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McAfee v. Allstate Insurance Co.

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

September 29, 2019

KIMBERLY MCAFEE PLAINTIFF
v.
ALLSTATE INSURANCE COMPANY et al DEFENDANTS

          ORDER REGARDING MOTION TO STRIKE

          HENRY T. WINGATE UNITED STATES DISTRICT COURT JUDGE.

         BEFORE THIS COURT is plaintiff’s Motion to Strike Affirmative Defenses of Allstate Property and Casualty Insurance Company [Docket no. 16]. Plaintiff’s Motion to Strike Affirmative Defenses of Allstate Property and Casualty Insurance Company is filed pursuant to Rule 12(f)[1] of the Federal Rules of Civil Procedure. Plaintiff herein is Kimberly McAfee. Defendant Allstate is Allstate Property and Casualty Insurance Company not Allstate Insurance Company – also a named defendant in this lawsuit. Defendant Allstate opposes the motion.

         A house owned by the plaintiff located in Meridian, Mississippi, which was insured by Allstate sustained fire damage on June 1, 2017. After the conclusion of its investigation, Allstate denied the claim allegedly because (1) the plaintiff made material misrepresentations during the investigation of the claim; (2) the plaintiff breached the insuring agreement of the insurance policy by failing to notify Allstate that she had moved out of the house and had begun renting the home to tenants; (3) the plaintiff failed to produce documents requested by Allstate during the investigation; and (4) the plaintiff did not reside in the home, and residency in the house is a prerequisite to coverage under the Allstate policy.

         Plaintiff filed suit in Lauderdale County Circuit Court, and the case was properly removed to this Court. After removal, Allstate filed an Answer and Affirmative Defenses [Doc. 3] on May 16, 2018, along with a Motion to Dismiss Certain Counts of the Complaint [Doc. 6].

         On May 24, 2018, the plaintiff filed a Motion to Strike the Affirmative Defenses of Allstate [Doc. 16]. Plaintiff moved to strike Allstate’s First, Second, Third, Fifth Sixth, Seventh, Eighth, Nineteenth, and Twentieth Affirmative Defenses. These defense are set out below: First defense – that plaintiff failed to cooperate in the fire investigation; Second defense – that plaintiff made material misrepresentations and/or concealed pertinent matters; Third defense – estoppel and waiver; Fifth defense – unclean hands; Sixth defense – that defendant intends to rely on other affirmative defenses that are as yet undiscovered; Seventh defense – that plaintiff failed to comply with the terms of the subject insurance policy; Eighth defense – that plaintiff’s concealment and misrepresentations hindered defendant’s investigation of the fire; Nineteenth defense – that there is no coverage under the subject insurance policy; and Twentieth defense – that plaintiff failed to cooperate in the fire investigation and, therefore, there is no coverage under the insurance policy. Plaintiff contends that these defenses fail to comply with pleading standards under Rule 8[2] of the Federal Rules of Civil Procedure and Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Plaintiff adds that these defenses, namely, the First, Second, Third, Fifth Sixth, Seventh, Eighth, Nineteenth, and Twentieth Affirmative Defenses should be stricken because Allstate failed to plead the requisite “independent facts” to support its defenses. Plaintiff says Allstate’s Third, Fifth, and Sixth Affirmative Defenses should be stricken pursuant to Rule 8(c) because each constitutes a broad, vague defense which is not pled with sufficient particularity to provide plaintiff with “fair notice” of the defenses being advanced or the basis for each defense.

         Although Allstate characterizes plaintiff’s motion as without merit, in an abundance of precaution, Allstate says it filed an Amended Answer and Affirmative Defenses [Docket no. 21] on June 1, 2018. Allstate’s Amended Answer, says Allstate, provides substantial details regarding the affirmative defenses, including an over two (2) page summary of the misrepresentations made by the plaintiff during the investigation of the claim. As noted in the affirmative defense, some of these misrepresentations were made as part of the plaintiff’s sworn testimony during an examination under oath.

         This court notes that plaintiff has not filed a supplemental motion to strike, since Allstate filed its Amended Answer and, therefore, has not addressed the supplement to the affirmative defenses. Accordingly, this court denies plaintiff’s motion to strike as moot.

         IT IS, THEREFORE, ORDERED that plaintiff’s Motion to Strike Affirmative Defenses of Allstate Property and Casualty Insurance Company [Docket no. 16] is MOOT and DENIED AS SUCH.

         SO ORDERED.

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Notes:

[1] (f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being ...

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