Safe Loads Brokering, LLC v. National Fire & Marine Insurance Company

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SAFE LOADS BROKERING, LLC )

and DAVID WILSON, )

)

Plaintiffs, )

) CIVIL ACTION NO.

v. ) 2:21-cv-1168-KOB

)

NATIONAL FIRE & MARINE )

INSURANCE COMPANY, et al., )

)

Defendants. )

MEMORANDUM OPINION

This is an insurance case. Someday, the case may present all the riveting

elements typical of insurance cases—lengthy recitations of policy provisions,

nuanced interpretations of those provisions, and arguments about policy coverage.

But the court need not dive into such exciting matters to address Defendants’

pending motion to dismiss. (Doc. 4). For the reasons stated below, the court finds

that the complaint of Plaintiffs Safe Loads Brokering, LLC and David Wilson does

not plausibly state a claim for relief as to any of the counts alleged.

BACKGROUND

Plaintiffs haul freight. In 2019, Plaintiff Safe Loads contracted with T.A.

Services, which is not a party to this suit, to deliver frozen goods to one of T.A.

Services’ merchants. (Doc. 1-1 at 4). Safe Loads claims that it delivered the goods

in “substantially the same refrigerated manner” as it received the goods. (Doc. 1-1

at 5). Even so, the merchant rejected the refrigerated load upon delivery. (Id.). That

rejection led to roughly $30,000 in losses to T.A. Services. In turn, T.A. Services

sued Safe Loads in Alabama state court in 2019 to recover damages for the load.

The complaint does not state the nature of the claims made or the outcome of the

2019 state court case.

At the time these events transpired, Plaintiffs maintained an insurance policy

with Defendant National Fire. (Doc. 1-1 at 6). Earlier this year, Plaintiffs filed this

case in state court, and Defendants properly removed it. (Doc. 1). Plaintiffs aver

that the insurance policy “provides coverage and liability insurance protection

against claims asserted against the plaintiff, including” the claims that T.A.

Services asserted in the 2019 state court case. (Id.). Plaintiffs do not cite to the

policy in their complaint or brief in this case, and they challenge the authenticity of

the policy that Defendants attached to the motion to dismiss.1 Defendant Samuel

Turco worked for National Fire as “claims agent for the claim asserted against the

plaintiff by T.A. Services, Inc.” (Doc. 1-1 at 7).

Here, Plaintiffs allege that Defendants’ failure to investigate, defend, and

make payments as to the claims in the 2019 state court case constituted: (1) breach

of the insurance contract; (2) bad faith refusal to pay; (3) fraudulent

1 This opinion rests on Plaintiffs’ pleadings alone, rather than the policy’s contents, so the court

need not address Plaintiffs’ challenge.

misrepresentation; and (4) wantonness. (Doc. 1-1 at 6 et seq.). Defendants now

move to dismiss all four of Plaintiffs’ claims under Rule 12(b)(6), and they

alternatively seek a more definite statement under Rule 12(e). (Doc. 4).

LEGAL STANDARD

To survive 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.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

To be plausible on its face, a claim must contain enough facts to “allow[] the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. The court must accept the plaintiff’s factual

allegations as true, but the plaintiff must do more than recite legal elements of a

claim. Id. In other words, the plaintiff must provide “more than the unadorned, the

defendant-unlawfully-harmed-me accusation.” Id.

DISCUSSION

Defendants move to dismiss all four of Plaintiffs’ claims and alternatively

seek a more definite statement. The court will address each claim in turn.

a. Breach of Contract

Plaintiffs aver that Defendants breached a contractual duty to investigate and

defend against T.A. Services’ claims in the 2019 state court case. (Doc. 1-1 at 6).

An insured establishes a breach of contract claim by showing, in part, “the

defendant’s nonperformance” of the insurance contract. State Farm Fire & Cas.

Ins. Co. v. Slade, 747 So. 2d 293, 303 (Ala. 1999) (citation omitted). And “the

insured . . . normally bears the burden of establishing that a claim falls within the

coverage of the policy.” Nationwide Mut. Fire Ins. Co. v. David Group, Inc., 294

So. 3d 732, 737 (Ala. 2019).

Here, Plaintiffs do not plead facts plausibly showing that Defendants

breached the insurance contract. The court gives no weight to Plaintiffs’ bare legal

conclusion that the insurance policy covered the claims raised in the 2019 state

court case. See Iqbal, 556 U.S. at 678. Plaintiffs’ factual allegations only show that

(1) a lawsuit occurred in 2019 with unidentified claims, and (2) a contract between

Plaintiffs and Defendants provided liability insurance with undefined coverage

terms. The court finds no plausible allegations that the claims raised in the 2019

suit actually triggered Defendants’ contractual duty to defend or investigate. So

Plaintiffs have not plausibly alleged “the defendant[s’] nonperformance.” See

Slade, 747 So. 2d at 303. And by failing to cite any policy terms showing that

Defendants had a duty to defend the 2019 state court case, Plaintiffs do not

plausibly allege that their “claim falls within the coverage of the policy.”

Nationwide, 294 So. 3d at 737. Dismissal is proper.

Defendants also argue that Plaintiffs’ breach of contract claim against

Defendant Turco fails as a matter of law. (Doc. 4 at 11). The court agrees. Under

Alabama insurance law, a non-party to an insurance contract cannot be held liable

for breach of contract. See Ligon Furniture Co. v. O.M. Hughes Ins., Inc., 551 So.

2d 283, 285 (Ala. 1989) (dismissing breach of contract claim against claims

adjuster because adjuster was “not a party to [plaintiff]’s insurance contract”).

Here, Plaintiffs do not aver that Turco was a party to the insurance contract, nor

can they. As a “claims agent” working for National Fire, Turco cannot be a party to

the insurance contract. Because Plaintiffs cannot plausibly allege that Turco was a

party to the contract, the breach claim against Turco fails as a matter of Alabama

law. See, e.g., Stone v. State Auto. Mut. Ins. Co., No. 5:16-cv-381-AKK, 2017 WL

633081, at *2 (N.D. Ala. Feb. 16, 2017) (citing Ligon and dismissing breach claim

against insurer’s claims agent).

So the court will dismiss without prejudice the breach of contract claim

against National Fire and will dismiss with prejudice the same claim against Turco.

b. Bad Faith Refusal to Pay Claim

Plaintiffs aver that Defendants’ failure to defend Plaintiffs and pay claims

associated with the 2019 state court case constitutes bad faith. (Doc. 1-1 at 7). But

under Alabama insurance law, “contractual liability is a prerequisite for liability

for bad faith.” Acceptance Ins. Co. v. Brown, 832 So. 2d 1, 16 (Ala. 2001).

Because the court dismisses Plaintiffs’ breach of contract claim, the court also

dismisses without prejudice Plaintiffs’ bad faith claim against National Fire. But

because only a contractual party can be liable for bad faith, the court will dismiss

with prejudice Plaintiffs’ bad faith claim against Samuel Turco; he is not a party to

the insurance contract. See Ligon, 551 So. 2d at 285.

c. Fraudulent Misrepresentation

Plaintiffs allege that Defendants2 engaged in “fraud and misrepresentation

regarding [Plaintiffs’] procuring insurance coverage.” (Doc. 1-1 at 8). Claims for

fraud must satisfy Rule 9(b), which requires a claimant to plead several facts with

specificity, including “precisely what statements were made.” See Brooks v. Blue

Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997) (citations

omitted). Plaintiffs do not specifically plead any of the facts that Rule 9 requires,

so the court will dismiss without prejudice the fraudulent misrepresentation claim

as to both Defendants.

d. Wantonness

Plaintiffs allege that Defendants’ failure to investigate, pay, and defend

Plaintiffs as to the claims in the 2019 state court suit constituted a wanton breach

of the insurance contract. (Doc. 1-1 at 9). But the Alabama Supreme Court does

2 The complaint does not name Defendant Turco under the fraud and wantonness claims (causes

three and four). Solely for the purposes of this motion, the court construes the reference to

“Defendants” in those counts as targeting both National Fire and Samuel Turco. But if Plaintiffs

replead, failure to specify by name which defendant allegedly did what will result in dismissal

again for failure to plead with specificity as required by Rule 9.

“not recognize a cause of action for alleged wanton handling of insurance claims.”

Kervin v. S. Guar. Ins. Co., 667 So. 2d 704, 706 (Ala. 1995). Thus, the court will

dismiss with prejudice Plaintiffs’ wantonness claim against both Defendants

because that claim fails as a matter of law.

e. More Definite Statements

Defendants alternatively request a more definite statement in the Plaintiffs’

complaint under Rule 12(e). The court agrees on two accounts. First, Plaintiffs

must number all paragraphs of the complaint, as Rule 10 requires. See Fed. R. Civ.

P. 10(b). Second, Plaintiffs must “specify[] which of the defendants are responsible

for which acts or omissions, [and] which of the defendants the claim is brought

against.” See Barmapov v. Amuial, 986 F.3d 1321, 1325 (11th Cir. 2021).

CONCLUSION

For the reasons stated above, the court will grant Defendants’ motion to

dismiss all of Plaintiffs’ claims as follows.

The court will dismiss without prejudice the breach of contract claim (first

cause) as to National Fire, the bad faith claim (second cause) as to National Fire,

and the fraud claim (third cause) as to both Defendants.

And the court will dismiss with prejudice the breach of contract claim as to

Samuel Turco, the bad faith claim as to Turco, and the wantonness claim (fourth

cause) as to both Defendants.

Plaintiffs may amend their pleadings as to those claims dismissed without

prejudice no later than Tuesday, November 16, 2021. If Plaintiffs choose to

amend, the court will also order Plaintiffs to (1) number each paragraph of the

complaint and (2) identify which Defendant is the subject of each act, omission,

and count. Any amended complaint must include these corrections.

DONE and ORDERED this 2nd day of November, 2021.

____________________________________

KARON OWEN BOWDRE

UNITED STATES DISTRICT JUDGE