Allied Trust Insurance Company v. Donelon et al
Filing
44
ORDER AND REASONS: For the foregoing reasons, IT IS ORDERED that the Rule 12b(6) 32 Motion to Dismiss, filed by Michael Donelon, Jr. and Brandi Donelon, is DENIED. Signed by Judge Wendy B Vitter on 1/11/2022. (jeg)
Case 2:21-cv-00494-WBV-DPC Document 44 Filed 01/11/22 Page 1 of 11
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALLIED TRUST INSURANCE COMPANY
CIVIL ACTION
VERSUS
NO. 21-494-WBV-DPC
BRANDI DONELON, ET AL.
SECTION: D (4)
ORDER AND REASONS
Before the Court is a Rule 12b(6) Motion to Dismiss filed by defendants,
Michael Donelon, Jr. and Brandi Donelon (“Defendants” or “the Donelons”). 1
Plaintiff, Allied Trust Insurance Company (“Allied Trust”), opposes the Motion. 2
After careful consideration of the parties’ memoranda and the applicable law, the
Motion is DENIED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This is a dog bite case in which Allied Trust seeks a declaratory judgment that
it has no obligation to defend or indemnify its insureds, the Donelons, for the claims
asserted against them by Holly Brown stemming from an alleged attack by the
Donelons’s dog. On or about November 17, 2020, Brown filed a Petition for Damages
in the 24th Judicial District Court for the Parish of Jefferson, Louisiana, against the
Donelons and ABC Insurance Company (“ABC”), the Donelons’s insurance company.3
In her Petition for Damages, Brown asserts that the Donelons own a dog, which
resides with them at 3705 Lake Catherine Drive in Harvey, Louisiana 70055 (the
R. Doc. 32.
R. Doc. 35.
3 R. Doc. 27-1.
1
2
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“Residence”).4 She further asserts that on November 27, 2019, the Donelons’s “large
dog, which was unleashed and unsupervised, aggressively rushed towards petitioner,
which resulted in a violently [sic] fall.”5 Brown seeks to recover under theories of
strict liability and negligence pursuant to La. Civ. Code arts. 2321, 2315, and/or 2317,
claiming that the Donelons and ABC were responsible for the animal attack and
additional damages she sustained.6 She specifically asserts that the following actions
and/or inactions caused her damages:
a) Failure to respond to unsafe conditions upon the property;
b) Allowing the existence of unsafe conditions upon the property;
c) Not properly maintaining the property (including the property’s
grounds);
d) Negligent supervision and/or maintenance of the property and its
component parts;
e) Failing to warn visitors, guests and/or invitees about deficiencies in
the property;
f) Failing to warn visitors, guests and/or invitees about hazards upon
the property;
g) Failing to warn petitioner of the existence of the hazard at issue
herein;
h) Failing to provide safe and/or adequate means of ingress or egress to
the property at issue;
i) Failing to follow the Jefferson Parish leash laws;
j) Failing to properly supervise their large dog;
k) Failure to exercise reasonable care;
l) Not timely correcting and/or fixing the hazard at issue herein; and
m) These acts of negligence are pleaded specifically herein and are in
addition to other acts of negligence which will be shown at the trial of
this matter.7
Id. at ¶¶ 3 & 4.
Id. at ¶4.
6 R. Doc. 27, Exhibit A ¶¶¶ 6–8.
7 Id. at ¶ 6.
4
5
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On March 9, 2021, Allied Trust filed a Complaint for Declaratory Judgment in
this Court, seeking a judicial declaration that it has no obligation to defend or
indemnify the Donelons from the claims asserted by Brown.8 Allied Trust asserts
that it issued Policy No. 732683 (the “Policy”) to the Donelons for their Residence,
which was effective from February 2, 2019 to February 2, 2020.9 Allied Trust asserts
that this Policy was in effect at the time of Brown’s alleged November 27, 2019,
animal attack and contained the following liability exclusion for animals:
E.
Coverage E – Personal Liability And Coverage
F – Medical Payments To Others
Coverages E and F do not apply to the following:
*
*
*
12.
Animals
“Bodily injury” or “Property Damage” caused by or originating
from or in connection with, in whole or in part, any animal owned
or kept by any “insured”, or in the care, custody or control of any
“insured”, or that of your employee, agent, visitor or tenant
whether or not the injury or damage occurs on the “residence
premises”, on the “residence premises” with your or any
“insured’s” permission, or any other location.10
Allied Trust further asserts that the Declaration page of the Policy notes that, “This
Policy does not provide liability coverage for losses caused by any animals.” 11
Pursuant to this policy language, Allied Trust argues that it is entitled to a
declaration that the Policy does not provide coverage to the Donelons, or any other
R. Doc. 1.
Id. at ¶ 12.
10 Id. at ¶ 14.
11 Id. (internal quotation marks omitted).
8
9
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defendant, for Brown’s claims, and that Allied Trust has no obligation to defend or
indemnify the Donelons regarding same.12
At the Court’s request, 13 Allied Trust filed a First Amended Complaint for
Declaratory Judgment on March 17, 2021 to clarify its allegations regarding the
Court’s jurisdiction over this matter.14 Thereafter, on August 2, 2021, Allied Trust
filed a Second Amended Complaint for Declaratory Judgment (the “Second Amended
Complaint”), maintaining its request for a declaratory judgment regarding its
obligation to defend and indemnify the Donelons for the claims asserted by Brown,
and further seeking a judicial declaration that its Policy does not provide coverage
for the claims asserted by Brown against the Donelons.15 Plaintiff’s Second Amended
Complaint alleges the same factual background as recited herein.
On October 7, 2021, the Donelons filed the instant Motion, seeking to dismiss
the Second Amended Complaint for failure to state a claim under Fed. R. Civ. P.
12(b)(6).16 The Donelons assert that Allied Trust has failed to state a claim upon
which relief can be granted because “Allied Trust failed to address how it should not
provide coverage or indemnification for eight independent causes of action that have
no relation to animals.”17 Specifically, the Donelons are referring to the first eight
“actions and/or inactions” alleged in Brown’s state court petition, which refer to the
Id. at ¶ 15.
R. Doc. 5.
14 R. Doc. 6. The Court notes that the First Amended Complaint is otherwise identical to the original
Complaint.
15 R. Doc. 27.
16 R. Doc. 32.
17 R. Doc. 32-1 at p. 1.
12
13
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conditions of the property where Brown fell and do not mention animals.18
The
Donelons claim that since Allied Trust relies on a policy exclusion regarding animals,
which neither mentions nor excludes coverage for the various property conditions
alleged by Brown, Allied Trust has failed to state a claim.19 The Donelons further
assert that Allied Trust has failed to state a claim because the Policy excludes
coverage for the Donelons’ animals, not Brown’s animals.20 The Donelons contend
that Brown’s alleged damages were not caused by their dog, but were caused by
Brown’s dog.21
Allied Trust opposes the Motion, asserting that it has met the pleading
requirements under Federal Rule of Civil Procedure 8(a) because a straightforward
reading of its Second Amended Complaint shows it has stated a plausible cause of
action against the Donelons.22 Allied Trust claims its Second Amended Complaint
provides “concise allegations setting forth the events leading up to the subject loss
incurred by Ms. Brown; the allegations Ms. Brown has raised against the Defendants
regarding the cause of that loss being the Donelons’ dog; and the relevant Allied Trust
Policy language that would exclude such loss from coverage.”23 Additionally, Allied
Trust asserts that rather than testing the plausibility of the well pled facts in the
Second Amended Complaint, the Donelons challenge the plausibility of those facts by
addressing alternate theories of what could have caused Brown’s injuries.24 Allied
Id. at pp. 2-3; See, R. Doc. 27-1 at ¶ 6.
R. Doc. 32-1 at pp. 5-6.
20 Id. at p. 6.
21 Id.
22 R. Doc. 35.
23 Id. at p. 4.
24 Id. at pp. 3 & 4.
18
19
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Trust contends that a motion to dismiss is not the proper mechanism for determining
disputed issues of fact, as it is only a test of legal plausibility of the well pled facts.25
Allied Trust argues that “the mere allegation of competing facts is insufficient to
demonstrate ‘beyond doubt that the plaintiff could prove no set of facts entitling it to
relief.’”26
Allied Trust further points out that Brown’s Petition for Damages refers to the
single factual allegation that she was injured by “Michael Donelon, Jr. and Brandi
Donelons’s large dog, which was unleashed and unsupervised, aggressively rushed
towards petitioner, which resulted in a violently(sic) fall. As a result of the hazardous
and dangerous condition on the property, as well as the lack of any warning regarding
same Holly Brown suffered severe injuries.” 27 Allied Trust argues that although
Brown’s eight claims regarding the conditions of the property near where she fell do
not specifically refer to animals, they are covered under the Policy because “the only
reasonable conclusion to be drawn from Ms. Brown’s allegations is that the Donelons’
dog is the unsafe condition, defect, or hazard mentioned in the above legal
allegations.”28 Allied Trust further notes that the Donelons are not asserting that all
of Allied Trust’s claims are insufficient, as they only assert that the first eight claims,
which do not reference animals, fail to state a claim under Rule 12(b)(6).29 According
to Allied Trust, “The Donelons tacitly admit that several of the alleged cause [sic] of
Id. at p. 4.
Id. at p. 4 (quoting Ash Creek Min. Co. v. Lujan, 969 F.2d 868, 870 (10th Cir. 1992)).
27 R. Doc. 35 at p. 5 (quoting R. Doc. 23-1 at ¶ 4).
28 R. Doc. 35 at p. 5.
29 Id. at p. 6.
25
26
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action do directly involve the Donelons’ dog and therefore would be subject to the
relevant policy exclusion.”30 Thus, Allied Trust asserts that by requesting that the
entire case be dismissed, the Donelons are asking this Court to go beyond a Rule
12(b)(6) evaluation and address the merits of Allied Trust’s entire case, which is
improper.31 As such, Allied Trust asserts that the Motion should be denied.
II.
LEGAL STANDARD
A. Fed. R. Civ. P. 12(b) Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a defendant can seek dismissal
of a complaint, or any part of it, for failure to state a claim upon which relief may be
granted.32 To survive a Rule 12(b)(6) 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.’” 33 “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.” 34 “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” 35 “In short, a claim should only be dismissed if a court
Id.
Id. at p. 6.
32 Fed. R. Civ. P. 12(b)(6).
33 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 173 L.Ed.2d 868 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
34 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Ashcroft, 556 U.S. at 678, 129 S.Ct. at
1949) (quotation marks omitted).
35 Iqbal, 556 U.S. at 679, 129 S.Ct. at 1949 (quotation omitted).
30
31
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determines that it is beyond doubt that the claimant cannot prove a plausible set of
facts that support the claim and would justify relief.”36
A court must accept all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.37 The Court, however, is not bound to accept as true
conclusory allegations, unwarranted factual inferences, or legal conclusions. 38
“Dismissal is appropriate when the complaint on its face shows a bar to relief.”39 The
Fifth Circuit has held that a motion to dismiss under Rule 12(b)(6) is generally
disfavored and is rarely granted.40 In deciding a Rule 12(b)(6) motion to dismiss, a
court is generally prohibited from considering information outside the pleadings, but
may consider documents outside of the complaint when they are: (1) attached to the
motion; (2) referenced in the complaint; and (3) central to the plaintiff’s claims.41
III.
ANALYSIS
As an initial matter, the Court finds that, in determining whether to grant the
Donelons’ Motion to Dismiss, the Court can consider matters outside of the pleadings,
specifically the Policy and Brown’s Petition for Damages, because they were attached
as exhibits to and referenced in Allied Trust’s Second Amended Complaint,42 and
Croix v. Provident Trust Group, LLC., 2019 WL 6716066 (W.D. Tex. Dec. 9, 2019) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
37 Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007)).
38 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
39 Cutrer v. McMillan, 308 Fed.Appx. 819, 820 (5th Cir. 2009) (quotation and internal quotation marks
omitted).
40 Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire & Cas.
Co., 563 F.3d 141, 147 (5th Cir. 2009)).
41 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011).
42 See R. Docs. 27-1& 27-2.
36
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because they are central to Allied Trust’s action for declaratory judgment.43 The
Court further finds that, because Allied Trust has invoked the Court’s diversity
jurisdiction under 28 U.S.C. § 1332, the Court must apply the substantive law of the
forum state, Louisiana.44 Under Louisiana law, “An insurance policy is a contract
between the parties and should be construed by using the general rules of
interpretation of contracts set forth in the Louisiana Civil Code.” 45
Further,
“Interpretation of a contract is the determination of the common intent of the
parties.”46 Louisiana law provides that, “When the words of a contract are clear and
explicit and lead to no absurd consequences, no further interpretation may be made
in search of the parties’ intent.”47 Further, “The words of a contract must be given
their generally prevailing meaning.
Words of art and technical terms must be
given their technical meaning when the contract involves a technical matter.”48
Applying the standards that govern a Rule 12(b)(6) motion to dismiss,
the Court finds that Allied Trust has alleged sufficient facts to state a claim for
relief that is plausible on its face. 49
Allied Trust asserts that “Brown filed a
Petition for Damages against the Donelons and ABC Insurance Company, as the
insurer of the Donelons, alleging that they were responsible for an animal attack,
and additional damages, under theories of strict liability and negligence.”50
See Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011).
Wiley v. State Farm Fire & Cas. Co. 585 F.3d 206, 210 (5th Cir. 2009).
45 Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La. 6/27/03), 848 So.2d 577, 580.
46 La. Civ. Code art. 2045.
47 La. Civ. Code art. 2046.
48 La. Civ. Code art. 2047.
49 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 173 L.Ed.2d 868 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
50 R. Doc. 27 at ¶ 8.
43
44
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Allied Trust further asserts that it had a Policy with the Donelons that was effective
at the time of Brown’s alleged November 27, 2019 animal attack, and contained
a provision excluding liability for “‘Bodily injury’ or ‘Property Damage’ caused by or
originating from or in connection with, in whole or in part, any animal owned or
kept by any ‘insured . . . .’” 51
Although the Donelons assert that the Policy is
inapplicable because they contend that Brown’s dog, rather than their dog, caused
the accident,52 under Fifth Circuit precedent, the Court must accept as true the
allegations in the Second Amended Complaint that the Donelons’s dog caused
the alleged accident.
53
Thus, while the Donelons dispute the underlying facts
that gave rise to Brown’s alleged injuries, the Donelons have failed to show that “it
is beyond doubt” that Allied Trust cannot prove a plausible set of facts that support
their claims and would justify relief in this matter.54
Additionally, there is no dispute that the Policy includes a provision that
excludes coverage for any “‘Bodily injury’ or ‘Property Damage’ caused by or
originating from or in connection with, in whole or in part, any animal owned or kept
by any ‘insured’ . . . whether or not the injury or damage occurs on the ‘residence
premises’ . . . or any other location.”55 While Allied Trust seeks to apply this exclusion
to eight of Brown’s claims that concern the “conditions upon the property” near where
Id. at ¶¶ 11–13.
R. Doc. 32-1 at pp. 5 & 6.
53 See Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)).
54 Croix v. Provident Trust Group, LLC., 2019 WL 6716066 (W.D. Tex. Dec. 9, 2019) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
55 R. Doc. 27 at ¶ 13; R. Doc. 32-1 at pp. 3-4 & 6.
51
52
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she fell, which do not mention animals,56 it is evident from Brown’s Petition that all
eight claims are based upon Brown’s single factual allegation that she was injured
when the Donelons’s “large dog, which was unleashed and unsupervised, aggressively
rushed towards petitioner, which resulted in a violenty [sic] fall.”57 This is clear from
the fact that in the very next sentence, Brown asserts that, “As a result of the
hazardous and dangerous condition on the property, as well as the lack of any
warning regarding same, HOLLY BROWN suffered severe injuries.” 58 Thus, as
Allied Trust asserts, “The only reasonable conclusion to be drawn from Ms. Brown’s
allegations is that the Donelons’ dog is the unsafe condition, defect, or hazard
mentioned in the above legal allegations.” 59 For these reasons, and because Rule
12(b)(6) motions to dismiss are generally disfavored and rarely granted in this
Circuit,60 the Court finds that Allied Trust has stated a plausible claim against the
Donelons and that the instant Motion must be denied.
IV.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Rule 12b(6) Motion to
Dismiss,61 filed by Michael Donelon, Jr. and Brandi Donelon, is DENIED.
New Orleans, Louisiana, January 11, 2022.
______________________________
WENDY B. VITTER
United States District Judge
R. Doc. 27 at pp. 3-5; R. Doc. 27-1 at ¶ 6.
R. Doc. 27-1 at ¶ 4.
58 Id. (emphasis in original).
59 R. Doc. 35 at p. 5.
60 Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire & Cas.
Co., 563 F.3d 141, 147 (5th Cir. 2009)).
61 R. Doc. 32.
56
57
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