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Winter Enterprises, LLC v. West Bend Mutual Insurance Co.

United States District Court, S.D. Ohio, Western Division

March 28, 2018

WINTER ENTERPRISES, LLC, Plaintiff,
v.
WEST BEND MUTUAL INSURANCE CO., Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT (DOC. 11), DENYING DEFENDANT'S MOTION TO DISMISS (DOC. 9), AND GRANTING PLAINTIFF'S MOTION FOR JURY TRIAL (DOC. 16)

          Timothy S. Black United States District Judge.

         This civil action is before the Court regarding Defendant's motion to dismiss (Doc. 9), Plaintiff's motion for leave to file second amended complaint (Doc. 11), and Plaintiff's motion for jury trial (Doc. 16), as well as all responsive memoranda.

         I. BACKGROUND

         Plaintiff Winter Enterprises, LLC is a limited liability company organized and existing under the laws of the state of Ohio. (Doc. 11-1, at 1). Plaintiff owns the real property commonly known as 1631 Sherman Avenue, Norwood, Hamilton County, Ohio 45212, at which Plaintiff operates an entertainment business, including a roller rink with related goods and services (hereinafter “the Property”). (Id.). Defendant West Bend Mutual Insurance Co. is an insurance corporation with a principal place of business located in Wisconsin. (Id.). Plaintiff purchased a commercial insurance policy from Defendant providing that Defendant would ensure the Property from covered losses in exchange for Plaintiff's payment of insurance premiums (hereinafter “the Policy”). (Id. at 2). Plaintiff remained current on the payment of premiums to Defendant for all relevant time periods. (Id.).

         On or about August 28, 2016, a significant storm caused damage to the Property, including a partial collapse of the roof. Plaintiff alleges that the loss from this damage was in excess of $1, 215, 000 and was covered by the Policy. (Id. at 3). Plaintiff timely notified Defendant of the damage to the Property and provided the necessary documentation of loss under the Policy's requirements. (Id.). Defendant reviewed the information provided and eventually authorized what Plaintiff claims is only a partial repair. (Id.). Plaintiff alleges that this partial repair is ineffective, diminishes the value of the Property, and amounts to a breach of the insurance contract between the parties. (Id.).

         Plaintiff's allegations against Defendant go beyond breach of contract, as Plaintiff claims that Defendant acted in bad faith by performing an inadequate and incomplete investigation into Plaintiff's claimed losses. Specifically, Plaintiff alleges that Defendant was provided with a written engineering report supporting Plaintiff's claim of extensive damage, but clearly did not consider the contents of the report as Defendant's written denial of Plaintiff's extensive loss claims was issued less than four hours after that report was given to Defendant. (Id. at 6). Plaintiff also claims that Defendant never bothered to prepare an estimate for damages to the portion of Plaintiff's claim accounting for a collapsed wall at the Property. (Id.). Based on these allegations, Plaintiff claims that “Defendant wrongfully intended to deny [Plaintiff's] claim from the inception.” (Id.).

         Plaintiff initially filed this suit in the Hamilton County Court of Common Pleas on April 27, 2017. (Doc. 1, at 1). Defendant was served on May 8, 2017, and timely removed the suit to this Court on May 25, 2017. (Doc. 1). Plaintiff filed an amended complaint in this Court on May 26, 2017, raising the following claims:

Count 1: Breach of contract-Warehouse/Garage Area
Count 2: Breach of Contract-Roller Rink/Alley Way Area
Count 3: Contractual Breach of the Implied Covenant of Good Faith and Fair Dealing
Count 4: Tortious Breach of the Implied Covenant of Good Faith and Fair Dealing
Count 5: Bad Faith
Count 6: Unfair Trade Practices

(Doc. 3, at 2-8).

         Defendant filed a motion to dismiss Counts 3-6 of the amended complaint in June 28, 2017. (Doc. 9). Plaintiff filed a response in opposition to that motion along with a motion to file a second amended complaint on June 19, 2017. (Doc. 11; Doc. 12). Defendant filed a memorandum in opposition to Plaintiff's motion to file a second amended complaint, arguing that any such amendment would be futile. (Doc. 14). Additionally, Plaintiff filed a motion for jury trial pursuant to Fed.R.Civ.P. 39(b) on August 9, 2017, as Plaintiff's initial complaint had not contained a demand for a jury trial and the deadline for demanding a jury trial ...


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