United States District Court, S.D. Mississippi.
Carlton W. Reeves, District Judge.
ORDER GRANTING IN PART & DENYING IN PART MOTION
FOR JUDGMENT ON THE PLEADINGS
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.
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.
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
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).
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. These claims will
be DISMISSED with prejudice.
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.
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. 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. But that second chance has already come
and gone. Their fraud claim must be DISMISSED with prejudice.
Parkers' remaining claim is for conversion. That claim
requires “proof of a wrongful possession . . . or of a
wrongful detention after demand.” The Parkers have
alleged that Co- 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
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. Allstate accounts for this fact by arguing
that the Parkers “make no agency connection between
Co-Part and Allstate.”
argument is misplaced. The Parkers call Co-Part
All-state'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
further argues that, even if Co-Part was acting as
All-state'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
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
claim. Their motion to dismiss that claim is DENIED. The stay
in this case is LIFTED. Within ...