Barber v. American Family Home Insurance Company

Filing 60

ORDER granting 30 Motion to Dismiss, dismissing the plaintiff's second, fourth, fifth, and sixth causes of action pursuant to Rule 12(b)(6). Signed by Honorable Joseph F Anderson, Jr on 02/02/2012.(bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Nancy Barber,
Plaintiff,
vs.
American Family Home Insurance
Company,
Defendant.

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C/A No.: 3:11-cv-02328-JFA

ORDER

This matter comes before the court on American Family Home Insurance
Company’s (“American Family”) Motion to Dismiss as to Plaintiff’s second, fourth, fifth,
and sixth causes of action pursuant to Rule 12(b)(6), 8(a)(2), and 9(b) of the Federal
Rules of Civil Procedure. The plaintiff, Nancy Barber (“Barber”), opposes the motion.
After reviewing the parties’ briefs and hearing the parties’ arguments made before this
court on February 1, 2012, this court grants American Family’s Motion to Dismiss
Plaintiff’s second, fourth, fifth, and sixth causes of action.
This dispute concerns insurance proceeds, which American Family has issued in
checks made out jointly to the plaintiff and her estranged husband, Kelly Barber.
Plaintiff filed this lawsuit alleging that the checks should have been issued in her name
only and that American Family made a number of misrepresentations to her. Plaintiff’s
Amended Complaint sets forth the following causes of action: (1) breach of contract, (2)
negligence, (3) bad faith, (4) negligent misrepresentation, (5) fraud, and (6) constructive

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fraud. The defendant has filed the instant Motion to Dismiss, seeking to have Plaintiff’s
second, fourth, fifth, and sixth causes of action dismissed.
United States Supreme Court cases Twombly and Iqbal have reinvigorated the
standard for the Fed. R. Civ. P. 12(b)(6) motion to dismiss. See Bell Atlantic v. Twombly,
550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937 (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.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly,
550 U.S. at 570). Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations,” a pleading that merely offers “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Importantly, Plaintiffs must put forth claims that cross “the
line from conceivable to plausible.” Iqbal, 129 S. Ct. at 1950–51 (internal quotations
omitted).
In this case, the plaintiff has not met the 12(b)(6) standard for her claims of
negligence, negligent misrepresentation, fraud, and constructive fraud.

Specifically,

Barber has failed to plead facts sufficient to satisfy each of the elements of those four
causes of action. As to negligence, Barber’s allegations sound in contract rather than in
tort—thus, her negligence claims should be dismissed.

As to her negligent

misrepresentation, fraud, and constructive fraud claims, Barber’s pleadings fall short,
merely offering “labels and conclusions” and “formulaic recitation[s] of the elements of
[those] causes of action.” See Twombly, 550 U.S. at 555. As such, the court finds that

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Barber’s negligent misrepresentation, fraud, and constructive fraud causes of action
should be dismissed.
Based on the foregoing, this court hereby grants the defendant’s Motion to
Dismiss. Accordingly, this court dismisses the plaintiff’s second, fourth, fifth, and sixth
causes of action pursuant to Rule 12(b)(6).
IT IS SO ORDERED.

February 2, 2012
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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