(p84) - 2015 - LC - Costigan v. John Hancock Insurance Company, No. 5:14CV1002, 2015 U.S. Dist. LEXIS 38555, 2015 WL 140076 (N.D. Ohio Mar. 26, 2015)
Plaintiff asserted causes of action against John Hancock for fraudulent inducement, professional negligence, negligent misrepresentation, breach of contract, and breach of the implied covenant of good faith and fair dealing.
The Plaintiff’s allegations were in regard to a Universal Life insurance policy with a premium spike on the 21st year of the policy.
John Hancock moved to dismiss under FRCP 12(b)(6) and also moved to dismiss arguing the claims were released as part of a class settlement 16 years prior, in Friedman v. Manufacturers Life, 3:96cv230 (S.D. Cal. Dec. 21, 1998).
The court granted the motion in part and denied it in part. It denied the motion insofar as the class settlement was concerned, finding the Plaintiff’s claims were not subsumed by the class settlement. The court granted the motion regarding all fraud allegations, stating Plaintiff failed to plead fraud with the required specificity pursuant to FRCP 9(b).
The court discussed in great length the statute of limitations for professional negligence under Ohio law (R.C. 2305.09(D)).
The court struggled with the concept that a cause of action for negligence does not accrue or come into existence until all of its elements are established – including damages.
The “delay-damages theory” however, has been expressly rejected by the Ohio Supreme Court when applied to professional negligence cases, citing Flagstar Bank v. Airline Union’s Mortgage Co., 128 Ohio St. 3d 529 (2011), holding a cause of action for professional negligence accrues on the date the negligent act is committed.
Thus, the court dismissed Plaintiff’s negligent misrepresentation claims as untimely.
Lastly, the court dismissed the breach of the covenant of fair dealing count, and denied the motion as to Plaintiff’s breach of contract claim.