An answer was filed by Liberty National on January 27, 2000, contemporaneous with a motion for judgment on the pleadings that reiterated the grounds for dismissal contained in the motion to dismiss.

)ILIK,X:V? U? Galindo v. ARI Mut. See BancOklahoma Mortg. Further, the Court finds that the tolling principles alleged regarding their federal and state discrimination-type claims are inapplicable to the breach of contract claim arising from Liberty National's cessation of its weekly debit collection system.

for Community Unit School Dist. Co., 190 F.3d 1200, 1206 (11th Cir. Moore, McConnell, Williams and Bowers filed their initial complaint on, 1999, alleging a systematic, institutional practice of race discrimination in the provision of industrial life insurance to African-Americans, lasting from the early 1940's into the present. Assuming that the doctrine of laches imposed by state law is applicable to the federal claims generally, the doctrine would still not bar those claims, as the Plaintiffs have alleged facts demonstrating that any delay by them in filing their claims was excusable. Ins. Id. As earlier noted, Liberty National offers five arguments in support of its position that any amendment of the complaint would be futile: that under the amended complaint (1) the federal (and state) claims would be barred by the statute of limitations; (2) the claims would be barred by the doctrine of repose; (3) the claims would be barred by the doctrine of laches; (4) the McCarren-Ferguson Act prohibits the section 1981 and 1982 claims of the Plaintiffs; and (5) Burford abstention bars this Court from considering the Plaintiffs' claims. The amended complaint that the Plaintiffs propose to file in place of the original complaint purports to repair the pleading deficiencies that caused the Court to earlier dismiss the action, first, by adding allegations tending to demonstrate that the Plaintiffs had no knowledge of the racially discriminatory practices of Liberty National until shortly prior to the filing of this action and second, by adding to their complaint another theory of recovery under the provisions against discrimination in the maintenance of property under section 1 of the Civil Rights Act of 1866, as codified at 42 U.S.C.

In addition, Liberty National allegedly encouraged its agents to sell discriminatory policies to African-Americans, first, by instructing those agents not to reveal to African-American customers that they were charged higher rates than whites and second, by tying commissions to the type and amount of insurance sold. The second sense refers only to rules that cut off all claims accruing outside of a certain time period, regardless of whether a statute of limitations bar exists. Rather, the application of the civil rights laws in this context merely bolsters the State's anti-discrimination policy, set forth in 27-12-11 of the Alabama Code of 1975.

Liberty National argues, three, that because, in their proposed amended complaint, the Plaintiffs fail to adequately plead fraudulent concealment in compliance with Federal Rule of Civil Procedure 9(b), the Plaintiffs are not entitled to argue that their claims were tolled until recently discovered. 1012(b). While it would have been useful for each of the Plaintiffs to state a particular date on which he or she discovered the existence of his or her claims, the allegation in the complaint that the fraudulent concealment was discovered on a date nearly incumbent with the filing of the action is sufficient to comply with the pleading requirements of Federal Rules of Civil Procedure 8 9.

Equitable tolling principles to be applied in determining whether the statute of limitations has run are those provided under relevant state law, as modified by countervailing policies of federal law.

Thus, an African-American, when sold an insurance policy, would be told that the proportion of premiums to benefits in the policy was determined according to the "standard" rate, rather than that her insurance rates were tied to her race.

Serv., Inc. v. Council of the City of New Orleans, 491 U.S. at 361, 109 S.Ct. Liberty National, in its oral argument, appeared to relinquish any contention that the Plaintiffs should be given the opportunity to amend their complaint if such amendment would not be futile.

Lott v. Tarver, 741 So.2d 394, 397 (Ala. 1999). The Defendant next argues that the McCarran-Ferguson Act bars the type of section 1981 and section 1982 claims at issue in this suit. In its fourth argument against permitting amendment drawn from the motion to dismiss, Liberty National argues that this Court should abstain from deciding this case under the Burford abstention doctrine. If either party desires, the Court will enter a final judgment on the dismissed claims under Federal Rule of Civil Procedure 54(b). Failure to create a rule of repose concerning a particular statute is not an invitation to apply a state law rule of repose in its absence, as such rules do not form a regular feature of the landscape in the prosecution of federal rights. 523, 139 L.Ed.2d 525 (1997). If either party so desires, the Court will enter a final judgment under Federal Rule of Civil Procedure 54(b) on those claims dismissed with prejudice. .

William J. Baxley, William C. Barclift, Baxley, Dillard, Dauphin McKnight, James Walker May, Michael R. Pennington, Bradley, Arant, Rose White, Birmingham, Floyd D. Gaines, Gaines Davis LLC, Birmingham, for Defendants. The Plaintiffs assert that, while the Defendant calculated policy rates based upon whether a purchaser of insurance was African-American or white, it would intentionally disguise the basis of its rate-setting through the use of neutral-seeming descriptions of those rates: Liberty national employed the term "standard rates" to refer to insurance rates applicable to African-Americans and the term "premium rates" to refer to insurance rates available only to white individuals. Section 6-2-3 of the Alabama Code of 1975. Id. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. While it may be the case that a federal claims accrual rule would provide a basis for concluding that the Plaintiffs' federal claims did not accrue until their actual discovery, the Court need not and does not alter its conclusion that each of the Plaintiffs' claims came into existence at the moment when each policy of insurance was purchased in the fifties, sixties and seventies nor address for a second time the Plaintiffs' arguments attempting to convince this Court to revisit its conclusions concerning continuing violations. This rule clearly bars all of the Plaintiffs' state-law claims except the breach of contract claims based upon the termination of the debit routes, as the events giving rise to those claims occurred more than twenty years in the past. Corp. v. Capital Title Co., Inc., 194 F.3d 1089, 1098 (10th Cir.

The Plaintiffs make clear that the labeling of the rates paid by them as "standard" rates rather than "African-American" rates effectively disguised from them the racially discriminatory nature of those rates. Federal Rule of Civil Procedure 9(b) requires allegations of fraud to be stated "with particularity." 525 U.S. at 310, 119 S.Ct. As such, those claims will be DISMISSED, with prejudice. This requirement applies not only to claims of fraud, but also to allegations of fraudulent concealment of claims. This is true not only when a plaintiff requests leave to amend her complaint in the face of a motion to dismiss, but also when a plaintiff moves the court for reconsideration of an earlier dismissal and the opportunity to amend her complaint in the wake of dismissal. As such, the Plaintiffs claims are not reverse preempted by state insurance law under the McCarran-Ferguson Act. Liberty National first contends that the Court should not permit the proposed amendment to the Plaintiffs' complaint because, even if amendment is permitted, the claims contained in the amended complaint would still run afoul of the statute of limitations. Agency, Inc., 421 U.S. at 462, 95 S.Ct. This memorandum opinion instead focuses only on the arguments given by Liberty National that permitting amendment in the instant case would be "futile.".

Important for the revival of the Plaintiffs' section 1981 claims and the assertion of their section 1982 claims, however, is the issue of whether, like Alabama's statute of limitations, Alabama's judicially-created rule of repose is applicable to those federal claims. See McKinley v. Kaplan, 177 F.3d 1253, 1258 (11th Cir. See Barrett v. Wedgeworth, 518 So.2d 1256, 1257 (Ala. 1987). As a putative class action, this case is brought by Moore, McConnell, Williams, and Bowers on behalf of all African-Americans who purchased industrial life insurance policies from Liberty National or any of its predecessor, subsidiary or acquired companies. See id. The rule's purpose "is to prevent inquiry into claims, such as this, where the evidence is obscured by the passage of time and the deaths of necessary witnesses." .

Id. The proposed complaint describes specifically the manner used to conceal the sale of industrial insurance polices at different rates to African-Americans than to whites under the rubric of "standard" and "premium" rates. endstream endobj 2079 0 obj <>stream 1982. Liberty National is explicitly credited with authoring the misleading language used to characterize its allegedly race-biased rates. Nor would federal action in this case upset State administrative efforts to provide a uniform scheme of the provision of insurance. endstream endobj 2080 0 obj <>stream The argument on the motion for reconsideration has focused on the viability of the federal claims, both on paper and in the June 20, 2000, hearing. 187, 373 U.S. 668, 674, 83 S.Ct. The Plaintiffs counter that the actions of Liberty National upon which each of their claims under sections 1981 and 1982 are premised constitute a continuing violation of those statutes and as such, each of their claims continued to accrue each day from the date of the purchase of each policy up to the present. This Court finds that amendment of the complaint by the Plaintiffs would not be futile, not withstanding Defendant's challenge at the present stage of this litigation. 573, 102 L.Ed.2d 594 (1989), stated that the rule that the state statute of limitations for general or residual personal injury tort claims is applicable to claims brought pursuant to the federal civil rights acts, was grounded on the premise that section 1981 lacks a statute of limitations, an essential feature of any right of action, federal or state. |Cm;V+t'( See Tierce v. Ellis, 624 So.2d 553, 554 (Ala. 1993). #pJ~sn.'M:9|numY*us6own]'^b3,$])%tzc_p{8lx2Es?3E0]f H6g'gz56B;h7Q,vXX;s(@48r ZBx:3b&Y3`f1,fL0l-lmZAhpllhP JAip4( 48kbpQ\=={ hVYk@+ $A9wvC>REH;|!90$I 0cM,3DIp&A#Ia0|E'A@4~L`F,)M In response to letters requesting oral argument, the Court held a hearing on June 20, 2000, to hear argument on the matters raised by the parties.

Board of Regents of University of State of N.Y. v. Tomanio, 446 U.S. 478, 490, 100 S.Ct. Id. As such, they are due to be DISMISSED, with prejudice. for the purpose of regulating the business of insurance,' if the federal measure does not `specifically relat[e] to the business of insurance,' and would `invalidate, impair, or supersede' the State's law."