Phila. Indem. Ins. Co. v. We Pebble Point
| Decision Date | 03 September 2014 |
| Docket Number | No. 1:13–cv–01453–SEB–DML.,1:13–cv–01453–SEB–DML. |
| Parties | PHILADELPHIA INDEMNITY INSURANCE COMPANY, Plaintiff, v. WE PEBBLE POINT, Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
John Patrick Schomaker, Smith Rolfes & Skavdahl Co, L.P.A., Cincinnati, OH, for Plaintiff.
Eric S. Pavlack, Pavlack Law LLC, Indianapolis, IN, Phillip N. Sanov, Merlin Law Group, P.A., Houston, TX, for Defendant.
ORDER ON DEFENDANT'S MOTION TO DISMISS
This cause is before the Court on Defendant WE Pebble Point, LLC's Motion to Dismiss, or in the Alternative, to Stay Proceedings [Docket No. 8], filed on November 11, 2013. For the reasons set forth below, the motion is GRANTED.
Plaintiff Philadelphia Indemnity Insurance Company (“PIIC”) is, as suggested by its name, an insurance company headquartered in Pennsylvania. Compl. ¶ 1. Defendant, WE Pebble Point, LLC (“Pebble Point”), is the owner and operator of the Pebble Point apartment complex located at 3030 Pebble Point Drive in Indianapolis, Indiana. Id. at ¶ 2. PIIC issued Pebble Point a first-party property insurance policy (“the policy”) for the Pebble Point complex for the period November 22, 2011 to November 22, 2012, with the policy number PHPK795919. Id. at ¶ 6.1
The policy states that PIIC will pay for any damage caused by “covered causes of loss,” which include “windstorm or hail” and “water damage.” Pl.'s Resp. 6 (citing Pl.'s Exs. 1, 2). The policy also specifically excludes from the covered causes of loss any loss caused by “wear and tear” or “rust, corrosion, fungus, decay, deterioration, spoilage, contamination, hidden or latent defect or any quality in property that causes it to damage or destroy itself.” It further recites that coverage does not extend to loss caused by inadequate or defective: “design, specification, workmanship, repair, construction, renovation, remodeling, grading, compaction ... [or] maintenance.” Pl.'s Resp. 5.
The policy also contains an “appraisal clause,” which specifies as follows:
Compl. ¶ 20; Pl.'s Ex. 1.
On December 2, 2012, Pebble Point submitted a claim under the policy for roof damage to the complex. According to Pebble Point's claim, the roof had suffered extensive damage on October 29, 2012, when the remnants of Hurricane Sandy passed through Indianapolis, bringing with them high winds. Id. at ¶¶ 7–8. Inspectors from PIIC's contractor, Cunningham Lindsey, and Pebble Point's contractor, Echo Construction, conducted an initial inspection of the damaged roofs on February 13, 2013. Pl.'s Resp. 3. PIIC then hired the Rimkus Consulting Group (“Rimkus”) to conduct a further inspection. Rimkus opined that there had not, in fact, been a high wind event in Indianapolis on October 29, 2012—instead, it found that the most recent such wind event occurred on December 20, 2012, after Pebble Point had filed its claim but before inspection by the insurer.2 Id. On inspecting the apartment complex's roofs, Rimkus found localized damage to shingles on various roofs throughout the complex, and extensive damage only to the west-facing roof of one building.Id. In the report Rimkus submitted, it further opined that the majority of the damage was the result not of the storm, but construction defects like “racked installation,” “improper nail placement,” “long term deterioration,” or other non-wind-related causes. Pl.'s Ex. C (Rimkus report). Based on the Rimkus report, PIIC obtained a damage estimate from another contractor, who calculated that the repair of the damage identified by Rimkus as storm-related would cost $16,288.56. Def.'s Br. 4. PIIC then paid Pebble Point that sum, less a $10,000 deductible. Pl.'s Resp. 4.
Pebble Point challenged Rimkus's conclusions and demanded appraisal under the contract on May 21, 2013. Compl. ¶ 23. In response, PIIC hired a second engineering firm, PT & C Forensic Consulting Services (“PT & C”), who inspected the apartment complex in July 2013. Engineer Kevin Maxwell, who had inspected on behalf of PT & C, filed a report on August 19, 2013; PIIC characterizes the second report as “generally consistent” with the first one produced by Rimkus. See Compl. ¶ 25; Pl.'s Ex. D (PT & C report). The report, unlike that produced by Rimkus, attributed some of the roof damage to Hurricane Sandy occurring on October 29, 2012 rather than a later high-wind event. PT & C found that approximately 130 shingles and a “ridge vent” were damaged on October 29, 2012, but it opined that the larger part of the roof damage was “the result of long-term degradation of the sealant strips, improper installation, improper storage of the shingle prior to installation, and/or manufacturing defects.” Pl's Ex. D. When provided the PT & C report, Pebble Point again rejected its conclusions and renewed its demand for appraisal. See Def.'s Ex. 8.
PIIC continued to maintain that appraisal was not warranted, prompting it to file this suit on September 12, 2013, seeking a judicial declaration that the amount it had paid to Pebble Point discharged its obligation under the policy. PIIC sent Pebble Point a letter the next day informing it of the suit and explaining that PIIC did “not believe that this is a claim where appraisal is warranted.” Pl.'s Resp. 9 (citing Def.'s Ex. 9).
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of claims for “failure to state a claim upon which relief may be granted.” Fed.R.Civ.P. 12(b)(6). In determining the sufficiency of a claim, the court considers all allegations in the complaint to be true and draws such reasonable inferences as required in the plaintiff's favor. Jacobs v. City of Chi., 215 F.3d 758, 765 (7th Cir.2000). Federal Rules of Civil Procedure 8(a) applies, with several enumerated exceptions, to all civil claims, and it establishes a liberal pleading regime in which a plaintiff must provide only a “short and plain statement of the claim showing that [he] is entitled to relief,” Fed. R. Civ. Pro. 8(a)(2) ; this reflects the modern policy judgment that claims should be “determined on their merits rather than through missteps in pleading.”
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 779 (7th Cir.2007) (citing 2 James W. Moore, et al., Moore's Federal Practice § 8.04 (3d ed.2006)). A pleading satisfies the core requirement of fairness to the defendant so long as it provides “enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir.2008).
In its decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the United States Supreme Court introduced a more stringent formulation of the pleading requirements under Rule 8. In addition to providing fair notice to a defendant, the Court clarified that a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). Plausibility requires more than labels and conclusions, and a “formulaic recitation of the elements of a cause of action will not do.” Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir.2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). Instead, the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Id. The plausibility of a complaint depends upon the context in which the allegations are situated, and turns on more than the pleadings' level of factual specificity; the same factually sparse pleading could be fantastic and unrealistic in one setting and entirely plausible in another. See In re Pressure Sensitive Labelstock Antitrust Litig., 566 F.Supp.2d 363, 370 (M.D.Pa.2008).
Although Twombly and Iqbal represent a new gloss on the standards governing the sufficiency of pleadings, they do not overturn the fundamental principle of liberality embodied in Rule 8. As this Court has noted, “notice pleading is still all that is required, and ‘a plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests, and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief.’ ” United States v. City of Evansville, 2011 WL 52467, at *1 (S.D.Ind. Jan. 8, 2011) (quoting Tamayo, 526 F.3d at 1083 ). On a motion to dismiss, “the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint.” Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir.1994).
PIIC seeks a declaratory judgment holding that, “in the absence of any affirmative evidence disputing the findings of the engineer, Philadelphia Indemnity Insurance Company has fully satisfied its obligations to the insured with respect to this claim.” Compl. ¶ F. Further, it asks us to declare that appraisal was not warranted because the parties' dispute concerns the “scope of...
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Phila. Indem. Ins. Co. v. Point
... 44 F.Supp.3d 813 PHILADELPHIA INDEMNITY INSURANCE COMPANY, Plaintiff, v. WE PEBBLE POINT, Defendant. No. 1:13–cv–01453–SEB–DML. United States District Court, S.D. Indiana, Indianapolis Division. Signed Sept. 3, 2014 ... Action dismissed without prejudice ... John Patrick Schomaker, Smith Rolfes & Skavdahl Co, L.P.A., Cincinnati, OH, for Plaintiff ... ...