Truong Son Market, Inc. v. State Auto Property and Casualty Insurance Company, No. 2:2021cv02058 - Document 29 (W.D. Ark. 2021)

Court Description: OPINION AND ORDER denying 23 Motion to Dismiss. Signed by Honorable P. K. Holmes III on September 17, 2021. (tg)

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Truong Son Market, Inc. v. State Auto Property and Casualty Insurance Company Case 2:21-cv-02058-PKH Document 29 Doc. 29 Filed 09/17/21 Page 1 of 2 PageID #: 68 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION TRUONG SON MARKET, INC. and 4 STAR GENERAL CONTRACTING, INC. v. PLAINTIFFS No. 2:21-CV-02058 STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY DEFENDANT OPINION AND ORDER Defendant filed a motion (Doc. 23) to dismiss and brief (Doc. 24) in support. Plaintiffs filed a response (Doc. 26) in opposition. The motion will be denied. The response clarifies that Plaintiff 4 Star General Contracting, Inc. is the only party raising a breach of contract against Defendant, and that each Plaintiff is also raising the tort of bad faith based on separate alleged misconduct by Defendant before and after assignment of the insurance claim. The tort of bad faith in Arkansas is a “separate tort action” that arises out of “affirmative misconduct by the insurance company, without a good faith defense.” Aetna Cas. and Sur. Co. v. Broadway Arms Corp., 664 S.W.2d 463, 465 (Ark. 1984). “Arkansas law is clear that a cause of action accrues the moment the right to commence an action comes into existence.” Shelter Mut. Ins. Co. v. Nash, 184 S.W.3d 425, 428 (Ark. 2004). If Defendant committed the tort of bad faith against Plaintiff Truong Son Market, Inc. before assignment of the insurance claim to Plaintiff 4 Star General Contracting, Inc., and if the former did not assign its bad faith claim to the latter (all fact-based issues more appropriately considered at the summary judgment stage, or at trial), then the accrued claim belongs to Plaintiff Truong Son Market, Inc. If Plaintiff Truong Son Market, Inc. “actually possess[es], under the substantive law, the right sought to be enforced,” then that 1 Dockets.Justia.com Case 2:21-cv-02058-PKH Document 29 Filed 09/17/21 Page 2 of 2 PageID #: 69 plaintiff is the real party in interest under Federal Rule of Civil Procedure 17. United Healthcare Corp. v. Am. Trade Ins. Co., Ltd., 88 F.3d 563, 569 (8th Cir. 1996). IT IS THEREFORE ORDERED that the motion to dismiss (Doc. 23) is DENIED. IT IS SO ORDERED this 17th day of September, 2021. /s/P. K. Holmes, ΙΙΙ P.K. HOLMES, III U.S. DISTRICT JUDGE 2

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