United States District Court, N.D. Mississippi, Greenville Division
SUSAN D. MARASCALO, as Executrix for the Estate of Elizabeth Ann Deloach PLAINTIFF
ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY DEFENDANT
M. BROWN UNITED STATES DISTRICT JUDGE.
insurance dispute action is before the Court on Allstate
Vehicle and Property Insurance Company's motion to
dismiss. Doc. #65.
13, 2018, Elizabeth Ann Deloach filed a complaint in the
Circuit Court of Grenada County, Mississippi, against
Allstate Vehicle and Property Insurance Company and Patrick
Thimmes regarding the denial of an insurance claim on her
cabin. Doc. #2 at 1. Allstate, invoking diversity
jurisdiction, removed the case to the United States District
Court for the Northern District of Mississippi on July 12,
2018. Doc. #1 at 2.
18, 2018, Deloach filed a motion to remand. Doc. #10. One
week later, Allstate filed a motion to dismiss the claims
against it pursuant to Federal Rules of Civil Procedure
12(b)(6) and 12(c). Doc. #13. The next day, Thimmes filed a
motion to dismiss the claims against him. Doc. #16. On
February 20, 2019, after full briefing on the motions, the
Court denied Deloach's motion to remand, severed and
remanded the claims against Thimmes as improperly joined, and
denied Thimmes' motion to dismiss without prejudice. Doc.
#29. Deloach moved for reconsideration of the February 20
order, which the Court denied. Docs. #33, #39.
March 29, 2019, the Court granted Allstate's motion to
dismiss but allowed Deloach fourteen days to seek leave to
amend her complaint. Doc. #40 at 9. Deloach passed away the
same day the Court granted the motion to dismiss.
See Doc. #43. Ultimately, Susan D. Marascalo, the
executrix of Deloach's estate, was substituted as the
plaintiff in this case. Doc. #49. Marascalo, with leave of
the Court, filed an amended complaint on August 8,
2019. Doc. #61. Allstate answered the amended
complaint, Doc. #64, and then filed a motion to dismiss
certain counts, Doc. #65. The motion to dismiss is fully
briefed. Docs. #70, #74.
Allstate's motion was filed as a Rule 12(b)(6) motion to
dismiss, the document was filed after Allstate's answer
and, therefore, is properly construed as a motion for
judgment on the pleadings. Jones v. Greninger, 188
F.3d 322, 324 (5th Cir. 1999). Regardless, a motion to
dismiss for failure to state a claim and a motion for
judgment on the pleadings are assessed under the same
standard. Waller v. Hanlon, 922 F.3d 590, 599 (5th
Cir. 2019). With both, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Id.
(quotation marks omitted).
of 2016, Elizabeth Ann Deloach contacted Patrick Thimmes, an
Allstate insurance agent, in order to purchase
“insurance against loss on a cabin and its contents
located on her farm property in Tallahatchie County,
Mississippi.” Doc. #61 at ¶ 5. Thimmes procured
for Deloach Allstate insurance policy number 810 476 435.
policy included two categories of protection: (1)
“Dwelling Protection, ” also known as
“Coverage A;” (2) “Other Structures
Protection, ” also known as “Coverage B;”
and (3) “Personal Property Protection, ” also
known as “Coverage C.” Doc. #61 at PageID #632,
#638. Coverage A provided protection for “[y]our
dwelling, including attached structures.” Id.
at PageID #632. Coverage B covered “[s]tructures at the
address … separated from your dwelling by clear
space.” Id. Coverage C covered
“[p]ersonal property owned or used by an Insured person
anywhere in the world” but limited the coverage to 10%
when such policy “is located away from the residence
premises.” Id. at PageID #638.
policy defined “You or your” as the Named
Insured, which in this case was Deloach, and
“Dwelling” as “the single-family building
structure, identified as the insured property … where
you reside and which is principally used as a private
residence.” Id. at PageID ## 629-30.
did not reside at the cabin. Id. at ¶ 6. At the
time Deloach purchased the policy, Carl Marascalo, her former
son-in-law, resided at the cabin. Id. The fact of
Carl's residence at the cabin was known by both Thimmes
and an Allstate appraiser who visited the property.
few days prior to August 15, 2016, ” Carl moved the
cabin from Deloach's property and destroyed the
foundation and piers upon which the cabin previously rested.
Id. at ¶ 7. Deloach reported the theft to the
police and the loss to Allstate on or about August 16, 2016.
Id. at ¶ 8. According to the amended complaint,
“Allstate negligently and intentionally procrastinated
in … consideration of [the] claim.” Id.
at ¶ 9. While Allstate initially construed the claim as
only for loss of the foundation, on February 22, 2017,
Deloach's counsel “clarified in writing that the
demand was for the full loss of the cabin … in
addition to contents coverage.” Id. Throughout
the claims process, Allstate continued to draft Deloach's
account for coverage of the property. Id. at ¶
April 14, 2017, Allstate advised Deloach that the policy
would be cancelled on May 25, 2017, due to “a
substantial change or increase in hazard in the risk …
originally accepted ….” Id. at ¶
11. Approximately a month later, on May 17, 2017, Allstate
denied Deloach's claim because the loss under the policy
was not sudden and accidental and because she did not reside
at the property. Id. at ¶ 12. Sometime later,
Allstate attempted to collect payment under the cancelled
contract. Id. at ¶ 13.