 8/82)

homeowner's
home.

insurance

Dkt.

contracted

No.

with

15

policy
p.

2.

Plaintiff

(the '"Policy")
On

to

March

provide

31,

to

the

2014,

Mitchells'

the

restoration

Mitchells

services

clean and remediate the damage caused by the raccoons.

3.

to
at

The agreement allowed Plaintiff to collect payments directly

from Defendant for services rendered and the right to initiate

legal proceedings against Defendant.

After completing the

job around June 2014, Plaintiff alleges Defendant refused to pay
the entire amount due.

In early August 2014,

Defendant

notified Plaintiff that it was refusing to pay any additional
sum.

Plaintiff filed its complaint on April 20, 2016,

seeking

unpaid

alleges

that

Dkt. 1 SI 8.

its

complaint

services

it

became

totaling
aware

of

$98,794.79.
the

loss

JA,

on

March

Plaintiff
31,

2014.

Defendant claims that since Plaintiff did not file

until

April,

2016,

Plaintiff's

claims

on

the

Policy are time-barred by the suit limitations provision.
LEGAL STAin)ARD

When ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), a district court must accept as true the facts as set
forth in the complaint and draw all reasonable inferences in the

plaintiff's favor.
Cir.

2010).

Randall v. Scott, 610 F.3d 701, 705 (11th

Although

a

complaint

need

not

contain

detailed

factual allegations, it must contain sufficient factual material

"to raise a right to relief above the speculative level."

Bell

Atl. Corp. V. Twombly, 550 U.S. 544, 555 (2007).
a

complaint

allegations

should

''contain

respecting

either

all the

direct

At a minimum,
or

material elements

inferential

necessary to

sustain a recovery under some viable legal theory."

Fin. Sec.

Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th

Cir. 2007) (per curiam) (quoting

Roe v. Aware

Woman

Ctr. for

Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
DISCUSSION

The sole issue on

Defendant's Motion to Dismiss is whether

or not Plaintiff's claims are time-barred.

Plaintiff urges the

Court to apply the four-year statute of limitations regarding

breach of contract actions.
four-year
continue

action.

statute

of

because the

Dkt. No. 15 at 5.

limitations

would

allow

statute of limitations

Ga. Code Ann., § 9-3-25.

Applying the

this

would

action

not bar this

Defendant argues that the

Policy's two-year suit limitation provision should apply.
No. 4-1 p. 8.

to

Dkt.

Applying the Policy's two-year suit limitation

would warrant dismissal because Plaintiff failed to bring this
action

"within

Policy.

two

years

after

the

date

of

loss" under

the

Dkt. No. 4-2 p. 10 SI 8.^

^ The Court may consider documents attached to Defendant's Motion to Dismiss
the extent these documents are referenced in Plaintiff's complaint.

to

Laskar

v.

Peterson,

771

F.3d

1291,

1295

(11th

Cir.

2014).

Plaintiff

references the Policy in its complaint and therefore the Policy itself may be
considered under Rule 12(b)(6).

Under

Georgia

law,

a

suit

limitation

provision

insurance contract is valid and enforceable.

in

Little v. Allstate

Ins. Co., 258 Ga. 404, 369 S.E.2d 248, 248-49 (1988).

limitation
the

provision

applicable

within

statute

upon that policy.

of

an

insurance

limitations

SunTrust Mtq.

policy

may

regarding

v. Ga.

an

Farm

&

A suit

supersede

actions

based

Ins. Co., 416

S.E.2d 322 (Ga. App. Ct. 1992); Darnell v. Fireman^ s Fund Ins.
Co., 154 S.E.2d 741 (Ga. App. Ct. 1967).
At

record

this

stage

whether

in

the

Plaintiff

litigation,

is

bound

it

unclear

every

by

is

term

in

the

in

the

homeowner's policy or whether more limited terms were assigned

to

it.

rights

Plaintiff
between

appears

to

Plaintiff and

allege

that

Defendants

the

assignment

was '"limited" in that

Plaintiff only accepted certain provisions of the Policy.
No. 1-1 SI 10.

Policy,

neither

assignment

Dkt.

While Defendant has presented the Court with the

party

assignment contract.
the

of

of

has

presented

the

Court

with

the

Therefore, the Court cannot yet find that
rights

to

Plaintiff

included

the

suit

limitations provision.
CONCLUSION

For the reasons set forth above. Defendant Liberty Mutual
Insurance

Company's

Motion

to

Dismiss

or

in

the

Alternative,

Judgment on the Pleadings (Dkt. No. 4) is hereby DENIED.

so ORDERED, this 30th day of November, 2016.

EISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN

372A

ev. 8/82)

DISTRICT OF GEORGIA