Fill and Sign the Alabama Defendants Motion to Dismiss Form

IN THE CIRCUIT COURT OF __________ COUNTY, ALABAMA _________________ * * Plaintiff, * * VS. * CIVIL ACTION NO.: * _________________ * CV -_______________ * Defendant. * DEFENDANT’S MOTION TO DISMISS PLAINTIFF’ S COMPLAINT COMES NOW defendant, _______________________ ("____________________"), by and through its undersigned counsel, and hereby moves this Court, pursuant to Alabama Rule of Civil Procedure 12(b)(6), for an Order dismissing plaintiffs' Complaint. As grounds for this Motion, ______________________ shows unto the Court the following: 1. Plaintiffs filed their Complaint on ________________, wherein they seek damages arising out of the purchase of a life insurance policy. Plaintiffs plead misreprese ntation, deceit, suppression, and conspiracy. Plaintiffs' causes of action are based on an alleged representation made in or about ________________, that if they purchased an insurance policy, they would be required to pay the $_________ per month premiums to keep the policy in force. (Complaint ¶ ______). 2. Plaintiffs allege that unless they increase their premium payments over the $__________ per month amount, the policy might lapse _____________ [insert expected lapse date]. (Complaint, ¶ ____). Beca use the policy may lapse in ______, plaintiffs claim they have been tortuously damaged. Plaintiffs claim they were told that their policy would have sufficient cash value upon their retirement such that they could stop making premium payments; plaintiffs admit they have not reached retirement age. (See Complaint, ¶ _____). The entire allegation of damages of plaintiffs is based on contingencies and whether plaintiffs might have to make payments in addition to the $________ per month premium or whether plain tiffs might not have the money upon retirement they thought they would. (See Complaint, ¶ ____). 3. Plaintiffs’ purported damages would not occur until at least year _______ or _________ (when plaintiff ______________ turns _____ years old). The Complai nt is due to be dismissed because plaintiffs have failed to state a cause of action for which they can recover at this time. See Williamson v. Indianapolis Life Insurance Company , No. 1970998, 1999 WL 553726 (Ala. July 30, 1999) (plaintiff suffered no disc ernable injury because he could only speculate that his life insurance policies would not sustain themselves as allegedly promised); Underwood v. Life Insurance Company of Georgia , 14 F. Supp. 2d 1266, 1271 (N.D. Ala. 1998) (damages based on speculative fe ar that life insurance policy premiums would increase contrary to alleged representation insufficient to constitute a legal injury); Nunnery v. The Prudential Insurance Company of America , No. CV -96~048 (Mobile Co. Cir Ct. March 1, 1997) (slip op.)(plainti ff sustained no damages and therefore could not maintain an action based on alleged promise that premiums on life insurance policy would not be required after ten years because the ten years had not expired). 4. Plaintiffs' alleged damage must be actual; mere ''speculative fear that at some future time [plaintiffs’] policy may fail to perform as allegedly promised" does not constitute ''a legal injury sufficient to support a claim under Alabama law." Underwood , 14 Fed Supp. 2d at 1271. Plaintiffs do not al lege anywhere in their Complaint that they have been requested to pay premiums different than those allegedly represented to them. In addition, on the face of the Complaint it is impossible to discern whether the alleged representation is true or false unt il the years _______ or ______, neither of which has yet occurred. Williamson , at *2. 1 5. In Williamson , the plaintiff purchased two life insurance policies from Indianapolis Life Insurance Company ("Indianapolis Life") in 1992 after an agent allegedly represented that the policies would become self -sustaining after ten years and woul d no longer require premium payments. Id. The plaintiff sued Indianapolis Life after he realized that he might have to pay premiums after the expiration of the ten -year period in 2002. Id. The Alabama Supreme Court determined that the plaintiffs alleged damages were speculative and did not support a finding of discernable injury because the plaintiff had not yet been required to pay additional premiums. Consequently, the plaintiffs claims were not ripe for adjudication. Id. at *2 -3. 6. Similarly, in Underwood , the plaintiff brought an action against Life Insurance Company of Georgia alleging fraud, suppression, and negligent and wanton supervision after he was told by his attorney that his life insurance policy premiums would probably increase. Underw ood, 14 Fed Supp. 2d at 1268. The plaintiff alleged that even though he bought a flexible premium adjustable life insurance policy he was told by the company's agent that his premium would never increase. Id. In fact, the plaintiff’s life insurance premi ums had remained the same since the policy was issued in 1991. Id. Nevertheless, the plaintiff alleged damages on the grounds that he: made payments on a policy that was not as promised; he lost the value of the payments; he lost interest on the payments ; he does 1 Because publication page references are not available at this time for Williamson , the page number cited refers to the actual page as printed from the electronic datab ase. not have the policy that was promised to him; he will be required to increase his premium payments in the future or lost his insurance policy; he suffered mental anguish and emotional distress and will continue to do so; and he has been otherwise injured and damaged. Id. at 1271 (quoting Underwood Complaint, ¶ ____). 2 The court held that the plaintiff could not maintain a cause of action because the damage claims were based merely on speculation that his premium would one day increase. Id. at 1272. "Such fear is not, without more, a legal injury recognized under Alabama law." Id. at 1273. 7. In the present case, as in Williamson and Underwood, the plaintiffs’ damages are based solely on speculative fear that the policy may fail to perform in the future as allegedly promised. Thus far, the plaintiffs' policy is operating as represented. Plainti ffs' complaint acknowledges that the policy is interest sensitive. (Complaint, ¶ _____). 8. Under clear and recent Alabama Supreme Court and Federal Court precedent in Williamson and Underwood , respectively, the plaintiffs' claims are barred. Accordingly, the Complaint is due to be dismissed. WHEREFORE, PREMISES CONSIDERED, _______________________ respectfully requests that this Court grant its Motion to Dismiss Plaintiffs’ Complaint. _________________________________________ OF COUNSEL: ________________________ 2 Interestingly, comparison of the damages alleged in Underwood with the damages alleged in this case reveals that they are virtually identical. CERTIFICATE OF SERVICE I certify that I have on this _____ day of __________, ________, served a copy of the foregoing by mailing same by U. S. Mail, first class postage prepaid and properly addressed, to the following: (Lis t counsel for all parties) _________________________________________