Sims v. Ohio Casualty InsuranceSims v. Ohio Casualty Insurance
Timothy D. Martin, Alber & Crafton, Kathy P. Holder, Rebecca A. Wood, Frost, Brown & Todd, Janet P. Jakubowicz, Elisabeth S. Gray, P. Blaine Grant, Sarah B. Kinsman, Greenebaum, Doll & McDonald, William J. Hunter, Jr., Lee A. Webb, Stoll, Keenon & Park, Louisville, KY, William W. Allen, Gess, Mattingly & Atchison, Lexington, KY, for Defendants-Appellees.
Before BOGGS, Chief Judge; and GIBBONS, Circuit Judge.*
GIBBONS, Circuit Judge.
In the mid-1980s, two agents of Prudential Insurance Company defrauded Prudential and various other financial institutions. Plaintiff-appellant Warren Pulliam assisted in the fraud by using his position as President of defendant-appellee People‘s State Bank to certify checks and allow overdrafts at People‘s on the two agents’ accounts when he knew that there were insufficient funds in the accounts to cover those checks. Pulliam was charged
I.
The plaintiffs first argue that this court does not have jurisdiction to hear their appeal because the district court did not address all of their claims, such as their claim for declaratory judgment. In this case, the district court remanded all remaining claims back to the state court. “The remand ends further action by the district court.” In re Romulus Cmty. Sch., 729 F.2d 431, 440 (6th Cir. 1984). The order is therefore a final judgment pursuant to
II.
The plaintiffs next challenge the district court‘s conclusion that their RICO claims were barred by the statute of limitations. They contend that the limitations period should not have begun to run because the defendants concealed the pertinent facts necessary for the plaintiffs to know that they had a RICO claim.
The Supreme Court has imposed a four-year statute of limitations on RICO claims. Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 156 (1987). The four-year period begins to run when a party knew, or through exercise of reasonable diligence should have discovered, that the party was injured by a RICO violation. Rotella v. Wood, 528 U.S. 549, 553-55 (2000).
The plaintiffs’ complaint bases their RICO claims on the actions of People‘s and King in making Pulliam sign a restitution agreement and option agreement, the actions of People‘s and King in entering into a 1988 settlement agreement with Pulliam, the actions of People‘s and Barnett Bank in settling Barnett‘s claim against People‘s, and the actions of Ohio Casualty in paying People‘s settlement with Barnett and subsequently obtaining a jury verdict against Pulliam. They allege that People‘s and Ohio Casualty did not disclose the terms of the settlement reached between People‘s and Barnett and that Ohio Casualty failed to properly defend the Barnett action,
The plaintiffs argue on appeal that they did not know the amount of money Prudential had paid Barnett in a settlement and thus could not ascertain whether the sum recovered from Prudential by Barnett was available as a set-off for the amount Barnett sought to recover from People‘s. Because of this alleged concealment, the plaintiffs claim that they could not have learned of the facts underlying their cause of action until July 14, 2000, when Ohio Casualty produced a copy of the settlement agreement, or until April 17, 2002, when the plaintiffs were able to verify the authenticity of the settlement agreement.
Despite the plaintiffs’ contentions, the district court correctly held that their RICO claims were barred by the applicable statute of limitations. In April 1997, the plaintiffs filed a lawsuit in the Middle District of Florida against Ohio Casualty, Barnett, and the Prudential companies. That lawsuit alleged RICO violations and RICO conspiracy. In the complaint, the plaintiffs alleged that the Ohio Casualty judgment obtained in 1992 against Pulliam “was a direct and proximate result of the conspiracy and collusion of the defendants” to prevent Pulliam from asserting “his available defenses, cross-claims, and counter-claims.” Specifically, the plaintiffs referenced the various facts, including that People‘s and Ohio Casualty entered into a settlement with Barnett and that People‘s did not assert the defenses available to it against Barnett, forming the basis for the plaintiffs’ current lawsuit before this court. Thus, although it is likely that the plaintiffs knew of the facts underlying their RICO claims as early as 1992 when Ohio Casualty obtained a judgment against Pulliam, at a minimum it is evident that the 1997 Middle District of Florida litigation set forth RICO claims based on the same underlying facts as presented in the current case. While the exact amount of the settlement between Ohio Casualty or People‘s and Barnett may not have been known until 2000, the plaintiffs had the necessary information to file RICO claims in at least 1997, as evidenced by the fact that they did file a lawsuit under RICO at that time. As this court has held, “the running of the statute of limitations begins when a plaintiff is put on inquiry notice—that is, when the plaintiff has been presented with evidence suggesting the possibility of fraud.” Isaak v. Trumbull Sav. & Loan Co., 169 F.3d 390, 399 (6th Cir. 1999) (quotation marks and citation omitted). A plaintiff need only be aware of “storm warnings” but does not need to “hear[] thunder and see[] lightening.” Id. Even if the plaintiffs did not know the exact amount of the settlement, such detail was unnecessary as the plaintiffs certainly were aware of the “storm warnings” underlying their RICO charges. As this court‘s precedent makes clear, the plaintiffs need not be aware of every minute fact underlying their RICO claims. The district court correctly concluded that the statute of limitations period ended in April 2001 at the latest and that the plaintiffs’ complaint filed in November 2002 was untimely.1
III.
Next, the plaintiffs contend that the district court should have granted
IV.
Finally, the plaintiffs contend that the case should be remanded to the district court because, as they concede, defendants J.R. Horn and the United States Mortgage & Trust Company were not properly served with process. The plaintiffs were responsible for obtaining proper service on these parties and have not, before this appeal, argued that they were not properly served. They cannot now use this argument to obtain further review of their case by the district court. In any event, Horn and United States Mortgage & Trust Company would be entitled to raise the arguments advanced by the other defendants in this case, namely that the plaintiffs’ RICO claims were barred by the statute of limitations. We affirm the district court‘s dismissal of the plaintiffs’ complaint as to these two defendants.
V.
For the foregoing reasons, we affirm the district court‘s decision dismissing the plaintiffs’ complaint.