Danielsen v. USAA Casualty Insurance Co et al
Filing
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ORDER granting 16 Motion to Dismiss. Signed by Judge Victor A. Bolden on 11/24/2015. (LaPre, E.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
PAUL WILLIAM DANIELSEN
Plaintiff,
v.
USAA CASUALTY INSURANCE
COMPANY, CUNNINGHAM LINDSEY
U.S. INC., and DOES 1-100 inclusive
Defendants.
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CASE NO. 3:15-cv-00878 (VAB)
NOVEMBER 24, 2015
RULING ON MOTION TO DISMISS
I.
INTRODUCTION
Plaintiff, Paul William Danielsen, filed this diversity action pro se against Defendants,
USAA Casualty Insurance Company (“USAA”) and Cunningham Lindsey U.S., Inc.
(“Cunningham”), claiming that he did not receive benefits to which he allegedly was entitled
under a homeowner’s insurance policy issued by USAA as a result of water damage to his
property caused by a malfunctioning dishwasher. Plaintiff’s Complaint has five counts: (1)
breach of contract asserted against USAA; (2) breach of the implied covenant of good faith and
fair dealing asserted against USAA; (3) negligence asserted against Cunningham; (4) violation of
the Connecticut Unfair Insurance Practices Act asserted against USAA; and (5) violation of the
Connecticut Unfair Trade Practices Act asserted against USAA. See Compl. at 8-34, ECF No. 1.
Cunningham moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss Count Three. For
the reasons that follow, the motion is GRANTED.
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II.
FACTUAL ALLEGATIONS
USAA issued a homeowner’s insurance policy to Plaintiff covering his property in
Madison, Connecticut. Compl. ¶ 15. Plaintiff submitted a claim to USAA after his property
suffered water damage caused by a malfunctioning dishwasher. Id. ¶ 20. USAA engaged
Cunningham, a corporation in the business of adjusting insurance claims, to adjust Plaintiff’s
claim. Id. ¶¶ 6, 101. An insurance adjuster employed by Cunningham inspected Plaintiff’s
property, prepared an estimate, and submitted it to USAA. Id. ¶¶ 24, 28, 105. Plaintiff alleges
that the estimate contained errors, and that, as a result, USAA paid him less than he should have
received under the policy. See id. ¶¶ 105, 107, 109-11.
III.
STANDARD OF REVIEW
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff
must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A claim is facially plausible if “the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Although “detailed factual allegations” are not required, a complaint must offer more than
“labels and conclusions,” or “a formulaic recitation of the elements of a cause of action” or
“naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 557 (2007). “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 556). Even under this standard, the Court must
liberally construe a pro se complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Court must accept the allegations in the complaint as true and draw all reasonable
inferences in the light most favorable to the non-moving party, In re NYSE Specialists Sec. Litig.,
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503 F.3d 89, 95 (2d Cir. 2007), and generally may consider only “the facts as asserted within the
four corners of the complaint, the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 191 (2d Cir. 2007).
IV.
DISCUSSION
Count Three sounds in negligence. It alleges that Cunningham prepared a “negligent
estimate,” “negligently created a non-existent bedroom” when preparing its estimate, “neglected
to include damage to Plaintiff’s personal property,” and “fail[ed] to conform to the applicable
standards of care during the adjustments . . . .” Compl. ¶¶ 103, 105-06, 109-11.
“‘The essential elements of a cause of action in negligence are well established: duty;
breach of that duty; causation; and actual injury. . . . Contained within the first element, duty,
there are two distinct considerations. . . . First, it is necessary to determine the existence of a
duty, and then, if one is found, it is necessary to evaluate the scope of that duty. . . . The
existence of a duty is a question of law . . . . If a court determines, as a matter of law, that a
defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the
defendant.’” Sic v. Nunan, 307 Conn. 399, 406-07 (2012) (quoting Pelletier v. Sordoni/Skanska
Const. Co., 286 Conn. 563, 593 (2008)).
Plaintiff’s negligence claim against Cunningham must be dismissed because Cunningham
did not owe a duty to Plaintiff.
No Connecticut appellate court has decided whether an independent insurance adjuster
retained by an insurance company to adjust an insured’s claim owes a duty of care to that
insured. As a result, this Court must “either (1) predict how the [Connecticut Supreme Court]
would resolve the question, or (2) certify the question to the [Connecticut Supreme Court] for a
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definitive resolution.” Highland Capital Mgmt. LP v. Schneider, 460 F.3d 308, 316 (2d Cir.
2006). Federal courts resort to certification sparingly, and do not certify questions of law “where
sufficient precedents exist for use to make [a] determination.” Id. (internal quotation marks and
citation omitted).
The Court concludes that certification to the Connecticut Supreme Court is not
appropriate in this case because there are a number of Connecticut Superior Court cases holding
that an independent adjuster does not owe a duty to the insured.
In Grossman v. Homesite Ins. Co., the Connecticut Superior Court observed that “[t]here
is a split among those state jurisdictions that have addressed whether a negligence claim can be
brought against an independent adjuster” and that “[t]he majority does not allow this cause of
action.” Grossman v. Homesite Ins. Co., No. FSTCV075004413S, 2009 WL 2357978, at *3
(Conn. Super. Ct. July 6, 2009) (internal quotation marks and citation omitted). Surveying the
split of authority, the Court identified three rationales for joining the majority.
First, “[t]he relationship between adjuster and insured is sufficiently attenuated by the
insurer’s control over the adjuster to be an important factor that militates against imposing a
further duty on the adjuster to the insured . . . The law of agency requires a duty of absolute
loyalty of the adjuster to its employer, the insurer . . . Creating a separate duty from the adjuster
to the insured would thrust the adjuster into what could be an irreconcilable conflict between
such duty and the adjuster’s contractual duty to follow the instructions of its client, the insurer.”
Id. (quoting Meineke v. GAB Bus. Servs., Inc., 991 P.2d 267, 270-71 (Ariz. Ct. App. 1999)).
Second, “the insured could still bring a bad faith claim against the insurer as a source of
recovery. Therefore, in a bad faith action against the insurer, the acts of the adjuster may be
imputed to the insurer, allowing the injured insured plaintiff a remedy.” Id. at *4 (citing
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Charleston Dry Cleaners & Laundry, Inc. v. Zurich Am. Ins. Co., 586 S.E.2d 586, 589 (S.C.
2003)).
Third, the court noted that one of the leading decisions for the minority position, Morvay
v. Hanover Ins. Cos., 506 A.2d 333 (N.H. 1986), conducted its duty analysis differently than a
Connecticut court would “in that it only focused on the foreseeability prong of the duty of care
test, and did not address public policy concerns.” Grossman, 2009 WL 2357978, at *4. The
Connecticut Supreme Court is not “required to address the first prong as to foreseeability if [it]
determine[s], based on the public policy prong, that no duty of care existed.” Neuhaus v.
DeCholnoky, 280 Conn. 190, 218 (2006).
The Grossman court “agree[d] with the reasoning applied by the majority of courts that
have refused to find that an independent adjustor, hired by an insurance company to investigate
or adjust the claim of one of its insureds, owes a duty to the insured . . . .” Id. Subsequent
Connecticut Superior Court decisions have arrived at the same conclusion. E.g., Weimer v.
Allstate Ins. Co., No. CV106010177S, 2010 WL 5491973, at *5-6 (Conn. Super. Ct. Dec. 13,
2010) (dismissing insureds’ negligence claim against independent insurance investigators hired
by insurer to investigate plaintiffs’ insurance claim “because under public policy grounds the
defendants did not owe the plaintiffs a duty of care and therefore the facts alleged in the
complaint cannot support a cause of action for negligence”); Savanella v. Kemper Indep. Ins.
Co., No. LLICV116003947S, 2011 WL 7049491, at *5 (Conn. Super. Ct. Dec. 28, 2011)
(agreeing with reasoning of Grossman and dismissing insureds’ negligence claim against
appraiser selected by insurer); Beck v. Utica Mut. Ins. Co., No. CV116022761, 2013 WL
3388880, at *6 (Conn. Super. Ct. June 18, 2013) (“Under the majority view, the plaintiff cannot
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recover against Hamm because Hamm, in his capacity as an independent insurance adjuster, did
not owe the plaintiff a duty of care.”).
The Court agrees with the reasoning in these cases, and concludes that the Connecticut
Supreme Court would hold that an independent insurance adjuster retained by an insurance
company to adjust an insured’s claim does not owe a duty of care to that insured.
In evaluating whether to impose a duty, the Connecticut Supreme Court would make “(1)
a determination of whether an ordinary person in the defendant’s position, knowing what the
defendant knew or should have known, would anticipate that harm of the general nature of that
suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of
whether the defendant’s responsibility for its negligent conduct should extend to the particular
consequences or particular plaintiff in the case.” Sic, 307 Conn. at 407-08. As noted above, the
Connecticut Supreme Court would not be “required to address the first prong as to foreseeability
if [it] determine[d], based on the public policy prong, that no duty of care existed.” Neuhaus,
280 Conn. at 218.
This Court concludes that the Connecticut Supreme Court would be persuaded by the
public policy considerations identified by Grossman and its progeny, and would join the majority
of jurisdictions in not imposing a duty of care.
V.
CONCLUSION
For the foregoing reasons, Cunningham’s motion to dismiss (ECF No. 16) is GRANTED
and Count Three is dismissed. SO ORDERED at Bridgeport, Connecticut this twenty-fourth day
of November, 2015.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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