Mann v. Mutual of Omaha

Filing 14

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 2/9/2017 re 7 Defendant's Motion to Dismiss: IT IS ORDERED that defendant's motion to dismiss plaintiff's Complaint be, and the same hereby is, GRANTED. Plaintiff has twenty days from the date this Order is signed to file a first amended complaint, if he can do so consistent with this Order. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DONALD MANN,
Plaintiff,

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CIV. NO. 2:16-02560 WBS CMK
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS

v.
MUTUAL OF OMAHA; and DOES 1
through 20, inclusive,
Defendants.

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Plaintiff Donald Mann brought this action against

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defendant Mutual of Omaha, asserting claims arising out of

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defendant’s denial of benefits under a long-term care insurance

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policy.

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to dismiss the Complaint pursuant to Federal Rule of Civil

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Procedure 12(b)(6).

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I.

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The matter is now before the court on defendant’s motion

(Def.’s Mot. (Docket No. 7).)

Factual and Procedural History
Defendant issued a “Comprehensive Long-Term Care

Insurance Policy” to plaintiff whereby defendant would provide
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daily payments to plaintiff if plaintiff developed a cognitive

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impairment as a result of sickness or injury.1

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(Docket No. 1).)

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and suffered a head injury.

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submitted a claim for benefits under the policy on March 30,

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2010.

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. [defendant] has failed and refused and continue[s] to fail and

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refuse to provide benefits to Plaintiff” under the policy.

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¶ 8.)

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(Id.)

(Compl. ¶¶ 3-4

On September 12, 2009, plaintiff allegedly fell
(Id. ¶ 7.)

Plaintiff allegedly

Plaintiff alleges that “[s]ince March 30, 2010, . .

(Id.

Plaintiff initiated this suit in Sacramento County

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Superior Court on September 2, 2016, alleging breach of contract,

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breach of the covenant of good faith and fair dealing,

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intentional infliction of emotional distress, and financial abuse

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of an elder.

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Defendant now moves to dismiss the entire Complaint.

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II.

Legal Standard

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Defendant removed this case to federal court.

On a motion to dismiss under Rule 12(b)(6), the court
must accept the allegations in the complaint as true and draw all
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A court may take judicial notice of “documents . . .
alleged in a complaint and whose authenticity no party questions,
but which are not physically attached to the [plaintiff’s]
pleading . . . even though the plaintiff does not explicitly
allege the contents of that document in the complaint.” Knievel
v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citations omitted).
Because plaintiff’s Complaint “incorporates” the policy and
neither party questions its authenticity, the court takes
judicial notice of the policy. (See Thompson Decl., Ex. A
(“Policy”) (Docket No. 7-1).)
“[T]he court cannot consider material . . . such as
facts presented in briefs, affidavits, or discovery materials.”
Allison v. Brooktree Corp., 999 F. Supp. 1342, 1347 (S.D. Cal.
1998) (citing McCalden v. Cal. Library Ass’n, 955 F.2d 1214, 1219
(9th Cir. 1990)). The court will thus not consider plaintiff’s
counsel’s affidavit. (See Barr Decl. ¶ 1 (Docket No. 9-1).)
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reasonable inferences in favor of the plaintiff.

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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S.

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319, 322 (1972).

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must plead “only enough facts to state a claim to relief that is

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plausible on its face.”

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544, 570 (2007).

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‘probability requirement,’ but it asks for more than a sheer

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possibility that a defendant has acted unlawfully.”

Scheuer v.

To survive a motion to dismiss, a plaintiff

Bell Atl. Corp. v. Twombly, 550 U.S.

“The plausibility standard is not akin to a

Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009).

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plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.”

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standard, “a well-pleaded complaint may proceed even if it

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strikes a savvy judge that actual proof of those facts is

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improbable.”

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“A claim has facial

Id.

Under this

Twombly, 550 U.S. at 556.

“Threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678; see also Iqbal, 556 U.S. at 679 (“While

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legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations.”).

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III. Discussion

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Defendant first argues that the court must dismiss the

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Complaint because the applicable statute of limitations bars all

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claims.

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defense, if ‘apparent from the face of the complaint,’ may

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properly be raised in a motion to dismiss.”

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Entm’t Ltd. v. Content Media Corp., 733 F.3d 1251, 1254 (9th Cir.

(Def.’s Mot. 1:8-11.)

“A statute-of-limitations

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Seven Arts Filmed

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2013) (quoting Conerly v. Westinghouse Elec. Corp., 623 F.2d 117,

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119 (9th Cir. 1980)).

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denial of coverage commences the running of the . . . statute of

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limitation.”

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1142, 1146, 1149 (2001) (citing Neff v. N.Y. Life Ins. Co., 30

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Cal. 2d 165, 169 (1947)).

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Under California law, “an unconditional

Vu v. Prudential Prop. & Cas. Ins. Co., 26 Cal. 4th

The Complaint does not allege when defendant

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unconditionally denied plaintiff’s claim.

Plaintiff alleges that

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defendant has “failed and refused and continue[s] to fail and

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refuse to provide benefits to plaintiff” since plaintiff first

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submitted his claim on March 30, 2010.

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alleges that defendant “has repeatedly stated that it is

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investigating the claim” and that defendant has “adopted a policy

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of delay and deny.”

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alleges that defendant has been investigating plaintiff’s claim

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and has, during this time period, “refused to make any payments

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to Plaintiff.”

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(Compl. ¶ 8.)

(Id. ¶¶ 8-9 (emphasis added).)

Plaintiff

He further

(Id. ¶ 9.)

While defendant allegedly did not accept plaintiff’s

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claim on March 30, 2010, a refusal to pay benefits pending an

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investigation is not an unconditional denial.

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Allstate Ins. Co., 63 Cal. App. 4th 135, 142 (4th Dist. 1998)

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(holding the statute of limitations began running after “a claim

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has been made, the carrier has pursued its investigation, and the

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claim has been denied.”).

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the Complaint that the statute of limitations bars plaintiff’s

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claims, the court cannot dismiss the Complaint on that ground.

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See Singh v.

Because it not clear from the face of

However, defendant also argues that the Complaint must
be dismissed because the policy contains a suit limitations
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clause and plaintiff did not file suit within the contractually

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agreed-upon period.

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may contain contractual limitations clauses limiting the

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insured’s right to sue the insurer to enforce the policy to a

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period shorter than the statute of limitations.

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v. Hartford Life & Accident Ins. Co., 134 S. Ct. 604, 611 (2013)

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(holding a provision in a contract can limit “the time for

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bringing an action on such contract to a period less than that

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prescribed in the general statute of limitations”); Wetzel v. Lou

(Def.’s Mot. 1:12-14.)

Insurance policies

See Heimeshoff

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Ehlers Cadillac Grp. Long Term Disability Ins. Program, 222 F.3d

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643, 650 (9th Cir. 2000).

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contractual limitations provision unless “the period [to bring

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suit] is unreasonably short.”

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Prudential-LMI Commercial Ins. v. Superior Court, 51 Cal. 3d 674,

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683 (1990).

The court will enforce a policy’s

Heimeshoff, 134 S. Ct. at 612; see

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The policy explicitly provides that “plaintiff cannot

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bring a legal action to recover under [the] policy for at least

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60 days after [plaintiff] ha[s] given [defendant] proof of loss.”

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(Policy at 17 (Docket No. 7-1).)

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start such an action more than 3 years after the date proof of

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loss is required,” and the policy requires that plaintiff “must

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give [defendant] written proof of loss within 90 days after the

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date of such loss.”

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contractually required to commence any action within three years

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and ninety days after the date he allegedly became entitled to

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benefits under the policy.

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not unreasonable.

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Co., Case No. 14-cv-00614-SI, 2015 WL 1967260, at *3-4 (N.D. Cal.

Further, plaintiff “cannot

(Id. at 16-17.)

Plaintiff was thus

This contractual time limitation is

See Bonin v. Provident Life & Accident Ins.

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May 1, 2015) (upholding three-year contractual limitation

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period); Frazier v. Metro. Life Ins. Co., 169 Cal. App. 3d 90,

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103 (2d Dist. 1985) (upholding two-year contractual limitation

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period on a life insurance policy).

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Plaintiff allegedly suffered his head injury on

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September 12, 2009, and submitted his claim for deterioration of

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his mental cognitive capacity on March 30, 2010.

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Plaintiff initiated this action in August 2016, over six years

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after plaintiff incurred the alleged injury and submitted his

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claim for coverage.

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complaint that plaintiff did not bring a legal action within the

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time period proscribed in the suit limitations clause.

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(See id. at 1.)

(Compl. ¶ 7.)

It thus appears from the

Plaintiff argues that defendant never informed

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plaintiff of the applicable time limits that apply to his claim

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and thus is estopped from asserting the suit limitation

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provision.

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required “to notify a claimant of any applicable time limits that

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might apply to the claim.”

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Inc. v. Truck Ins. Exch., 132 Cal. App. 4th 1076, 1091 (2d Dist.

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2005); see Cal. Code Regs. tit. 10, § 2695.4 (“Every insurer

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shall disclose to a first party claimant or beneficiary, all . .

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. time limits . . . of any insurance policy issued by that

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insurer that may apply to the claim presented by the claimant.”).

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However, the Complaint contains no allegation that defendant

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failed to inform plaintiff of the applicable suit limitations

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provision, however.

(Pl.’s Opp’n 6:3-14 (Docket No. 9).)

Insurers are

Doheny Park Terrace Homeowners Ass’n,

Thus this argument fails.

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Because the policy contains a valid suit limitations

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clause, plaintiff failed to file suit within the contractually
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required time period, and there is no allegation of an applicable

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exception, the court must grant defendant’s motion to dismiss the

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Complaint for failure to file suit within the contractual

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limitations period.

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Defendant also separately moves to dismiss plaintiff’s

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third cause of action for intentional infliction of emotional

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distress because plaintiff does not allege defendant engaged in

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any extreme and outrageous conduct.

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While an insurance company’s handling of a claim may result in

(See Def.’s Mot. 9:9-10:10.)

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liability for intentional infliction of emotional distress, Mintz

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v. Blue Cross of California, 172 Cal. App. 4th 1594, 1608 (2d

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Dist. 2009), “[m]ere denial or delay of insurance benefits does

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not constitute outrageous conduct,” Cooper v. TriWest Healthcare

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Alliance Corp., No. 11-CV-2965-L(RBB), 2013 WL 55883784, at *6

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(S.D. Cal. Oct. 30, 2013).

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Here, plaintiff fails to allege any conduct by

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defendant that could be construed as extreme and outrageous

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conduct.

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of this cause of action in his papers or at oral argument.

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Pl.’s Opp’n 9:15-16.)

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defendant’s motion to dismiss plaintiff’s third cause of action

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for intentional infliction of emotional distress.

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Plaintiff’s counsel does not dispute the insufficiency
(See

Accordingly, the court must grant

IT IS THEREFORE ORDERED that defendant’s motion to

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dismiss plaintiff’s Complaint be, and the same hereby is,

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GRANTED.

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Plaintiff has twenty days from the date this Order is
signed to file a first amended complaint, if he can do so

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consistent with this Order.

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Dated:

February 9, 2017

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