SHIRLEY D'AMICO, Individually, and as Executrix for the ESTATE OF FRANK D'AMICO, Plaintiff,
A.O. SMITH CORP., et al., Defendants.
Plaintiff Vincent L. Greene, IV, Esq. Robert J. McConnell,
Defendant Brian D. Gross, Esq.
GIBNEY, P.J. MAGISTRATE JUDGE.
Defendants-Amerisure Insurance Company, Great American
Insurance Company f/k/a American National Fire Insurance
Company, Insurance Company of North America, National Surety
Corporation, and The American Insurance Company (collectively
Defendants)-move to dismiss the Sixth Amended Complaint of
Shirley D'Amico, Individually and as Executrix for the
Estate of Frank D'Amico (Plaintiff), in the
above-entitled action. Defendants argue that Plaintiff's
claims are barred as direct actions against insurers of an
alleged tortfeasor. Plaintiff objects contending said claims
are allowed as direct complaints against liability insurers
of an entity that has filed for bankruptcy. Jurisdiction is
pursuant to Super. R. Civ. P. 12(b)(6).
Facts and Travel
suit alleges that her husband, Frank D'Amico, died as a
result of malignant mesothelioma proximately caused by
occupational exposure to asbestos. This exposure, according
to Plaintiff, took place during Frank D'Amico's
service in the United States Navy and his subsequent
employment at various golf courses.
and Shirley D'Amico filed the original Complaint on
January 25, 2012, prior to Frank D'Amico's death.
After multiple amendments, Shirley D'Amico filed the
Fifth Amended Complaint on June 11, 2015, to include Grover
S. Wormer Company (Grover), both Individually and as
Successor-in-Interest to Wright-Austin Company, as a
defendant. This Court dismissed Plaintiff's claims
against Grover on February 28, 2018, finding they were barred
under the laws of Michigan, the state of Grover's
incorporation. M.C.L.A. § 450.1842a(2);
D'Amico v. A.O. Smith Corp., No. 12-0403 (R.I.
Super. Feb. 28, 2018) (Order).
Grover's dismissal, Plaintiff filed the Sixth Amended
Complaint, substituting Grover with the current Defendants
before this Court. Each of the Defendants is a former
insurance carrier of Grover, as identified by Wright-Austin
Company in compliance with a July 6, 2017 Order from this
Court. D'Amico v. A.O. Smith Corp., No.
PC-12-0403, 2017 WL 2998866. (R.I. Super. July 6, 2017)
(Trial Order). Plaintiff makes no specific allegations
Standard of Review
well-settled that the sole function of a motion to dismiss is
to test the sufficiency of the complaint. Ryan v. State
Dep't of Transp., 420 A.2d 841, 842 (R.I. 1980);
Dutson v. Nationwide Mut. Ins. Co., 119 R.I. 801,
803-04, 383 A.2d 597, 599 (1978). '"When ruling on a
Rule 12(b)(6) motion, the trial justice must look no further
than the complaint, assume that all allegations in the
complaint are true, and resolve any doubts in a
plaintiff's favor.'" Estate of Sherman v.
Almeida, 747 A.2d 470, 473 (R.I. 2000) (quoting R.I.
Affiliate, Am. Civil Liberties Union, Inc. v.
Bernasconi, 557 A.2d 1232 (R.I. 1989)). However,
"[i]f it appears beyond a reasonable doubt that
plaintiff would not be entitled to relief, under any facts
that could be established,' the Superior Court will grant
a motion to dismiss. McKenna v. Williams, 874 A.2d
217, 225 (R.I. 2005).
move to dismiss all counts against them in Plaintiff's
Sixth Amended Complaint. Specifically, Defendants argue that
Plaintiff's claims are barred by G.L. 1956 § 27-7-2,
which prohibits direct action against insurers of an alleged
tortfeasor. Maczuga v. Am. Universal Ins. Co., 92
R.I. 76, 80, 166 A.2d 227, 229-30 (1960) ("the
legislature has placed a restraint on suits directly against
the insurer [in § 27-7-2]"). Plaintiff objects,
arguing that claims against Defendants survive under the
exception to § 27-7-2 that allows direct claims against
insurers of tortfeasors that have filed for bankruptcy. Sec.
Island law generally bars direct actions against the insurer
of an alleged tortfeasor. § 27-7-2; see also Mendez
v. Brites, 849 A.2d 329, 340 n.2 (R.I. 2004) ("[a]n
injured party . . . in his or her suit against the insured,
shall not join the insurer as a defendant"). Instead,
§ 27-7-2 provides that "[t]he injured party . . .
having obtained judgment against the insured alone, may
proceed on that judgment in a separate action against the
insurer." The First Circuit has interpreted this statute
to extend to insurers of dissolved corporations. Carreiro
v. Rhodes Gill & Co., Ltd., 68 F.3d 1443, 1450 (1st
Cir. 1995) (adopting the district court's determination
that "§ 27-7-2 does not permit a direct action
against the insurer of a dissolved corporation").
Legislature has carved out limited exceptions to §
27-7-2. First, the statute permits a plaintiff to join an
insurer directly as a defendant "[i]f the officer
serving any process against the insured shall return that
process 'non est inventus,' or where before suit has
been brought and probate ...