In Download Ajax Paving Industries, Inc. v. American Home Assurance Co. (M.D. Fla. Case No. 8.10cv2508, Order Filed March 30, 2011) PUBLIC ACCESS, also published as 2011 WL 1188699 (M.D. Fla. March 30, 2011)(authorized password required to access Westlaw), the Plaintiff was Ajax, a Florida corporation. It filed suit over a Workers Compensation and Employers Liability Policy it received from American Home Assurance Company.
Ajax filed a Complaint in four counts: (1) Breach of contract; (2) Declaratory Relief; (3) a Count left unspecified by the Court in this opinion; and (4) alleged "breach of an implied duty of good faith and fair dealing." Ajax Paving Industries, Inc. v. American Home Assurance Co., 2011 WL 1188699 at *1. (American Home filed a motion to dismiss all but the third claim, which was certainly the reason it went unidentified in the Court's opinion.)
Ajax's response to a motion to dismiss from American Home in this case was to request leave to cure the deficiencies in its complaint which American Home had pointed out in its motion. It is unclear with respect to Count 4 in particular whether Ajax wanted to allege a bad faith claim or not, but it was apparently clear to the Court that in this case Ajax conceded that "Ajax 'has not asserted a bad faith claim'". Id.
The Plaintiff's request for leave to amend in response to the Defendant's motion to dismiss in this case was granted. The reasons that amendment was allowed by the Federal Court are potentially instructive to practitioners and clients alike:
- The request to amend was timely.
- It was Ajax's first request to amend in the case.
- Amendment would not be futile "because the purpose of amendment is to cure deficiencies identified by American Home."
- The following factors which result in denial of a request for leave to amend were not present here, in sum and in substance: undue delay; bad faith or dilatory motive; repeated failure to cure past deficiencies; undue prejudice to the opposing party, and futility of amendment.
Id. The bottom line in this decision, quite literally, was this:
It is preferable to allow amendment than to decide the present dispositive motion based upon Ajax's concessions and assumptions.
* * *
American Home may reassert its arguments after Ajax has amended the complaint, if necessary.
Id. at *2.
Here is a copy of Ajax's Amended Complaint which it filed as of April 8, 2011: Download Ajax Amended Complaint Filed 04.08.11 in Ajax Paving Industries, Inc. v. American Home Assurance Co. (M.D. Fla. Case No. 8.10cv2508). You should take a look for yourself. It appears however that Ajax has now clearly alleged a bad faith claim; whether its claim has legal merit will not be known for certain unless and until the Court rules on that question.
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