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Marascalo v. Allstate Vehicle and Property Insurance Co.

United States District Court, N.D. Mississippi, Greenville Division

January 3, 2020

SUSAN D. MARASCALO, as Executrix for the Estate of Elizabeth Ann Deloach PLAINTIFF



         This insurance dispute action is before the Court on Allstate Vehicle and Property Insurance Company's motion to dismiss. Doc. #65.


         Procedural History

         On June 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.

         On July 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.

         On 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.[1] 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.



         Although 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).


         Factual Allegations

         In June 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. Id.

         The 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.

         The 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.

         Deloach 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. Id.

         “[A] 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 ¶ 10.

         On 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.



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