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)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
----oo0oo----
11
12
13
DONALD MANN,
Plaintiff,
14
15
16
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.
17
18
----oo0oo----
19
Plaintiff Donald Mann brought this action against
20
21
defendant Mutual of Omaha, asserting claims arising out of
22
defendant’s denial of benefits under a long-term care insurance
23
policy.
24
to dismiss the Complaint pursuant to Federal Rule of Civil
25
Procedure 12(b)(6).
26
I.
27
28
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
1
1
daily payments to plaintiff if plaintiff developed a cognitive
2
impairment as a result of sickness or injury.1
3
(Docket No. 1).)
4
and suffered a head injury.
5
submitted a claim for benefits under the policy on March 30,
6
2010.
7
. [defendant] has failed and refused and continue[s] to fail and
8
refuse to provide benefits to Plaintiff” under the policy.
9
¶ 8.)
10
(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
11
Superior Court on September 2, 2016, alleging breach of contract,
12
breach of the covenant of good faith and fair dealing,
13
intentional infliction of emotional distress, and financial abuse
14
of an elder.
15
Defendant now moves to dismiss the entire Complaint.
16
II.
Legal Standard
17
18
19
20
21
22
23
24
25
26
27
28
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
1
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).)
2
1
reasonable inferences in favor of the plaintiff.
2
Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by
3
Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S.
4
319, 322 (1972).
5
must plead “only enough facts to state a claim to relief that is
6
plausible on its face.”
7
544, 570 (2007).
8
‘probability requirement,’ but it asks for more than a sheer
9
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.
10
Iqbal, 556 U.S. 662, 678 (2009).
11
plausibility when the plaintiff pleads factual content that
12
allows the court to draw the reasonable inference that the
13
defendant is liable for the misconduct alleged.”
14
standard, “a well-pleaded complaint may proceed even if it
15
strikes a savvy judge that actual proof of those facts is
16
improbable.”
17
“A claim has facial
Id.
Under this
Twombly, 550 U.S. at 556.
“Threadbare recitals of the elements of a cause of
18
action, supported by mere conclusory statements, do not suffice.”
19
Iqbal, 556 U.S. at 678; see also Iqbal, 556 U.S. at 679 (“While
20
legal conclusions can provide the framework of a complaint, they
21
must be supported by factual allegations.”).
22
III. Discussion
23
Defendant first argues that the court must dismiss the
24
Complaint because the applicable statute of limitations bars all
25
claims.
26
defense, if ‘apparent from the face of the complaint,’ may
27
properly be raised in a motion to dismiss.”
28
Entm’t Ltd. v. Content Media Corp., 733 F.3d 1251, 1254 (9th Cir.
(Def.’s Mot. 1:8-11.)
“A statute-of-limitations
3
Seven Arts Filmed
1
2013) (quoting Conerly v. Westinghouse Elec. Corp., 623 F.2d 117,
2
119 (9th Cir. 1980)).
3
denial of coverage commences the running of the . . . statute of
4
limitation.”
5
1142, 1146, 1149 (2001) (citing Neff v. N.Y. Life Ins. Co., 30
6
Cal. 2d 165, 169 (1947)).
7
Under California law, “an unconditional
Vu v. Prudential Prop. & Cas. Ins. Co., 26 Cal. 4th
The Complaint does not allege when defendant
8
unconditionally denied plaintiff’s claim.
Plaintiff alleges that
9
defendant has “failed and refused and continue[s] to fail and
10
refuse to provide benefits to plaintiff” since plaintiff first
11
submitted his claim on March 30, 2010.
12
alleges that defendant “has repeatedly stated that it is
13
investigating the claim” and that defendant has “adopted a policy
14
of delay and deny.”
15
alleges that defendant has been investigating plaintiff’s claim
16
and has, during this time period, “refused to make any payments
17
to Plaintiff.”
18
(Compl. ¶ 8.)
(Id. ¶¶ 8-9 (emphasis added).)
Plaintiff
He further
(Id. ¶ 9.)
While defendant allegedly did not accept plaintiff’s
19
claim on March 30, 2010, a refusal to pay benefits pending an
20
investigation is not an unconditional denial.
21
Allstate Ins. Co., 63 Cal. App. 4th 135, 142 (4th Dist. 1998)
22
(holding the statute of limitations began running after “a claim
23
has been made, the carrier has pursued its investigation, and the
24
claim has been denied.”).
25
the Complaint that the statute of limitations bars plaintiff’s
26
claims, the court cannot dismiss the Complaint on that ground.
27
28
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
4
1
clause and plaintiff did not file suit within the contractually
2
agreed-upon period.
3
may contain contractual limitations clauses limiting the
4
insured’s right to sue the insurer to enforce the policy to a
5
period shorter than the statute of limitations.
6
v. Hartford Life & Accident Ins. Co., 134 S. Ct. 604, 611 (2013)
7
(holding a provision in a contract can limit “the time for
8
bringing an action on such contract to a period less than that
9
prescribed in the general statute of limitations”); Wetzel v. Lou
(Def.’s Mot. 1:12-14.)
Insurance policies
See Heimeshoff
10
Ehlers Cadillac Grp. Long Term Disability Ins. Program, 222 F.3d
11
643, 650 (9th Cir. 2000).
12
contractual limitations provision unless “the period [to bring
13
suit] is unreasonably short.”
14
Prudential-LMI Commercial Ins. v. Superior Court, 51 Cal. 3d 674,
15
683 (1990).
The court will enforce a policy’s
Heimeshoff, 134 S. Ct. at 612; see
16
The policy explicitly provides that “plaintiff cannot
17
bring a legal action to recover under [the] policy for at least
18
60 days after [plaintiff] ha[s] given [defendant] proof of loss.”
19
(Policy at 17 (Docket No. 7-1).)
20
start such an action more than 3 years after the date proof of
21
loss is required,” and the policy requires that plaintiff “must
22
give [defendant] written proof of loss within 90 days after the
23
date of such loss.”
24
contractually required to commence any action within three years
25
and ninety days after the date he allegedly became entitled to
26
benefits under the policy.
27
not unreasonable.
28
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.
5
1
May 1, 2015) (upholding three-year contractual limitation
2
period); Frazier v. Metro. Life Ins. Co., 169 Cal. App. 3d 90,
3
103 (2d Dist. 1985) (upholding two-year contractual limitation
4
period on a life insurance policy).
5
Plaintiff allegedly suffered his head injury on
6
September 12, 2009, and submitted his claim for deterioration of
7
his mental cognitive capacity on March 30, 2010.
8
Plaintiff initiated this action in August 2016, over six years
9
after plaintiff incurred the alleged injury and submitted his
10
claim for coverage.
11
complaint that plaintiff did not bring a legal action within the
12
time period proscribed in the suit limitations clause.
13
(See id. at 1.)
(Compl. ¶ 7.)
It thus appears from the
Plaintiff argues that defendant never informed
14
plaintiff of the applicable time limits that apply to his claim
15
and thus is estopped from asserting the suit limitation
16
provision.
17
required “to notify a claimant of any applicable time limits that
18
might apply to the claim.”
19
Inc. v. Truck Ins. Exch., 132 Cal. App. 4th 1076, 1091 (2d Dist.
20
2005); see Cal. Code Regs. tit. 10, § 2695.4 (“Every insurer
21
shall disclose to a first party claimant or beneficiary, all . .
22
. time limits . . . of any insurance policy issued by that
23
insurer that may apply to the claim presented by the claimant.”).
24
However, the Complaint contains no allegation that defendant
25
failed to inform plaintiff of the applicable suit limitations
26
provision, however.
(Pl.’s Opp’n 6:3-14 (Docket No. 9).)
Insurers are
Doheny Park Terrace Homeowners Ass’n,
Thus this argument fails.
27
Because the policy contains a valid suit limitations
28
clause, plaintiff failed to file suit within the contractually
6
1
required time period, and there is no allegation of an applicable
2
exception, the court must grant defendant’s motion to dismiss the
3
Complaint for failure to file suit within the contractual
4
limitations period.
5
Defendant also separately moves to dismiss plaintiff’s
6
third cause of action for intentional infliction of emotional
7
distress because plaintiff does not allege defendant engaged in
8
any extreme and outrageous conduct.
9
While an insurance company’s handling of a claim may result in
(See Def.’s Mot. 9:9-10:10.)
10
liability for intentional infliction of emotional distress, Mintz
11
v. Blue Cross of California, 172 Cal. App. 4th 1594, 1608 (2d
12
Dist. 2009), “[m]ere denial or delay of insurance benefits does
13
not constitute outrageous conduct,” Cooper v. TriWest Healthcare
14
Alliance Corp., No. 11-CV-2965-L(RBB), 2013 WL 55883784, at *6
15
(S.D. Cal. Oct. 30, 2013).
16
Here, plaintiff fails to allege any conduct by
17
defendant that could be construed as extreme and outrageous
18
conduct.
19
of this cause of action in his papers or at oral argument.
20
Pl.’s Opp’n 9:15-16.)
21
defendant’s motion to dismiss plaintiff’s third cause of action
22
for intentional infliction of emotional distress.
23
Plaintiff’s counsel does not dispute the insufficiency
(See
Accordingly, the court must grant
IT IS THEREFORE ORDERED that defendant’s motion to
24
dismiss plaintiff’s Complaint be, and the same hereby is,
25
GRANTED.
26
27
Plaintiff has twenty days from the date this Order is
signed to file a first amended complaint, if he can do so
28
7
1
consistent with this Order.
2
3
Dated:
February 9, 2017
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?