Burns v. UNUM GROUP

Filing 15

ORDER granting 5 Motion to Dismiss; denying 8 Motion to Strike. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH L. BURNS,
Case No. 13-11040
Hon. Lawrence P. Zatkoff

Plaintiff,
v.
UNUM GROUP, a foreign profit
Corporation organized in the state
of Delaware,
Defendant.
_______________________________________/
OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on September 20, 2013
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Defendant Unum Group’s Motion to Dismiss [dkt 5]
and Plaintiff’s Motion to Strike Defendant’s reply [dkt 8]. The motions have been fully briefed.
The Court finds that the facts and legal arguments are adequately presented in the parties’ papers
such that the decision process would not be significantly aided by oral argument. Therefore,
pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the motions be resolved on
the briefs submitted, without oral argument. For the following reasons, Defendant’s motion is
GRANTED and Plaintiff’s motion is DENIED.

II. BACKGROUND
A. FACTUAL BACKGROUND
This is a denial of insurance coverage case, where Plaintiff alleges that Defendant
breached its duty by refusing to pay disability benefit payments Plaintiff claims he is entitled to.
Plaintiff previously filed a similar matter against Defendant before the Court. In that matter, the
Court entered a stipulated order of dismissal on February 24, 2011, dismissing any claim
Plaintiff had for Defendant’s denial of disability income insurance benefits from January 11,
2009, to February 24, 2011. A settlement between the two parties was reached the same day,
whereby Plaintiff alleges Defendant agreed to pay Plaintiff’s benefits from January 11, 2009, to
February 24, 2011, in the amount of $149,040.00.
Plaintiff now alleges that Defendant, beginning on September 26, 2011, improperly
denied benefits to Plaintiff in breach of Plaintiff’s policy of insurance.

Plaintiff asserts

Defendant improperly relied upon the report of an Independent Medical Examination (“IME”)
performed by Defendant’s doctor.
B. PROCEDURAL BACKGROUND
Plaintiff filed his Complaint on March 7, 2013. In his complaint, Plaintiff alleges claims
against Defendant for state-law breach of contract (Count I), intentional infliction of emotional
distress (Count II), unfair trade practices (Count III),1 and bad faith (Count IV). Defendant filed
the instant motion on March 28, 2013, seeking dismissal of Counts II and IV.
III. LEGAL STANDARD
A motion brought pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief may be granted tests the legal sufficiency of a party’s claims. The Court must

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After filing his Complaint, Plaintiff has conceded he cannot maintain a separate claim under the Unfair Trade
Practices Act and has agreed to dismiss this count.

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accept as true all factual allegations in the pleadings, and any ambiguities must be resolved in
that party’s favor. See Jackson v. Richards Med. Co., 961 F.2d 575, 577–78 (6th Cir. 1992).
While this standard is decidedly liberal, it requires more than a bare assertion of legal
conclusions. See Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d 315,
319 (6th Cir. 1999).

A party must make “a showing, rather than a blanket assertion of

entitlement to relief” and “[f]actual allegations must be enough to raise a right to relief above the
speculative level” so that the claim is “plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007). “A claim has facial plausibility when the party pleads factual
content that allows the court to draw the reasonable inference the defendant is liable for the
alleged misconduct.” Id. at 556. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), this Court may only
consider “the facts alleged in the pleadings, documents attached as exhibits or incorporated by
reference in the pleadings, and matters of which the [Court] may take judicial notice.” 2 James
Wm. Moore et al., Moore’s Federal Practice ¶ 12.34[2] (3d ed. 2000).
IV. ANALYSIS
As a preliminary matter, Plaintiff argues that the Court should strike Defendant’s reply to
Plaintiff’s response as untimely under E.D. Mich. LR 7.1 (“Rule 7.1”). Defendant argues its
brief was timely, relying upon Rule 7.1 and Fed. R. Civ. P. 5 and 6. For the reasons given
below, the Court finds that Defendant’s reply brief was timely.
Rule 7.1 provides that “[i]f filed, a reply brief supporting a dispositive motion must be
filed within fourteen (14) days after service of the response, but not less than three days before
oral argument.” E.D. Mich. LR 7.1(e)(1)(C). Further, the Federal Rules of Civil Procedure allow
for electronic service through the court’s transmission facilities. Fed. R. Civ. P. 5(b)(2)(E); Fed.

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R. Civ. P. 5(b)(3). When such service is utilized, the Federal Rules of Civil Procedure provide
that “three days are added after the period would otherwise expire.” Fed. R. Civ. P. 6(d). Lastly,
“the period [for filing] continues to run until the end of the next day” should this extension of
time under Fed. R. Civ. P. 6(d) result in the due date landing on a Saturday, Sunday, or a legal
holiday. Fed. R. Civ. P. 6(a)(1)(C).
Plaintiff served his response to Defendant’s motion to dismiss on April 11, 2013. Thus,
E.D. Mich. LR 7.1(e)(1)(C) would normally provide a due date for Defendant’s reply of April
25, 2012.

Because Plaintiff utilized the Court’s electronic transmission facilities to serve

Defendant, however, Fed. R. Civ. P. 6(d) provides an additional three days for Defendant to
reply, resulting in a new due date of April 28, 2012. Finally, as April 28, 2012, was a Sunday,
Fed. R. Civ. P. 6(a)(1)(C) allows an additional day for Defendant to file its reply. Thus,
Defendant was required to file its reply by April 29, 2012. As such, the Court finds that
Defendant’s reply—which was filed on April 29, 2012—was not untimely, and thus Plaintiff’s
motion is denied.
Next, the Court will address Defendant’s request that two of Plaintiff’s claims—
intentional infliction of emotional distress and bad faith—be dismissed.
A. COUNT II – INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In Count II of his Complaint, Plaintiff asserts that Defendant either intended to inflict
emotional distress on Plaintiff or knew or should have known that emotional distress was a likely
result of Defendant’s conduct. Defendant argues that Michigan does not recognize a claim for
intentional infliction of emotional distress (“IIED”) where the conduct complained of relates to
duties imposed under an existing contract.

As evidenced below, the Court agrees with

Defendant’s position.

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All of Plaintiff’s alleged harm stems from Defendant’s denial to further provide disability
benefits. Plaintiff, therefore, has no basis to allege Defendant violated a duty that was distinct
from its contractual obligations. Under Michigan law, such a distinction is necessary in order for
Plaintiff’s IIED claim in tort to proceed: “As a general rule, there must be some active
negligence or misfeasance to support a tort. There must be some breach of duty distinct from
breach of contract.” Rinaldo’s Constr. Corp. v. Mich. Bell Tel. Co., 454 Mich. 65, 83 (1997)
(citing Hart v. Ludwig, 347 Mich. 559, 563 (1956)).
Notably, Plaintiff fails to offer any factual content evidencing that his alleged harm is the
result of Defendant violating a duty separate from those within the underlying insurance policy.
Instead, Plaintiff only alleges harm that corresponds to Defendant’s denial to further provide
benefits. As such, the Court dismisses Count II of Plaintiff’s Complaint for failure to state a
claim upon which relief may be granted.
B. COUNT IV – BAD FAITH
Count IV of Plaintiff’s Complaint alleges that Defendant acted with bad faith in failing to
provide Plaintiff with ongoing benefits.

Defendant contends that Michigan law does not

recognize a claim for bad faith in the denial of disability income insurance benefits. Although
Plaintiff contends Michigan law does indeed recognize such a claim, the Court is unconvinced.
Whether Plaintiff can maintain a claim for bad-faith breach of an insurance policy
depends on whether the duty imposed on Defendant is separate and distinct from the underlying
insurance policy. Casey v. Auto Owners Ins. Co., 273 Mich. App. 388, 401–02 (2006); see also
Roberts v. Auto-Owners Ins. Co, 422 Mich. 594, 603–07 (1985) (holding that tort actions survive
in a contractual setting as long as the tort action is based on a breach of duty that is distinct from
the contract); Kewin v. Mass. Mut. Life Ins. Co, 409 Mich. 401, 421–423 (1980) (determining

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that tort actions may survive when an insurer breaches a duty that existed “independent of and
apart from the contractual undertaking”). Plaintiff fails to provide any factual content that
illustrates the duty alleged in his bad faith claim is separate and distinct from Defendant’s duty to
provide benefits in the underlying insurance policy.
Plaintiff’s assertion that Michigan law recognizes “an insured’s claim against its insurer
for bad faith in refusing to settle,” while correct, is inapplicable to the matter at hand. Plaintiff
relies upon several Michigan cases where an insurance company’s refusal to settle a claim made
by a third party against the insured—thereby exposing the insured to increased liability—was
allegedly done in bad faith, and was thus found actionable. In the case presently before the
Court, however, Plaintiff makes no allegations that Defendant’s denial of benefits exposed him
to further liability. Rather, Plaintiff claims only that Defendant’s denial to provide further
benefits was done in bad faith. As such, the Court finds that Plaintiff’s Count IV fails to state a
claim upon which relief may be granted.
V. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss [dkt 5]
counts II and IV of Plaintiff’s Complaint is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Defendant’s reply [dkt 8]
is DENIED.
IT IS SO ORDERED.
Date: September 20, 2013

s/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
U.S. DISTRICT JUDGE

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