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Gray & Associates, Inc. v. Qbe Insurance Corporation

United States District Court, S.D. Mississippi, Northern Division

August 3, 2015

GRAY & ASSOCIATES, INC.; JUAN GRAY, INDIVIDUALLY AND ON BEHALF OF GRAY & ASSOCIATES, INC., Plaintiffs,
v.
QBE INSURANCE CORPORATION, Defendant.

ORDER

DANIEL P. JORDAN, III, District Judge.

This insurance dispute is before the Court on Defendant's Motion to Dismiss, or alternatively, Motion to Stay Proceedings and Compel Appraisal [9]. Plaintiffs opposed [14], and Defendant responded [15]. Having considered the parties' memoranda and submissions, along with the pertinent authorities, the Court finds that Defendant's Motion to Dismiss should be denied, and Defendant's Motion to Stay Proceedings should be granted in part.

I. Facts and Procedural History

This action involves a dispute over the value of an insurance claim. Plaintiff Gray & Associates, Inc. ("Gray") owns a building located at 600 West Capitol Street, Jackson, Mississippi, which Defendant QBE Insurance Corporation ("QBE") insured under a policy of insurance (the "Policy"). On December 30, 2010, Gray filed a claim under the Policy for losses related to alleged vandalism and theft. The parties were unable to agree on the loss amount.

According to QBE, the Policy contained an appraisal provision as a precondition to filing suit. The provision purportedly read as follows:

2. Appraisal

If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agree to by any two will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraiser and umpire equally.

Def.'s Mot. [9] Ex. 1 at 24. QBE contends that Gray never responded to QBE's letters invoking this provision and instead filed suit in the Circuit Court of Hinds County, Mississippi. Def.'s Mem. [10] at 3.

After removing the case to this Court, QBE filed the instant motion seeking dismissal for two reasons. Def.'s Mot. [9]. First, QBE argues that Gray's claims are time barred. Def.'s Mem. [10] at 4. Next, QBE asserts that the Policy's appraisal provision bars Gray's claims or alternatively requires a stay while Gray complies. Def.'s Mem. [10] at 5. The issues have been briefed, and the Court has personal and subject-matter jurisdiction.

II. Analysis

A. Rule 12(b)(6) Standard

Though QBE never indicates which rule of procedure it invokes, the Court construes its motion under Federal Rule of Civil Procedure 12(b)(6) as Defendant seeks dismissal and not summary judgment. Under Rule 12(b)(6), the "court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). To overcome a Rule 12(b)(6) motion, Plaintiff ...


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