Sabbah v. Nationwide Mut. Ins. Co., Case No.: 2:15–CV–1772–VEH

Decision Date11 May 2017
Docket NumberCase No.: 2:15–CV–1772–VEH
Parties Ibrahim SABBAH, and Sabbah Brothers Enterprises, Inc., doing business as 14th Street BP, Plaintiffs, v. NATIONWIDE MUTUAL INSURANCE COMPANY and Nationwide Mutual Fire Insurance Company, Defendants.
CourtU.S. District Court — Northern District of Alabama

Keith T. Belt, Jr., Robert P. Bruner, Steven D. Barnett, Wayne A. Duke, Jr., Belt & Bruner P.C., Birmingham, AL, for Plaintiffs.

Philip W. Savrin, Freeman Mathis & Gary LLP, Atlanta, GA, Taryn Ely Hodinka, Jeffrey M. Grantham, Joshua B. Baker, Thomas J. Butler, Maynard Cooper & Gale PC, Birmingham, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

VIRGINIA EMERSON HOPKINS, United States District Judge

I. INTRODUCTION

This is a civil action filed by the Plaintiffs, Ibrahim Sabbah ("Sabbah"), and Sabbah Brothers Enterprises, Inc. d/b/a 14th Street BP ("SBE"), against the Defendants, Nationwide Mutual Fire Insurance Company ("NMFIC") and Nationwide Mutual Insurance Company ("NMIC"). (Doc. 47). The 113 page Second Amended Complaint was filed on September 7, 2016. The following counts for relief are alleged therein: negligent/wanton failure to settle by NMFIC (Count One); negligent/wanton failure to settle by NMIC (Counts Two and Three); bad faith failure to properly investigate, defend, and settle by NMFIC (Count Four); bad faith failure to properly investigate, defend, and settle by NMIC (Counts Five and Six); bad faith failure to indemnify by NMFIC (Count Seven); bad faith failure to indemnify by NMIC (Counts Eight and Nine); breach of the enhanced duty and obligation of good faith by NMFIC (Count Ten); breach of the enhanced duty and obligation of good faith by NMIC (Count Eleven); breach of contract by NMFIC (Count Twelve); breach of contract by NMIC (Count Thirteen); declaratory judgment against NMFIC (Count Fourteen); and declaratory judgment against NMIC (Count Fifteen). All counts arise out of judgments obtained against Sabbah and SBE in four underlying lawsuits, and the instant Defendants' refusal to indemnify SBE and Sabbah as to those judgments.

The case comes before the Court on the Defendants' Motion To Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 50). For the reasons stated herein the Motion To Dismiss will be GRANTED in part and DENIED in part .

II. STANDARD

Generally, the Federal Rules of Civil Procedure require only that the complaint provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). However, to survive a motion to dismiss brought under Rule 12(b)(6), a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (" Twombly ").

A claim has facial plausibility "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ) (" Iqbal "). That is, the complaint must include enough facts "to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation and footnote omitted). Pleadings that contain nothing more than "a formulaic recitation of the elements of a cause of action" do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon "labels or conclusions" or "naked assertion[s]" without supporting factual allegations. Id. at 555, 557, 127 S.Ct. 1955 (citation omitted).

Once a claim has been stated adequately, however, "it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563, 127 S.Ct. 1955 (citation omitted). Further, when ruling on a motion to dismiss, a court must "take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff." Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008) (citing Glover v. Liggett Group, Inc. , 459 F.3d 1304, 1308 (11th Cir. 2006) ).

III. FACTUAL ALLEGATIONS IN THE SECOND AMENDED COMPLAINT

The Second Amended Complaint contains the following factual allegations:

A. The Insurance Policies
7. On or about April 5, 2007, SBE purchased and/or renewed a business owners liability insurance policy (Policy No. 77–BO–762–940–3001) (hereinafter the "NMIC Policy") issued by NMIC . (see Exhibit A1 ). On the same date, SBE purchased and/or renewed a commercial general liability insurance policy with liquor law liability coverage (Policy No. 77 PR 762–940–3007) (hereinafter the "NMFIC Policy") issued by NMFIC . (see Exhibit B2 ). The policy period for both policies was April 5, 2007 to April 5, 2008.
8. The [NMIC] Policy listed SABBAH BROTHERS ENTERPRISES INC . as the named insured and the NMFIC Policy listed SABBAH BROTHERS ENTERPRISES INC., d/b/a 14TH STREET BP as the named insured. (Ex. A, p.1; Ex. B, p.1). Both policies describe SBE 's business as convenience store. The NMFIC Policy lists 14TH STREET BP as the name of the covered convenience store and both policies list the covered address as "600 14th Street, Bessemer, Alabama, 35023."3
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10. The NMFIC Policy provided liquor liability coverage in the sum of $1,000,000 for each occurrence and $1,000,000 in the aggregate. The NMFIC Policy will pay for "bodily injury" caused by "the selling, serving or furnishing of any alcoholic beverage" at "premises you own , rent or occupy."4
11. The NMIC Policy provided business owners liability coverage in the sum of $1,000,000 for each occurrence and $2,000,000 in the aggregate. The NMIC Policy will pay for "bodily injury" caused by "an occurrence" and "personal injury" caused by an offense arising out of your business, that takes place in the "coverage territory" and during the policy period. The NMIC Policy defines an occurrence as an accident, and the coverage territory as the United States.
12. At all relevant times, the premises of the 14TH STREET BP were owned by SBE and the store was operated pursuant to a lease between SBE (lessor) and Nineteenth Street5 (lessee). SBE is a related entity to Nineteenth Street. SABBAH is employee, owner, sole shareholder, officer, and director of SBE and SBE is the sole shareholder of Nineteenth Street. SABBAH is also an officer and director of Nineteenth Street.
B. The Underlying Accident and Litigation
13. On or about May 2, 2007, an automobile accident occurred in which three teens were severely and permanently injured and another died. Those teens alleged that the accident was caused by alcohol consumption and that the employee at the 14TH STREET BP located at 600 14th Street, Bessemer had illegally sold alcohol to intoxicated minors.
14. Through various pleadings and amendments, claims were brought against Nineteenth Street, SBE , 14TH STREET BP and SABBAH by the injured parties in the following Alabama state court civil actions, in the Circuit Court for Jefferson County, Bessemer Division:
(a) Sharon Robertson, et al. v. Brittany Caffee, et al. , 68–CV–2007–000633. (Plaintiff represented by Pat Lavette of Davenport Lavette and Cleckler)
(b) Tammy Hardin, Mother of Brittany Caffee v. Nineteenth Street Investments , CV–2007–000633. (Plaintiff represented by Don McKenna and Ashley Peinhardt of Hare Wynn Newell & Newton)
(c) Susan Green, et al. [Jennifer Vickery] v. Brittany Caffee , et al., CV–2007–000783. (Plaintiff represented by Ralph Bohanan of Bohanan and Associates)
(d) Tisha Owens and Bobby Waldrop [Michael Waldrop] v. Brittany Caffee, et al. , CV–2007–00797. (Plaintiff represented by Edward Tumlin, Esq.)
15. The state court lawsuits alleged that Nineteenth Street, SBE , 14TH STREET BP , and SABBAH were responsible for the deaths and injuries of the minors pursuant to Alabama's "Dram Shop" laws. The basic allegation by the "dram shop Plaintiffs" (hereinafter collectively referred to as the "Claimants") was that Nineteenth Street illegally sold alcoholic beverages to Brittany Caffee, a minor, from its "14th Street BP" convenience store in Bessemer, Alabama. Claimants alleged that Caffee became intoxicated as a consequence of these illegal sales and that she later crashed the vehicle she was driving, killing one passenger and injuring the others. Additionally, each of the lawsuits alleged that SBE , 14TH STREET BP , and SABBAH were liable for any judgment rendered against Nineteenth on equitable veil-piercing and/or alter-ego grounds. Claimants made claims that SABBAH was "an officer, director, and shareholder" of SBE .
C. The Claim Management, Handling, and Adjusting
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17. SBE d/b/a 14TH STREET BP , SABBAH , and Nineteenth Street requested that NMFIC and NMIC provide it defense and indemnity for each of the above lawsuits under the terms of the Policies....
18. While NMFIC issued the NMFIC Policy to SBE d/b/a 14TH STREET BP , on information and belief, NMFIC and/or NMIC handled all aspects of managing, handling, and adjusting the claim. The correspondence regarding the claims were sent from employees of Nationwide on behalf of both NMFIC and NMIC . On information and belief, NMFIC is the alter-ego of NMIC in that NMIC , at all relevant times, exercised total dominion and control over NMFICand NMIC voluntarily undertook the management, handling, and adjusting of claims against the NMFIC Policy. On information and belief, NMIC voluntarily undertook certain duties to be performed by NMFIC and NMIC acted on behalf of NMFIC to perform the services related to the management, handling, and adjusting of claims against the NMFIC Policy. Also, during the course of the underlying litigation, employees and agents of NMFIC acted on behalf of NMIC to perform the services related to the management, handling, and adjusting of claims against the NMIC Policy.
19. During the course of the litigation, defense counsel on the underlying claims against SBE , 14TH STREET
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