Owners Insurance Company v. Jones et al

Filing 83

ORDER granting 42 Motion to Dismiss. Defendant-Counter Claimant Futch's amended counterclaim, dkt. 40 , is DISMISSED with prejudice. Signed by Judge Lisa G. Wood on 8/29/2024. (amd)

In the United States District Court
for the Southern District of Georgia
Waycross Division
OWNERS INSURANCE COMPANY,
Plaintiff,
v.

CV 5:23-092

MESHAWN RASHOD JONES and NANCY
FUTCH, as Executrix of the
Estate of Lace Futch,
Defendants.
NANCY FUTCH, as Executrix of
the Estate of Lace Futch,
Counter Claimant,
v.
OWNERS INSURANCE COMPANY,
Counter Defendant.
ORDER
Before

the

Court

is

Plaintiff-Counter

Defendant

Owners

Insurance Company’s (“Owners”) motion to dismiss Defendant-Counter
Claimant Nancy Futch’s amended counterclaim. Dkt. No. 42. The
motion has been thoroughly briefed, dkt. nos. 42, 45, 49, 53, 56,
60, 64, 67, 69, 73, 75, 79, 81, and is ripe for review. For the
reasons stated below, Plaintiff-Counter Defendant Owners’ motion
to dismiss is GRANTED.

BACKGROUND
This case arises from a negligence lawsuit filed by Meshawn
Jones against Lace Futch, doing business as “No Name Bar,” in the
Superior Court of Atkinson County, Georgia. Dkt. No. 1-1. Jones
alleged that on January 24, 2021, while he was present at No Name
Bar operated by Lace Futch, he was shot by a patron and, as a
result, suffered personal injuries. Id. Jones brought claims of
negligence against Lace Futch. Id. At the time of the alleged
shooting, Lace Futch had a commercial general liability insurance
policy with Owners Insurance Company (“the Policy”). Dkt. No. 1
¶ 34.

Owners

claims.

designated

attorneys

to

defend

against

Jones’s

See Dkt. No. 20 at 27.

On October 9, 2023, Owners filed this declaratory judgment
action against Meshawn Jones and Nancy Futch, the executrix of
Lace Futch’s estate. Dkt. No. 1. Owners seeks a declaration as to
whether the Policy issued to Lace Futch affords coverage for the
claims asserted and damages sought by Jones in the underlying
lawsuit. See generally id.
On November 27, 2023, Nancy Futch (hereinafter “Futch”) filed
an answer to Owners’ complaint, as well as a counterclaim. Dkt.
No. 20 at 1, 26. In the counterclaim, Futch explained that, at the
time she became aware of Jones’s claim against Lace Futch and the
No Name Bar, Lace Futch had passed away. See id. at 28; Dkt. No.
20-5 at 2. Futch alleged that she “reported and filed a claim for
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the loss with [Owners] as soon as practical after being notified
of the claim.” Dkt. No. 20 at 28. Futch then alleged that, despite
designating attorneys to represent her, “[Owners] [] failed to
provide [her] with adequate legal representation under the terms
of the [P]olicy.”
“failed

to

provide

Id. at 29. Specifically, she alleged Owners
[her]

sufficient

defense

.

.

.

upon

the

Underlying Lawsuit” and “ha[d] not met with or kept [her] properly
advised on the status of the Underlying Lawsuit.” Id. at 27. Futch
also asserted that Owners “wrongfully defamed” Lace Futch. Id. at
28. Futch states Owners’ actions caused her extreme distress, and
she

suffered

damages

and

attorney’s

fees

extending

from

the

underlying lawsuit as well as this lawsuit. Id. at 27-28. She
brought claims for breach of contract, id. at 28, and attorney’s
fees, id. at 30.
On December 18, 2023, Owners filed a motion to dismiss or
strike Futch’s counterclaim. Dkt. No. 26 (citing Fed. R. Civ. P.
12(b)(6), 12(f)). On February 7, 2024, the Court denied the motion
and ordered Futch to file a more definite statement of her claims.
Dkt. No. 38. The Court further warned Futch “that her failure to
clearly assert sufficient facts to state a claim for relief in a
coherent manner will result in dismissal of her counterclaim.” Id.
at 9.
Futch filed her amended counterclaim on February 27, 2024.
Dkt. No. 40. Again, Futch alleges that she reported and filed a
3

claim with Owners “as soon as practical after being notified of
the claim,” but Owners failed to “indemnify and provide [her] with
legal representation.” Id. at 5. She claims that her designated
lawyers have not met with her, advised her of the status of the
underlying lawsuit, or conducted discovery. Id. at 3. She also
alleges that she “has been extremely distraught by [Owners’]
wrongful disregard for the facts in this case and has suffered
damages

and

attorney’s

fees

extending

from

the

[u]nderlying

[l]awsuit.” Id. at 3. She brings claims for breach of contract,
attorney’s fees, and bad faith. Id. Owners now moves to dismiss
Futch’s amended counterclaim pursuant to Federal Rule of Civil
Procedure 12(b)(6). Dkt. No. 42.
LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires that a
complaint contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” While this pleading
standard does not require “detailed factual allegations,” “labels
and conclusions” or “a formulaic recitation of the elements of a
cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To withstand a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).
4

A complaint is plausible on its face when “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id.
In deciding whether a complaint states a claim for relief,
the Court must accept the facts alleged in the complaint as true
and draw all reasonable inferences in favor of the plaintiff. Ray
v. Spirit Airlines, Inc., 836 F.3d 1340, 1347 (11th Cir. 2016).
The Court should not accept allegations as true if they merely
recite the elements of the claim and declare that they are met;
legal conclusions are not entitled to a presumption of truth.
Iqbal, 556 U.S. at 678-79.
A

complaint

must

“contain

either

direct

or

inferential

allegations respecting all the material elements 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)). Ultimately, if
“the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but
it has not ‘show[n]’—‘that the pleader is entitled to relief.’”
Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
While the factual allegations set forth in the complaint are
to be considered true at the motion to dismiss stage, the same
5

does not apply to legal conclusions set forth in the complaint.
Sinaltrainal v. Coca–Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009)
(citing Iqbal, 556 U.S. at 678). “Threadbare recitals of the
elements

of

a

cause

of

action,

supported

by

mere

conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678. The Court
need not “accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)).
Lastly, exhibits attached to pleadings become part of a
pleading. Fed. R. Civ. P. 10(c). Consequently, a court may consider
documents attached to a complaint in resolving a motion to dismiss
without converting the motion to one for summary judgment. Taylor
v. Appleton, 30 F.3d 1365, 1368 n.3 (11th Cir. 1994).
DISCUSSION
Owners argues that Futch’s amended counterclaim should be
dismissed for three reasons: (1) it fails to state any facts that
are plausible on their face to establish a breach of contract
claim;

(2)

the

amended

counterclaim

constitutes

a

shotgun

pleading; and (3) Counts II and III of the amended counterclaim
fail under O.C.G.A. §§ 33-4-6 and 13-6-11. Dkt. No. 42. The Court
will take these arguments in turn.
I.

The Amended Counterclaim Fails to Establish a Breach of
Contract Claim.
“The elements for a breach of contract claim in Georgia are
6

the (1) breach and the (2) resultant damages (3) to the party who
has the right to complain about the contract being broken.” Moore
v. Lovein Funeral Home, Inc., 852 S.E.2d 876, 880 (Ga. Ct. App.
2020) (internal quotation marks and citation omitted). A breach
results if a contracting party “fails to perform the engagement as
specified in the contract.” Id.
To survive a motion to dismiss, a breach of contract claim
must identify a specific contractual provision that the defendant
breached. See Est. of Bass v. Regions Bank, Inc., 947 F.3d 1352,
1358–59 (11th Cir. 2020); see also Brooks v. Branch Banking & Trust
Co., 107 F. Supp. 3d 1290, 1295–96 (N.D. Ga. 2015); Bryant v.
Progressive Mut. Ins., 243 F. Supp. 3d 1333, 1340 (M.D. Ga. 2017)
(finding that a complaint failed to state a claim for breach of an
insurance contract because “Plaintiff [] made broad allegations
regarding Defendant’s alleged breach, but Plaintiff [] failed to
allege a particular contractual provision that the Defendant has
violated.” (citation omitted)). To state a claim for breach of
contract that is plausible on its face, a plaintiff need only plead
factual

content

inference

that

that
the

allows

defendant

the

Court

breached

to
a

draw

a

specific

reasonable
contractual

provision. See Iqbal, 556 U.S. at 678. This is a “generous”
standard, but “does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.” Id. at 678–
79.
7

Futch’s amended counterclaim does not identify a specific
contractual provision that Owners allegedly breached. See Dkt. No.
40. In her initial counterclaim, Futch alleged that Owners breached
the Policy because it “failed to provide sufficient defense to”
her. Dkt. No. 20 at 27. In her amended counterclaim, Futch now
alleges that Owners breached the Policy because it “failed to
provide sufficient defense to [Futch] in the Underlying Lawsuit
pursuant to the policy provisions as evidenced by a certified copy
of the case file in the underlying lawsuit.” Dkt. No. 40 at 3.
Instead of identifying a specific contractual provision—as she
must—Futch merely points to the entire sixty-four-page case file
of the underlying lawsuit and its “policy provisions.” Id.; see
also Dkt. No. 40-1. Alone, Futch’s failure to identify a specific
policy provision breached by Owners is sufficient to dismiss her
amended counterclaim.
Futch further argues that her amended counterclaim states a
claim

for

breach

of

contract

because

her

answer

contained

sufficient allegations to establish a claim for relief. Dkt. No.
45 at 2–9. Indeed, Futch’s amended counterclaim “incorporates the
facts, admissions, denials, and Defenses in her Answer to this
action.” Dkt. No. 40 at 2. As the Court previously explained,
Futch’s answer “is twenty-five pages long, consists of sixty-eight
paragraphs, and references four exhibits, which themselves consist
of thirty-five pages. It is exceedingly difficult to sift through
8

that voluminous content and determine which allegations pertain to
which claims.” Dkt. No. 38 at 7. Again, this is not sufficient to
state

a

claim

for

breach

of

contract.

Pleading

conclusory

allegations and citing large documents wholesale cannot establish
a breach of contract claim.
II.

The Amended Counterclaim Constitutes a Shotgun Pleading.
“The failure to identify claims with sufficient clarity to

enable the defendant to frame a responsive pleading constitutes a
‘shotgun pleading.’” Beckwith v. Bellsouth Telecoms., Inc., 146 F.
App’x 368, 371 (11th Cir. 2005) (citation omitted).
The

Eleventh

Circuit

has

defined

four

types

of

shotgun

pleadings. “The most common type—by a long shot—is a complaint
containing multiple counts where each count adopts the allegations
of all preceding counts, causing each successive count to carry
all that came before and the last count to be a combination of the
entire complaint.” Weiland v. Palm Beach Cty. Sheriff’s Office,
792 F.3d 1313, 1321 (11th Cir. 2015). The second type “is a
complaint that . . . is guilty of the venial sin of being replete
with

conclusory,

vague,

and

immaterial

facts

not

obviously

connected to any particular cause of action.” Id. at 1322. “The
third type of shotgun pleading is one that commits the sin of not
separating into a different count each cause of action or claim
for relief.” Id. at 1322–23. “Fourth, and finally, there is the
relatively rare sin of asserting multiple claims against multiple
9

defendants

without

specifying

which

of

the

defendants

are

responsible for which acts or omissions, or which of the defendants
the claim is brought against.” Id. at 1323.
Futch’s

amended

counterclaim

falls

into

at

least

two

categories of shotgun pleading. First, as discussed above, Futch
incorporates her answer into her counterclaim and reincorporates
her answer into her claims. Dkt. No. 40. Essentially, Futch’s
claims reincorporate every fact, admission, denial, and defense
set forth in her answer. “This circumstance makes it virtually
impossible to discern which of the many facts alleged supports
each counterclaim.” Action Nissan, Inc. v. Hyunai Motor Am. Corp.,
No. 6:21-cv-2152, 2023 WL 8528841, at *1 (M.D. Fla. Dec. 8, 2023).
Second, the amended counterclaim merges multiple claims for
relief into single counts. In Count I, Futch’s claim for breach of
contract, she alleges: (1) Owners failed to provide adequate legal
representation; (2) Owners failed to indemnify; (3) Owners acted
in bad faith and has been stubbornly litigious; and (4) Owners has
caused Futch “unnecessary trouble, worry, emotional distress, and
expense by failing to investigate this case and to abide by the
terms of its policy obligations.” Dkt. No. 40 at 6–7. In Count II,
Futch’s claim for attorney’s fees, she again alleges bad faith and
“unnecessary

trouble

and

expense.”

Id.

at

8.

The

amended

counterclaim “is a typical shotgun pleading, in that some of the
counts

present

more

than

one
10

discrete

claim

for

relief.”

Bickerstaff Clay Prods. Co. v. Harris Cnty., Ga., 89 F.3d 1481,
1485 n.4 (11th Cir. 1996). Rule 10(b) requires each claim or
defense to be set forth in a separate count precisely to avoid the
scenario presented here where several claims are subsumed into a
single count.
The

organization

of

the

amended

counterclaim

renders

it

difficult to discern precisely what claims Futch intends to bring.
This, coupled with the fact that the amended counterclaim is vague
and devoid of sufficient factual allegations, means that Owners
cannot be expected to respond because the basis for Futch’s claims
is unknown. “Where a more carefully drafted complaint might state
a claim, a plaintiff must be given at least one chance to amend
the complaint before the district court dismisses the action with
prejudice.”

Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991)

(per curiam). Futch has had the chance to amend her counterclaim
to avoid shotgun pleading but failed.
III.

Futch’s Amended Counterclaim Does Not State a Claim for Bad
Faith.
To prevail on a bad faith claim against an insurer under

O.C.G.A. § 33-4-6, the plaintiff must prove: “(1) that the claim
is covered under the policy, (2) that a demand for payment was
made against the insurer within 60 days prior to filing suit, and
(3) that the insurer’s failure to pay was motivated by bad faith.”
Lavoi Corp. v. Nat’l Fire Ins. of Hartford, 666 S.E.2d 387, 391
11

(Ga. Ct. App. 2008) (footnote omitted). As the Eleventh Circuit
recently explained, “O.C.G.A. § 33-4-6 is not a strict liability
statute. An insurance company that fails to make a payment on a
covered claim within sixty days of a demand faces a penalty only
if its nonpayment was motivated by bad faith.” Turner v. CMFG Life
Ins. Co., No. 23-11387, 2023 WL 5527748, at *2 (11th Cir. Aug. 28,
2023) (citing Lavoi Corp., 666 S.E.2d at 391). “[B]ad faith . . .
is defined as any frivolous and unfounded refusal in law or in
fact to comply with the demand of the policyholder to pay according
to the terms of the policy.” Ga. Farm Bureau Mut. Ins. Co. v.
Williams,

597

S.E.2d

430,

432

(Ga.

Ct.

App.

2004)

(internal

quotation marks omitted) (quoting Fortson v. Cotton States Mut.
Ins. Co., 308 S.E.2d 382, 384 (Ga. Ct. App. 1983)).
O.C.G.A. § 33-4-6 imposes a penalty. Turner, 2023 WL 5527748,
at *2. Penalties and forfeitures are not favored under Georgia
law. S. Gen. Ins. Co. v. Kent, 370 S.E.2d 663, 665 (Ga. Ct. App.
1988) (citation omitted). For that reason, the right to recover
under O.C.G.A. § 33-4-6 “must be clearly shown” and the statute’s
requirements “are strictly construed.” Turner, 2023 WL 5527748, at
*2 (internal quotation marks and citations omitted). Bad faith
penalties are not authorized if “the insurance company has any
reasonable ground to contest the claim” and if “there is a disputed
question of fact” as to the validity of the claim. Allstate Ins.
Co. v. Smith, 597 S.E.2d 500, 502 (Ga. Ct. App. 2004) (internal
12

quotation marks and citation omitted).
As the insured party, Futch bears the burden of proving
Owners’ bad faith. Ga. Farm Bureau Mut. Ins. Co., 597 S.E.2d at
432. Futch, however, has not “clearly shown” a right to recover
under O.C.G.A. § 33-4-6. In support of her bad faith claim, Futch
offers only conclusory allegations that Owners “has acted in bad
faith, has been stubbornly litigious, and has continued to accept
premiums.” Dkt. No. 40 at 8. Futch does not allege facts from which
the Court could reasonably infer that her claim was covered under
the Policy, that she made a demand against Owners within sixty
days, or that Owners acted in bad faith.
Similarly,

Futch’s

conclusory

allegations

and

shotgun

pleadings do not establish an O.C.G.A. § 13-6-11 claim. Futch fails
to plead sufficient facts from which the Court could draw a
reasonable inference that Owners “has acted in bad faith, has been
stubbornly litigious, or has caused the plaintiff unnecessary
trouble and expense.” O.C.G.A. § 13-6-11. Accordingly, Futch’s bad
faith claim must be dismissed.
CONCLUSION
For these reasons, Plaintiff-Counter Defendant Owners’ motion
to dismiss, dkt. no. 42, is GRANTED. Defendant-Counter Claimant
Futch’s amended counterclaim, dkt. no. 40, is therefore DISMISSED
with prejudice.

13

SO ORDERED this 29th day of August, 2024.

_________________________________
HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

14