AMEC Construction Management, Inc. v FFIC Risk Management Services, Inc.

Filing 54

RULING: The 48 Motion to Dismiss GRANTED as to the counterclaim of failure to cooperate and DENIED as to the counterclaims for breach of the duty of good faith and negligent/intentional misrepresentation. Signed by Judge James J. Brady on 02/26/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
AMEC CONSTRUCTION MANAGEMENT, INC.

CIVIL ACTION

VERSUS
NO. 13-718-JJB
FIREMAN’S FUND INSURANCE COMPANY
RULING ON MOTION TO DISMISS
This case is before the Court on a Motion to Dismiss (Doc. 48) brought by AMEC
Construction Management, Inc. (AMEC). Fireman’s Fund Insurance Company’s (FFIC) filed an
opposition (Doc. 50) to which AMEC replied (Doc. 53). Oral argument is unnecessary.
BACKGROUND
The main demand arises out of an insurance contract between FFIC and Barnard & Burk,
Inc. (B&B). AMEC claims that it is the successor in interest to B&B and, consequently, that
FFIC must treat it as the insured. FFIC disagrees and, in its answer, raises 57 “affirmative
defenses” and three counterclaims against AMEC. The counterclaims are based on AMEC
allegedly breaching its duties to cooperate and act in good faith, as well as its making intentional
and negligent misrepresentations during the claims process. All of the counterclaims center
around a common set of factual allegations: that AMEC failed to provide proof that it was the
successor in interest to the named insured; that AMEC did not make an effort to regularly
communicate with FFIC or respond to FFIC’s requests for information; and that AMEC knew or
should have known that it was not covered under the policy as a successor in interest to B&B.
FFIC seeks both damages and declaratory relief.

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STANDARD OF REVIEW
Under Rule 12(b)(6), “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The Court, “[i]n reviewing a Rule 12(b)(6) motion . . . must accept all wellpleaded facts in the complaint as true and view them in the light most favorable to the plaintiff.”
Davis v. Bellsouth Telecomm., 2012 WL 2064699, at *1 (M.D. La. June 7, 2012) (citing Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996)). Still, the plaintiff must assert facts sufficient to
demonstrate that he may plausibly be entitled to relief. Ashcroft, 556 U.S. at 678. Significantly,
“threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
ANALYSIS
I.

Duty of Cooperation
AMEC moves to dismiss the first counterclaim based upon the alleged breach of the

insured’s duty of cooperation by “failing and refusing to cooperate in the investigation” of the
claims at issue. FFIC alleges that AMEC infrequently, if at all, responded to requests for
information and supporting documentation. Because FFIC has also raised breach of the duty to
cooperate as an affirmative defense in paragraph 67 of its answer, this “counterclaim” for
declaratory relief is at best a technical argument. Consequently, the motion to dismiss the
counterclaim will be granted as it is subsumed by or duplicative of the affirmative defense.
II.

Good Faith and Fair Dealing and Intentional/Negligent Misrepresentation
AMEC moves to dismiss the second counterclaim, breach of the duty of good faith and

fair dealing, on the grounds that FFIC has not plead sufficient facts to show that AMEC had the

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requisite ill will or intent. This counterclaim is based upon AMEC’s failing to timely provide
requested information for FFIC to evaluate the claim made under the policy at issue. FFIC seeks
damages based upon it allegedly incurring “unnecessary costs, expenses, and fees in an effort to
resolve the claims asserted.” AMEC also moves to dismiss FFIC’s counterclaim for negligent
and intentional misrepresentation for lack of legal or factual support. AMEC claims these
allegations reflect misrepresentations by FFIC rather than AMEC. FFIC responds that AMEC
misrepresented its status as the successor in interest to B&B and FFIC seeks damages because it
relied on their misrepresentation, causing FFIC to “incur unnecessary costs, expenses, and fees in
an effort to resolve the claims asserted.” The Court finds that, considering the context of the
alleged insured/insurer relationships, that both of the counterclaims for monetary damages are
highly unlikely to ultimately succeed. However, the Court finds that there are sufficient to
withstand the motion to dismiss.
CONCLUSION
For the foregoing reasons, the plaintiff’s Motion to Dismiss (Doc. 48) is GRANTED as to
the counterclaim of failure to cooperate and DENIED as to the counterclaims for breach of the
duty of good faith and negligent/intentional misrepresentation.

Signed in Baton Rouge, Louisiana, on February 26, 2015.

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JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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