IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PENNSYLVANIA NATIONAL 

MUTUAL CASUALTY 

INSURANCE COMPANY,

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Plaintiff,

vs. Civil Action No. 13-066-CG-M

ST. CATHERINE OF SIENA 

PARISH, et. al.

Defendants.

ORDER

This matter is before the court on the partial motion to dismiss for 

failure to plead fraud claims with particularity (Doc. 41) filed by the plaintiff 

and counter-defendant, Pennsylvania National Mutual Casualty Insurance 

Company (“Penn National”).

Penn National seeks to dismiss Count Four of defendant Kiker 

Corporation’s (“Kiker’s”) counterclaim, in which Kiker alleges claims of 

misrepresentation, suppression, and fraud. Doc. 37 at 8-9. Penn National 

argues that Kiker has not met the particularity requirements of Fed.R.Civ.P. 

9(b) because Kiker failed to state how, when, and by whom the alleged 

misrepresentations were made and the content of the misrepresentations. 

Doc. 41 at 3.

For the reasons stated below, Penn National’s motion is due to be 

denied.

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I. RULE 9(b) SPECIFICITY REQUIREMENT

Rule 9(b) of the Federal Rules of Civil Procedure requires that “[i]n 

alleging fraud or mistake, a party must state with particularity the 

circumstances constituting fraud or mistake.” This particularity requirement 

is met when a complaint or counterclaim sets forth the following facts: “(1) 

precisely what statements were made in what documents or oral 

representations or what omissions were made, and (2) the time and place of 

each such statement and the person responsible for making (or, in the case of 

omissions, not making) same, and (3) the content of such statements and the 

manner in which they misled the plaintiff, and (4) what the defendants 

obtained as a consequence of the fraud.” Ziemba v. Cascade Int’l Inc., 256 

F.3d 1194, 1202 (11th Cir. 2001) (citing Brooks v. Blue Cross and Blue Shield 

of Florida, Inc., 116 F.3d 1364, 1371 (11th Cir. 1997)).

The particularity rule serves an important purpose in fraud actions by 

alerting defendants to the “precise misconduct with which they are charged” 

and protecting defendants “against spurious charges of immoral and 

fraudulent behavior.” Durham v. Business Mgmt. Assoc., 847 F.2d 1505, 

1511 (11th Cir. 1988). The application of the rule, however, must not 

abrogate the concept of notice pleading. Id.

II. ANALYSIS

Penn National only cites paragraph 22 of the counterclaim in its 

motion. Doc. 41 at 2-3. However, Count Four incorporates by reference the 

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previous 20 paragraphs contained in the counterclaim, and includes the 

following factual allegations: Kiker purchased a Commercial General 

Liability policy from Penn National in May 2003. Doc. 37 at 5. On March 10, 

2010, the St. Catherine of Siena Parish (“St. Catherine’s”) filed suit against 

Kiker in the Circuit Court of Mobile County for damages resulting from leaks 

in the roof of its church, which Kiker had replaced several years earlier. Id.

Penn National sent Kiker a reservation of rights letter shortly thereafter, on 

March 23, 2010, and subsequently hired an attorney named Bert Taylor 

(“Taylor”) to represent Kiker in the litigation. Id. at 6.

During the course of the litigation, sometime between October 29 and 

November 1, 2012, Kiker alleges that Taylor filed motions seeking to dismiss 

all of St. Catherine’s claims with the exception of a single breach of contract 

claim. Id. The dismissal of these claims would allegedly have jeopardized

Kiker’s coverage under the policy and left Kiker liable for a judgment on the 

remaining breach of contract claim. Id. at 6-7. Kiker further alleges that 

Penn National not only failed to inform Kiker of this potential adverse 

consequence until after the trial court granted the motions filed by Taylor, 

but that Penn National and Taylor undertook this litigation strategy in bad 

faith in order to avoid paying a judgment under the policy and suppressed 

this fact from Kiker. Id. at 6-9.

Although most of the factual allegations above are recited in Counts 

Two and Three, they also pertain to the allegations of suppression in Count 

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Four and are specifically adopted and realleged in Count Four. Thus, the 

court finds that Kiker’s counterclaim contains sufficient detail to alert Penn 

National to the precise misconduct which was alleged in Count Four, and 

comports with the particularity requirement contained in Ziemba and 

Brooks. Accordingly, Penn National’s partial motion to dismiss for failure to 

plead claims with particularity is DENIED.

DONE and ORDERED this 30th day of July 2013.

/s/ Callie V.S. Granade

UNITED STATES DISTRICT JUDGE

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