2d 1343, 1367 (S.D. Pursuant to the Statute of Frauds, Alabama Code 892(1) renders void "[e]very agreement which, by its terms, is not to be performed within one year from the making thereof," unless it, "or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith." Without a duty, there is no cause of action."). Corp. , 742 F.2d 786, 791 (3rd Cir. See St. John's Deliverance Temple v. Frontier Adjusters , No. Or the fact that Shanese was basically being poisoned by the prison system. Co. AG v. Fifth Third Bank , 879 F.3d 1151, 1157 (11th Cir. , 703 So. Second, Plaintiffs allege Liberty Mutual negligently and/or wantonly engaged Profire to rebuild their home, causing the home to suffer defects and lose value, and causing Plaintiffs to suffer mental anguish and emotional distress. Consideration for a contract manifests as follows: Family Sec. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C. Family Ins. 3d 119, 122 (Ala. Civ. The Certificate stated the Completion Date as December 30, 2015. A lot of people, according to him, were being slowly killed because they weren't receiving treatment that they needed. 2d 1141, 1144 (Ala. 1998) )). 1937, 173 L.Ed.2d 868 (2009), the Court revisited the applicable standard governing Rule 12(b)(6) motions to dismiss. The prison system is not for rehabilitation its just a warehouse for criminals. Count Five alleges that Liberty Mutual's negligence and/or wantonness "combined and concurred" with that of ProFire to cause Plaintiffs' damages. Count Two alleges simply that Liberty Mutual "negligently and/or wantonly engaged ProFire to rebuild the Plaintiffs' home," resulting in home defects, reduction of the home's value, mental anguish, and emotional distress. Plaintiffs should be mindful of its obligations to pursue plausible claims in any putative amended complaint, including presenting well-pleaded averments portraying the nature of Liberty Mutual's alleged supervision and management of ProFire in the rebuilding of Plaintiffs' home, as well as how Liberty Mutual breached the standard of care arising from that alleged supervision along with the other elements of a negligence claim. , 879 F.3d at 1157 (in turn quoting Long v. Satz , 181 F.3d 1275, 1279 (11th Cir. See Horne v. Potter , 392 F. App'x 800, 802 (11th Cir. And how is she nowhere on the internet?? 3d 35, 40 (Ala. 2017) (citations, quotation marks, and internal alterations omitted). And so he basically sent every kid who showed up in his courtroom to that detention center even for the pettiest of crimes. ") (alterations in original); Control & Power, Inc. v. Cumberland Valve & Co. , No. See Parker v. Williams , 977 So. 2019), cert. This memorandum opinion addresses Liberty Mutual's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). However, Plaintiffs have not averred plausible facts depicting Liberty Mutual negligently performed its duty to pay to repair or replace Plaintiffs' home. 24). Therefore, Plaintiffs' wantonness claims merit dismissal pursuant to Rule 12(b)(6)'s plausibility standard. They also state: (Doc. But most women are in jail for theft or drugs or dui/drug crimes. However, the alleged promise to requisition a third-party contractor may constitute a contract separate from the alleged guarantee, and Liberty Mutual's alleged failure to follow through may portray a breach of contract. denied , No. (Doc. Therefore, Plaintiffs cannot sustain their negligence claims on the theory that Liberty Mutual referred or recommended ProFire to rebuild the home. Plaintiffs latched onto this theory for their negligence claims, albeit in their response to Liberty Mutual's Motion to Dismiss: Plaintiffs do not err in their allusion to the voluntary undertaking doctrine, as "a duty can arise when that person volunteers to act on behalf of another." 2d 558, 562-63 (Ala. 2001) (same); Brown-Marx Assocs., Ltd. v. Emigrant Sav. 2d 1041, 1042 (Ala. 1985) ("a worker's compensation carrier may be liable when it voluntarily undertakes to inspect an employer's premises for safety"); United States Fidelity & Guar. Mut. 2019) ("When ruling on a motion to dismiss, courts must consider the complaint in its entirety . ") (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322, 127 S.Ct. As reviewed in the Background, Liberty Mutual's primary obligation required it to pay to repair or replace covered damage to Plaintiffs' dwelling. (quoting Cita Tr. 3d 337, 347-48 (Ala. 2015), as modified on denial of rehg (July 10, 2015) (as a matter of law, promissory estoppel cannot be used to enforce an oral agreement void under the Statute of Frauds). (Id. Frederick Todd Weston, Priscilla Katherine Williams, Christian & Small, LLP, Birmingham, AL, for Defendants. at Lake Martin, LLC , 256 So. 2d 866, 870 (Ala. 1996) (citation omitted). As determined previously, the alleged guarantee constituted an invalid contract pursuant to the Statute of Frauds. Make your practice more effective and efficient with Casetexts legal research suite. 37, at 3 ("The Normans cannot in compliance with FRCP 11, make allegations on their suspicion that Liberty [Mutual] dealt regularly with ProFire and was able to get a cheap price for the shoddy work Profire performed.")). 2d at 570 (Promissory estoppel operates as a "doctrine of action in reliance."). Id. The parties consented to the exercise of plenary jurisdiction by a United States Magistrate Judge. In evaluating the sufficiency of a plaintiff's pleadings, the court may draw reasonable inferences in plaintiff's favor. Miss Williams 60 days in has definitely been trending on google since S6 came out. 1-1). 2010) (citing Day v. Taylor , 400 F.3d 1272, 1276 (11th Cir. Press question mark to learn the rest of the keyboard shortcuts. of USAmeribank v. Four Star Investments, Inc. , 244 So. Aliant Bank, a Div. Id. & Mech. " The one-year provision of the Statute of Frauds applies to any agreement which by its terms cannot be performed within one year. However, the foregoing analysis portrays that Liberty Mutual may incur a duty if its engagement of ProFire involved supervision of the contractor's rebuild. Federal Rule of Civil Procedure 9(b) requires plaintiffs to "state with particularity the circumstances constituting fraud." There were parts where I couldnt believe it wasnt scripted. That finding proves dispositive as to a fraud claim based upon that alleged promise: "where an element of a tort claim turns on the existence of an alleged agreement that cannot, consistent with the Statute of Frauds, be proved to support a breach-of-contract claim, the Statute of Frauds also bars proof of that agreement to support the tort claim." P. 11(b)(3). The viability of Plaintiffs' negligence claim rests upon whether Liberty Mutual sustained a duty to Plaintiffs. As Plaintiffs' own Complaint portrays, Liberty Mutual performed this obligation, as it "engaged" ProFire to "rebuild" Plaintiffs' home, and ProFire "undertook to rebuild" the home (albeit in an allegedly faulty manner). 2d at 464-65 ). (Id. Nasty ass bitch and to think shes one of probably MAAAAANYYY COs who are just like that. To state a viable claim for wantonness, Plaintiffs must allege " [c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others. " Crouch v. N. Alabama Sand & Gravel, LLC , 177 So. Ala. Feb. 27, 2012) (citing Chavers v. National Sec. Therefore, the court GRANTS Liberty Mutual's Motion to Dismiss, and DISMISSES all claims against Liberty Mutual. Plaintiffs lodged a passing request in their brief: "should this Court determine that any of the counts [of Plaintiffs' Complaint] are inartfully pled, [Plaintiffs] request leave of this Court to amend." Plaintiffs allege Liberty Mutual "breached its contract of insurance in that it failed to pay for Plaintiffs['] loss and/or to repair or replace the Plaintiffs' home," and that Liberty Mutual's breach caused them damages because "their home has not been repaired or replaced." 2d 704, 706 (Ala. 1995) ). April 2020 Update) : The inquiry does not end here, however, as Plaintiffs aver facts evincing additional contractual promises (which, as reviewed later, have a bearing on other claims raised in the Complaint). App. See Williams v. Capital One Bank (USA) N.A. Ala. Code 27-14-17(a). of USAmeribank v. Four Star Investments, Inc. , 244 So. See Allan D. Windt, 3 Insurance Claims and Disputes 11:35 (6th ed. 1937. Liberty Mutual attached a copy of the document Plaintiffs referred to as the "express warranty" to its Motion to Dismiss. 26). Ala. Mar. They need to have people infiltrate the staff, not the inmates. v. Jones , 895 So. ). 1-2, at 24). Plaintiffs are citizens of Alabama; Liberty Mutual is a citizen of Wisconsin and Massachusetts; and ProFire is a citizen of Florida and Georgia. (Doc. 1988) (in turn quoting Seville Indus. Servs., Inc. v. AmSouth Bank , 817 So. at 675, 129 S.Ct. , 847 F.2d 1505, 1511 (11th Cir. She was fired though so it all worked out in the end! During the warranty term, Plaintiffs repeatedly notified Liberty Mutual of "problems with their home," and Liberty Mutual represented it would engage a third-party contractor to address those problems. Furthermore, neither of Plaintiffs' alleged bases for fraud the guarantee and the agreement to requisition a third-party contractor satisfies the heightened pleading requirement. Accordingly, Plaintiffs' fraud claim against Liberty Mutual fails to satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). (See id. United States District Court, N.D. Alabama, Middle Division. (citing Mitchell , 642 So. at 678, 679, 129 S.Ct. Therefore, any breach-of-contract claim emanating from the allegations falters as well. Yet, given the undisputed fact that Liberty Mutual paid ProFire for the work rebuilding Plaintiffs' home, Plaintiffs' averment that Liberty Mutual failed to pay for the loss amounts to the contention that Liberty Mutual paid for an inadequate repair or replacement of the dwelling. 1-1, at 8 (Factual Background), 5). 2d 279 (1973) (insurer may be liable when it undertakes to procure insurance)); see also Somnus Mattress Corp. v. Hilson , 280 So. (Id. 2d 1324, 1326 (M.D. Accordingly, the court will grant Liberty Mutual's motion to dismiss Plaintiffs' breach of contract claim against it. Liberty Mutual provided coverage for the fire losses through a homeowner's insurance policy. 29, 2008) (" Rule 9(b) is a pleading requirement that must be met before discovery, and Plaintiff has failed to satisfy it.") If Liberty Mutual's alleged promise to requisition a third-party contractor amounts to an allegation of a separate contract, the Complaint does not mention any act, forbearance, detriment, etc., that Plaintiffs undertook to secure the validity of such a contract. Plaintiffs assert negligence and wantonness in Counts Two and Five of their Complaint. The plausibility standard does not equate to a "probability requirement," yet it requires more than a "mere possibility of misconduct" or factual statements that are "merely consistent with a defendant's liability." 2828, 207 L.Ed.2d 159, (U.S. June 1, 2020) (alterations in original). Holman v. Childersburg Bancorporation, Inc. , 852 So. Here, Plaintiffs did not reduce to writing Liberty Mutual's alleged guarantee to cure the workmanship of ProFire, and therefore, no valid contract exists on this basis. A state appellate court aptly summarized the legal principles and concern in this context: Dunn v. Am. at 10 (Count Four)). Palomar Ins. As an initial matter, Liberty Mutual did not violate any tort duties arising under its contract with Plaintiffs. Liberty Mutual attached a copy of Plaintiffs' homeowners' policy to the Notice of Removal. Why hasn't anything been done about her? F. Michael Haney, Robert D. McWhorter, Jr, Inzer Haney McWhorter & Haney PA, Gadsden, AL, for Plaintiffs. Assocs. 1-1, at 8 (Factual Background), 3-4). CIV.A. Steve NORMAN and Jimmie Norman, Plaintiffs v. LIBERTY MUTUAL FIRE INSURANCE COMPANY and ProFire, Defendants. (See Doc. (Doc. Mach. 31-1, at 2). There must be hundreds of grievances filled out about that bitch. Rather, it obligated Liberty Mutual to pay to repair or replace the home. The Complaint does not provide any details regarding the terms of Plaintiffs' policy with Liberty Mutual, the terms of the three-year warranty, the nature or extent of the alleged construction deficiencies, or the status of Liberty Mutual's promise to engage a third-party contractor. Thus, the court will consider the policy provisions and the language of the Completion Guarantee Certificate. (Doc. Corp. v. Guthrie , 583 So. 19-1185, U.S. , 140 S.Ct. 1937. Rule 11(b) states that when an attorney signs a written pleading, he certifies, among other things, that "the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." 3d 1328, 1344 (N.D. Ala. 2019) (quoting Durham v. Bus. ("The allegedly negligent party must owe a duty to [the] injured party to either perform an act with the applicable standard of care or to refrain from acting in a particular manner. Shaneses story definitely highlights how people with diseases will not be treated kindly in those regards and in some (maybe most) cases, the jail would rather harm the individual than help. A valid contract requires " an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract. " Jones v. The Vill. 2005) ); Harris v. Ivax Corp. , 182 F.3d 799, 802 n.2 (11th Cir. The part where they showed her demonic smirk made me want to smack the yellow off her teeth. ProFire rebuilt the home using the original foundation and other "salvaged" materials, and it issued a three-year express warranty for its work. (See Doc. 1-2, at 24). (Count Two)). Plaintiffs allegedly relied on that misrepresentation by allowing ProFire to perform the reconstruction, and they allegedly suffered damages because Defendants failed to properly perform the repairs, or properly correct the construction deficiencies, causing home defects, loss of the home's value, mental anguish, and emotional distress. (Id. 2022 www.gadsdentimes.com. (Id. (Doc. Auto. My thoughts exactly!! Fed. In the second applicable provision of the Statute of Frauds, Alabama Code 8-9-2(3) renders void "[e]very special promise to answer for the debt, default or miscarriage of another, unless it, "or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith." I remember a few years back a judge went to prison because he was getting kickbacks from a for profit juvenile detention center and they were paying him for every child he sentenced to be locked up there.
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