initial brief of plaintiffs-appellantson september 15, 2016, the plaintiffs-appellants, maggie j....

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 19-10940

MAGGIE J. ROBINSON, et al.

Plaintiffs-Appellants,

v.

LIBERTY MUTUAL INSURANCE COMPANY, et, al.

Defendants-Appellees.

On Appeal from the United States District Court

For the Northern District of Alabama Case No. 4:18-CV-1509-ACA

INITIAL BRIEF OF PLAINTIFFS-APPELLANTS

Thomas F. Campbell John R. Bowers, Jr. CAMPBELL LAW, PC 5336 Stadium Trace Parkway, Suite 206 Birmingham, AL 35244 (205) 278-6650 Counsel for Plaintiffs-Appellants

Case: 19-10940 Date Filed: 05/17/2019 Page: 1 of 42

i

STATEMENT OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Eleventh Circuit Rule 26.1-1, Counsel for Appellants hereby

certifies that the following persons and entities have or may have an interest in the

outcome of this case:

1. Axon, Hon. Annemarie Carney – U.S. District Judge, Northern District of

Alabama - Middle Division

2. Baker, Joshua B. – Counsel for Defendants/Appellees

3. Bowers, Jr., John R. – Counsel for Plaintiffs/Appellants

4. Campbell Law PC – Counsel for Plaintiffs/Appellants

5. Campbell, Thomas F. – Counsel for Plaintiffs/Appellants

6. Grantham, Jeffrey M. – Counsel for Defendants/Appellees

7. Hess, Joshua R. – Counsel for Defendants/Appellees

8. LMHC Massachusetts Holdings, Inc. - owns 100% of the stock of Liberty

Mutual Group, Inc.

9. Liberty Mutual Group, Inc. – Defendant/Appellee

10. Liberty Mutual Holding Company, Inc. – owns 100% of the stock of LMHC

Massachusetts Holdings, Inc.

11. Liberty Mutual Insurance Company – Defendant/Appellee


ii

12. Liberty Mutual Insurance Corporation – Defendant/Appellee

13. Maynard, Cooper & Gale, P.C. – Counsel for Defendants/Appellees

14. Robinson, Cody D. – Plaintiff/Appellant

15. Robinson, Maggie J. – Plaintiff/Appellant

Pursuant to 11th Circuit Rule 26.1-3(b), I hereby certify that to the best of my

knowledge, no publicly traded company or corporation has an interest in the

outcome of the case or the appeal.

/s/ John Robert Bowers, Jr. John R. Bowers, Jr.


iii

STATEMENT REGARDING ORAL ARGUMENT

This appeal involves the application of well-established principles of contract

interpretation, the Federal Rules of Evidence, and the Federal Rules of Civil

Procedure. Therefore, oral argument is unnecessary to aid in the Court’s decision.


iv

TABLE OF CONTENTS

STATEMENT OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT …………………………………….....…………… i

STATEMENT REGARDING ORAL ARGUMENT ……………....……………. ii

TABLE OF CONTENTS ……………………………………………...………… iii

TABLE OF AUTHORITIES …………………………………………....………...iv

JURISDICTIONAL STATEMENT ……………………………………...………..1

STATEMENT OF ISSUES ON APPEAL ………………………………...……....1

STATEMENT OF THE CASE ………………………………………………...….2

I. COURSE OF PROCEEDINGS AND DISPOSTION BELOW...........2

II. STATEMENT OF FACTS...................................................................2

III. STANDARD OF REVIEW..................................................................8

SUMMARY OF ARGUMENT ……………………………………………………9 ARGUMENT ……………………………………………………………………..11

I. The District Court erred by taking judicial of an adjudicative fact that was subject to reasonable dispute without affording the Plaintiffs an opportunity to be heard pursuant to Rule 201 (e) of the Federal Rules of Evidence............................................................11


v

II. The District Court erred in granting the Defendants’ Fed. R. Civ.

P. 12 (b)(6) Motion to Dismiss based on findings that are inconsistent with the factual allegations in the Plaintiffs’ Complaint which the Court must accept as true and construe in the light most favorable to the Plaintiff…………...........…………….24

III. The District Court misapplied the standards for granting a Fed.

R. Civ. P. 12 (b)(6) Motion to Dismiss…...……………………..........27

CONCLUSION …………………………………………………………………...29

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a) ………….....30

CERTIFICATE OF SERVICE …………………………………………………...30


vi

TABLE OF AUTHORITIES Cases Absolute Activist Value Master Fund Limited v. Devine, 223 F. Supp. 3d 1297 (M.D. Fla 2017)……...……………….………………..15 Ashcroft v. Iqbal, 556 U.S. 662 (2009)……………………………………………………………25 Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007) ......………………………………………………25, 27, 28 Beck v. Deloitte & Touche, 144 F.3d 732 (11th Cir. 1998)…………………….....…………………………..8 Brown v. Piper, 91 U.S. 37 (1875)……………………………………………………………...15 Butler v. Sheriff of Palm Beach City.,

685 F.3d 1261, 1265 (11th Cir. 2012)................................................................25 Castillo v. Allegro Resort Marketing,

603 F. App’x. 913, 915 (11th Cir. 2015)............................................................28 Cullman Broadcasting Co., Inc. v. Bosley, 373 So.2d 830 (Ala. 1979)……………………………....……………………..15 Federated Guaranty Life Insurance Co. v. Wilkins, 435 So.2d 10 (Ala 1983)………………………...……………………………..20 F.T.C. v. AbbVie Products, LLC,

731 F.3d 54 (11th Cir.2013)………...…………………………………………28 Funk v. Stryker Corp., 631 F.3d 777 (5th Cir. 2011)………...……………………………………..16, 17 Gregory v. Nationwide Mut. Ins. Co., 2012 WL 6651342 (E.D. Cal. Dec. 19, 2012)………………….......…...…19, 20


vii

Hoefling v. City of Miami, 811 F.3d 1271 (11th Cir. 2016)...........................................................................26

Hoffman-Pugh v. Ramsey, 312 F.3d 1222 (11th Cir. 2002)………………..………………………….……..8 Jove Eng’g, Inc. v. IRS, 92 F.3d 1539 (11th Cir. 1996)………………………………………………….28 McDonald v. U.S. Die Casting & Dev. Co., 585 So. 2d 853 (Ala. 1991)……………………………………………………13 National Savings Life Insurance Co. v. Dutton, 419 So.2d 1357 (Ala. 1982)…...……………………………………………19, 20 North British & Mercantile Insurance Company v. Mercer, 211 Ga. 161; 84 S.E.2d 570 (Ga. 1954)………….......……………………..22, 23 Porterfield v. Audubon Indemnity Co., 856 So. 2d 789 (Ala. 2002)…………………………………………………….12

Shahar v. Bowers, 120 F.3d 211 (11th Cir. 1997)……………….………....………………………15 Safeway Ins. Co. of Ala., Inc. v. Herrera, 912 So.2d 1140 (Ala. 2005)……………………………………………………12 State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293 (Ala. 1999)…………………………………………………….12 Sullivan v. State Farm Mut. Auto. Ins., 513 So.2d 992 (Ala. 1987)……………………………………………………..12 Thomas v. Blue Cross & Blue Shield Ass’n, 594 F. 3d 814 (11th Cir. 2010)….......………………………………………….27 United States v. Chapman, 692 F. App’x 583 (11th Cir. 2017) …………………………………………….16


viii

United States v. Jones, 29 F.3d 1549 (11th Cir. 1994)………………………………………………….14 Westwind Technologies, Inc. v. Jones, 925 So.2d 166 (Ala. 2005)……………………………………………….…….15 Young Apartments, Inc. v. Town of Jupiter, FL, 529 F.3d 1027 (11th Cir. 2008)……………………………..…………..………8

Statutes and Legislative Materials

28 U.S.C. § 1291…………………………………………………………….……. 1

28 U.S.C. § 1332………………………………………………………………….. 1

Other Authorities

About Us, The Big I (last visited May 16, 2019), https://www.independentagent.com/AboutUS...................................................21

Action, Oxford English Dictionary (last visited Apr. 16, 2019) https://en.oxforddictionaries.com/definition/action……………………..…….18 Bill Wilson, What is a Vermin, The Big I: Virtual University

(Sept. 15, 2010), https://www.independentagent.com/vu/insurance /personallines/homeowners/property-exclusion/ wilsonvermin.aspx…..............................................................................20, 22, 23

Complaint, Robinson v. Liberty Mutual, et al.

8:18-cv-1509-ACA (2019)….....………………...……….1, 2, 3, 4, 5, 6, 7, 25, 26 Defendant’s Motion to Dismiss, Robinson v. Liberty Mutual, et al.

8:18-cv-1509-ACA (2019)………...........................................................…….1, 8 Definition of Usage Labels and Notes in English Dictionaries,

Thought Co. (last visited Apr. 16, 2019), https://www.thoughtco.com/usage-note-1692482…...........................….2, 17, 18


ix

Exhibit A to Complaint, Robinson v. Liberty Mutual, et al.

8:18-cv-1509-ACA (2019)…………………..…………....…………………….4 Exhibit B to Complaint, Robinson v. Liberty Mutual, et al.

8:18-cv-1509-ACA (2019)………..........…………………………....………….4 Exhibit C to Complaint, Robinson v. Liberty Mutual, et al.

8:18-cv-1509-ACA (2019)…….………………………….....………………….5 Exhibit D to Complaint, Robinson v. Liberty Mutual, et al.

8:18-cv-1509-ACA (2019)…….......…………………………....…….5, 6, 26, 27 Exhibit E to Complaint, Robinson v. Liberty Mutual, et al.

8:18-cv-1509-ACA (2019)………..........………………....…………………….7 Exhibit F to Complaint, Robinson v. Liberty Mutual, et al.

8:18-cv-1509-ACA (2019)……..........………………………………………….7 Guide to Symbols and Labels, Oxford English Dictionary

(last visited Apr. 16 2019) https://www.oxfordlearnersdictionaries.com/us/about/english/labels…............18

Insect, Collins Dictionary (last visited Apr. 16, 2019), https://www.collinsdictionary.com/us/dictionary/english/insect….…………..18 Insect, Oxford English Dictionary (last visited Apr. 16, 2019), https://en.oxforddictionaries.com/definition/insect……….…………….……..18 Insect, Your Dictionary (last visited Apr. 16, 2019) https://www.yourdictionary.com/insect……………………………………….19 Longman Dictionary of Contemporary English…………………………………...18 Memorandum Opinion, Robinson v. Liberty Mutual, et al.

8:18-cv-1509-ACA (2019)……....………………….2, 7, 8, 12, 17, 19, 25, 26, 27 Notice of Appeal, Robinson v. Liberty Mutual, et al.

8:18-cv-1509-ACA (2019)…………...….......………………………………….1


x

Order Granting Defendant’s Motion to Dismiss, Robinson v. Liberty Mutual, et al. 8:18-cv-1509-ACA (2019)……….......……………………………………….1, 2

Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to Dismiss

Robinson v. Liberty Mutual, et al. 8:18-cv-1509-ACA (2019)…………………………………………………….14

Vermin, Webster's New Collegiate Dictionary (8th ed. 1974)................................23 Federal Rules & Procedures

Fed. R. Civ. P. 8(a)(2)……………………......………………………………….8, 25

Fed. R. Civ. P. 12(b)(6) ………………….....………………….1, 7, 8, 10, 24, 27, 29

Fed. R. Evid. 201…………….......……..……………………1, 7, 8, 9, 10, 13, 14, 16


1

JURISDICTIONAL STATEMENT

This appeal arises from a final decision of the United States District Court for

the Northern District of Alabama, Middle Division, granting the Defendants’

Appellees’ Motion to Dismiss. (Doc. 6). The district court had jurisdiction based on

diversity of citizenship pursuant to 28 U.S.C. § 1332. This Court has appellate

jurisdiction pursuant to 28 U.S.C. § 1291. The district court entered a final judgment

granting Defendant-Appellees’ Motion to Dismiss on February 11, 2019. (Doc. 21).

A notice of appeal was timely filed on March 13, 2019. (Doc. 22).

STATEMENT OF ISSUES ON APPEAL

1. Whether the district court erred by improperly taking judicial notice of an

adjudicative fact that was subject to reasonable dispute without affording the

Plaintiffs-Appellants an opportunity to be heard pursuant to Rule 201 (e) of

the Federal Rules of Evidence.

2. Whether the District Court erred in granting the Defendants’ Fed. R. Civ. P.

12 (b)(6) Motion to Dismiss based on findings that are inconsistent with the

factual allegations in the Plaintiffs’ Complaint (Doc. 1), which the Court must

accept as true and construe in the light most favorable to the Plaintiffs.

3. Whether the district court misapplied the standards for granting a Fed. R. Civ.

P. 12 (b)(6) Motion to Dismiss.


2

STATEMENT OF THE CASE

I. COURSE OF PROCEEDINGS AND DISPOSITION BELOW

On September 15, 2016, the Plaintiffs-Appellants, Maggie J. Robinson and

Judge Cody Robinson, (the “Robinsons”) submitted a homeowner’s insurance

claim with Defendant-Appellees, Liberty Mutual Company, for the loss of the

Robinsons’ home as a result of a massive brown recluse spider infestation. On

September 30, 2016, Liberty Mutual denied their claim, ostensibly based solely

on an “insect damage” exclusion. The Robinsons filed a complaint against

Liberty Mutual Insurance Company, Liberty Insurance Corporation, and Liberty

Mutual Group, Inc. (“Liberty”) in the Northern District of Alabama, Middle

Division, on September 14, 2018. (Doc. 1). On October 15, 2018, Liberty filed a

motion to dismiss all claims. (Doc. 6). The District Court granted Liberty’s

motion to dismiss on February 11, 2019. (Doc. 20 and Doc. 21). On March 13,

2019, the Robinsons filed the instant appeal.

II. STATEMENT OF FACTS

Maggie and Judge Robinson purchased their home located in Gadsden,

Alabama on March 5, 2008. (Doc. 1 at ¶ 13). After moving into their home, the

Robinsons discovered that the home was infested with a large colony of highly

venomous brown recluse spiders. (Doc. 1 at ¶ 14). In March 2013, Knox Pest

Control treated the home with both liquid chemical pesticide and powder


3

pesticide in an effort to eradicate the brown recluse spider infestation, but these

treatment efforts proved unsuccessful and the brown recluse spider infestation

remained at the home. (Doc. 1 at ¶¶ 16-18). In May 2014, Knox Pest Control

treated the Robinsons’ home again with both liquid and granular pesticides in

another attempt to eradicate the brown recluse spider infestation, but again these

treatment efforts were unsuccessful in ridding the home of the brown recluse

spider infestation. (Doc. 1 at ¶ 19). Knox Pest Control made a third attempt to

eradicate the infestation in May 2015, but, again, the treatments were

unsuccessful. (Doc. 1 at ¶ 20).

The venom of the brown recluse spider contains a compound that can cause

severe human tissue damage and loss; ensuing complications from the bite of the

spider can result in the death of a child; the Robinsons’ eight-year old son and

four-year old daughter are, thus, particularly vulnerable to the bite of brown

recluse spiders; the spiders have been found in every area of the Robinsons’

home, including inside their children’s clothing and shoes, in their bathrooms and

showers, in the kitchen sink, and in light fixtures. (See Doc. 1 at ¶¶ 24-25). No

pest control company that the Robinsons spoke to would guarantee that the

spiders could be permanently eradicated, and the presence of the massive and

unassailable brown recluse spider infestation is a dangerous and irreparable


4

condition that is unsafe for occupancy and has rendered the home and its contents

a total loss. (Doc. 1 at ¶¶ 26-29).

The Robinsons purchased a Liberty Mutual “LibertyGuard Deluxe

Homeowners Policy” and Liberty issued a homeowner’s insurance policy (the

“Policy”) (Doc 1-1) that insured the home for the policy period of March 1, 2014

through March 1, 2015.

The policy provides in part the following:

We insure against risk of direct loss to property described

in Coverages A and B only if that loss is a physical loss to

property. We do not insure, however, for loss:

… 2. Caused by:

… e. Any of the following:

… (7) Birds, vermin, rodents, or insects”.

(Doc. 1-1, Pg. 14).

Without any legitimate dispute, spiders are arachnids - not insects; they are

not in the insect family, and neither spiders nor arachnids are identified in any

policy exclusion. (See Doc. 1).

On March 1, 2015, Liberty issued a renewal of the Policy to the Robinsons

with a policy period of March 1, 2015 through March 1, 2016. (Doc. 1-2). On

March 1, 2016, Liberty issued a renewal of the Policy with a policy period of


5

March 1, 2016 through March 1, 2017. (Doc. 1-3). The Robinsons paid annual

premiums to Liberty to have their home covered for loss. (Doc. 1 at ¶ 55).

On September 15, 2016, the Robinsons submitted a claim with Liberty

pursuant to the Policy for the loss of use of the home. (Doc. 1 at ¶ 56). On

September 16, 2016, Liberty’s claims adjuster, Thomas Curcio, told Plaintiff Cody

Robinson via telephone that the Plaintiffs’ claim would be denied under the

“insect” exclusion of the Policy; later that same day, Mr. Curcio told Cody

Robinson that his claim had been submitted to “higher review”. (Doc. 1 at ¶¶ 57-

58). On September 20, 2016, Mr. Curcio told Cody Robinson that his claim had

been sent to Liberty’s legal department and it would take two weeks to receive an

opinion concerning whether or not the “insect” exclusion in the Policy was

applicable to spiders. (Doc 1 at ¶ 59). During that same conversation, Mr. Curcio

admitted to Mr. Robinson that spiders were not insects and therefore the insect

exclusion should not apply. (See Doc. 1 at ¶ 60). On September 29, 2016, Mr.

Curcio informed Cody Robinson via telephone that the Liberty legal department

had advised him that spiders are insects and the claim would be denied. (Doc. 1 at

¶ 61).

On September 30, 2016, the Robinsons received a letter (Doc. 1-4) from

Liberty informing them the homeowner’s policy “does not afford coverage for a loss

as a result of spider infestation.” (Doc 1-4 – Pg. 2). The letter went on to state that


6

the applicable policy provisions within the Policy upon which Liberty based its

denial of the Robinsons’ claim were as follows:

“SECTION I – PERILS INSURED AGAINST

COVERAGE A – DWELLING and COVERAGE B – OTHER STRUCTURES

We insure against risk of direct loss to property described in

Coverages A and B only if that loss is a physical loss to property.

We do not insure, however, for loss:

2. Caused by:

… e. Any of the following:

… (7) Birds, vermin, rodents, or insects”.

(Doc 1-4, Pg. 2) (emphasis in original).

Other than the explanation previously given that, at the time of the denial, Liberty

relied solely on the insect exclusion, Liberty provided no additional support,

justification, or explanation as to why it denied the Plaintiffs’ claim. (See Doc. 1 at

¶¶ 63-64).

Cody Robinson next attempted to contact Mr. Curcio’s supervisor, Emily

Rennert, via telephone and left a voice mail message requesting that she contact him

to discuss the denial of Plaintiffs’ claim. (See Doc. 1 at ¶ 65). On October 3, 2016,

Ms. Rennert, contacted Cody Robinson via telephone and told him “Liberty Mutual

considers spiders [to be] insects” and that this was the basis of Liberty’s denial of

the claim. (Doc. 1 at ¶ 66). During that same conversation, Ms. Rennert told Mr.


7

Robinson there was nothing else to be done once a coverage issue has been addressed

by Liberty’s legal department. (Doc. 1 at ¶ 67). The next day, Mr. Robinson sent a

letter (Doc. 1-5) to Ms. Rennert requesting that Liberty reconsider its denial of their

claim; on October 6, 2016, Mr. Robinson received an email (Doc. 1-6) from Ms.

Rennert stating Liberty had reviewed the Robinsons’ request for reconsideration and

“Liberty Mutual’s coverage position remains the same.” (Doc. 1 at ¶¶ 68-69).

The Robinsons filed suit against Liberty, alleging breach of contract, bad faith

failure to pay the claim and bad faith failure to investigate the claim. Liberty moved

to dismiss all claims under Rule 12(b)(6). The district court granted Liberty’s

motion, finding as a matter of law that the Robinsons’ loss “is excluded under the

insurance Policy’s insect/vermin exclusion.” (Doc. 20 – Pg. 7). The district court

opined “if spiders are “insects” or “vermin,” then, as Liberty contends, the exclusion

applies. If spiders are not “insects” or “vermin,” then, as the Robinsons argue, the

exclusion does not apply.” (Doc 20 – Pg. 8). The district court rejected the

Robinsons’ demand for a hearing pursuant to Fed. R. Evid. 201(e) based on its

holding that Liberty had “not asked the court to take judicial notice of what is meant

by insect – or vermin – for that matter.” (Doc 20 – Pg. 9, footnote 2). The district

court found Liberty had argued in its motion to dismiss “that under the relevant rules

of contract interpretation, the court should find that the ordinary meaning of ‘insect’

and ‘vermin’ includes spiders, and therefore, the plain language of the Policy


8

excludes coverage for the Robinsons’ loss. Therefore, the court need not hold an

evidentiary hearing pursuant to Rule 201(c)(2) of the Federal Rules of Evidence.”

(See Doc. 6 – Pgs. 14-17; Doc. 20 – Pg. 9, footnote 2).

In granting Liberty’s motion to dismiss the Robinsons’ breach of contract

claim, the district court took judicial notice that the terms “insect” and “vermin”

indisputably include spiders. (Doc. 20 – Pg. 12). The district court also found

because there was no breach of contract, the Robinsons’ bad faith claim failed as a

matter of law. (Doc. 20 – Pg. 13). The Robinsons do not challenge the dismissal of

their claim for bad faith.

III. STANDARD OF REVIEW

This Court reviews an order granting of a motion to dismiss with prejudice de

novo, applying the same standards the district court used. Young Apartments, Inc. v.

Town of Jupiter, FL, 529 F.3d 1027, 1037 (11th Cir. 2008) (citing Hoffman-Pugh v.

Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002)). “All of the factual allegations in the

complaint must be accepted as true and construed in the light most favorable to the

plaintiff.” Id. (citing Beck v. Deloitte & Touche, 144 F.3d 732, 735 (11th Cir. 1998)).

To survive a 12(b)(6) motion to dismiss, the complaint must contain a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2).


9

SUMMARY OF ARGUMENT

The district court erred by taking judicial notice of an adjudicative fact that

was subject to reasonable dispute without affording the Plaintiffs an opportunity to

be heard pursuant to Rule 201 (e) of the Federal Rules of Evidence. While the district

court maintained it did not take judicial notice that spiders are insects, there is no

other way to describe its factual determination that, while subject to more than one

interpretation, the plain meaning of the word “insect” includes spiders. By looking

to and deciding what weight to give to alternative and secondary definitions from

multiple online dictionaries to determine the plain meaning of the word “insect”- the

court impermissibly took judicial notice of that disputed “fact.” By asking the court

to determine which of the various and disparate dictionary terms should be used to

interpret an ambiguous term in its policy exclusion, Liberty at least implicitly asked

the court to take judicial notice of this disputed fact. The court then took judicial

notice when it concluded, based on its reading of differing and dissimilar alternative

dictionary definitions, that spiders are insects and therefore excluded from coverage.

The court’s construction of this disputed term evinces that it ignored the primary

definition of an insect as a small arthropod animal that has six legs and generally one

or two pairs of wings and the court gave improper weight to the secondary or

informal definitions found in some, but not all, dictionaries. To be clear, not one of

the dictionary definitions cited by the Robinsons, or for that matter relied upon by


10

the court in reaching its decision, included “spiders” in the primary or formal

definition of “insect.” Where, as here, a term is reasonably susceptible to two or

more constructions, and where a reasonable dispute exists, the resolution of the

ambiguity becomes a task for the jury.

The district court impermissibly failed to hold an evidentiary hearing, nor did

it give the Robinsons any other opportunity to be heard, as required by Fed. R. Evid.

201(e). This rule requires the court to afford the parties an opportunity to be heard

when judicial notice is taken. The Eleventh Circuit Court of Appeals has urged

caution when taking judicial notice of facts because the judicial notice process

bypasses the safeguards which are involved with the usual process of proving facts

by competent evidence in district court. This caution is the reason behind the

requirement for evidentiary hearings; without an opportunity to be heard, a party is

disadvantaged because judicial notice allows the opposing party to circumvent the

evidentiary rules that govern admissible evidence. The Robinsons could easily

prove, if given the opportunity, that the district court’s ruling that the ordinary

meaning of the term ‘insect’ necessarily must include spiders is incorrect and the

district court erred in reaching this conclusion without hearing specific proof

directed at the issue.

The district court also erred in granting Liberty’s Fed. R. Civ. P. 12 (b)(6)

Motion to Dismiss the Robinsons’ breach of contract claim based on findings that


11

are inconsistent with the factual allegations in the Robinsons’ complaint, which the

court must accept as true and construe in the light most favorable to the Plaintiffs.

The Robinsons’ complaint contains enough factual allegations, which must be taken

as true, to raise a reasonable expectation that discovery will reveal evidence of

Liberty’s wrongdoing.

In summarily finding, as a matter of law, that a person of ordinary intelligence

would, without any reasonable dispute, understand that the meaning of “insect” must

include spiders, the district court did not take as true the allegations in the complaint

that spiders are arachnids and arachnids are not even in the same family as insects.

The court also did not accept as true the allegations in the complaint that Liberty

promotes and educates the public that spiders are arachnids and are not insects.

Again, for the purposes of this appeal, the Robinsons focus solely on the

court’s order as it relates to their claim for breach of contract; the Robinsons do not

seek to reverse the court’s order as it relates to their claim of bad faith.

ARGUMENT

I. The District Court erred by taking judicial notice of an adjudicative fact that was subject to reasonable dispute without affording the Plaintiffs an opportunity to be heard pursuant to Rule 201 (e) of the Federal Rules of Evidence.

In taking judicial notice of the “ordinary” definition for “insect,” the district

court misapplied and/or disregarded the applicable Alabama law as it relates to the

Robinsons’ claim for breach of contract. The Alabama Supreme Court has oft


12

repeated the axiom that “exceptions to coverage must be interpreted as narrowly

as possible to provide the maximum coverage available." See Sullivan v. State

Farm Mut. Auto. Ins., 513 So.2d 992, 994 (Ala. 1987)(emphasis added); see also

Porterfield v. Audubon Indemnity Co., 856 So. 2d 789, 800 (Ala. 2002)(internal

citations omitted). Here, the district court did the opposite; it determined a policy

exclusion to be ambiguous and then expanded this ambiguous term as broadly as

possible to exclude coverage for a peril that the Robinsons could not reasonably

otherwise protect against.

The court correctly noted that, when an insurance policy contains a term that

is “’reasonably susceptible to two or more constructions,’” that term is ambiguous.

(Doc. 20 – Pg. 7). See Safeway Ins. Co. of Alabama v. Herrera, 912 So. 2d 1140,

1144 (Ala. 2005) (quoting State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293, 309

(Ala. 1999)). However, the court then incorrectly concluded that, because three of

five online dictionaries cited by the Robinsons included in their secondary and/or

informal definitions for “insect” the term “spider,” “the majority of the authority

cited by the Robinsons actually supports the court’s conclusion that the term ‘insect,’

in its plain and ordinary sense, includes spiders.” (Doc. 20 – Pg. 10) (emphasis

added). This reasoning, while creating an arguable basis for Liberty’s denial of the

Plaintiffs’ claim that would defeat a claim for bad faith, is inapposite when used by

the court to determine whether an ambiguous term in an insurance policy exclusion


13

must be given the overtly broad interpretation maintained by the insurer to dismiss

a claim for breach of contract. In the present case, the trial judge’s decision as to

what weight to give to an alternative or secondary dictionary definition, claiming

that a single reference “majority” must, as a matter of law, swing the balance in favor

of Liberty’s expansive interpretation of an ambiguous term in a policy exclusion was

improper at this stage of the litigation. Where a term is reasonably susceptible to

two or more constructions, and “[w]here factual issues arise, the resolution of the

ambiguity becomes a task for the jury.” McDonald v. U.S. Die Casting & Dev. Co.,

585 So.2d 853 (Ala. 1991).

In the present case, because, as a simple matter of fact, spiders are not insects,

there is, at the very least, a factual dispute for a jury to decide as to what

interpretation of this exclusion the parties agreed at the time the policy was

purchased. Stated differently, if holding that spiders are insects and not arachnids is

the only construction that fairly could be read into the subject policy exclusion, then

dismissal of the plaintiffs’ claim for breach of contract would perhaps be

appropriate; however, if a reasonable person could construe that spiders are in fact

arachnids and, thus, not insects, then dismissal of the plaintiffs’ claim for breach of

contract was inappropriate.

It should be noted that the Robinsons demanded an evidentiary hearing

pursuant to Fed. R. Evid. 201(e) in their response in opposition to Liberty’s motion


14

to dismiss to the extent Liberty’s motion to dismiss invoked Fed. R. Evid.

201(c)(2)’s authority to request that the district court take judicial notice of what is

meant by “insect” in the policy exclusion and further to determine “whether the

requested judicial notice is within the discretion of the Court.” (Doc. 16 – Pg. 2).

Even though Liberty did not specifically cite Fed. R. Evid. 201(c) in their motion to

dismiss, they nevertheless asked the district court to take judicial notice by asking it

to disregard the fact that spiders are not insects and to determine instead that the

“plain meaning” of insect should be not be read narrowly, but should be expanded

to include spiders.

Fed. R. Evid. 201(b)(emphasis added) provides that [a] judicially noticed

fact must be one not subject to reasonable dispute in that it is either (1) generally

known within the territorial jurisdiction of the trial court or (2) capable of accurate

and ready determination by resort to sources whose accuracy cannot

reasonably be questioned.”

In order for a fact to be judicially noticed under Rule 201(b), indisputability is a prerequisite. 21 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5104 at 485 (1977 & Supp.1994). Since the effect of taking judicial notice under Rule 201 is to preclude a party from introducing contrary evidence and in effect, directing a verdict against him as to the fact noticed, the fact must be one that only an unreasonable person would insist on disputing. Id.

United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994)(emphasis added).


15

Can it be said that it is indisputable that spiders are insects, when they are not?

Would only an unreasonable person dispute that spiders, which are arachnids, are

not insects?

This Court “has urged caution when taking judicial notice of facts because the

judicial notice process ‘bypasses the safeguards which are involved with the

usual process of proving facts by competent evidence in district court.’”

Absolute Activist Value Master Fund Limited v. Devine, 233 F.Supp.3d 1297, 1319

(M.D. Fla. 2017)(emphasis added)(citing Shahar v. Bowers, 120 F.3d 211, 214 (11th

Cir. 1997). Likewise, the Supreme Court of the United States found the “power [to

take judicial notice] is to be exercised by courts with caution. Care must be taken

that the requisite notoriety exists. Every reasonable doubt upon the subject

should be resolved promptly in the negative.” Brown v. Piper, 91 U.S. 37, 42-43

(1875) (emphasis added). Since insects and arachnids are not even in the same

family, this clearly creates a “reasonable doubt” as to whether the term “insect” must

be expanded to include “spiders.” When the district court was asked to take judicial

notice of this expanded interpretation, it should have promptly resolved it in the

negative.

The Alabama Supreme Court has also held a court may not take judicial notice

of a fact which might be disputed by competent evidence. Westwind Technologies,

Inc. v. Jones, 925 So.2d 166, 171 (Ala. 2005); See also Cullman Broadcasting Co.,


16

Inc. v. Bosley, 373 So.2d 830, 832 (Ala. 1979). Competent evidence that spiders are

not insects would most certainly include the fact that spiders are not insects. Thus,

the district court committed reversable error and its order granting Liberty’s motion

to dismiss should be reversed.

Fed. R. Evid. 201(c) (1), provides that a court may take judicial notice on its

own and the Fed. R. Evid. 201 advisory committee’s notes to subdivisions (c) and

(d) further state “the judge has a discretionary authority to take judicial notice,

regardless of whether he is so requested by a party.” This allows a court to determine

“certain universally undisputed facts” and facts “not subject to reasonable

dispute because it can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.” United States v. Chapman, 692 F.

App’x. 583, 584 (11th Cir. 2017)(emphasis added); See Fed. R. Evid. 201(b) (2).

Again, to determine as a matter of law that spiders are insects is subject to reasonable

dispute. Indeed, rather than proving its accuracy, the incorrectness of the court

construction can be readily determined from sources whose accuracy cannot

reasonably be questioned -- sources that are promoted by Liberty to teach the public,

including potential customers, the exact opposite of what Liberty argued to the

district court.

In Funk v. Stryker Corp., the Fifth Circuit Court of Appeals found that judicial

notice was appropriately taken when making a determination based on “publicly


17

available documents. . . which were matters of public record directly relevant to the

issue at hand.” 631 F.3d 777, 783 (5th Cir. 2011). In the same way that the

documents in Funk were publicly available, dictionary terms are equally available

to anyone with a library card or access to the internet. When the court used dictionary

definitions provided by both parties, and then determined what weight to give certain

alternative definitions found in some, but not all of the sources, the court incorrectly

took judicial notice. By asking the court to determine which dictionary terms should

be used and which should be ignored to interpret, indeed expand, its policy

exclusion, Liberty was, at least implicitly, asking the court to take judicial notice.

The district court’s finding that “the majority of the authority cited by the

Robinsons actually supports the conclusion the term ‘insect,’ in its plain and

ordinary sense, includes spiders.” (Doc. 20 – Pg. 10) shows that the court not only

ignored the primary and universally accepted definition of insect as a small

arthropod animal that has six legs and generally one or two pairs of wings, it did not

follow the generally accepted rules governing the use of dictionaries when

determining a word’s primary definition as opposed to its secondary or informal

meaning.1

1 When using online dictionaries, it is important to use the appropriate definition. Many

dictionaries provide usage labels, such as “formal” or “informal” to indicate the appropriate use and context of the word defined. A usage label is “a label or brief passage that indicates particular limitations on the use of a word, or particular contexts or registers in which the word customarily appears.” Definition of Usage Labels and Notes in English Dictionaries, Thought Co. (last visited Apr. 16 2019), https://www.thoughtco.com/usage-note-1692482. These labels “provide specific


18

Of the three dictionary definitions cited by the Robinsons, none include

spiders in their primary definition. The Oxford English dictionary formally defines

an insect as “a small arthropod animal that has six legs and generally one or two

pairs of wings.” Insect, OXFORD ENGLISH DICTIONARY, https://en.oxford

dictionaries.com/definition/insect (emphasis added). The Collins Dictionary

(emphasis added) defines an insect as “any of a large class (Insecta) of small

arthropod animals characterized, in the adult state, by a division of the body into

head, thorax, abdomen, three pairs of legs on the thorax, and, usually, two pairs of

membranous wings, including beetles, bees, flies, wasps, and mosquitoes.” Insect,

COLLINS DICTIONARY. https://www.collinsdictionary.com/us/dictionary/english/

insect. Finally, Your Dictionary defines insect as “any of a large class (Insecta) of

small arthropod animals, including beetles, bees, flies, wasps, and mosquitoes,

characterized in the adult state by a division of the body into head, thorax, and

information about the domain of the application of the definition.” Id. (citing Longman Dictionary of Contemporary English, p. F27). Further, a usage label “restricts the definition to a certain context.” Id. For example, Oxford English Dictionary provides labels to “show words or meanings that are mainly restricted to a particular academic subject area. . . .” Guide to Symbols and Labels, OXFORD ENGLISH DICTIONARY (last visited Apr. 16 2019), https://www.oxfordlearners dictionaries.com/us/about/english/labels. If one were to look up the word “action,” the formal definition would be “the fact or process of doing something, typically to achieve an aim.” Action, OXFORD ENGLISH DICTIONARY, https://en.oxforddictionaries.com/definition/action. The informal definition is “exciting or notable activity.” Id. There are a total of thirteen definitions for “action,” but when used in the legal world (and signaled by a label) the word means “a lawsuit.” Depending on the context, one would know which definition applied. In the Robinsons’ case, the requirement of the plain meaning of a word coupled with its use in a court case, the only applicable definition would be the formal one.


19

abdomen, by three pairs of legs on the thorax, and, usually, by two pairs of

membranous wings.” Insect, YOUR DICTIONARY, https://www.yourdictionary.com

/insect.

These definitions, previously provided to the district court by the Robinsons,

are the primary definitions of the word “insect.” The district court erred by ignoring

the primary definition and improperly deciding what weight it would give to the

informal or secondary meaning of the word “insect” found in some, but not all, of

the dictionary sources.

Apparently aware that its finding that the only reasonable interpretation of the

sole policy exclusion that was used Liberty at the time of its denial is that spiders are

insects (and not arachnids) is not supported by any legal authority anywhere, the

court instead cites a single non-binding case from the Eastern District of California

for the proposition that, because mites are vermin, spiders must also be vermin. See

Gregory v. Nationwide Mut. Ins. Co., 2012 WL 6651342 (E.D. Cal. Dec. 19, 2012);

(Doc 20 – Pg. 11). In so doing, the Court either improperly ignored or did not accept

as true the allegation in the Plaintiffs’ complaint that, at the time of decision to deny

the Robinson’s claim, the only justification given by Liberty was the “insect

exclusion.” See Complaint, ¶¶ 57, 59, 61, 66.2

2 "Whether an insurance company is justified in denying a claim under a policy must be judged by what was before it at the time the decision is made...." National Savings Life Insurance Co. v.


20

It should be noted that, in addition to never being tested on appeal, Gregory

pertains to the granting of summary judgment. The standard of review for the

granting of summary judgment (and the subsequent appellate review thereof) is

notably different than that used for the granting of a motion to dismiss. In Gregory,

discovery was completed, depositions had been taken, and the parties were entitled

to a summary judgment hearing. In addition, it should also be noted that, unlike

spiders, mites are “parasitic animals” and the primary definition for vermin

specifically references parasitic animals, such as mites, lice fleas, etc.

While the Plaintiffs contend that the district court improperly failed to accept

the allegations in their complaint as true as to Liberty’s sole rationale for its decision

to deny coverage at the time that decision was made and do not waive their

contention, for the sake of thoroughness, more persuasive than the rationale in

Gregory, supra, to determine the proper interpretation of “vermin” in the context of

an insurance policy exclusion, would be the Virtual University article, “What is a

Vermin?” See Bill Wilson, What is a Vermin, THE BIG I: VIRTUAL UNIVERSITY (Sept.

15, 2010), https://www.independentagent.com/vu/insurance/personal-lines/home

owners/property-exclusions/wilsonvermin.aspx. It should be noted that Virtual

University is a service provided to consumers of insurance products, including

Dutton, 419 So.2d 1357, 1362 (Ala.1982); Federated Guaranty Life Insurance Co. v. Wilkins, 435 So.2d 10 (Ala.1983).


21

potential Liberty policyholders, by the Independent Insurance Agents & Brokers of

America (Big "I"). The Big “I” is “a national alliance of more than a quarter

million business owners and their employees who offer all types of insurance

and financial services products. . . .” Big "I" was founded in 1896 as the National

Local Association of Fire Insurance Agents. With the expansion of property-

casualty business and coverages, the organization’s name was changed to the

National Association of Insurance Agents in 1913. To emphasize its members’

ability to work with a variety of insurance companies, the organization became the

Independent Insurance Agents of America in 1975. The Association’s name was

changed in 2002 to the Independent Insurance Agents & Brokers of America to

reflect the diversity of its membership, which includes both independent insurance

agents and insurance brokers. Big "I" is a voluntary federation of state

associations and local boards, with affiliates in every state and the District of

Columbia. Its independent insurance agents and brokers are politically astute

and are involved both locally and nationally. They monitor and affect

consumer, insurance agent and broker, and small business issues in

Washington through IIABA’s active, professional staff on Capitol Hill.”

See About Us, The Big I (last visited May 16, 2019),

https://www.independentagent.com/AboutUs (emphasis added).


22

In answering the question, “What is a Vermin?”, the Big “I” first noted that,

because the term is not defined in the policy, “we must look to other sources such as

dictionary definitions and court cases.” Id. In so doing, the Big “I” first noted that:

In England, the word "vermin" has been defined by statute as follows: "'vermin' includes [bedbugs], fleas, lice and itch mites and their eggs, larvae and pupae". (Public Health [London] Act, 1936, 26 Geo. 5 & 1 Edw. 8, ch. 50, § 304, subd. [1]; 15 Halsbury's Statutes of England [2d ed.], p. 1034). These creatures, constituting "vermin" under the English definition, all are parasitic in nature. (emphasis added) [NOTE: Unlike mites, spiders are not only not included in this statutory definition, they are not parasitic in nature. Even if it were permissible to refuse to accept as true the allegations in the plaintiffs’ complaint, this fact alone, belies that granting of Liberty’s motion to dismiss]. The Encyclopedia Americana (Vol. 28 [1955 ed.], pp. 16-17) defines "vermin" as: "A term comparable to 'weed' signifying small animals obnoxious in some way to human plans and operations. It has been applied to rats, mice, gophers, weasels, and other mammals; such insects as fleas and lice and at times to hawks, owls and other birds." [NOTE; Again, the primary definition of vermin does not include spiders and, like the prior definition, as it relates to bugs as vermin, it narrowly defines “vermin” to parasites bugs and insects.]

In further answering the question, What is a Vermin?, the Big “I” next focused on

the case of North British & Mercantile Insurance Company v. Mercer, 84 S.E.2d

570, 571 (Ga. 1954), wherein that court stated:

The smaller dictionaries define vermin to mean "noxious, mischievous or mean animals or insects." The larger New


23

International Webster's Dictionary (2d ed.), after giving in substance the above meaning, proceeds to specify or particularize by naming the class of animals and insects to which it refers "as flies, lice, bedbugs, fleas, etc., various mammals, as rats, mice, weasels, etc."

Id. (emphasis added). Notably missing from any of the definitions of vermin in

Mercer is “spiders.”

Finally, the Big “I” specifically noted that, “IF the homeowners exclusion was

written more like the commercial lines exclusion without the use of the term

‘vermin’ (e.g., [excluding coverage for damage caused by] "Nesting or infestation,

or discharge or release of waste products or secretions, by insects, birds,

rodents or other animals." in the CP 10 30), it would probably be more likely that

a claim such as this could be reliably denied.”]

Indeed, just as the Big “I” article suggests, there does not appear to be an

appellate opinion from any jurisdiction where “spiders” have been held to be

“vermin” to uphold an exclusion of coverage, much less to support the granting of a

motion to dismiss.

Interestingly, in addition to parasitic animals, such as mites, lice, and fleas,

the Webster's New Collegiate Dictionary (8th ed. 1974) includes in its secondary or

informal definition for vermin "an offensive person." Thus, following the court’s

logic (and assuming it would be permissible for a trial court to refuse to accept as

true the allegations in a plaintiff’s complaint), if an ambiguous policy exclusion must


24

necessarily be expanded to include secondary or informal definitions, if a vagabond

broke into an insured’s house and stole the homeowner’s silverware, Liberty could

arguably exclude coverage under its “vermin exclusion” and a subsequent lawsuit

challenging this decision would be summarily “tossed out” on a motion to dismiss.

However, just as is the case with spiders, which are not “parasitic” animals, rational

minds could disagree as to whether the only undisputed interpretation of “vermin”

in an insurance policy exclusion would necessarily include vagrants, drifters and

beggars. Indeed, following this logic, if any animal that lives in your basement,

which is difficult to get rid of, and eats most of your food is a vermin, then apparently

some millennials are also “vermin” and any damages they cause in their parent’s

home would likewise arguably be excluded from coverage.

For these reasons, at this stage of the litigation, reasonable minds could

disagree as to whether spiders must be considered “insects” (or “vermin”) in

Liberty’s policy exclusion and the granting of Liberty’s motion to dismiss was

improper.

II. The District Court erred in granting the Defendants’ Fed. R. Civ. P.

12 (b)(6) Motion to Dismiss based on findings that are inconsistent with the factual allegations in the Plaintiffs’ Complaint which the Court must accept as true and construe in the light most favorable to the Plaintiffs.

A pleading which states a claim for relief need only be plausible on its face to

allege sufficient facts to show entitlement to relief. “While a complaint attacked by


25

a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations … a

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires

more than labels and conclusions, and a formulaic recitation of a cause of action’s

elements will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(internal citations omitted). Simply stated, the “plain statement” required by Rule

8(a)(2) must “possess enough heft to ‘show the pleader is entitled to relief.’” Id at

557. Here, the Robinsons made such a demand for relief in their complaint. (Doc.

1). Further, the Twombly standard “does not require a court at the motion-to-dismiss

stage to consider whether the factual allegations are probably true. . . a court must

[instead] take the allegations as true, no matter how skeptical the court may be.”

Ashcroft v. Iqbal, 566 U.S. 662, 696 (2009). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw a reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678.

The district court correctly stated that “[a]t this stage, the court must accept as

true the factual allegations in the complaint and construe them in the light most

favorable to the plaintiff.” (Doc. 20 – Pg. 2) (citing Butler v. Sheriff of Palm Beach

City., 685 F.3d 1261, 1265 (11th Cir. 2012)). However, it is obvious from the court’s

ruling that it did not adhere to that required standard of review. While the district

court claimed it “incorporate[ed] not only Plaintiff’s allegations but also the content

of the exhibits attached to the complaint,” (Doc. 20 – Pg. 2), the court in fact focused


26

on and misinterpreted the Plaintiff’s rationale for the inclusion of an exhibit attached

to the Plaintiff’s complaint – a letter written after denying the Plaintiffs’ claim and

after stating its justification for denial at the time of the denial (See Doc. 1-4). In so

doing, the court noted that the document “specifically refers to the ‘[b]ird, vermin,

rodents, or insects’ exclusion in its entirety and does not narrowly deny coverage

only on the insect exclusion.” (Doc. 20 – Pg. 8, footnote 1). Consequently, the

district court ignored all of the allegations in the Robinsons’ complaint alleging that

Liberty denied coverage based on the insect exclusion alone. (See Doc. 1 at ¶¶ 57-

61 and ¶ 66). The district court also completely ignored the allegations in the

complaint that school children are taught that spiders are classified as arachnids and

not as insects (Doc. 1 at ¶ 38) and that Liberty promoted educational programs for

kindergarten through third graders which teach children insects, coruscations

[crustaceans] and arachnids are different classifications of living organisms. (Doc. 1

at ¶ 39). The district court likewise ignored the allegations in the complaint that

Liberty or their affiliated companies sponsor museums of science that teach school

children and the general public that spiders are arachnids and not insects. (Doc. 1 at

¶¶ 40-43).

The court incorrectly read Hoefling v. City of Miami, 811 F.3d 1271 (11th Cir.

2016) as its basis for ignoring all of the allegations in the Robinsons’ complaint,

finding that because “[t]he letter the Robinsons attached to their complaint in which


27

Liberty denied the claim specifically refers to the ‘[b]ird, vermin, rodents, or

isnsects’ exclusion in its entirety and does not narrowly deny coverage based only

on the insect exclusion. (Doc. 1-4 at 2). Therefore, the contents of the letter control.”

(Doc. 20 – Pg. 8, Footnote 1). However, in the present case, the Plaintiffs simply

attached the final denial letter to establish their contention that Liberty knew the

justification that it actually used at the time of its denial was not valid and that

Liberty was now grasping at straws. [NOTE: as was argued above, even if Liberty

had used the “vermin” exclusion as the basis for its denial, which it did not, this

would still not support the granting of a motion to dismiss, as there would remain a

legitimate dispute as to whether spiders are vermin, since they are not parasitic

animals.]

The Robinsons’ complaint contains enough factual matter, which must be

taken as true, to raise a reasonable expectation that discovery will reveal evidence

of Liberty’s wrongdoing. See Twombly, 550 U.S. at 556. The District Court

misapplied the standards for granting a Fed. R. Civ. P. 12 (b)(6) Motion to Dismiss.

Consequently, the district court’s order, as it relates to the Plaintiffs’ claim for breach

of contract must be reversed.

III. The district court misapplied the standards for granting a Fed. R. Civ. P. 12 (b)(6) Motion to Dismiss.

This Court has held “’[a] district court abuses its discretion if it applies an

incorrect legal standard, applies the law in an unreasonable or incorrect manner,


28

follows improper procedures in making a determination, or makes findings of fact

that are clearly erroneous’. . . and also ‘when it misconstrues its proper role, ignores

or misunderstands the relevant evidence, and bases its decision upon considerations

having little factual support.” F.T.C. v. AbbVie Products, LLC, 731 F.3d 54, 61 (11th

Cir. 2013) (quoting Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 814, 821

(11th Cir. 2010); Jove Eng’g, Inc. v. IRS, 92 F.3d 1539, 1546 (11th Cir. 1996)).

Because the district court did not accept all of the allegations made in the Robinsons’

complaint as true, the district court abused its discretion when granting Liberty’s

motion to dismiss.

When the district court took judicial notice to determine that the insect (or

vermin) exclusion precluded the Robinsons from any possible relief, the court

violated the applicable standard of review to be applied to a motion to dismiss. Based

on the standards set forth by the Supreme Court in Twombly and Iqbal, the district

court should have made its determination based on the complaint as a whole and

taken the allegations from the complaint as true.

The district court’s finding was inappropriate at the pleading stage and shows

a failure by the court to accept as true the Robinsons’ allegations in their complaint,

or to view them in the light most favorable light to the Robinsons, as it was bound

to do on a motion to dismiss. See Twombly, 550 U.S. at 555; Castillo v. Allegro

Resort Marketing, 603 F. App’x. 913, 915 (11th Cir. 2015).


29

CONCLUSION

The district court said it must accept the plaintiff’s allegations as true, but it

did not. The district court acknowledged that the term spider (and vermin) is

susceptible to different interpretations but, instead of reading the term as narrowly

as possible to find coverage, the court impermissibly expanded these terms to define

spiders (and vermin) as something that rationale minds could argue they simply are

not. The district court also failed to hold an evidentiary hearing when it clearly took

judicial notice of disputed terms or terms. Finally, the district court failed to follow

and/or misapplied the applicable law as it relates to 12(b)(6) motions to dismiss.

It appears that the district court placed expediency over substantial justice and

has improperly denied Judge Robinson and his wife of the opportunity to gather

evidence and to be heard. If the Robinsons could trade their house full of venomous

spiders for one with only insects or vermin, they certainly would, but they cannot,

just as the district court cannot permissibly redefine and expand, as a matter of law,

the term insects (or vermin) into spiders. Accordingly, the district court’s decision

should be reversed and vacated, and the case should be remanded for further

proceedings.

Respectfully submitted, Dated: May 17, 2019

/s/ John R. Bowers, Jr. John R. Bowers, Jr. Thomas F. Campbell


30

CAMPBELL LAW, PC 5336 Stadium Trace Parkway, Suite 206 Birmingham, AL 35244 (205) 278-6650 Counsel for Plaintiffs-Appellants

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(g)

1. This document complies with the word limit of Fed. R. App. P.

32(a)(7)(B)(i) because, excluding the parts of the document exempted by

Fed. R. App. P. 32(f), this document contains 7,193 words.

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. 32(a)(6) because it

has been prepared in a proportionally-spaced typeface using Microsoft Word

365 in 14-point Times New Roman.

Dated: May 17, 2019 /s/ John R. Bowers, Jr. JOHN R. BOWERS, JR.

CERTIFICATE OF SERVICE

I, John R. Bowers, Jr. do hereby certify that I have filed the foregoing Brief

electronically with the Court’s CM/ECF system with a resulting electronic notice to

all counsel of record on May 17, 2019. I further certify that upon receiving

notification from the Court that the electronic version of the Brief has been accepted


31

and docketed, one true and correct paper copy of the Brief will be sent via first-class

mail to counsel of record.

Dated: May 17, 2019 /s/ John R. Bowers, Jr. JOHN R. BOWERS, JR.


initial brief of plaintiffs-appellantson september 15, 2016, the plaintiffs-appellants, maggie j....

Documents