IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 19-10940
MAGGIE J. ROBINSON, et al.
Plaintiffs-Appellants,
v.
LIBERTY MUTUAL INSURANCE COMPANY, et, al.
Defendants-Appellees.
On Appeal from the United States District Court
For the Northern District of Alabama Case No. 4:18-CV-1509-ACA
INITIAL BRIEF OF PLAINTIFFS-APPELLANTS
Thomas F. Campbell John R. Bowers, Jr. CAMPBELL LAW, PC 5336 Stadium Trace Parkway, Suite 206 Birmingham, AL 35244 (205) 278-6650 Counsel for Plaintiffs-Appellants
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STATEMENT OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Eleventh Circuit Rule 26.1-1, Counsel for Appellants hereby
certifies that the following persons and entities have or may have an interest in the
outcome of this case:
1. Axon, Hon. Annemarie Carney – U.S. District Judge, Northern District of
Alabama - Middle Division
2. Baker, Joshua B. – Counsel for Defendants/Appellees
3. Bowers, Jr., John R. – Counsel for Plaintiffs/Appellants
4. Campbell Law PC – Counsel for Plaintiffs/Appellants
5. Campbell, Thomas F. – Counsel for Plaintiffs/Appellants
6. Grantham, Jeffrey M. – Counsel for Defendants/Appellees
7. Hess, Joshua R. – Counsel for Defendants/Appellees
8. LMHC Massachusetts Holdings, Inc. - owns 100% of the stock of Liberty
Mutual Group, Inc.
9. Liberty Mutual Group, Inc. – Defendant/Appellee
10. Liberty Mutual Holding Company, Inc. – owns 100% of the stock of LMHC
Massachusetts Holdings, Inc.
11. Liberty Mutual Insurance Company – Defendant/Appellee
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12. Liberty Mutual Insurance Corporation – Defendant/Appellee
13. Maynard, Cooper & Gale, P.C. – Counsel for Defendants/Appellees
14. Robinson, Cody D. – Plaintiff/Appellant
15. Robinson, Maggie J. – Plaintiff/Appellant
Pursuant to 11th Circuit Rule 26.1-3(b), I hereby certify that to the best of my
knowledge, no publicly traded company or corporation has an interest in the
outcome of the case or the appeal.
/s/ John Robert Bowers, Jr. John R. Bowers, Jr.
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STATEMENT REGARDING ORAL ARGUMENT
This appeal involves the application of well-established principles of contract
interpretation, the Federal Rules of Evidence, and the Federal Rules of Civil
Procedure. Therefore, oral argument is unnecessary to aid in the Court’s decision.
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TABLE OF CONTENTS
STATEMENT OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT …………………………………….....…………… i
STATEMENT REGARDING ORAL ARGUMENT ……………....……………. ii
TABLE OF CONTENTS ……………………………………………...………… iii
TABLE OF AUTHORITIES …………………………………………....………...iv
JURISDICTIONAL STATEMENT ……………………………………...………..1
STATEMENT OF ISSUES ON APPEAL ………………………………...……....1
STATEMENT OF THE CASE ………………………………………………...….2
I. COURSE OF PROCEEDINGS AND DISPOSTION BELOW...........2
II. STATEMENT OF FACTS...................................................................2
III. STANDARD OF REVIEW..................................................................8
SUMMARY OF ARGUMENT ……………………………………………………9 ARGUMENT ……………………………………………………………………..11
I. The District Court erred by taking judicial of an adjudicative fact that was subject to reasonable dispute without affording the Plaintiffs an opportunity to be heard pursuant to Rule 201 (e) of the Federal Rules of Evidence............................................................11
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II. The District Court erred in granting the Defendants’ Fed. R. Civ.
P. 12 (b)(6) Motion to Dismiss based on findings that are inconsistent with the factual allegations in the Plaintiffs’ Complaint which the Court must accept as true and construe in the light most favorable to the Plaintiff…………...........…………….24
III. The District Court misapplied the standards for granting a Fed.
R. Civ. P. 12 (b)(6) Motion to Dismiss…...……………………..........27
CONCLUSION …………………………………………………………………...29
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a) ………….....30
CERTIFICATE OF SERVICE …………………………………………………...30
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TABLE OF AUTHORITIES Cases Absolute Activist Value Master Fund Limited v. Devine, 223 F. Supp. 3d 1297 (M.D. Fla 2017)……...……………….………………..15 Ashcroft v. Iqbal, 556 U.S. 662 (2009)……………………………………………………………25 Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007) ......………………………………………………25, 27, 28 Beck v. Deloitte & Touche, 144 F.3d 732 (11th Cir. 1998)…………………….....…………………………..8 Brown v. Piper, 91 U.S. 37 (1875)……………………………………………………………...15 Butler v. Sheriff of Palm Beach City.,
685 F.3d 1261, 1265 (11th Cir. 2012)................................................................25 Castillo v. Allegro Resort Marketing,
603 F. App’x. 913, 915 (11th Cir. 2015)............................................................28 Cullman Broadcasting Co., Inc. v. Bosley, 373 So.2d 830 (Ala. 1979)……………………………....……………………..15 Federated Guaranty Life Insurance Co. v. Wilkins, 435 So.2d 10 (Ala 1983)………………………...……………………………..20 F.T.C. v. AbbVie Products, LLC,
731 F.3d 54 (11th Cir.2013)………...…………………………………………28 Funk v. Stryker Corp., 631 F.3d 777 (5th Cir. 2011)………...……………………………………..16, 17 Gregory v. Nationwide Mut. Ins. Co., 2012 WL 6651342 (E.D. Cal. Dec. 19, 2012)………………….......…...…19, 20
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Hoefling v. City of Miami, 811 F.3d 1271 (11th Cir. 2016)...........................................................................26
Hoffman-Pugh v. Ramsey, 312 F.3d 1222 (11th Cir. 2002)………………..………………………….……..8 Jove Eng’g, Inc. v. IRS, 92 F.3d 1539 (11th Cir. 1996)………………………………………………….28 McDonald v. U.S. Die Casting & Dev. Co., 585 So. 2d 853 (Ala. 1991)……………………………………………………13 National Savings Life Insurance Co. v. Dutton, 419 So.2d 1357 (Ala. 1982)…...……………………………………………19, 20 North British & Mercantile Insurance Company v. Mercer, 211 Ga. 161; 84 S.E.2d 570 (Ga. 1954)………….......……………………..22, 23 Porterfield v. Audubon Indemnity Co., 856 So. 2d 789 (Ala. 2002)…………………………………………………….12
Shahar v. Bowers, 120 F.3d 211 (11th Cir. 1997)……………….………....………………………15 Safeway Ins. Co. of Ala., Inc. v. Herrera, 912 So.2d 1140 (Ala. 2005)……………………………………………………12 State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293 (Ala. 1999)…………………………………………………….12 Sullivan v. State Farm Mut. Auto. Ins., 513 So.2d 992 (Ala. 1987)……………………………………………………..12 Thomas v. Blue Cross & Blue Shield Ass’n, 594 F. 3d 814 (11th Cir. 2010)….......………………………………………….27 United States v. Chapman, 692 F. App’x 583 (11th Cir. 2017) …………………………………………….16
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United States v. Jones, 29 F.3d 1549 (11th Cir. 1994)………………………………………………….14 Westwind Technologies, Inc. v. Jones, 925 So.2d 166 (Ala. 2005)……………………………………………….…….15 Young Apartments, Inc. v. Town of Jupiter, FL, 529 F.3d 1027 (11th Cir. 2008)……………………………..…………..………8
Statutes and Legislative Materials
28 U.S.C. § 1291…………………………………………………………….……. 1
28 U.S.C. § 1332………………………………………………………………….. 1
Other Authorities
About Us, The Big I (last visited May 16, 2019), https://www.independentagent.com/AboutUS...................................................21
Action, Oxford English Dictionary (last visited Apr. 16, 2019) https://en.oxforddictionaries.com/definition/action……………………..…….18 Bill Wilson, What is a Vermin, The Big I: Virtual University
(Sept. 15, 2010), https://www.independentagent.com/vu/insurance /personallines/homeowners/property-exclusion/ wilsonvermin.aspx…..............................................................................20, 22, 23
Complaint, Robinson v. Liberty Mutual, et al.
8:18-cv-1509-ACA (2019)….....………………...……….1, 2, 3, 4, 5, 6, 7, 25, 26 Defendant’s Motion to Dismiss, Robinson v. Liberty Mutual, et al.
8:18-cv-1509-ACA (2019)………...........................................................…….1, 8 Definition of Usage Labels and Notes in English Dictionaries,
Thought Co. (last visited Apr. 16, 2019), https://www.thoughtco.com/usage-note-1692482…...........................….2, 17, 18
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Exhibit A to Complaint, Robinson v. Liberty Mutual, et al.
8:18-cv-1509-ACA (2019)…………………..…………....…………………….4 Exhibit B to Complaint, Robinson v. Liberty Mutual, et al.
8:18-cv-1509-ACA (2019)………..........…………………………....………….4 Exhibit C to Complaint, Robinson v. Liberty Mutual, et al.
8:18-cv-1509-ACA (2019)…….………………………….....………………….5 Exhibit D to Complaint, Robinson v. Liberty Mutual, et al.
8:18-cv-1509-ACA (2019)…….......…………………………....…….5, 6, 26, 27 Exhibit E to Complaint, Robinson v. Liberty Mutual, et al.
8:18-cv-1509-ACA (2019)………..........………………....…………………….7 Exhibit F to Complaint, Robinson v. Liberty Mutual, et al.
8:18-cv-1509-ACA (2019)……..........………………………………………….7 Guide to Symbols and Labels, Oxford English Dictionary
(last visited Apr. 16 2019) https://www.oxfordlearnersdictionaries.com/us/about/english/labels…............18
Insect, Collins Dictionary (last visited Apr. 16, 2019), https://www.collinsdictionary.com/us/dictionary/english/insect….…………..18 Insect, Oxford English Dictionary (last visited Apr. 16, 2019), https://en.oxforddictionaries.com/definition/insect……….…………….……..18 Insect, Your Dictionary (last visited Apr. 16, 2019) https://www.yourdictionary.com/insect……………………………………….19 Longman Dictionary of Contemporary English…………………………………...18 Memorandum Opinion, Robinson v. Liberty Mutual, et al.
8:18-cv-1509-ACA (2019)……....………………….2, 7, 8, 12, 17, 19, 25, 26, 27 Notice of Appeal, Robinson v. Liberty Mutual, et al.
8:18-cv-1509-ACA (2019)…………...….......………………………………….1
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Order Granting Defendant’s Motion to Dismiss, Robinson v. Liberty Mutual, et al. 8:18-cv-1509-ACA (2019)……….......……………………………………….1, 2
Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to Dismiss
Robinson v. Liberty Mutual, et al. 8:18-cv-1509-ACA (2019)…………………………………………………….14
Vermin, Webster's New Collegiate Dictionary (8th ed. 1974)................................23 Federal Rules & Procedures
Fed. R. Civ. P. 8(a)(2)……………………......………………………………….8, 25
Fed. R. Civ. P. 12(b)(6) ………………….....………………….1, 7, 8, 10, 24, 27, 29
Fed. R. Evid. 201…………….......……..……………………1, 7, 8, 9, 10, 13, 14, 16
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JURISDICTIONAL STATEMENT
This appeal arises from a final decision of the United States District Court for
the Northern District of Alabama, Middle Division, granting the Defendants’
Appellees’ Motion to Dismiss. (Doc. 6). The district court had jurisdiction based on
diversity of citizenship pursuant to 28 U.S.C. § 1332. This Court has appellate
jurisdiction pursuant to 28 U.S.C. § 1291. The district court entered a final judgment
granting Defendant-Appellees’ Motion to Dismiss on February 11, 2019. (Doc. 21).
A notice of appeal was timely filed on March 13, 2019. (Doc. 22).
STATEMENT OF ISSUES ON APPEAL
1. Whether the district court erred by improperly taking judicial notice of an
adjudicative fact that was subject to reasonable dispute without affording the
Plaintiffs-Appellants an opportunity to be heard pursuant to Rule 201 (e) of
the Federal Rules of Evidence.
2. Whether the District Court erred in granting the Defendants’ Fed. R. Civ. P.
12 (b)(6) Motion to Dismiss based on findings that are inconsistent with the
factual allegations in the Plaintiffs’ Complaint (Doc. 1), which the Court must
accept as true and construe in the light most favorable to the Plaintiffs.
3. Whether the district court misapplied the standards for granting a Fed. R. Civ.
P. 12 (b)(6) Motion to Dismiss.
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STATEMENT OF THE CASE
I. COURSE OF PROCEEDINGS AND DISPOSITION BELOW
On September 15, 2016, the Plaintiffs-Appellants, Maggie J. Robinson and
Judge Cody Robinson, (the “Robinsons”) submitted a homeowner’s insurance
claim with Defendant-Appellees, Liberty Mutual Company, for the loss of the
Robinsons’ home as a result of a massive brown recluse spider infestation. On
September 30, 2016, Liberty Mutual denied their claim, ostensibly based solely
on an “insect damage” exclusion. The Robinsons filed a complaint against
Liberty Mutual Insurance Company, Liberty Insurance Corporation, and Liberty
Mutual Group, Inc. (“Liberty”) in the Northern District of Alabama, Middle
Division, on September 14, 2018. (Doc. 1). On October 15, 2018, Liberty filed a
motion to dismiss all claims. (Doc. 6). The District Court granted Liberty’s
motion to dismiss on February 11, 2019. (Doc. 20 and Doc. 21). On March 13,
2019, the Robinsons filed the instant appeal.
II. STATEMENT OF FACTS
Maggie and Judge Robinson purchased their home located in Gadsden,
Alabama on March 5, 2008. (Doc. 1 at ¶ 13). After moving into their home, the
Robinsons discovered that the home was infested with a large colony of highly
venomous brown recluse spiders. (Doc. 1 at ¶ 14). In March 2013, Knox Pest
Control treated the home with both liquid chemical pesticide and powder
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pesticide in an effort to eradicate the brown recluse spider infestation, but these
treatment efforts proved unsuccessful and the brown recluse spider infestation
remained at the home. (Doc. 1 at ¶¶ 16-18). In May 2014, Knox Pest Control
treated the Robinsons’ home again with both liquid and granular pesticides in
another attempt to eradicate the brown recluse spider infestation, but again these
treatment efforts were unsuccessful in ridding the home of the brown recluse
spider infestation. (Doc. 1 at ¶ 19). Knox Pest Control made a third attempt to
eradicate the infestation in May 2015, but, again, the treatments were
unsuccessful. (Doc. 1 at ¶ 20).
The venom of the brown recluse spider contains a compound that can cause
severe human tissue damage and loss; ensuing complications from the bite of the
spider can result in the death of a child; the Robinsons’ eight-year old son and
four-year old daughter are, thus, particularly vulnerable to the bite of brown
recluse spiders; the spiders have been found in every area of the Robinsons’
home, including inside their children’s clothing and shoes, in their bathrooms and
showers, in the kitchen sink, and in light fixtures. (See Doc. 1 at ¶¶ 24-25). No
pest control company that the Robinsons spoke to would guarantee that the
spiders could be permanently eradicated, and the presence of the massive and
unassailable brown recluse spider infestation is a dangerous and irreparable
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condition that is unsafe for occupancy and has rendered the home and its contents
a total loss. (Doc. 1 at ¶¶ 26-29).
The Robinsons purchased a Liberty Mutual “LibertyGuard Deluxe
Homeowners Policy” and Liberty issued a homeowner’s insurance policy (the
“Policy”) (Doc 1-1) that insured the home for the policy period of March 1, 2014
through March 1, 2015.
The policy provides in part the following:
We insure against risk of direct loss to property described
in Coverages A and B only if that loss is a physical loss to
property. We do not insure, however, for loss:
… 2. Caused by:
… e. Any of the following:
… (7) Birds, vermin, rodents, or insects”.
(Doc. 1-1, Pg. 14).
Without any legitimate dispute, spiders are arachnids - not insects; they are
not in the insect family, and neither spiders nor arachnids are identified in any
policy exclusion. (See Doc. 1).
On March 1, 2015, Liberty issued a renewal of the Policy to the Robinsons
with a policy period of March 1, 2015 through March 1, 2016. (Doc. 1-2). On
March 1, 2016, Liberty issued a renewal of the Policy with a policy period of
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March 1, 2016 through March 1, 2017. (Doc. 1-3). The Robinsons paid annual
premiums to Liberty to have their home covered for loss. (Doc. 1 at ¶ 55).
On September 15, 2016, the Robinsons submitted a claim with Liberty
pursuant to the Policy for the loss of use of the home. (Doc. 1 at ¶ 56). On
September 16, 2016, Liberty’s claims adjuster, Thomas Curcio, told Plaintiff Cody
Robinson via telephone that the Plaintiffs’ claim would be denied under the
“insect” exclusion of the Policy; later that same day, Mr. Curcio told Cody
Robinson that his claim had been submitted to “higher review”. (Doc. 1 at ¶¶ 57-
58). On September 20, 2016, Mr. Curcio told Cody Robinson that his claim had
been sent to Liberty’s legal department and it would take two weeks to receive an
opinion concerning whether or not the “insect” exclusion in the Policy was
applicable to spiders. (Doc 1 at ¶ 59). During that same conversation, Mr. Curcio
admitted to Mr. Robinson that spiders were not insects and therefore the insect
exclusion should not apply. (See Doc. 1 at ¶ 60). On September 29, 2016, Mr.
Curcio informed Cody Robinson via telephone that the Liberty legal department
had advised him that spiders are insects and the claim would be denied. (Doc. 1 at
¶ 61).
On September 30, 2016, the Robinsons received a letter (Doc. 1-4) from
Liberty informing them the homeowner’s policy “does not afford coverage for a loss
as a result of spider infestation.” (Doc 1-4 – Pg. 2). The letter went on to state that
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the applicable policy provisions within the Policy upon which Liberty based its
denial of the Robinsons’ claim were as follows:
“SECTION I – PERILS INSURED AGAINST
COVERAGE A – DWELLING and COVERAGE B – OTHER STRUCTURES
We insure against risk of direct loss to property described in
Coverages A and B only if that loss is a physical loss to property.
We do not insure, however, for loss:
2. Caused by:
… e. Any of the following:
… (7) Birds, vermin, rodents, or insects”.
(Doc 1-4, Pg. 2) (emphasis in original).
Other than the explanation previously given that, at the time of the denial, Liberty
relied solely on the insect exclusion, Liberty provided no additional support,
justification, or explanation as to why it denied the Plaintiffs’ claim. (See Doc. 1 at
¶¶ 63-64).
Cody Robinson next attempted to contact Mr. Curcio’s supervisor, Emily
Rennert, via telephone and left a voice mail message requesting that she contact him
to discuss the denial of Plaintiffs’ claim. (See Doc. 1 at ¶ 65). On October 3, 2016,
Ms. Rennert, contacted Cody Robinson via telephone and told him “Liberty Mutual
considers spiders [to be] insects” and that this was the basis of Liberty’s denial of
the claim. (Doc. 1 at ¶ 66). During that same conversation, Ms. Rennert told Mr.
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Robinson there was nothing else to be done once a coverage issue has been addressed
by Liberty’s legal department. (Doc. 1 at ¶ 67). The next day, Mr. Robinson sent a
letter (Doc. 1-5) to Ms. Rennert requesting that Liberty reconsider its denial of their
claim; on October 6, 2016, Mr. Robinson received an email (Doc. 1-6) from Ms.
Rennert stating Liberty had reviewed the Robinsons’ request for reconsideration and
“Liberty Mutual’s coverage position remains the same.” (Doc. 1 at ¶¶ 68-69).
The Robinsons filed suit against Liberty, alleging breach of contract, bad faith
failure to pay the claim and bad faith failure to investigate the claim. Liberty moved
to dismiss all claims under Rule 12(b)(6). The district court granted Liberty’s
motion, finding as a matter of law that the Robinsons’ loss “is excluded under the
insurance Policy’s insect/vermin exclusion.” (Doc. 20 – Pg. 7). The district court
opined “if spiders are “insects” or “vermin,” then, as Liberty contends, the exclusion
applies. If spiders are not “insects” or “vermin,” then, as the Robinsons argue, the
exclusion does not apply.” (Doc 20 – Pg. 8). The district court rejected the
Robinsons’ demand for a hearing pursuant to Fed. R. Evid. 201(e) based on its
holding that Liberty had “not asked the court to take judicial notice of what is meant
by insect – or vermin – for that matter.” (Doc 20 – Pg. 9, footnote 2). The district
court found Liberty had argued in its motion to dismiss “that under the relevant rules
of contract interpretation, the court should find that the ordinary meaning of ‘insect’
and ‘vermin’ includes spiders, and therefore, the plain language of the Policy
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excludes coverage for the Robinsons’ loss. Therefore, the court need not hold an
evidentiary hearing pursuant to Rule 201(c)(2) of the Federal Rules of Evidence.”
(See Doc. 6 – Pgs. 14-17; Doc. 20 – Pg. 9, footnote 2).
In granting Liberty’s motion to dismiss the Robinsons’ breach of contract
claim, the district court took judicial notice that the terms “insect” and “vermin”
indisputably include spiders. (Doc. 20 – Pg. 12). The district court also found
because there was no breach of contract, the Robinsons’ bad faith claim failed as a
matter of law. (Doc. 20 – Pg. 13). The Robinsons do not challenge the dismissal of
their claim for bad faith.
III. STANDARD OF REVIEW
This Court reviews an order granting of a motion to dismiss with prejudice de
novo, applying the same standards the district court used. Young Apartments, Inc. v.
Town of Jupiter, FL, 529 F.3d 1027, 1037 (11th Cir. 2008) (citing Hoffman-Pugh v.
Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002)). “All of the factual allegations in the
complaint must be accepted as true and construed in the light most favorable to the
plaintiff.” Id. (citing Beck v. Deloitte & Touche, 144 F.3d 732, 735 (11th Cir. 1998)).
To survive a 12(b)(6) motion to dismiss, the complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2).
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SUMMARY OF ARGUMENT
The district court erred by taking judicial notice of an adjudicative fact that
was subject to reasonable dispute without affording the Plaintiffs an opportunity to
be heard pursuant to Rule 201 (e) of the Federal Rules of Evidence. While the district
court maintained it did not take judicial notice that spiders are insects, there is no
other way to describe its factual determination that, while subject to more than one
interpretation, the plain meaning of the word “insect” includes spiders. By looking
to and deciding what weight to give to alternative and secondary definitions from
multiple online dictionaries to determine the plain meaning of the word “insect”- the
court impermissibly took judicial notice of that disputed “fact.” By asking the court
to determine which of the various and disparate dictionary terms should be used to
interpret an ambiguous term in its policy exclusion, Liberty at least implicitly asked
the court to take judicial notice of this disputed fact. The court then took judicial
notice when it concluded, based on its reading of differing and dissimilar alternative
dictionary definitions, that spiders are insects and therefore excluded from coverage.
The court’s construction of this disputed term evinces that it ignored the primary
definition of an insect as a small arthropod animal that has six legs and generally one
or two pairs of wings and the court gave improper weight to the secondary or
informal definitions found in some, but not all, dictionaries. To be clear, not one of
the dictionary definitions cited by the Robinsons, or for that matter relied upon by
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the court in reaching its decision, included “spiders” in the primary or formal
definition of “insect.” Where, as here, a term is reasonably susceptible to two or
more constructions, and where a reasonable dispute exists, the resolution of the
ambiguity becomes a task for the jury.
The district court impermissibly failed to hold an evidentiary hearing, nor did
it give the Robinsons any other opportunity to be heard, as required by Fed. R. Evid.
201(e). This rule requires the court to afford the parties an opportunity to be heard
when judicial notice is taken. The Eleventh Circuit Court of Appeals has urged
caution when taking judicial notice of facts because the judicial notice process
bypasses the safeguards which are involved with the usual process of proving facts
by competent evidence in district court. This caution is the reason behind the
requirement for evidentiary hearings; without an opportunity to be heard, a party is
disadvantaged because judicial notice allows the opposing party to circumvent the
evidentiary rules that govern admissible evidence. The Robinsons could easily
prove, if given the opportunity, that the district court’s ruling that the ordinary
meaning of the term ‘insect’ necessarily must include spiders is incorrect and the
district court erred in reaching this conclusion without hearing specific proof
directed at the issue.
The district court also erred in granting Liberty’s Fed. R. Civ. P. 12 (b)(6)
Motion to Dismiss the Robinsons’ breach of contract claim based on findings that
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are inconsistent with the factual allegations in the Robinsons’ complaint, which the
court must accept as true and construe in the light most favorable to the Plaintiffs.
The Robinsons’ complaint contains enough factual allegations, which must be taken
as true, to raise a reasonable expectation that discovery will reveal evidence of
Liberty’s wrongdoing.
In summarily finding, as a matter of law, that a person of ordinary intelligence
would, without any reasonable dispute, understand that the meaning of “insect” must
include spiders, the district court did not take as true the allegations in the complaint
that spiders are arachnids and arachnids are not even in the same family as insects.
The court also did not accept as true the allegations in the complaint that Liberty
promotes and educates the public that spiders are arachnids and are not insects.
Again, for the purposes of this appeal, the Robinsons focus solely on the
court’s order as it relates to their claim for breach of contract; the Robinsons do not
seek to reverse the court’s order as it relates to their claim of bad faith.
ARGUMENT
I. The District Court erred by taking judicial notice of an adjudicative fact that was subject to reasonable dispute without affording the Plaintiffs an opportunity to be heard pursuant to Rule 201 (e) of the Federal Rules of Evidence.
In taking judicial notice of the “ordinary” definition for “insect,” the district
court misapplied and/or disregarded the applicable Alabama law as it relates to the
Robinsons’ claim for breach of contract. The Alabama Supreme Court has oft
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repeated the axiom that “exceptions to coverage must be interpreted as narrowly
as possible to provide the maximum coverage available." See Sullivan v. State
Farm Mut. Auto. Ins., 513 So.2d 992, 994 (Ala. 1987)(emphasis added); see also
Porterfield v. Audubon Indemnity Co., 856 So. 2d 789, 800 (Ala. 2002)(internal
citations omitted). Here, the district court did the opposite; it determined a policy
exclusion to be ambiguous and then expanded this ambiguous term as broadly as
possible to exclude coverage for a peril that the Robinsons could not reasonably
otherwise protect against.
The court correctly noted that, when an insurance policy contains a term that
is “’reasonably susceptible to two or more constructions,’” that term is ambiguous.
(Doc. 20 – Pg. 7). See Safeway Ins. Co. of Alabama v. Herrera, 912 So. 2d 1140,
1144 (Ala. 2005) (quoting State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293, 309
(Ala. 1999)). However, the court then incorrectly concluded that, because three of
five online dictionaries cited by the Robinsons included in their secondary and/or
informal definitions for “insect” the term “spider,” “the majority of the authority
cited by the Robinsons actually supports the court’s conclusion that the term ‘insect,’
in its plain and ordinary sense, includes spiders.” (Doc. 20 – Pg. 10) (emphasis
added). This reasoning, while creating an arguable basis for Liberty’s denial of the
Plaintiffs’ claim that would defeat a claim for bad faith, is inapposite when used by
the court to determine whether an ambiguous term in an insurance policy exclusion
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must be given the overtly broad interpretation maintained by the insurer to dismiss
a claim for breach of contract. In the present case, the trial judge’s decision as to
what weight to give to an alternative or secondary dictionary definition, claiming
that a single reference “majority” must, as a matter of law, swing the balance in favor
of Liberty’s expansive interpretation of an ambiguous term in a policy exclusion was
improper at this stage of the litigation. Where a term is reasonably susceptible to
two or more constructions, and “[w]here factual issues arise, the resolution of the
ambiguity becomes a task for the jury.” McDonald v. U.S. Die Casting & Dev. Co.,
585 So.2d 853 (Ala. 1991).
In the present case, because, as a simple matter of fact, spiders are not insects,
there is, at the very least, a factual dispute for a jury to decide as to what
interpretation of this exclusion the parties agreed at the time the policy was
purchased. Stated differently, if holding that spiders are insects and not arachnids is
the only construction that fairly could be read into the subject policy exclusion, then
dismissal of the plaintiffs’ claim for breach of contract would perhaps be
appropriate; however, if a reasonable person could construe that spiders are in fact
arachnids and, thus, not insects, then dismissal of the plaintiffs’ claim for breach of
contract was inappropriate.
It should be noted that the Robinsons demanded an evidentiary hearing
pursuant to Fed. R. Evid. 201(e) in their response in opposition to Liberty’s motion
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to dismiss to the extent Liberty’s motion to dismiss invoked Fed. R. Evid.
201(c)(2)’s authority to request that the district court take judicial notice of what is
meant by “insect” in the policy exclusion and further to determine “whether the
requested judicial notice is within the discretion of the Court.” (Doc. 16 – Pg. 2).
Even though Liberty did not specifically cite Fed. R. Evid. 201(c) in their motion to
dismiss, they nevertheless asked the district court to take judicial notice by asking it
to disregard the fact that spiders are not insects and to determine instead that the
“plain meaning” of insect should be not be read narrowly, but should be expanded
to include spiders.
Fed. R. Evid. 201(b)(emphasis added) provides that [a] judicially noticed
fact must be one not subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.”
In order for a fact to be judicially noticed under Rule 201(b), indisputability is a prerequisite. 21 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5104 at 485 (1977 & Supp.1994). Since the effect of taking judicial notice under Rule 201 is to preclude a party from introducing contrary evidence and in effect, directing a verdict against him as to the fact noticed, the fact must be one that only an unreasonable person would insist on disputing. Id.
United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994)(emphasis added).
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Can it be said that it is indisputable that spiders are insects, when they are not?
Would only an unreasonable person dispute that spiders, which are arachnids, are
not insects?
This Court “has urged caution when taking judicial notice of facts because the
judicial notice process ‘bypasses the safeguards which are involved with the
usual process of proving facts by competent evidence in district court.’”
Absolute Activist Value Master Fund Limited v. Devine, 233 F.Supp.3d 1297, 1319
(M.D. Fla. 2017)(emphasis added)(citing Shahar v. Bowers, 120 F.3d 211, 214 (11th
Cir. 1997). Likewise, the Supreme Court of the United States found the “power [to
take judicial notice] is to be exercised by courts with caution. Care must be taken
that the requisite notoriety exists. Every reasonable doubt upon the subject
should be resolved promptly in the negative.” Brown v. Piper, 91 U.S. 37, 42-43
(1875) (emphasis added). Since insects and arachnids are not even in the same
family, this clearly creates a “reasonable doubt” as to whether the term “insect” must
be expanded to include “spiders.” When the district court was asked to take judicial
notice of this expanded interpretation, it should have promptly resolved it in the
negative.
The Alabama Supreme Court has also held a court may not take judicial notice
of a fact which might be disputed by competent evidence. Westwind Technologies,
Inc. v. Jones, 925 So.2d 166, 171 (Ala. 2005); See also Cullman Broadcasting Co.,
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Inc. v. Bosley, 373 So.2d 830, 832 (Ala. 1979). Competent evidence that spiders are
not insects would most certainly include the fact that spiders are not insects. Thus,
the district court committed reversable error and its order granting Liberty’s motion
to dismiss should be reversed.
Fed. R. Evid. 201(c) (1), provides that a court may take judicial notice on its
own and the Fed. R. Evid. 201 advisory committee’s notes to subdivisions (c) and
(d) further state “the judge has a discretionary authority to take judicial notice,
regardless of whether he is so requested by a party.” This allows a court to determine
“certain universally undisputed facts” and facts “not subject to reasonable
dispute because it can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” United States v. Chapman, 692 F.
App’x. 583, 584 (11th Cir. 2017)(emphasis added); See Fed. R. Evid. 201(b) (2).
Again, to determine as a matter of law that spiders are insects is subject to reasonable
dispute. Indeed, rather than proving its accuracy, the incorrectness of the court
construction can be readily determined from sources whose accuracy cannot
reasonably be questioned -- sources that are promoted by Liberty to teach the public,
including potential customers, the exact opposite of what Liberty argued to the
district court.
In Funk v. Stryker Corp., the Fifth Circuit Court of Appeals found that judicial
notice was appropriately taken when making a determination based on “publicly
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available documents. . . which were matters of public record directly relevant to the
issue at hand.” 631 F.3d 777, 783 (5th Cir. 2011). In the same way that the
documents in Funk were publicly available, dictionary terms are equally available
to anyone with a library card or access to the internet. When the court used dictionary
definitions provided by both parties, and then determined what weight to give certain
alternative definitions found in some, but not all of the sources, the court incorrectly
took judicial notice. By asking the court to determine which dictionary terms should
be used and which should be ignored to interpret, indeed expand, its policy
exclusion, Liberty was, at least implicitly, asking the court to take judicial notice.
The district court’s finding that “the majority of the authority cited by the
Robinsons actually supports the conclusion the term ‘insect,’ in its plain and
ordinary sense, includes spiders.” (Doc. 20 – Pg. 10) shows that the court not only
ignored the primary and universally accepted definition of insect as a small
arthropod animal that has six legs and generally one or two pairs of wings, it did not
follow the generally accepted rules governing the use of dictionaries when
determining a word’s primary definition as opposed to its secondary or informal
meaning.1
1 When using online dictionaries, it is important to use the appropriate definition. Many
dictionaries provide usage labels, such as “formal” or “informal” to indicate the appropriate use and context of the word defined. A usage label is “a label or brief passage that indicates particular limitations on the use of a word, or particular contexts or registers in which the word customarily appears.” Definition of Usage Labels and Notes in English Dictionaries, Thought Co. (last visited Apr. 16 2019), https://www.thoughtco.com/usage-note-1692482. These labels “provide specific
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Of the three dictionary definitions cited by the Robinsons, none include
spiders in their primary definition. The Oxford English dictionary formally defines
an insect as “a small arthropod animal that has six legs and generally one or two
pairs of wings.” Insect, OXFORD ENGLISH DICTIONARY, https://en.oxford
dictionaries.com/definition/insect (emphasis added). The Collins Dictionary
(emphasis added) defines an insect as “any of a large class (Insecta) of small
arthropod animals characterized, in the adult state, by a division of the body into
head, thorax, abdomen, three pairs of legs on the thorax, and, usually, two pairs of
membranous wings, including beetles, bees, flies, wasps, and mosquitoes.” Insect,
COLLINS DICTIONARY. https://www.collinsdictionary.com/us/dictionary/english/
insect. Finally, Your Dictionary defines insect as “any of a large class (Insecta) of
small arthropod animals, including beetles, bees, flies, wasps, and mosquitoes,
characterized in the adult state by a division of the body into head, thorax, and
information about the domain of the application of the definition.” Id. (citing Longman Dictionary of Contemporary English, p. F27). Further, a usage label “restricts the definition to a certain context.” Id. For example, Oxford English Dictionary provides labels to “show words or meanings that are mainly restricted to a particular academic subject area. . . .” Guide to Symbols and Labels, OXFORD ENGLISH DICTIONARY (last visited Apr. 16 2019), https://www.oxfordlearners dictionaries.com/us/about/english/labels. If one were to look up the word “action,” the formal definition would be “the fact or process of doing something, typically to achieve an aim.” Action, OXFORD ENGLISH DICTIONARY, https://en.oxforddictionaries.com/definition/action. The informal definition is “exciting or notable activity.” Id. There are a total of thirteen definitions for “action,” but when used in the legal world (and signaled by a label) the word means “a lawsuit.” Depending on the context, one would know which definition applied. In the Robinsons’ case, the requirement of the plain meaning of a word coupled with its use in a court case, the only applicable definition would be the formal one.
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abdomen, by three pairs of legs on the thorax, and, usually, by two pairs of
membranous wings.” Insect, YOUR DICTIONARY, https://www.yourdictionary.com
/insect.
These definitions, previously provided to the district court by the Robinsons,
are the primary definitions of the word “insect.” The district court erred by ignoring
the primary definition and improperly deciding what weight it would give to the
informal or secondary meaning of the word “insect” found in some, but not all, of
the dictionary sources.
Apparently aware that its finding that the only reasonable interpretation of the
sole policy exclusion that was used Liberty at the time of its denial is that spiders are
insects (and not arachnids) is not supported by any legal authority anywhere, the
court instead cites a single non-binding case from the Eastern District of California
for the proposition that, because mites are vermin, spiders must also be vermin. See
Gregory v. Nationwide Mut. Ins. Co., 2012 WL 6651342 (E.D. Cal. Dec. 19, 2012);
(Doc 20 – Pg. 11). In so doing, the Court either improperly ignored or did not accept
as true the allegation in the Plaintiffs’ complaint that, at the time of decision to deny
the Robinson’s claim, the only justification given by Liberty was the “insect
exclusion.” See Complaint, ¶¶ 57, 59, 61, 66.2
2 "Whether an insurance company is justified in denying a claim under a policy must be judged by what was before it at the time the decision is made...." National Savings Life Insurance Co. v.
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It should be noted that, in addition to never being tested on appeal, Gregory
pertains to the granting of summary judgment. The standard of review for the
granting of summary judgment (and the subsequent appellate review thereof) is
notably different than that used for the granting of a motion to dismiss. In Gregory,
discovery was completed, depositions had been taken, and the parties were entitled
to a summary judgment hearing. In addition, it should also be noted that, unlike
spiders, mites are “parasitic animals” and the primary definition for vermin
specifically references parasitic animals, such as mites, lice fleas, etc.
While the Plaintiffs contend that the district court improperly failed to accept
the allegations in their complaint as true as to Liberty’s sole rationale for its decision
to deny coverage at the time that decision was made and do not waive their
contention, for the sake of thoroughness, more persuasive than the rationale in
Gregory, supra, to determine the proper interpretation of “vermin” in the context of
an insurance policy exclusion, would be the Virtual University article, “What is a
Vermin?” See Bill Wilson, What is a Vermin, THE BIG I: VIRTUAL UNIVERSITY (Sept.
15, 2010), https://www.independentagent.com/vu/insurance/personal-lines/home
owners/property-exclusions/wilsonvermin.aspx. It should be noted that Virtual
University is a service provided to consumers of insurance products, including
Dutton, 419 So.2d 1357, 1362 (Ala.1982); Federated Guaranty Life Insurance Co. v. Wilkins, 435 So.2d 10 (Ala.1983).
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potential Liberty policyholders, by the Independent Insurance Agents & Brokers of
America (Big "I"). The Big “I” is “a national alliance of more than a quarter
million business owners and their employees who offer all types of insurance
and financial services products. . . .” Big "I" was founded in 1896 as the National
Local Association of Fire Insurance Agents. With the expansion of property-
casualty business and coverages, the organization’s name was changed to the
National Association of Insurance Agents in 1913. To emphasize its members’
ability to work with a variety of insurance companies, the organization became the
Independent Insurance Agents of America in 1975. The Association’s name was
changed in 2002 to the Independent Insurance Agents & Brokers of America to
reflect the diversity of its membership, which includes both independent insurance
agents and insurance brokers. Big "I" is a voluntary federation of state
associations and local boards, with affiliates in every state and the District of
Columbia. Its independent insurance agents and brokers are politically astute
and are involved both locally and nationally. They monitor and affect
consumer, insurance agent and broker, and small business issues in
Washington through IIABA’s active, professional staff on Capitol Hill.”
See About Us, The Big I (last visited May 16, 2019),
https://www.independentagent.com/AboutUs (emphasis added).
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In answering the question, “What is a Vermin?”, the Big “I” first noted that,
because the term is not defined in the policy, “we must look to other sources such as
dictionary definitions and court cases.” Id. In so doing, the Big “I” first noted that:
In England, the word "vermin" has been defined by statute as follows: "'vermin' includes [bedbugs], fleas, lice and itch mites and their eggs, larvae and pupae". (Public Health [London] Act, 1936, 26 Geo. 5 & 1 Edw. 8, ch. 50, § 304, subd. [1]; 15 Halsbury's Statutes of England [2d ed.], p. 1034). These creatures, constituting "vermin" under the English definition, all are parasitic in nature. (emphasis added) [NOTE: Unlike mites, spiders are not only not included in this statutory definition, they are not parasitic in nature. Even if it were permissible to refuse to accept as true the allegations in the plaintiffs’ complaint, this fact alone, belies that granting of Liberty’s motion to dismiss]. The Encyclopedia Americana (Vol. 28 [1955 ed.], pp. 16-17) defines "vermin" as: "A term comparable to 'weed' signifying small animals obnoxious in some way to human plans and operations. It has been applied to rats, mice, gophers, weasels, and other mammals; such insects as fleas and lice and at times to hawks, owls and other birds." [NOTE; Again, the primary definition of vermin does not include spiders and, like the prior definition, as it relates to bugs as vermin, it narrowly defines “vermin” to parasites bugs and insects.]
In further answering the question, What is a Vermin?, the Big “I” next focused on
the case of North British & Mercantile Insurance Company v. Mercer, 84 S.E.2d
570, 571 (Ga. 1954), wherein that court stated:
The smaller dictionaries define vermin to mean "noxious, mischievous or mean animals or insects." The larger New
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International Webster's Dictionary (2d ed.), after giving in substance the above meaning, proceeds to specify or particularize by naming the class of animals and insects to which it refers "as flies, lice, bedbugs, fleas, etc., various mammals, as rats, mice, weasels, etc."
Id. (emphasis added). Notably missing from any of the definitions of vermin in
Mercer is “spiders.”
Finally, the Big “I” specifically noted that, “IF the homeowners exclusion was
written more like the commercial lines exclusion without the use of the term
‘vermin’ (e.g., [excluding coverage for damage caused by] "Nesting or infestation,
or discharge or release of waste products or secretions, by insects, birds,
rodents or other animals." in the CP 10 30), it would probably be more likely that
a claim such as this could be reliably denied.”]
Indeed, just as the Big “I” article suggests, there does not appear to be an
appellate opinion from any jurisdiction where “spiders” have been held to be
“vermin” to uphold an exclusion of coverage, much less to support the granting of a
motion to dismiss.
Interestingly, in addition to parasitic animals, such as mites, lice, and fleas,
the Webster's New Collegiate Dictionary (8th ed. 1974) includes in its secondary or
informal definition for vermin "an offensive person." Thus, following the court’s
logic (and assuming it would be permissible for a trial court to refuse to accept as
true the allegations in a plaintiff’s complaint), if an ambiguous policy exclusion must
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necessarily be expanded to include secondary or informal definitions, if a vagabond
broke into an insured’s house and stole the homeowner’s silverware, Liberty could
arguably exclude coverage under its “vermin exclusion” and a subsequent lawsuit
challenging this decision would be summarily “tossed out” on a motion to dismiss.
However, just as is the case with spiders, which are not “parasitic” animals, rational
minds could disagree as to whether the only undisputed interpretation of “vermin”
in an insurance policy exclusion would necessarily include vagrants, drifters and
beggars. Indeed, following this logic, if any animal that lives in your basement,
which is difficult to get rid of, and eats most of your food is a vermin, then apparently
some millennials are also “vermin” and any damages they cause in their parent’s
home would likewise arguably be excluded from coverage.
For these reasons, at this stage of the litigation, reasonable minds could
disagree as to whether spiders must be considered “insects” (or “vermin”) in
Liberty’s policy exclusion and the granting of Liberty’s motion to dismiss was
improper.
II. The District Court erred in granting the Defendants’ Fed. R. Civ. P.
12 (b)(6) Motion to Dismiss based on findings that are inconsistent with the factual allegations in the Plaintiffs’ Complaint which the Court must accept as true and construe in the light most favorable to the Plaintiffs.
A pleading which states a claim for relief need only be plausible on its face to
allege sufficient facts to show entitlement to relief. “While a complaint attacked by
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a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations … a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires
more than labels and conclusions, and a formulaic recitation of a cause of action’s
elements will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted). Simply stated, the “plain statement” required by Rule
8(a)(2) must “possess enough heft to ‘show the pleader is entitled to relief.’” Id at
557. Here, the Robinsons made such a demand for relief in their complaint. (Doc.
1). Further, the Twombly standard “does not require a court at the motion-to-dismiss
stage to consider whether the factual allegations are probably true. . . a court must
[instead] take the allegations as true, no matter how skeptical the court may be.”
Ashcroft v. Iqbal, 566 U.S. 662, 696 (2009). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw a reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 678.
The district court correctly stated that “[a]t this stage, the court must accept as
true the factual allegations in the complaint and construe them in the light most
favorable to the plaintiff.” (Doc. 20 – Pg. 2) (citing Butler v. Sheriff of Palm Beach
City., 685 F.3d 1261, 1265 (11th Cir. 2012)). However, it is obvious from the court’s
ruling that it did not adhere to that required standard of review. While the district
court claimed it “incorporate[ed] not only Plaintiff’s allegations but also the content
of the exhibits attached to the complaint,” (Doc. 20 – Pg. 2), the court in fact focused
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on and misinterpreted the Plaintiff’s rationale for the inclusion of an exhibit attached
to the Plaintiff’s complaint – a letter written after denying the Plaintiffs’ claim and
after stating its justification for denial at the time of the denial (See Doc. 1-4). In so
doing, the court noted that the document “specifically refers to the ‘[b]ird, vermin,
rodents, or insects’ exclusion in its entirety and does not narrowly deny coverage
only on the insect exclusion.” (Doc. 20 – Pg. 8, footnote 1). Consequently, the
district court ignored all of the allegations in the Robinsons’ complaint alleging that
Liberty denied coverage based on the insect exclusion alone. (See Doc. 1 at ¶¶ 57-
61 and ¶ 66). The district court also completely ignored the allegations in the
complaint that school children are taught that spiders are classified as arachnids and
not as insects (Doc. 1 at ¶ 38) and that Liberty promoted educational programs for
kindergarten through third graders which teach children insects, coruscations
[crustaceans] and arachnids are different classifications of living organisms. (Doc. 1
at ¶ 39). The district court likewise ignored the allegations in the complaint that
Liberty or their affiliated companies sponsor museums of science that teach school
children and the general public that spiders are arachnids and not insects. (Doc. 1 at
¶¶ 40-43).
The court incorrectly read Hoefling v. City of Miami, 811 F.3d 1271 (11th Cir.
2016) as its basis for ignoring all of the allegations in the Robinsons’ complaint,
finding that because “[t]he letter the Robinsons attached to their complaint in which
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Liberty denied the claim specifically refers to the ‘[b]ird, vermin, rodents, or
isnsects’ exclusion in its entirety and does not narrowly deny coverage based only
on the insect exclusion. (Doc. 1-4 at 2). Therefore, the contents of the letter control.”
(Doc. 20 – Pg. 8, Footnote 1). However, in the present case, the Plaintiffs simply
attached the final denial letter to establish their contention that Liberty knew the
justification that it actually used at the time of its denial was not valid and that
Liberty was now grasping at straws. [NOTE: as was argued above, even if Liberty
had used the “vermin” exclusion as the basis for its denial, which it did not, this
would still not support the granting of a motion to dismiss, as there would remain a
legitimate dispute as to whether spiders are vermin, since they are not parasitic
animals.]
The Robinsons’ complaint contains enough factual matter, which must be
taken as true, to raise a reasonable expectation that discovery will reveal evidence
of Liberty’s wrongdoing. See Twombly, 550 U.S. at 556. The District Court
misapplied the standards for granting a Fed. R. Civ. P. 12 (b)(6) Motion to Dismiss.
Consequently, the district court’s order, as it relates to the Plaintiffs’ claim for breach
of contract must be reversed.
III. The district court misapplied the standards for granting a Fed. R. Civ. P. 12 (b)(6) Motion to Dismiss.
This Court has held “’[a] district court abuses its discretion if it applies an
incorrect legal standard, applies the law in an unreasonable or incorrect manner,
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follows improper procedures in making a determination, or makes findings of fact
that are clearly erroneous’. . . and also ‘when it misconstrues its proper role, ignores
or misunderstands the relevant evidence, and bases its decision upon considerations
having little factual support.” F.T.C. v. AbbVie Products, LLC, 731 F.3d 54, 61 (11th
Cir. 2013) (quoting Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 814, 821
(11th Cir. 2010); Jove Eng’g, Inc. v. IRS, 92 F.3d 1539, 1546 (11th Cir. 1996)).
Because the district court did not accept all of the allegations made in the Robinsons’
complaint as true, the district court abused its discretion when granting Liberty’s
motion to dismiss.
When the district court took judicial notice to determine that the insect (or
vermin) exclusion precluded the Robinsons from any possible relief, the court
violated the applicable standard of review to be applied to a motion to dismiss. Based
on the standards set forth by the Supreme Court in Twombly and Iqbal, the district
court should have made its determination based on the complaint as a whole and
taken the allegations from the complaint as true.
The district court’s finding was inappropriate at the pleading stage and shows
a failure by the court to accept as true the Robinsons’ allegations in their complaint,
or to view them in the light most favorable light to the Robinsons, as it was bound
to do on a motion to dismiss. See Twombly, 550 U.S. at 555; Castillo v. Allegro
Resort Marketing, 603 F. App’x. 913, 915 (11th Cir. 2015).
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CONCLUSION
The district court said it must accept the plaintiff’s allegations as true, but it
did not. The district court acknowledged that the term spider (and vermin) is
susceptible to different interpretations but, instead of reading the term as narrowly
as possible to find coverage, the court impermissibly expanded these terms to define
spiders (and vermin) as something that rationale minds could argue they simply are
not. The district court also failed to hold an evidentiary hearing when it clearly took
judicial notice of disputed terms or terms. Finally, the district court failed to follow
and/or misapplied the applicable law as it relates to 12(b)(6) motions to dismiss.
It appears that the district court placed expediency over substantial justice and
has improperly denied Judge Robinson and his wife of the opportunity to gather
evidence and to be heard. If the Robinsons could trade their house full of venomous
spiders for one with only insects or vermin, they certainly would, but they cannot,
just as the district court cannot permissibly redefine and expand, as a matter of law,
the term insects (or vermin) into spiders. Accordingly, the district court’s decision
should be reversed and vacated, and the case should be remanded for further
proceedings.
Respectfully submitted, Dated: May 17, 2019
/s/ John R. Bowers, Jr. John R. Bowers, Jr. Thomas F. Campbell
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CAMPBELL LAW, PC 5336 Stadium Trace Parkway, Suite 206 Birmingham, AL 35244 (205) 278-6650 Counsel for Plaintiffs-Appellants
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(g)
1. This document complies with the word limit of Fed. R. App. P.
32(a)(7)(B)(i) because, excluding the parts of the document exempted by
Fed. R. App. P. 32(f), this document contains 7,193 words.
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. 32(a)(6) because it
has been prepared in a proportionally-spaced typeface using Microsoft Word
365 in 14-point Times New Roman.
Dated: May 17, 2019 /s/ John R. Bowers, Jr. JOHN R. BOWERS, JR.
CERTIFICATE OF SERVICE
I, John R. Bowers, Jr. do hereby certify that I have filed the foregoing Brief
electronically with the Court’s CM/ECF system with a resulting electronic notice to
all counsel of record on May 17, 2019. I further certify that upon receiving
notification from the Court that the electronic version of the Brief has been accepted
Case: 19-10940 Date Filed: 05/17/2019 Page: 41 of 42
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and docketed, one true and correct paper copy of the Brief will be sent via first-class
mail to counsel of record.
Dated: May 17, 2019 /s/ John R. Bowers, Jr. JOHN R. BOWERS, JR.
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