Sims v. MDOW Insurance Company

Filing 7

ORDER granting 4 Defendant's Motion to Dismiss. The Claim is dismissed without prejudice. Signed by Judge Kristine G. Baker on 02/20/2013. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
KAY SIMS
v.

PLAINTIFF
No. 3:12-cv-295 KGB

MDOW INSURANCE COMPANY

DEFENDANT
ORDER

Before the Court is defendant’s motion to dismiss plaintiff’s claim for bad faith (Dkt. No.
4). Plaintiff did not respond to defendant’s motion, and the time for doing so has passed. For the
reasons that follow, defendant’s motion to dismiss plaintiff’s claim for bad faith is granted.
Plaintiff filed this action against defendant after defendant denied her claim for fire
damage. Plaintiff asserts several claims, including that defendant “maliciously accused” her of
setting the fire “without any foundation whatsoever.” She seeks to recover benefits under the
policy and damages for bad faith. Defendant has moved to dismiss the bad faith allegations for
failure to state a claim upon which relief may be granted.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). While
a complaint should not be dismissed because it “strikes a savvy judge . . . that a recovery is very
remote and unlikely,” Twombly, 550 U.S. at 556, the plaintiff must allege facts that “allow the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged,”
Iqbal, 556 U.S. at 678. “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement
to relief.’” Id.

“Arkansas recognizes a claim for bad faith when ‘an insurance company affirmatively
engages in dishonest, malicious, or oppressive conduct in order to avoid a just obligation to its
insured.’” Selmon v. Metropolitan Life Ins. Co., 372 Ark. 420, 426, 277 S.W.3d 196, 201 (2008)
(quoting Columbia Nat’l Ins. Co. v. Freeman, 347 Ark. 423, 429, 64 S.W.3d 720, 723 (2002)).
Mere negligence or bad judgment on the part of the insurer is insufficient. Id. “The tort of bad
faith does not arise from a mere denial of a claim; there must be affirmative misconduct.” Id.
For her bad faith claim, plaintiff alleges that defendant breached its duty of good faith
and fair dealing by “denying or failing to process or failing to pay or delaying the payment of
Plaintiff’s claim without a reasonable basis for such conduct in a dishonest and/or malicious
and/or oppressive attempt to avoid liability under [the] policy . . . .” (Dkt. No. 2). Defendant
argues, and this Court agrees, that these conclusory allegations do not state a claim for bad faith
under Arkansas law. The complaint does not contain any factual matter tending to show that
defendant engaged in conduct that was dishonest, malicious, or oppressive or characterized by
hatred, ill will, or a spirit of revenge. Accordingly, plaintiff’s allegations of bad faith fail to state
a claim upon which relief may be granted.
***
For these reasons, defendant’s motion to dismiss plaintiff’s bad faith claim is granted
(Dkt. No. 4), and the claim is dismissed without prejudice.
SO ORDERED this 20th day of February, 2013.

____________________________________
Kristine G. Baker
United States District Judge

2