Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FCCI Insurance Co. v. Island Pointe, LLC

United States District Court, D. South Carolina, Charleston Division

February 23, 2018

FCCI Insurance Company, Plaintiff,
Island Pointe, LLC, et. al, Defendants.


          Richard Mark Gergel United States District Court Judge.

         This matter is before the Court on the Motion to Dismiss filed by Defendant United Specialty Insurance Company ("United"). (Dkt. No. 84.) FCCI Insurance Company ("FCCI") has filed a Response in Opposition to the Motion to Dismiss (Dkt. No. 101), and United has filed a Reply (Dkt. No. lo8). For the reasons set forth below, United's Motion to Dismiss (Dkt. No. 84) is granted.

         I. Background and Relevant Facts

         This is a declaratory judgment action arising out of the construction of Palmetto Pointe at Peas Island, a condominium complex in Charleston, South Carolina (the "Peas Island Project"). Complete Building Corporation ("Complete") was the general contractor for the Peas Island Project. The Palmetto Pointe at Peas Island Condominium Property Owners Association, Inc. (the "Peas Island POA") filed the underlying complaint against Complete and a number of subcontractors alleging latent construction defects that caused water intrusion and other damages (the "Underlying Action").

         FCCI issued multiple commercial general liability and umbrella insurance policies to Complete from February 18, 2014 through February 18, 2016. (Dkt. No. 13 at 13, Am. Compl. ¶¶ 61-64.) Prior to the FCCI policies, United issued two commercial general liability insurance policies to Complete. (Id. at 12, ¶¶ 58-59.) FCCI is defending Complete in the Underlying Action. United denied coverage to Complete in the Underlying Action pursuant to a policy endorsement[1] it alleges excludes coverage for property damage arising out of work on a condominium project exceeding 25 units. (Dkt. No. 84-2 at 66; Dkt. No. 84-3 at 68.)

         In the Amended Complaint (Dkt. No. 13), FCCI seeks declaratory relief against various Defendants on three separate Counts. Counts I and II do not pertain to United as they seek declarations concerning the rights and obligations of insurers that issued policies to Complete's subcontractors (Count I) and concerning FCCI's rights and obligations under its own policies to Complete (Count II). The Court has issued an Order (Dkt. No. 130) granting six Defendants' Motions to Dismiss claims against them under Counts I and II.

         FCCI's Count III addresses insurers such as United that also issued insurance policies directly to Complete. FCCI seeks a declaration that these other insurers, including United, owe a duty to defend and indemnify their mutual insured, Complete. FCCI also asks the Court to make a determination on the apportionment of the time on risk as between FCCI and these other insurers. (Dkt. No. 13 at 30, Am. Compl. ¶ 155.) United has moved to dismiss all of FCCI's claims against it pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

         II. Legal Standards

         A. Rules 12(b)(1) and 12(b)(6)

         A motion to dismiss for lack of subject matter jurisdiction filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure raises the fundamental question of whether a court has jurisdiction to adjudicate the matter before it. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). It is the plaintiffs burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991).

         A motion to dismiss for lack of subject matter jurisdiction can arise in two contexts: (1) when the moving party maintains that the complaint "fails to allege facts upon which subject matter jurisdiction can be based" or (2) when the moving party asserts that the "jurisdictional allegations of the complaint [are] not true" Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). In the first situation, where the moving party asserts that the non-moving party has failed to allege facts establishing subject matter jurisdiction, the court must assume all the facts alleged in the complaint to be true. Id. In the second situation, where the moving party disputes the validity of the jurisdictional allegations in the complaint, the court may look beyond the complaint and consider other evidence, such as affidavits, depositions, and live testimony. Id. The burden of proof in that situation falls on the plaintiff to demonstrate subject matter jurisdiction. Id.

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses. . . . Our inquiry then is limited to whether the allegations constitute 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation marks and citation omitted). When considering a motion to dismiss under Rule 12(b)(6), the Court is obligated to "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). While the Court must accept the facts in a light most favorable to the non-moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id.

         To survive a motion to dismiss, the complaint must state "enough facts to state a claim to relief that is plausible on its face." Bell Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the requirement of plausibility does not impose a probability requirement at this stage, the complaint must show more than a "sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the pleading "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

         B. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.