United States District Court, S.D. Ohio, Western Division
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.
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.
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.).
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.).
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
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
Count 1: Breach of contract-Warehouse/Garage
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).
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