United States District Court, S.D. Ohio, Western Division, Dayton
BRUCE B. WHITMAN, et al., Plaintiffs,
ESTATE OF ROY W. WHITMAN, ESTHER WHITMAN, EXTRX., et al., Defendants.
AND ORDER GRANTING DEFENDANT FREDERICK D. TUCKER'S MOTION
FOR JUDGMENT ON THE PLEADINGS (DOC. 13), GRANTING DEFENDANT
ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA'S MOTION
FOR JUDGMENT ON THE PLEADINGS (DOC. 22), DENYING PLAINTIFF
BRUCE B. WHITMAN'S MOTION TO CONVERT DEFENDANTS'
MOTIONS FOR JUDGMENT ON THE PLEADINGS TO SUMMARY JUDGMENT
MOTIONS (DOC. 38), DENYING MOTION FOR LEAVE TO FILE A FOURTH
AMENDED COMPLAINT (DOC. 36), AND DENYING MOTION TO STAY
DISCOVERY (DOC. 23)
M. ROSE UNITED STATES DISTRICT JUDGE
statutory interpleader case is before the Court on the
Motions for Judgment on the Pleadings (Docs. 13, 22) filed by
Defendant Frederick D. Tucker (“Tucker”) and
Defendant Allianz Life Insurance Company of North America
(“Allianz”), respectively. Also pending are
Plaintiffs' Motion for Leave to File a Fourth Amended
Complaint (Doc. 36) and Motion to Convert the Motions for
Judgment on the Pleadings into Motions for Summary Judgment
(Doc. 38). In addition, Tucker has moved to stay discovery
pending the Court's ruling on these Motions. (Doc. 23.)
reasons below, the Court GRANTS both
Tucker's and Allianz's Motions for Judgment on the
Pleadings (Docs. 13, 22). The Court DENIES
Plaintiff's Motion for Leave to File a Fourth Amended
Complaint (Doc. 36) as futile and DENIES
Plaintiff's Motion to Convert the Motions for Judgment on
the Pleadings into Motions for Summary Judgment (Doc. 38)
because additional facts are not necessary to rule on
Plaintiff's claims against Tucker and Allianz. The Court
DENIES Tucker's Motion to Stay Discovery
(Doc. 23) as moot.
action concerns three Allianz annuity policies, which Roy
Whitman (“Roy”), now deceased, purchased in 2001.
Roy was survived by his wife, Esther Whitman
(“Esther”), who serves as Executor of his Estate;
and by his three children from a previous marriage:
Plaintiffs Bruce B. Whitman (“Bruce”), Laura
Whitman (“Laura”), and Joy P. Whitman Rush
(“Joy”). Each annuity names one of his children
as the annuitant: Policy Number 6949092 naming Joy; Policy
Number 6949070 naming Laura; and Policy Number 6949081 naming
Bruce (collectively, the “Allianz Annuities”).
Each policy also states, however, that if Roy dies before the
annuitant, his rights “will pass to the executor of
[his] estate unless ownership has been otherwise
assigned.” (Doc. 2-1.)
April 2017, Bruce, Laura, and Joy each made a claim for their
respective annuity. (Doc. 7 at ¶ 2.) Esther rejected all
three claims and Bruce thereafter commenced a civil case in
the Court of Common Pleas of Hamilton County, Ohio (the
“State Court Case”). (Id. at ¶ 3.)
Allianz removed the case to this Court as a statutory
interpleader action under 28 U.S.C. § 1335. (Doc. 1.) On
December 27, 2017, the Court granted Allianz's motion to
join Laura and Joy as indispensable parties. (Docs. 3, 24.)
interpleader claim asks this Court to decide whether the
Allianz Annuities should be distributed to Esther, as
Executrix, or to Bruce, Joy, and Laura. Plaintiffs allege
that they are entitled to direct distribution of the Allianz
annuities or proceeds as the named annuitants. (Doc. 7 at
¶ 16.) Esther asserts that other obligations take
precedence over Plaintiffs' claims. (Id.)
allege that, upon his death, Roy intended for the annuities
to be paid to Bruce, Laura, and Joy. Plaintiffs further
allege that Allianz was negligent through its agent, Tucker,
in failing to prepare the annuities according to Roy's
intent. (Id. at ¶ 18.) Plaintiffs assert a
claim for negligent misrepresentation against both Allianz
and Tucker and a claim for bad faith against Allianz only for
its handling of Plaintiffs' claims to the annuities.
DEFENDANTS' MOTIONS FOR JUDGMENT ON THE
and Tucker move to dismiss Plaintiffs' claim for
negligent misrepresentation as time barred and for failure to
state a claim upon which relief can be granted. (Doc. 22 at
1; Doc. 13 at 1.) Allianz also moves to dismiss
Plaintiffs' bad faith claim for failure to state a claim
upon which relief can be granted. (Doc. 22 at 1.)
12(c) motion for judgment on the pleadings attacks the
sufficiency of the pleadings and is subject to the same
standard applicable to a motion to dismiss under Rule
12(b)(6). Ziegler v. IBP Hog Mkt., 249 F.3d 509,
511-12 (6th Cir. 2001). A “motion to dismiss for
failure to state a claim is a test of the plaintiff's
cause of action as stated in the complaint, not a challenge
to the plaintiff's factual allegations.” Golden
v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir.
2005). A Rule 12(c) motion should be granted if there is an
absence of law to support a claim of the type made or of
facts sufficient to make a valid claim, or if on the face of
the complaint there is an insurmountable bar to relief
indicating that the plaintiff does not have a claim.
Cmty. Mental Health Serv. v. Mental Health & Recovery
Bd., 395 F.Supp.2d 644, 649 (S.D. Ohio 2004).
Plaintiffs' Claim for Negligent
mentioned, Allianz and Tucker move to dismiss the negligent
misrepresentation claim on two grounds: first, as time barred
under the statute of limitations and, second, for failure to
state a claim. The Court does not reach the second ground for
dismissal because, as discussed below, the claim is barred by
the statute of limitations.
parties agree that the Supreme Court of Ohio's recent
decision in LGR Realty, Inc. v. Frank & London Ins.
Agency, 2018-Ohio-334, is directly relevant to whether
the statute of limitations bars Plaintiffs' claim here.
Plaintiffs argue that LGR Realty is
“resoundingly favorable” to them, however, while
Allianz and Tucker argue that LGR Realty confirms
that Plaintiffs' claim is time-barred. (Doc. 33 at 2;
Doc. 34 at 1; Doc. 35 at 1.) They both cannot be right.
Ohio law, a four-year statute of limitations applies to
professional negligence claims, like Plaintiffs' claim
for negligent misrepresentation in this case. See
Ohio Rev. Code 2305.09; Investors REIT One v.
Jacobs, 46 Ohio St.3d 176, 546 N.E.2d 206 (1989);
Allen v. Andersen Windows, Inc., 913 F.Supp.2d 490
(S.D. Ohio 2012). The Supreme Court of Ohio has long
recognized that a “[s]tatute of limitations commences
to run so soon as the injurious act complained of is
perpetrated, although the actual injury is subsequent * *
*.” LGR Realty, 2018-Ohio-334 at ¶ 14
(quoting Kerns v. Schoonmaker, 4 Ohio 331 (1831)).
Yet, as the Supreme Court of Ohio has also observed, there
are two primary exceptions to this rule:
One exception to the general rule is the discovery rule,
which provides that “[w]hen an injury does not manifest
itself immediately, the cause of action does not arise until
the plaintiff knows or by the exercise of reasonable
diligence should have known, that he had been injured by the
conduct of the defendant, for purposes of the statute of
limitations.” O'Stricker [v. Jim
Walter Corp., 4 Ohio St.3d 84, 87, 447 N.E.2d 727
(1983)] at paragraph two of the syllabus.
The second exception to the general rule is the
delayed-damage rule, which this court first adopted in
Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio
St.2d 376, 433 N.E.2d 147 (1982). Under the delayed-damage
rule, “where the wrongful conduct complained of is not
presently harmful, the cause of action does ...