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Beck v. Physicians Mutual Insurance Co.

April 17, 2007

DEBORAH BECK, ADMINISTRATRIX OF THE ESTATE OF ELSIE MCDONALD-HAWKINS, DECEASED PLAINTIFF
v.
PHYSICIANS MUTUAL INSURANCE COMPANY DEFENDANT



The opinion of the court was delivered by: James M. Moody United States District Court

ORDER

Pending before the Court are defendant's Motion to Dismiss the Third Cause of Action In Plaintiff's Complaint Based on the Statute of Limitations (#13) and plaintiff's Motion for Leave to File Amended Complaint (#19).

Defendant filed its Motion to Dismiss the Third Cause of Action for failure to plead fraud with particularity under Federal Rule of Civil Procedure 9(b). Plaintiff opposed the motion, and alternatively, sought leave to amend the complaint by adding specific allegations of fraud.

Plaintiff seeks to amend her complaint "out of an abundance" of caution to include additional allegations regarding her fraudulent concealment claims which she contends tolls the statute of limitations on her bad faith claim. Defendant contends that the Court should deny the Motion to Amend as it would be a futile amendment because the amendment does not cure the defects in the original complaint, and because plaintiff cannot state a viable claim for the tort of bad faith.

To meet the requirements of Rule 9(b), a pleading must include "such matters as the time, place and contents of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby." Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982). "[C]onclusory allegations that a defendant's conduct was fraudulent and deceptive are not sufficient to satisfy the rule." Commercial Prop. Invs., Inc. v. Quality Inn Int'l, Inc., 61 F.3d 639, 644 (8th Cir.1995).

The Court has reviewed the proposed amended complaint and finds that it meets the requires of Rule 9(b) and that such fraudulent conduct, if proven, would toll the applicable statute of limitations.

The Court will grant plaintiff leave to file an amended complaint and deny defendant's motion to dismiss.

IT IS SO ORDERED THIS 17 day of April , 2007.

20070417

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