Cole v. State Farm Mutual Automobile Insurance Company

Filing 30

MEMORANDUM AND ORDER denying as moot 23 Motion to Dismiss; granting 25 State Farm's Amended Motion to Dismiss. Please see order for details. Signed by District Judge Eric F. Melgren on 06/08/2018. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SHANA COLE,
Plaintiff,

vs.

Case No. 17-cv-01308-EFM-TJJ

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Shana Cole brought a claim in state court against Defendant State Farm Mutual
Automobile Insurance Company (“State Farm”) alleging breach of contract and a violation of a
Kansas state insurance statute.1 State Farm removed the case to this Court on the basis of diversity
jurisdiction. Before the Court is State Farm’s Amended Motion to Dismiss (Doc. 25). State Farm
is not currently seeking to dismiss Cole’s breach of contract claims, only her claim under
K.S.A. § 40-2404. Plaintiff has not filed a response; thus, State Farm’s motion is unopposed.
Because K.S.A. § 40-2404 does not create a private cause of action, the Court grants State Farm’s
motion.

1

K.S.A. § 40-2404(9).

I.

Factual and Procedural Background

On August 24, 2015, Cole was rear-ended by another driver while she was stopped at a
traffic light. The other driver’s insurance policy covered only $25,000 of liability, while Cole’s
injuries and damages allegedly far exceed that amount. Cole filed a claim with her insurance
company, State Farm, to pay for her damages under her underinsured motorist coverage. State
Farm refused.
Cole filed a complaint against the other driver in state court. The parties subsequently
agreed to dismiss the other driver, and Cole filed a First Amended Petition, naming State Farm as
the defendant.2 State Farm removed the action to this Court on December 13, 2017, and filed its
Amended Motion to Dismiss on April 5, 2018.3 Cole failed to file a response, and the deadline to
do so has passed.
II.

Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move for dismissal of
any claim for which the plaintiff has failed to state a claim upon which relief can be granted.4
Upon such motion, the Court must decide “whether the complaint contains ‘enough facts to state
a claim to relief that is plausible on its face.’ ”5 A claim is facially plausible if the plaintiff pleads
facts sufficient for the Court to reasonably infer that the defendant is liable for the alleged

2

Her First Amended Petition contained an error. Cole filed a Second Amended Petition, correcting this error.
Other than that one correction, the two petitions are identical.
3

State Farm filed its Amended Motion to Dismiss to correct two errors in the Motion to Dismiss (Doc. 23)
that it filed on March 30, 2018. Because the current motion is a duplicate of the first motion, aside from the two
corrections, the first motion is denied as moot.
4

Fed. R. Civ. P. 12(b)(6).

5
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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misconduct.6 The plausibility standard reflects the requirement in Rule 8 that pleadings provide
defendants with fair notice of the nature of claims as well the grounds on which each claim rests.7
Under Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint, but
need not afford such a presumption to legal conclusions.8 Viewing the complaint in this manner,
the Court must decide whether the plaintiff’s allegations give rise to more than speculative
possibilities.9 If the allegations in the complaint are “so general that they encompass a wide swath
of conduct, much of it innocent, then the plaintiff[] ‘[has] not nudged [her] claims across the line
from conceivable to plausible.’ ”10
III.

Analysis

State Farm argues that Cole cannot state a claim based on K.S.A. § 40-2404(9). That statute
sets out a number of prohibited practices in the insurance industry, including unfair claim
settlement practices. The statutory scheme devised by the Kansas legislature vests enforcement
power in the Commissioner of Insurance for the state.11 It does not provide for a private cause of
action to recover damages beyond those attributable to breach of contract.12

6

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

7

See Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citations omitted); see also Fed. R. Civ.

P. 8(a)(2).
8

Iqbal, 556 U.S. at 678-79.

9
See id. at 678 (“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.”) (citing Twombly, 550 U.S. at 556).
10

Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570).

11

K.S.A. § 40-2407(a).

12

Earth Scientists (Petro Servs.) Ltd. v. U.S. Fidelity & Guar. Co., 619 F. Supp. 1465, 1470 (D. Kan. 1985).

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The court in Earth Scientists clearly decided this issue. Cole has not offered any authority
to the contrary. “[T]he aggrieved insured has only two remedies to pursue—[s]he may file suit for
breach of the insurance contract and/or [s]he may report the insurer to the Insurance Commissioner
who may proceed under the [Kansas Uniform Trade Practices] Act.”13
IT IS THEREFORE ORDERED that State Farm’s Amended Motion to Dismiss (Doc.
25) is hereby GRANTED. State Farm’s Motion to Dismiss (Doc. 23) is hereby DENIED as moot.
IT IS SO ORDERED.
Dated this 8th day of June, 2018.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

13

Id. (citing Spencer v. Aetna Life & Cas. Ins. Co., 227 Kan. 914, 611 P.2d 149 (1980)).

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