Amerisure Insurance Company v. Thomas et al

Filing 20

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for More Definite Statement Directed at Certain Affirmative Defenses asserted by Defendants Dillingham and Mays (Doc. No. 14 ) is GRANTED. IT IS FURTHER ORDERED that Defendants Dillingham and Mays are granted until Friday, August 12, 2011, within which to file Amended Answers to Plaintiff's Complaint forDeclaratory Judgment. (Response to Court due by 8/12/2011). Signed by Honorable Jean C. Hamilton on 7/21/11. (TRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

AMERISURE INSURANCE CO.,
Plaintiff(s),
vs.
JASON THOMAS, et al.,
Defendant(s).

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Case No. 4:11CV642 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for More Definite Statement Directed
at Certain Affirmative Defenses asserted by Defendants Dillingham and Mays, filed July 1, 2011.
(Doc. No. 14). The motion is fully briefed and ready for disposition.1
BACKGROUND
Defendant Timothy Dillingham (“Dillingham”) filed an action in the Circuit Court of St.
Charles County, Missouri (the “St. Charles Action”), seeking to recover compensatory damages as
a result of injuries he allegedly sustained at a construction site, while under the supervision of
Defendants Jason Thomas (“Thomas”) and Thomas Mays (“Mays”). (Complaint for Declaratory
Judgment (“Compl.”), ¶¶ 14-16). Defendants Thomas and Mays tendered the St. Charles Action to
Plaintiff Amerisure, based on a policy Amerisure had issued to Defendants’ employer, Advantage
Builders, Inc. (“Advantage”), and made demand upon Plaintiff to provide coverage and a defense for
the claims and damages. (Id., ¶¶ 8, 14, 17). Plaintiff currently is providing a defense, under a
reservation of rights. (Id., ¶ 18).

1

Defendant Thomas Mays did not respond to Plaintiff’s motion, and the time for filing such
a response has now expired.

On April 13, 2011, Plaintiff filed the instant Complaint for Declaratory Judgment. (Doc. No.
1). After reciting allegedly relevant provisions from the insurance policy at issue, Plaintiff claims
there is no coverage for any “bodily injury” to Defendant Dillingham to the extent his claim for
damages arises out of and in the course of his employment by Advantage, or his performance of
duties related to the conduct of Advantage’s business. (Compl., ¶¶ 10-13, 21). Plaintiff further
claims coverage does not exist for the claims made or damages allegedly sustained by Defendant
Dillingham, because neither Defendant Thomas nor Defendant Mays was insured for bodily injury
sustained by a co-employee in the course of his employment. (Id., ¶ 22). Plaintiff thus requests a
declaratory judgment that the Amerisure Policy does not apply to the allegations of the St. Charles
Action, and that Amerisure is under no obligation to defend or indemnify Defendants Thomas and
Mays against any claim or suit filed by Defendant Dillingham arising out of or involving the incident
described in the St. Charles Action. (Id., PP. 8-9).
Defendant Dillingham filed his Answer on June 16, 2011. (Doc. No. 7). As relevant here,
Defendant Dillingham asserted the following affirmative defenses:
2.

Plaintiff’s claims are barred by the doctrines of waiver, estoppel, laches,
unclean hands and/or acquiescence.

3.

Plaintiff’s action for declaratory judgment fails for lack of a case or
controversy.

4.

Plaintiff’s claims are barred from asserting any exclusions because the
provisions of the policy when read as a whole or individually are vague and
ambiguous. Nothing set forth herein shall be construed as an admission by
Defendant that any coverage is excluded.

5.

Plaintiff’s interpretation of the policy violates the public policy of the State of
Missouri. Nothing set forth herein shall be construed as an admission by
Defendant that any coverage is excluded.

(Id., P. 4). Defendant Mays filed his Answer on June 24, 2011, asserting the following affirmative
defenses:
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1.

This Defendant pleads the policy terms and language, exclusions, and
endorsements of the policy sought to be interpreted as a defense to the claims
brought by Plaintiff against Defendant.

2.

This Defendant states that Plaintiff has waived certain policy defenses and any
challenge to declaratory judgment in the above-entitled cause.

(Doc. No. 9, P. 3).
As stated above, Plaintiff filed the instant Motion for More Definite Statement on July 1,
2011. (Doc. No. 14). In its motion, Plaintiff claims the above affirmative defenses are insufficiently
pled under the standards of Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868
(2009). (Id., P. 2).
DISCUSSION
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint present “a short and plain
statement of the claim showing that the pleader is entitled to relief.” To satisfy this standard, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A complaint thus, “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do...” Twombly, 550 U.S. at 555 (citation
omitted).
In Lucas v. Jerusalem Café, LLC, 2011 WL 1364075 (W.D. Mo. Apr. 11, 2011), the Court
held as follows:
There is currently a split of authority in the district courts regarding
the applicability of the Iqbal pleading standard to affirmative defenses. A
majority of district courts have held that the Iqbal standard is applicable to
affirmative defenses. Francisco v. Verizon South, Inc., No. 3:09cv737, 2010
WL 2990159 at *6 n.3 (E.D. Va. Jul. 29, 2010) (noting that a majority of
district courts have applied Iqbal to affirmative defenses). These courts
reason that the heightened pleading standard should be applied to affirmative
defenses because a plaintiff attempting to address an affirmative defense

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lacking factual allegations would be placed in the same position as a defendant
trying to address a pleading with the same deficiencies.
Id. at *1.2
Upon consideration, this Court finds the majority view persuasive, as “[i]t makes little sense
to hold defendants to a lower pleading standard than plaintiffs when, in both instances, the purpose
of pleading requirements is to provide enough notice [] to the opposing party that indeed there is
some plausible, factual basis for the assertion and not simply a suggestion of possibility that it may
apply to the case.” Lucas, 2011 WL 1364075 at *2 (internal quotations and citation omitted).
Accordingly, the Court holds the Iqbal and Twombly standards apply to affirmative defenses. See
Openmethods, LLC v. Mediu, LLC, 2011 WL 2292149 at *2 (W.D. Mo. Jun. 8, 2011).
In reviewing the affirmative defenses at issue here, the Court finds they are inadequately pled
under the above standards. In other words, the claims fail because “[t]here is no explanation or
discussion of why the defense is pled or how it might be implicated in the case.” Openmethods, 2011
WL 2292149 at *2. The Court therefore will grant Plaintiff’s Motion for More Definite Statement,
and allow Defendants an opportunity to amend their affirmative defenses.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for More Definite Statement Directed
at Certain Affirmative Defenses asserted by Defendants Dillingham and Mays (Doc. No. 14) is
GRANTED.

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The Lucas court noted a minority of district courts has ruled that Iqbal does not apply to
affirmative defenses. Lucas, 2011 WL 1364075 at *2.
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IT IS FURTHER ORDERED that Defendants Dillingham and Mays are granted until
Friday, August 12, 2011, within which to file Amended Answers to Plaintiff’s Complaint for
Declaratory Judgment.

Dated this 21st day of July, 2011.

/s/Jean C. Hamiton
UNITED STATES DISTRICT JUDGE

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