Applin v. Consumers Life Ins. Co. of North Carolina
Decision Date | 30 June 1993 |
Citation | 623 So.2d 1094 |
Parties | Albert APPLIN v. CONSUMERS LIFE INSURANCE COMPANY OF NORTH CAROLINA, et al. 1911478. |
Court | Alabama Supreme Court |
Michael K. Wright of Starnes & Atchison, Birmingham, for Consumers Life Ins. Co. of North Carolina.
J.F. Janecky and Susan L. Gunnells of Barker & Janecky, P.C., Mobile, for Sturdivant Life Ins. Co.
M. Lloyd Roebuck of Kilborn & Roebuck, Mobile, for Hamp Griffin Subaru, Inc.
Albert Applin appeals from the dismissal of his fraud complaint against Consumers Life Insurance Company of North Carolina, Sturdivant Life Insurance Company, and Hamp Griffin Subaru, Inc. The issue is whether the trial court erred in dismissing the complaint for failure to state a claim, Rule 12(b)(6), Ala.R.Civ.P. Applin's complaint, filed on April 2, 1992, reads in its entirety:
All three defendants moved to dismiss Applin's complaint for failure to state a claim on which relief can be granted. See Rule 12(b)(6), Ala.R.Civ.P.
The standard of review of a Rule 12(b)(6) motion is as follows:
Grant v. Butler, 590 So.2d 254, 255 (Ala.1991) (quoting Greene County Bd. of Educ. v. Bailey, 586 So.2d 893 (Ala.1991)); see also Pearce v. Schrimsher, 583 So.2d 253 (Ala.1991); Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985).
This standard must be applied in the context of the requirement of fair notice to the defendant of the claim against him:
Simpson v. Jones, 460 So.2d 1282, 1285 (Ala.1984) (citations omitted); Archie v. Enterprise Hosp. & Nursing Home, 508 So.2d 693 (Ala.1987); State Farm Fire & Cas. Co. v. Fincher, 454 So.2d 936 (Ala.1984); Caron v. Teagle, 345 So.2d 1331 (Ala.1977).
Rule 9(b), Ala.R.Civ.P., requires that, when alleging a claim of fraud, the plaintiff must state the circumstances constituting fraud with particularity. These circumstances include the time, the place, and the contents or substance of the misrepresentations, the facts misrepresented, and an identification of what has been obtained. Miller v. Mobile County Bd. of Health, 409 So.2d 420, 422 (Ala.1982); Kabel v. Brady, 519 So.2d 912 (Ala.1987); State Farm Fire & Cas. Ins. Co. v. Lynn, 516 So.2d 1373 (Ala.1987); Robinson v. Allstate Ins. Co., 399 So.2d 288 (Ala.1981); see also Committee Comments to Rule 9(b), Ala.R.Civ.P. Thus, while Rule 9(b) does not require that every element be stated with particularity, the plaintiff must use more than generalized or conclusory statements in setting out the alleged fraud. Robinson, 399 So.2d at 289-90. The primary purpose of this special pleading provision is to give fair notice of the alleged fraud to the opposing party. Kabel, 519 So.2d at 916; Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979); Caron v. Teagle, 345 So.2d 1331 (Ala.1977).
The elements of a claim of fraudulent misrepresentation are (1) a misrepresentation of a material fact (2) made either innocently, or willfully to deceive, or recklessly without knowledge, (3) which under the circumstances was justifiably relied upon by the plaintiff and (4) which caused injury as a proximate consequence. § 6-5-101, Alabama Code 1975; Harris v. M & S Toyota, Inc., 575 So.2d 74 (Ala.1991); Ramsay Health Care, Inc. v. Follmer, 560 So.2d 746 (Ala.1990). The elements of a claim of fraudulent suppression of material fact are: (1) the suppression of a material fact (2) that the defendant was under a duty to communicate (3) because of the confidential relationship between the parties or the circumstances of the case and (4) which caused injury as a proximate consequence. § 6-5-102, Alabama Code 1975; Crowder v. Memory Hills Gardens, Inc., 516 So.2d 602, 604 (Ala.1987).
Reading the complaint in a light most favorable to Applin, it appears that he alleges that he paid for, but did not receive, an amount of coverage equal to the balance due on the note. However, it also appears that the alleged fraud occurred, if at all, more than six years before he filed his complaint. Applin alleges generally in his second paragraph "8" that he did not discover the fraud until February 1992 and could not have discovered the fraud sooner by the exercise of reasonable diligence. However, he does not allege that he did not receive a copy of the policy or of the financing documents; those documents would have disclosed on their face the amounts in question. Applin's failure to allege with more particularity any facts sufficient to toll the running of the statutory limitations period would be sufficient in itself to justify the dismissal. See Miller v. Mobile County Bd. of Health, 409...
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