UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

BRUCE B. WHITMAN, et al., : Case No. 1:17-cv-667 

: 

Plaintiffs, : Judge Thomas M. Rose

: 

v. : 

: 

ESTATE OF ROY W. WHITMAN, : 

ESTHER WHITMAN, EXTRX., et al., : 

: 

Defendants. : 

ENTRY 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) 

This 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.) 
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For the 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.

I. BACKGROUND

This 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.) 

In 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 
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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.) 

Allianz’s 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.) 

Plaintiffs 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.

II. DEFENDANTS’ MOTIONS FOR JUDGMENT ON THE PLEADINGS 

Allianz 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.) 

A. Legal Standard

A Rule 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 
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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). 

B. Plaintiffs’ Claim for Negligent Misrepresentation

As 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. 

The 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.

Under 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 
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(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 not accrue until actual damage occurs.” Id. at 379, 433 

N.E.2d 147. 

LGR Realty, 2018-Ohio-334 at ¶¶ 15-16. 

In LGR Realty, the question before the Supreme Court of Ohio was whether the 

delayed-damage rule was applicable to “a cause of action alleging negligence related to 

the procuring of a professional-liability insurance policy.” The appellant, an insurance 

agency, had procured a professional-liability insurance policy on behalf of the appellee, 

a realty company. A liability claim was made against the realty company, which then 

made a claim against the professional-liability insurance policy for defense and 

indemnification. The insurance carrier denied the claim, however, based on an 
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exclusion provision in the policy. As a result of the denial of coverage, the realty 

company incurred significant expenses defending against the liability claim.

The realty company then brought an action against the insurance agency alleging

that it had negligently procured the professional-liability policy and negligently 

misrepresented the coverage that it provided. The realty company claimed that the 

insurance agency breached its duty to procure an appropriate insurance policy and was 

therefore liable for the realty company’s defense costs. The insurance agency moved to 

dismiss on the grounds that the claim was barred by the statute of limitations under 

Flagstar Bank, F.S.B. v. Airline Union’s Mtge. Co., 128 Ohio St. 3d 529, 2011-Ohio-1961, 947 

N.E.2d 672. It argued that, under Flagstar, the realty company’s claim accrued on the 

date when the policy went into effect and was subject to the four-year statute of 

limitations set forth in Ohio Revised Code 2305.09. Since the realty company brought 

its action more than four years after the policy went into effect, the insurance agency 

argued the professional negligence claim was time barred.

The realty company, relying primarily on Kunz v. Buckeye Union Ins. Co., 1 Ohio 

St.3d 79, 437 N.E.2d 1194 (1982), argued that the statute of limitations did not begin to 

run until it suffered an “injury” under the delayed-damages rule. It claimed not to have 

suffered any injury until, at the earliest, when the insurance carrier denied its claim for 

defense and indemnity. Since that denial occurred within four years of when it brought 

suit, its claim was not barred by the statute of limitations.

The trial court found that the delayed-damages rule set forth in Kunz had been 

“eroded” by subsequent cases, including Flagstar, and dismissed the realty company’s 
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claim as barred by the statute of limitations. The court of appeals reversed, holding that 

Flagstar should be read more narrowly, and not to overrule Kunz. 

The Supreme Court of Ohio declined to decide whether Kunz had been overruled 

by Flagstar and other precedent. Instead, it distinguished Kunz on its facts and held that 

the realty company’s claim was barred by the four-year statute of limitations. In 

reaching that conclusion, the Supreme Court of Ohio first observed that the 

“pronouncement of law” in Kunz, as a per curiam opinion, “must be read in light of the 

facts of the case.” Id. at ¶ 25. 

The facts and holding in Kunz, as summarized by the Supreme Court of Ohio in 

LGR Realty, were as follows:

In Kunz, a per curiam opinion without a syllabus, the insureds, Walter 

Kunz and his concrete company, began purchasing business insurance 

from their insurance agent in 1952. [Kunz v. Buckeye Union Ins. Co.], 1 Ohio 

St.3d 79, 437 N.E.2d 1194. In 1969, the insureds purchased an insurance 

policy written by Buckeye Union Insurance Company (“Buckeye Union”) 

that provided “all risk” coverage on a crane. Later that year, Kunz and his 

insurance agent discussed consolidating the various individual policies on 

the insureds’ equipment into a single omnibus policy.

In April 1970, the insurance agent presented Kunz with a three-year 

consolidated policy from Buckeye Union that Kunz believed provided the 

same “all risk” coverage that the insureds formerly had. In 1973, the 

insureds renewed the consolidated policy, again assuming that the 

coverage was as good as the pre-1970 individualized policies.

On April 21, 1975, the crane owned by the insureds was damaged. 

Initially, Buckeye Union informed Kunz that the loss would be covered. 

But in June 1975, Buckeye Union denied the claim, citing exclusions in the 

consolidated policy that had not been part of the pre-1970 insurance 

contract on the crane.

On April 20, 1977, the insureds filed a complaint alleging that their 

insurance agent had negligently failed to obtain the requested coverage 

for the crane and/or failed to disclose a change in the coverage of the 
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crane. Holding that the four-year statute of limitations in R.C. 2305.09 

applied and that it began to run no later than April 1, 1973—the date the 

consolidated insurance policy was renewed—the trial court granted 

summary judgment in favor of the insurance agent. The court of appeals 

affirmed the trial court’s judgment.

On appeal to this court, the insureds argued in support of applying the 

delayed-damage rule. In determining that the delayed-damage rule 

applied, this court relied on the reasoning set forth in Austin v. Fulton Ins. 

Co., 444 P.2d 536 (Alaska 1968). In that case, the Alaska Supreme Court 

held that a cause of action for negligent failure to procure insurance 

coverage for damage caused by an earthquake accrued not when the 

defective policy was issued but years later, when an earthquake caused 

property damage. Therefore, even though the insureds’ policy in Kunz 

was purchased in 1970 and renewed in 1973, the court held that their

cause of action did not accrue until their crane was damaged in 1975. 

Consequently, the insureds’ complaint filed in April 1977 was timely filed.

Id. at ¶ 19-23. 

Three justices, writing for the majority, did not overrule Kunz, but found that the 

differences between the facts in Kunz and LGR Realty were significant enough that Kunz

was not controlling. Those differences were that, in LGR Realty, when the realty 

company purchased the professional-liability insurance policy, the exclusion upon 

which the carrier based its denial of coverage was contained in the policy. Id. at ¶ 24. 

In contrast, “[i]n Kunz, the insureds purchased a property insurance policy providing 

‘all risk’ coverage on a crane. When that individual policy was consolidated into the 

omnibus policy, the insureds believed, incorrectly, that the ‘all risk’ coverage 

continued.” Id. The majority also declined to extend the delayed-damages rule, 

notwithstanding that Kunz did not control, because the facts did not fit within the 

“narrow circumstances in which application of the general rule ‘would lead to the 

unconscionable result that the injured party’s right to recovery can be barred by the 
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statute of limitations before he is even aware of its existence.’” Id. at ¶ 26 (quoting 

Wyler v. Tripi, (1971), 25 Ohio St.2d 164, 168, 267 N.E.2d 419). 

In a sharp concurrence, two justices wrote separately “to make explicit what is 

implicit in the majority’s decision today: a cause of action for professional malpractice 

under R.C. 2305.09(D) will always accrue at the time of the negligent act.” Id. at ¶ 32. 

The concurring justices took the majority to task for declining to recognize what, in their 

view, had already been established by the court’s prior decisions in Flagstar; Grant 

Thornton v. Windsor House, Inc., 57 Ohio St.3d 158, 566 N.E.2d 1220 (1991); and Investors 

REIT One v. Jacobs, 46 Ohio St.3d 176, 546 N.E.2d 206 (1989). The concurrence argued 

that Kunz was effectively overruled and warned that failure to say so directly would 

cause confusion among lower courts. Id. at ¶ 40. The concurrence was not persuaded 

that the majority had distinguished Kunz on its facts—which permitted the court to 

defer ruling on its continuing validity. The concurrence observed that “[i]n both cases, 

an insured received less coverage than it thought it had purchased, an injury occurred, 

coverage was denied, and a lawsuit was filed more than four years after the policy had 

issued.” Id. at ¶ 43. 

This Court, faced with the same question regarding Kunz’s precedential 

authority as the Supreme Court of Ohio faced in LGR Realty, must admit that the 

concurrence’s criticism has some merit. In both Kunz and LGR Realty, the insureds 

thought that they had purchased a product that contained certain coverage, but 

discovered that they did not have that coverage when they pursued a claim. In Kunz, 

the insureds were permitted to bring suit because the court held the statute of 
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limitations ran from the date that they realized their mistake. In LGR Realty, the

insureds were not permitted to bring suit because the statute of limitations was held to 

run from the date the policy was issued. The Court recognizes that the concurrence’s 

opinion does not constitute the Supreme Court of Ohio’s opinion for precedential 

purposes. Nonetheless, it does provide an insightful lens through which to construe the 

majority’s opinion.

Plaintiffs do not argue that this case is analogous to Kunz, whose holding must 

be narrowly restricted to its facts. Rather, they argue that this case falls within the 

“narrow circumstances” where the delayed-damages rule should be applied to avoid 

the “unconscionable result that the injured party’s right to recovery can be barred by 

the statute of limitations before he is even aware of its existence.” (Doc. 33 at 3; LGR 

Realty, 2018-Ohio-334, at ¶ 26 (internal quotes omitted).) Plaintiffs argue that they were 

not aware of their right to recovery—due to the annuities’ alleged defects—until their 

father passed, and therefore the statute of limitations should run from that date. 

Plaintiffs’ interpretation of this exception, however, is not consistent with the Supreme 

Court of Ohio’s analysis in LGR Realty. 

In LGR Realty, the realty company alleged that it purchased an inadequate 

insurance policy based on the professional negligence, including negligent 

misrepresentations, of the insurance agency. The realty company only became aware of 

the limitations of the policy after it was forced to defend itself against a claim. These 

allegations, however, did not trigger the application of the delayed-damages rule. The 

Supreme Court of Ohio focused on the exclusion provision that resulted in the denial of 
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coverage. Since that provision was in the insurance policy when it was issued, the 

realty company “was damaged the moment it entered into the contract and became 

obligated to pay a premium for a professional-liability insurance policy that was less 

than the coverage that it believed it would receive.” LGR Realty, 2018-Ohio-334, at ¶ 28. 

The harm was therefore “complete” at that time and the statute of limitations began to 

run upon the issuance of the policy.

Following the same logic in this case, the Court must conclude that Plaintiffs’ 

professional negligence claim against Allianz and Tucker is barred by the statute of 

limitations. Plaintiffs allege that they were damaged because their father was issued 

annuities that did not clearly reflect his intentions, specifically regarding to whom the 

annuities would pass upon his death. The annuities’ defects were present upon their 

issuance. Roy and his intended annuitants were therefore injured on the day that he

purchased the annuities which did not reflect his alleged wishes and, therefore, did not 

receive what he paid for. Following LGR Realty, Plaintiffs’ damages were “complete” at 

that time. 

As Plaintiffs brought their professional negligence claims more than four years 

after the issuance of the annuities, those claims are barred by the four-year statute of 

limitations set forth in Ohio Revised Code 2305.09. 

C. Plaintiffs’ Claim for Bad Faith

Allianz moves to dismiss Plaintiffs’ claim for bad faith for failure to state a claim 

under Fed. R. Civ. P. 12(b)(6). Allianz argues that Plaintiffs cannot state a claim for bad 

faith because it applies to an insurer’s denial of a claim for insurance coverage, not an 
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annuitant’s claim to the proceeds of an annuity. Allianz also argues that it cannot be 

held liable for doing “exactly what it is authorized by law to do where it is faced with 

competing claimants.” (Doc. 22 at 4, citing Trego v. Allstate Ins. Co., 552 F. App’x 449, 

451 (6th Cir. 2014).) Allianz then argues that, in any event, Plaintiffs do not have the 

privity with Allianz necessary to maintain a claim for bad faith because the contractual 

relationship at issue was between Allianz and Plaintiffs’ father, Roy. (Id. at 5, citing

William Powell Co. v. Nat’l Indem. Co., 141 F. Supp. 3d 773, 782 (S.D. Ohio 2015) (“[A] bad

faith claim arises out of the contractual relationship between the insurer and the insured 

and [Ohio courts] have consistently rejected bad faith claims where the parties are not 

in privity with each other.”) (citing Gillette v. Estate of Gillette, 837 N.E.2d 1283, 1286-87 

(Ohio Ct. App. 2005) (collecting cases)).) 

“Under Ohio law, an insurer fails to exercise good faith in the denial of a claim 

only where the denial is not ‘reasonably justified.’” Trego, 552 F. App’x at 451 (citing 

Zoppo v. Homestead Ins. Co., 644 N.E.2d 397, 399 (Ohio 1994)). Plaintiffs have not cited 

any caselaw showing that this cause of action should be extended to the manner in 

which an insurer or other financial institution processes an annuity upon its owner’s 

death. An annuity is a contract that provides for the payment of a sum of money yearly 

or at other regular intervals; it is not an insurance contract. See Merriam-Webster’s 

Collegiate Dictionary 47 (10th ed. 2002). In Ohio, the cause of action for bad faith arises 

from a “legal duty of good faith,” as opposed to a contractual duty, that courts implied 

due to the unique relationship between an insurer and insured. See Battista v. Lebanon 

Trotting Ass’n, 538 F.2d 111, 117–18 (6th Cir. 1976). At least one Ohio appellate court has 
13 

indicated that “Ohio law only recognizes an implied covenant of good faith and fair 

dealing in insurance contracts and in limited circumstances where the duty arises from 

the language of the contract.” Pappas v. Ippolito, 2008-Ohio-3976, ¶ 57, 177 Ohio App. 3d 

625, 642, 895 N.E.2d 610, 622. Plaintiffs have not shown that the seller of an annuity and 

its purchaser have a relationship that gives rise to a cause of action for bad faith under

Ohio law. 

Plaintiffs cite to Ohio statutes regarding life benefits and identity theft in support 

of their bad faith claim. One statute provides that it is a misdemeanor to fail to obtain 

the consent of the person for whom an annuity provides a life benefit. (Doc. 26 at 10, 

citing Ohio Rev. Code §§ 3999.03, 3999.99.) Plaintiffs cite other statutes for the 

proposition that using an individual’s personal information without their consent is 

punishable as identity theft. (Doc. 26 at 10, citing Ohio Rev. Code §§ 2307.60, 2913.02, 

2913.60(D)1.) These statutes do not address whether Plaintiffs’ bad faith claim may 

proceed in this case. Whether the statutes give rise to another private right of action is 

not a question before the Court.

A second reason that Allianz is entitled to dismissal of the bad faith claim is that 

Plaintiffs lack the required privity. As this Court has recognized, Ohio courts “have 

specifically noted that a bad faith claim arises out of the contractual relationship 

between the insurer and the insured and have consistently rejected bad faith claims 

where the parties are not in privity with each other.” The William Powell Co. v. Nat'l 

 

1 As there is no Ohio Rev. Code § 2913.60(D), Plaintiffs likely intended to cite § 2913.49(D) relating to 

identity fraud.
14 

Indem. Co., 141 F. Supp. 3d 773, 782 (S.D. Ohio 2015) (Dlott, J.), citing Gillette v. Estate of 

Gillette, 163 Ohio App.3d 426, 837 N.E.2d 1283, 1286–87 (2005) (collecting cases); Eastham 

v. Nationwide Mut. Ins. Co., 66 Ohio App.3d 843, 586 N.E.2d 1131, 1133 (1990) (“[W]e 

believe that liability for bad faith must be strictly tied to the implied-in-law covenant of 

good faith and fair dealing arising out of the underlying contractual relationship.”) 

(emphasis added). Even if they could establish the existence of a bad faith claim in the 

context of this case, Plaintiffs do not allege that they were in contractual privity with 

Allianz.

Finally, Plaintiffs’ bad faith claim also fails because, even accepting their 

allegations as true, they could not establish that Allianz had no reasonable justification 

for bringing an interpleader action instead of paying the proceeds of the annuities to 

Plaintiffs. Plaintiffs allege that it was clear to Allianz, by January 2017, that Roy’s 

intention was to pass the annuities to Plaintiffs upon his death. (Doc. 26 at 8, citing 

Adams v. Adams, 2003-Ohio-3703 (12th Dist. App.).) It is undisputed, however, that

Esther claimed that she was also entitled to the annuities. (Doc. 1-1 at ¶ 14.) Plaintiffs 

themselves allege that “[t]he Annuities are ambiguous in describing who receives the 

death benefit in the event the owner dies before the annuitant and before the annuitant 

has elected the form of payments.” (Id. at ¶ 20.) The pleadings therefore evince a 

genuine dispute regarding ownership of the annuities and their proceeds, which alone 

establishes reasonable justification for Allianz’s decision not to pay out the annuities’ 

proceeds and bring an interpleader action.

For all these reasons, Plaintiffs’ claim for bad faith is dismissed.
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III. PLAINTIFFS’ MOTION FOR LEAVE TO FILE FOURTH AMENDED 

COMPLAINT (DOC. 36)

Plaintiffs move to file a Fourth Amended Complaint revising paragraph 15 of the 

Third Amended Complaint to clarify that “Plaintiffs were unaware of the existence of 

the nature of or the terms of the Allianz annuities until after his death on October 12, 

2016. (Doc. 36 at 1.) Plaintiffs seek to make this change to support their argument that 

their negligent misrepresentation claim falls within the “narrow exception” set forth in 

LGR Realty for application of the delayed-damages rule. In construing the Third 

Amended Complaint, the Court has assumed that Plaintiffs were unaware of the terms 

of the annuities until Roy’s death. Assuming the truth of this allegation, however, 

Plaintiffs’ negligent misrepresentation claim is still barred by the statute of limitations 

for the reasons discussed above. Plaintiffs’ Motion for Leave to File a Fourth Amended 

Complaint (doc. 36) is therefore denied as futile.

IV. PLAINTIFFS’ MOTION TO CONVERT THE MOTIONS FOR JUDGMENT 

ON THE PLEADINGS INTO MOTIONS FOR SUMMARY JUDGMENT 

(DOC. 38)

Discovery cannot not save Plaintiffs’ claims against Allianz and Tucker from 

dismissal. The Court therefore denies Plaintiffs’ Motion to Convert the Motions for 

Judgment on the Pleadings into Motions for Summary Judgment (Doc. 38)

V. TUCKER’S MOTION TO STAY DISCOVERY (DOC. 23)

Tucker moves to stay discovery pending the resolution of his Motion for 

Judgment on the Pleadings. As the Court has dismissed the claims against both Tucker 

and Allianz, this motion is denied as moot.

VI. CONCLUSION
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For the reasons above, the Court rules as follows:

1. Tucker’s Motion for Judgment on the Pleadings (Doc. 13) is GRANTED; 

2. Allianz’s Motion for Judgment on the Pleadings (Doc. 22) is GRANTED; 

3. Plaintiffs’ Motion for Leave to File a Fourth Amended Complaint (Doc. 36)

is DENIED; 

4. Plaintiffs’ Motion to Convert the Motions for Judgment on the Pleadings 

into Motions for Summary Judgment (Doc. 38) is DENIED; and 

5. Tucker’s Motion to Stay Discovery (Doc. 23) is DENIED. 

Still pending in this case are the Joint Motion to Release Interpleaded Funds 

(Doc. 46) filed by Plaintiffs and Esther and Motion for Award of Attorneys’ Fees and 

Expenses (Doc. 47) filed by Allianz. The Court will rule on these motions after they are 

fully briefed by the parties.

DONE and ORDERED in Dayton, Ohio, this Thursday, May 3, 2018. 

s/Thomas M. Rose

________________________________ 

THOMAS M. ROSE 

UNITED STATES DISTRICT JUDGE