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D'Amico v. A.O. Smith Corp.

Superior Court of Rhode Island, Providence

November 19, 2018

SHIRLEY D'AMICO, Individually, and as Executrix for the ESTATE OF FRANK D'AMICO, Plaintiff,
v.
A.O. SMITH CORP., et al., Defendants.

          For Plaintiff Vincent L. Greene, IV, Esq. Robert J. McConnell, Esq.

          For Defendant Brian D. Gross, Esq.

          DECISION

          GIBNEY, P.J. MAGISTRATE JUDGE.

         The 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).

         I Facts and Travel

         Plaintiff's 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.

         Frank 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.[1] M.C.L.A. § 450.1842a(2); D'Amico v. A.O. Smith Corp., No. 12-0403 (R.I. Super. Feb. 28, 2018) (Order).

         Following 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 against Defendants.

         II Standard of Review

         It is 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).

         III Analysis

         Defendants 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. 27-7-2.4.

         Rhode 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").

         The 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 ...


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