Engel v. Liberty Mut. Ins. Co.

MARK ENGEL, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants.

CIVIL ACTION NO. 1:20-00082-KD-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

January 29, 2021

ORDER

This action is before the Court on the Report and Recommendation entered by United States Magistrate Judge Katherine P. Nelson as to the partial motion to dismiss filed by Defendant Liberty Insurance Corporation (Doc. 92), Defendant Liberty Insurance Corporation's Objections (Doc. 97), Plaintiff Mark Engel's Response to Defendant Liberty Insurance Corporation's Objections (Doc. 103). After due and proper consideration of the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the Report and Recommendation (Doc. 92) of the Magistrate Judge made pursuant to 28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b) and S.D. Ala. GenLR 72(a)(2)(S), it is ADOPTED in part as to Count III as the opinion of this Court. Specifically, the Court ADOPTS the recommendation of the Magistrate Judge as to the bad faith claim (Count III) to include the following ADDITIONAL finding:

As to the claim of bad faith, the issue of whether Liberty's engineer report constitutes a legitimate and arguable reason to deny the claim implicates an issue of fact that cannot be resolved on a motion to dismiss.

With respect to Count I, the negligence claim, Plaintiff Engel has alleged that Defendant Liberty Insurance Corporation (Liberty) assumed a duty of care when Liberty selected, retained

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and allegedly "controlled" the contractors that repaired Plaintiff Engel's home. However, as in Norman v. Liberty Mut. Fire Ins. Co., 471 F.Supp.3d 1225, 1239 (N.D. Ala. 2020), Plaintiff Engel has:

not provided any indication as to how Liberty Mutual breached the standard of care emanating from that supposed duty, or even how a supposed breach caused the alleged defects rather than [contractor's] remediation. In essence, Plaintiff['s] theory as to the voluntary undertaking of a duty merely places Liberty Mutual in the shoes of the Plaintiff[], not [the contractor]...In that guise, the court cannot impute [the contractor's] alleged negligence to Liberty Mutual, just as one could not impute [the contractor's] transgressions to Plaintiff[] if [he] had retained supervision over the rebuild project.

471 F.Supp.3d at 1239. And, to the extent that Plaintiff Engel relies on vicarious liability, his allegations do not plausibly support this claim. As explained in Norman:

Vicarious liability arises from the right of supervision and control over the manner of the alleged agent's performance. Kennedy v. Western Sizzlin Corp., 857

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