Breland v. Arena Football One, LLC et al
ORDER & REASONS that defendant National Casualty Company's 69 Motion to Dismiss for Failure to State a Claim is DENIED. Signed by Judge Eldon E. Fallon on 12/22/16. (dno)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ARENA FOOTBALL ONE, LLC., ET AL
ORDER & REASONS
Before the Court is a Motion to Dismiss pursuant to 12(b)(6) filed by Defendant National
Casualty Company seeking to dismiss the cross-claims of Defendant Arena Football One. (R.
Doc. 69). For the following reasons, the motion is hereby denied.
This case arises out of injuries allegedly sustained by Plaintiff Lorenzo Breland while he
was employed as a professional arena football player. Jurisdiction of this Court is invoked under
diversity. (R. Doc. 44 at 1). Plaintiff alleges misrepresentation, fraud, negligence, and breach of
contract against Defendants, Arena Football One, L.L.C. (“AFO”), which owns Arena Football
League One, LLC (“AFLO”), and Louisiana Arena Football, L.L.C. (“LAF”), which owns the
New Orleans Voodoo franchise. Plaintiff has also filed claims against AFO’s insurers, including
National Casualty Company (“National”) and Federal Insurance Company (“Federal”), 1 averring
that they provided a commercial general liability policy to AFO, AFLO, and LAF. (R. Doc. 53 at
Plaintiffs’ claims against Federal were dismissed by this Court on November 18, 2016. (R. Doc. 73).
Plaintiff has filed various amended complaints. (R. Docs. 1, 29, 44, 53). The third amended complaint (R. Doc. 53)
was filed to amend the second amended complaint (R. Doc. 44) to remove defendant Everest National Insurance
Company and add National Casualty Company and Federal Insurance Company. All other allegations in the second
amended complaint were adopted in extenso. Accordingly, this Order will rely on both the second and third
amended complaints to determine Plaintiff’s claims. Defendant AFO filed answers to each complaint. (R. Docs. 6,
31, 45, 56).
Plaintiff alleges he initially sustained a concussion while playing for the Tulsa Talons in
2011, which is part of the AFO league. (R. Doc. 44 at 12). After the team doctor diagnosed
Plaintiff, he alleges the team encouraged him to return and he started the following game. Id. at
12. Subsequently, he played for the New Orleans Voodoo. Plaintiff alleges that he sustained a
severe blow to the head during a game on April 11, 2014, which caused a second concussion. (R.
Doc. 44 at 12). Plaintiff claims that, after the 2014 concussion, he received inadequate medical
attention and care and was pressured to return to playing football before he was fully
rehabilitated. Id. at 12. He avers that, after complaining to the coach about his continued health
problems, he was sent to a speech pathologist. Id. Plaintiff alleges that this head injury caused
him to remain bedridden for six weeks, and that he was ultimately suspended from the league
and cut from the LAF team. Id. at 12-13. Plaintiff avers the 2014 concussion ended his career,
and Defendants did not pay for his ongoing medical care or rehabilitation to allow him to return
to play in a healthy manner. Id. at 13. Plaintiff states that he continues to suffer long-term
problems, including dizziness, memory loss, headaches, weight loss, neck aches and fatigue, and
that he faces an increased risk for future disorders as a result of the injuries. Id. at 13, 16.
Plaintiff seeks damages, past and future medical expenses related to the concussions, and
medical monitoring to facilitate the diagnosis and treatment of future disorders caused by the
injuries. Id. at 17. Plaintiff asserts that AFO knew of the potential risks associated with head
trauma but intentionally concealed them. Id. at 13-14; 18. Further, AFO fostered an environment
of brutality and violence and ignored the wellbeing of its players for the sake of profit. Id. at 14.
Plaintiff further alleges that Defendants breached their duties by failing to take appropriate steps
to prevent or mitigate the potential for injury, avoiding such steps due to the expense and impact
on league profitability. (R. Doc. 29 at 22). Plaintiff claims that Defendants falsely represented to
him that he would receive excellent medical care, which they failed to provide. Id. at 13. Plaintiff
alleges that the league players’ collective bargaining agreement created an obligation that the
Defendants pay all medical expenses resulting from any injury sustained while playing in a
game, but that Defendants have acted in bad faith and refused to pay any expenses incurred as a
result of Plaintiff’s 2014 concussion. Id. at 26.
Specifically, Plaintiff seeks (1) Declaratory Relief under 28 USC §2201 stating that
Defendants knew or should have known about the long-term effects of trauma to the head that
Plaintiff endured while playing for AFO, had a duty to advise Plaintiff of that risk but instead
willfully and intentionally concealed the risk, and recklessly endangered Plaintiff; (2) an
injunction for Court-supervised and Defendant-funded medical monitoring for long-term
neurological affects as a result of Plaintiffs’ minor traumatic brain injuries (“MTBI”), which was
a result of Defendants’ tortious conduct; (3) compensatory damages for past, current, and future
medical care; (4) compensatory damages for pain and suffering; (5) punitive damages; (6) any
other relief; (7) attorneys’ fees; (8) and injunction and/or equitable relief against National,
holding that the insurance policy provided coverage for Plaintiffs’ injuries and claims and
holding National in bad faith under La. R.S. §§22:1892 and 22:1973. (R. Doc. 44 at 14-28).
Specifically to 8, Plaintiff seeks all forms of insurance penalties, bad faith damages, general
damages, and attorneys’ fees permitted under the aforementioned statutes if National declines
coverage. (R. Doc. 53 at 3).
Plaintiff’s original Complaint had stated that he was an employee of AFO and the New
Orleans Voodoo, and that he was employed by AFO from 2010 to 2014. (R. Doc. 1 at 11-12).
Plaintiff added Defendant LAF to the suit after discovering that LAF owned the New Orleans
Voodoo during the time period relevant to Plaintiff’s injuries. (R. Doc. 16 at 1). Plaintiff
submitted that he had mistakenly claimed in the Complaint that he was employed by AFO, when
in fact he was never employed by AFO. (R. Doc. 16-1 at 2).
National files the instant Motion to Dismiss the Cross-Claim filed by AFO, arguing
AFO’s claims against NAC for insurance coverage under the Commercial General Liability
Policy (“CGL Policy”) or attorney fees are contrary to law and/or contractual provisions. (R.
Doc. 69-1). AFO opposes the motion. (R. Doc. 74). With leave of the Court, National filed a
reply. (R. Doc. 80).
A. National’s Arguments
National avers that the policies under which AFO seeks coverage only cover damages
AFO is legally obligated to pay, which does not include the instant suit because Plaintiff’s
asserted claims are prescribed for the 2011 concussion, and the 2014 concussion is excluded
under the Concussion and participant Exclusions of the policy. Id. at 1-2.
Specifically, National argues that Plaintiff does not allege any improper treatment or
unpaid medical bill for the 2011 concussion. Id. at 2. Additionally, National avers the suit was
not brought within one-year the prescriptive period of the 2011 concussion. Id. at 2, 8; La. C.C.
Arts. 3447, 3492. Accordingly the claim is prescribed, AFO is not legally obligated to pay, and
National does not cover such claim. Plaintiff does plead various tort and contract causes of action
for the 2014 concussion, however National argues the CGL policy in effect at that time
specifically excluded coverage for concussions and brain injuries arising out of playing football.
Id. at 11-17. National further claims that any claims under the two policies covering 10/1/201110/1/2013 should be dismissed because Plaintiff does not claim any injury that occurred during
those dates. Id. 10. Accordingly, National argues that none of the CGL policies cover Plaintiff’s
claims against AFO.
Regarding Plaintiff’s breach of contract claim, National avers that its liability to AFO is
not triggered because it is only liable for sums AFO is legally obligated to pay. Id. at 1. Under
Fifth Circuit law, AFO is only legally obligated to pay for its tortious conduct. Data Specialties,
Inc. v. Transcontinental Ins. Co., 125 F.3d 909 (5th Cir. 1997). Accordingly, National argues the
breach of contract claim is not tenable.
A. AFO’s Arguments
AFO opposes National’s motion. (R. Doc. 74). AFO argues there is no dispute that
Plaintiff asserted claims for bodily injury and employee benefits, and argue National’s policies
cover AFO for such liability. Id. at 2. AFO asserts that along with indemnifying AFO for
damages it becomes legally obligated to pay, the CGL Policy contains language requiring
National to indemnify and defend AFO for claims that AFO negligently administered its
employee benefits program. Id. Citing to this Court’s prior ruling rejecting AFO’s motion for
judgment on the pleadings, AFO argues that Plaintiff has met his pleading threshold and
National’s arguments that AFO’s cross-claim should be dismissed because of Plaintiff’s failure
to properly plead should be denied. Id.; (R. Doc. 30). Accordingly, AFO argues that in order for
National to prevail on their motion, they must prove that all four of their CGL Policies clearly
exclude coverage to AFO in cases such as this one. (R. Doc. 74 at 2). Because they do not, AFO
argues, the motion must be dismissed.
B. Law & Analysis
i. Motion to Dismiss Standard
The Federal Rules of Civil Procedure permit a defendant to seek a dismissal of a
complaint based on the “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). A district court must construe facts in the light most favorable to the nonmoving
party. See Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232–33 (5th Cir. 2009). The court must
accept as true all factual allegations contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial
plausibility 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. (citation omitted).
Dismissal is appropriate only if the complaint fails to plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corporation et al. v. William Twombly, 550 U.S.
544, 570 (2007). A motion to dismiss under rule 12(b)(6) is “viewed with disfavor and is rarely
granted.” Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.
This Court previously determined that Plaintiff satisfied the standard to survive a Rule
12(c) motion for judgment on the pleadings, finding that the complaint stated a claim that was
“plausible on its face.” Twombly, 550 U.S. at 570; (R. Doc. 30). The standard for a motion for
judgment on the pleadings is the same as the standard for a Rule 12(b)(6) motion to dismiss.
Ackerson v. Bean Dredging LLC, 589 F.3d 196, 209 (5th Cir. 2009). Accordingly, National’s
arguments that rely on the assertion that Plaintiff failed to satisfy the pleadings standards are
Further, this Court finds that genuine issues of contract and CGL Policy interpretation
exist. Specifically, genuine issues remain regarding the interpretation of the Employee Benefits
Liability coverage, the exclusionary language relating to brain and bodily injuries, and the
participant exclusion. Further, there is genuine disagreement regarding the prescriptive period
and the proper determination of Plaintiff’s injuries, specifically whether they were two distinct
events or continuous injuries over a four-year period. While the exclusions and policy provisions
of the CGL Policy may ultimately preclude Plaintiff’s recovery, they do not do so
unambiguously, but instead present genuine issues of material fact as to their interpretation.
Dismissal is appropriate only if the complaint fails to plead “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Plaintiff has not failed to do so
here, and dismissal is accordingly inappropriate at this time.
For the foregoing reasons, IT IS ORDERED that National’s Motion to Dismiss the
Cross-Claim (R. Doc. 69) is DENIED.
New Orleans, Louisiana, this 22nd day of December, 2016.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?