Parker et al v. Walker et al

Filing 41

ORDER granting in part and denying in part 32 Motion for Judgment on the Pleadings; granting 36 Motion for Extension of Time to File Response/Reply nunc pro tunc. Signed by District Judge Carlton W. Reeves on 5/18/2018. (cr)

____________________
No. 3:16-CV-00892-CWR-FKB
FRANCIS PARKER AND
STEPHANIE ALLISON PARKER,
Plaintiffs,
v.
ALLSTATE INSURANCE CO.,
Defendant.
____________________
ORDER GRANTING IN PART & DENYING IN PART MOTION FOR
JUDGMENT ON THE PLEADINGS
____________________
Before CARLTON W. REEVES, District Judge.
In 2014, Stephanie Parker – while driving a car owned by her
mother, Francis – was hit by a driver insured by Allstate. The
Parkers filed this lawsuit against Allstate in state court, and
Allstate removed the case to this Court.

At the bottom of the Parkers’ initial complaint were two disputes with Allstate: one over the insurer’s post-accident settlement process, and the other over its handling of the
Parkers’ car during that process. In dismissing the initial complaint, the Court found that claims involving the second dispute could be revived through an amended complaint.1
The Parkers have filed an amended complaint, and Allstate
responded by moving for judgment on the pleadings as to all
claims. The Fifth Circuit says the relevant standard of review
is as follows:
The court accepts all well-pleaded facts as true,
viewing them in the light most favorable to the
plaintiff. The plaintiff must plead enough facts
to state a claim to relief that is plausible on its
face. Factual allegations must be enough to raise
a right to relief above the speculative level, on
the assumption that all the allegations in the
complaint are true (even if doubtful in fact).2
The Parkers’ amended complaint contains four claims. Two
involve Allstate’s post-accident settlement process. The
Court’s initial order made clear that such claims could not be
revived through an amended complaint.3 These claims will be
DISMISSED with prejudice.

1 See generally Parker v. Allstate Ins. Co., No. 3:16-CV-00892-CWR-FKB, 2017
WL 4287912 (S.D. Miss. Sept. 27, 2017).
2 Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007) (quotation
marks and citations omitted).
3 Parker, 2017 WL 4287912, at *2-3.

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The two remaining claims relate to Allstate’s storage and sale
of the Parkers’ car through a company called Co-Part. The
first is for fraud by omission. The Parkers allege that Allstate,
“through its designee Co-Part,” told the Parkers that “they
were going to store the car and hold the car until the [insurance] claim could be evaluated.” Co-Part’s statement omitted
the fact that the Parkers would “ow[e] a storage cost” on the
vehicle if they agreed to store their car. This misrepresentation was aimed at “get[ting them] to settle their claim for under market value while the car was being stored and storage
costs were [being] incurred.” The Parkers relied on this misrepresentation in allowing Co-Part to store their car.
Allstate says this claim does not meet the heightened fraud
pleading standard, which requires the Parkers to allege “the
who, what, when, where and how” of the fraud.4 Allstate is
correct. The Parkers’ complaint lacks even general information about when or where the alleged misrepresentations
were made. If this were the Parkers’ first attempt at framing
their claims, they would be entitled to make their “best case”
in an amended complaint.5 But that second chance has already come and gone. Their fraud claim must be DISMISSED
with prejudice.
The Parkers’ remaining claim is for conversion. That claim requires “proof of a wrongful possession . . . or of a wrongful
detention after demand.”6 The Parkers have alleged that Co4 See Jordan v. Maxfield & Oberton Holdings LLC, No. 3:15-CV-220-CWRLRA, 2016 WL 5794500, at *2 (S.D. Miss. Sept. 30, 2016).
5 See Boutwell v. Time Ins. Co., No. 3:11-CV-689-CWR-LRA, 2013 WL 53902,
at *4 (S.D. Miss. Jan. 3, 2013).
6 Mississippi Motor Fin., Inc. v. Thomas, 246 Miss. 14, 20 (1963).

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Part “placed [their car] on the auction calendar” and “sold”
the vehicle “without authority” to do so, “even after requests
for it to be returned and/or taken off of the auction block.”
Allstate says the Parkers’ conversion claim fails because it alleges that Co-Part, and not Allstate, committed conversion. Of
course, masters can be responsible for conversions committed
by agents.7 Allstate accounts for this fact by arguing that the
Parkers “make no agency connection between Co-Part and
Allstate.”
This argument is misplaced. The Parkers call Co-Part Allstate’s “designee.” Their complaint alleges that Allstate and
Co-Part were in a kind of agency relationship that presumably is typical between automotive insurers and vehicle storage companies. The Parkers properly alleged the existence of
that relationship, though they still bear the burden of proving
that relationship at trial.8
Allstate further argues that, even if Co-Part was acting as Allstate’s agent when it committed conversion, Allstate is only
liable if Co-Part was acting (1) within the scope of an employee relationship with Allstate or (2) under apparent authority within its agency relationship. Allstate says the
Parkers have failed to plead facts supporting either scenario.
Again, Allstate is incorrect. It is easy to infer from the facts
alleged that Co-Part committed conversion while acting under apparent authority from Allstate. In sum, Allstate has
given no persuasive reason to dismiss the Parkers’ conversion
7 See Walker v. Brown, 501 So. 2d 358, 361 (Miss. 1987).
8 See Booker ex rel. Certain Underwriters at Lloyd's of London v. Pettey, 770 So.
2d 39, 45 (Miss. 2000).

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claim. Their motion to dismiss that claim is DENIED. The stay
in this case is LIFTED. Within 14 days, the parties shall contact
the magistrate judge to obtain a new case management order.
SO ORDERED, this the 18th day of May, 2018.9
s/ CARLTON W. REEVES
United States District Judge

9 The Parkers’ motion for extension of time to respond to Allstate’s motion
at Docket No. 36 is granted nun pro tunc.

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