Olivier et al v. Republic Fire & Casualty Insurance Company et al

Filing 15

ORDER denying 5 Motion to Dismiss for Failure to State a Claim. Signed by Judge Mary Ann Vial Lemmon. (cbn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FAYE OLIVIER AND ROCKY
OLIVIER

CIVIL ACTION

VERSUS

NO: 13-4689

REPUBLIC FIRE AND CASUALTY
INSURANCE COMPANY AND
CRAWFORD & COMPANY

SECTION: "S" (3)

ORDER AND REASONS
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Plaintiffs' Conspiracy
Allegations under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. #5) is DENIED.
BACKGROUND
This matter is before the court on a motion to dismiss plaintiffs' conspiracy allegations filed
by defendants, Republic Fire and Casualty Insurance Company and Crawford & Company.
Defendants argue that plaintiffs failed to sufficiently state a claim for civil conspiracy in their
petition.
Plaintiffs, Faye and Rocky Olivier, own a home located at 205 Warwick Street, LaPlace,
Louisiana. On August 28, 2012, plaintiffs' home sustained wind and rain damage as a result of
Hurricane Isaac. At the time of the loss, plaintiffs' maintained a homeowners' insurance policy with
Republic Fire. Plaintiffs reported the loss to Republic Fire, and Republic Fire retained Crawford
to adjust plaintiffs' claim.
On April 5, 2013, Republic Fire filed a petition in the Fortieth Judicial District Court, Parish
of St. John the Baptist, State of Louisiana seeking the appointment of an umpire to serve in the
insurance appraisal process in this case. The court appointed an umpire on April 8, 2013, before
plaintiffs received service of Republic Fire's petition or had an opportunity to respond.

On May 2, 2013, plaintiffs filed this action in the Fortieth Judicial District Court, Parish of
St. John the Baptist, State of Louisiana alleging that Republic Fire and Crawford breached the
insurance policy and committed torts in connection with the adjustment of plaintiffs' Hurricane Isaac
homeowners' insurance claim. Plaintiffs allege that Republic Fire and Crawford are liable for
property damage, loss of use and enjoyment of property, additional living expenses, repair and
remediation expenses, loss of investment value of funds used to offset Republic Fire's failure to pay,
diminution of property value, mental anguish, statutory penalties under Louisiana Revised Statutes
§§ 22:1892 and 22:1973, and attorneys' fees and costs. Plaintiffs also allege that the defendants
"engaged in a conspiracy designed to delay the adjustment and complete payment of the petitioners'
claim."
On May 31, 2013, defendants removed the action to the United States District Court for the
Eastern District of Louisiana alleging diversity subject matter jurisdiction under 28 U.S.C. § 1332.
Thereafter, defendants filed the instant motion to dismiss plaintiffs' conspiracy allegations pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
ANALYSIS
A.

Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a motion to dismiss a

complaint for failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6)
motion to dismiss, enough facts to state a claim for relief that is plausible on its face must be
pleaded. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl.
v. Twombly, 127 S.Ct. 1955, 1964-65 & 1973 n. 14 (2007)). A claim is plausible on its face when
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the plaintiff pleads facts from which the court can “draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “Factual
allegations must be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl., 127 S.Ct. at
1965. The court “must accept all well-pleaded facts as true and view them in the light most
favorable to the non-moving party.” In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir.
2008). However, the court need not accept legal conclusions couched as factual allegations as true.
Iqbal, 129 S.Ct. at 1949-50. In considering a motion to dismiss for failure to state a claim, a district
court may consider only the contents of the pleading and the attachments thereto. Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing Fed. R. Civ. P. 12(b)(6)).
B.

Plaintiffs' Conspiracy Allegations
Defendants argue that plaintiffs failed to sufficiently state a claim for conspiracy in their

petition.
"Conspiracy by itself is not an actionable claim under Louisiana law," and must be based on
an underlying tort. Crutcher-Tufts Resources, Inc. v. Tufts, 38 So.3d 987, 991 (La. Ct. App. 2010)
(citing Ross v. Conoco, Inc., 828 So.2d 546 (La. 2002)). Instead, conspiracy imposes solidary
liability on the co-conspirators. Louisiana Civil Code article 2324 provides that a person "who
conspires with another person to commit an intentional or willful act is answerable, in solido, with
that person, for the damage caused by such act." Thus, the actionable element of the conspiracy
claim is the "'tort which the conspirators agree to perpetrate and which they actually commit in
whole or in part.'" Crutcher-Tufts, 38 So.3d at 991(quoting Ross, 828 S.2d at 552). To recover
under a conspiracy theory of solidary liability, "a plaintiff must prove that an agreement existed to

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commit an illegal or tortious act; the act was actually committed and resulted in plaintiff's injury;
and there was an agreement as to the intended outcome or result." Id. (citing Butz v. Lynch, 710
So.2d 1171 (La. Ct. App. 1998)).
Plaintiffs allege that the defendants "engaged in a conspiracy designed to delay the
adjustment and complete payment of [their] claim." Plaintiffs also allege that defendants committed
torts during the claims adjustment process. Rule 8(a)(2) of the Federal Rules of Civil Procedure
states that pleadings must contain a short and plain statement of the claim showing that the pleader
is entitled to relief. To comply with Rule 8(a)(2) a plaintiff does not need to plead specific facts,
but only “‘give the defendant fair notice of what the. . . claim is and the grounds upon which it
rests.’” Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955 (2007) (quoting Conley v. Gibson, 78 S.Ct. 99,
103 (1957)). Plaintiff's allegations clearly put the defendants on notice that plaintiffs claim that the
defendants' conspired to commit torts during the claims adjustment process to delay the payment of
plaintiffs' insurance claim. Therefore, plaintiffs have sufficiently stated a claim for civil conspiracy
liability, and defendants' motion to dismiss is DENIED.
CONCLUSION
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Plaintiffs' Conspiracy
Allegations under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. #5) is DENIED.

27th
New Orleans, Louisiana, this _____ day of June, 2013.

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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