Smith v. Zurich American Insurance Company

Filing 47

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Defendant Zurich American Insurance Company's Motion to Dismiss Plaintiff's Second Amended Complaint, Or, In the Alternative, Motion to Strike Certain Portions of Plaintiff's Second Amended Complaint [ECF No. 29 ] is GRANTED, in part, and DENIED, in part. Signed by District Judge E. Richard Webber on 11/28/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROGER L. SMITH,
Plaintiff,
vs.
ZURICH AMERICAN INSURANCE
COMPANY,
Defendant.

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Case No. 4:16-CV-00187-ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Zurich American Insurance Company’s
Motion to Dismiss or, in the alternative, Motion to Strike Certain Portions of Plaintiff’s Second
Amended Complaint. [ECF No. 29].
I.

BACKGROUND
A. Procedural Background
Plaintiff Roger L. Smith (“Plaintiff”) initiated this lawsuit by filing a Petition in the

Circuit Court of St. Louis County. [ECF No. 1; No. 3]. On February 11, 2016, Defendant Zurich
American Insurance (“Defendant Zurich”) removed this matter to this Court. [ECF No. 1; No. 4].
On July 25, 2016, Defendant Zurich filed a Motion to Dismiss, or, in the alternative, a Motion to
Strike Certain Portions of Plaintiff’s Amended Complaint. [ECF No. 29]. In addition to a
response to the Motion, Plaintiff filed a Motion for Leave to File Second Amended Complaint on
August 25, 2016, which this Court granted on August 29, 2016. [ECF No. 35; No. 37]. Plaintiff’s
Second Amended Complaint was filed on August 30, 2016. [ECF No. 38]. Because the Second
Amended Complaint did not resolve the issues in the Motion to Dismiss, the Court allowed

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Defendant Zurich to assert its Motion to Dismiss against the Second Amended Complaint
without re-briefing the issues.
B. Factual Background
This lawsuit arises out of an alleged failure of Defendant Zurich to disperse an
underinsured motorist payment to Plaintiff under a comprehensive insurance coverage plan
provided to Plaintiff’s employer, TJX Companies, Inc. (“TJX”). This lawsuit further arises out of
Defendant Zurich’s alleged failure to properly notice Travelers Companies (“Defendant
Travelers”), Federal Insurance Company (“Defendant Federal”), and American Insurance
Company (“Defendant American Insurance Company”) of their alleged duty, as excess coverage
carriers, to compensate Plaintiff for his injuries pursuant to Plaintiff’s employer’s commercial
umbrella insurance policy agreement with Defendant Zurich. The following facts are accepted as
true by this Court. Great Rivers Habitat Alliance v. Fed. Emergency Mgmt. Agency, 615 F.3d
958, 988 (8th Cir. 2010).
For several years before December 21, 2010, Plaintiff was employed by TJX, where he
served as a top-tier management executive. [ECF No. 31, pgs. 1, 2]. As an executive with TJX,
Plaintiff was compensated, in part, with a comprehensive package of benefits. [ECF No. 31, pg.
2]. Among these benefits are “significant thresholds of insurance policy coverage” for motor
vehicle accidents involving executive employees, while in the course and scope of their
employment. [ECF No. 31, pg. 2]. These benefits were provided and described under TJX’s
“Total Rewards Benefits.” [ECF No. 31, pg. 2]. Plaintiff’s TJX Total Rewards account number is
990566406. [ECF No. 31, pg. 2].
On December 21, 2010, in St. Louis County, Missouri, Plaintiff was involved in a motor
vehicle accident. [ECF No. 31, pg. 1]. Plaintiff’s motor vehicle was struck by Marc Smith, an

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underinsured motorist, when he crossed into Plaintiff’s traffic lane. [ECF No. 31, pg. 1; No. 38,
pg. 3]. The motor vehicle Plaintiff was operating at the time of the accident was owned and
insured by TJX. [ECF No. 31, pgs. 1, 4]. At the time of the accident, Defendant Zurich was
TJX’s insurance company. [ECF No. 31, pg. 4]. Plaintiff and Marc Smith subsequently settled
their disputed claim for $25,000, which was the policy limit of Marc Smith’s liability insurance
policy. [ECF No. 31, pg. 1]. At some point after the accident, Plaintiff received a worker’s
compensation settlement from TJX. [ECF No. 31, pg. 4].
As a result of the accident, Plaintiff incurred actual and lost wages in excess of $2
million, actual and future medical bills in excess of $800,000, as well as pain and suffering.
[ECF No. 38, pg. 4]. As a result of these costs, further compensation was needed to cover the
medical expenses. [ECF No. 31, pg. 5].
Defendant Zurich asserts its underinsured motorist insurance coverage (“UIM”) with TJX
has a policy limit of $25,000, and when Plaintiff and Marc Smith settled, for $25,000, Defendant
Zurich’s obligation was voided. [ECF No. 38, pg. 4]. However, Plaintiff contends Defendant
Zurich was required, under the policy, to notify Defendants Travelers, Federal and American
Insurance (“Defendants”), as excess carriers under the umbrella insurance policy, that Plaintiff
had exceeded the $25,000 limit and requested them compensate Plaintiff. [ECF. 38, pg. 4].
Plaintiff further contends because Plaintiff’s medical expenses exceeded $25,000, which was the
limit under Defendant Zurich’s policy coverage, and because Plaintiff properly notified
Defendant Zurich Plaintiff’s expenses exceeded $25,000, Defendant Zurich failed to satisfy the
terms and conditions of its insurance policy and failed to trigger excess carriers’ policies (codefendants) after Plaintiff notified Defendant Zurich. [ECF No. 38, pg. 4].

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C. Plaintiff’s Counts Against Defendants
Plaintiff contends, in Count One, Defendant Zurich breached its contractual obligation to
Plaintiff by either not properly tendering Plaintiff’s claims to Defendant Travelers, Defendant
Federal and Defendant American Insurance Company, or by failing to satisfy its contractual
obligations to Plaintiff by cooperating in Defendants Travelers’, Federal’s and Defendant
American Insurance Company’s reasonable investigation of Plaintiff’s insurance claim pursuant
to the insurance contracts Plaintiff had with Defendant Zurich and/or TJX. [ECF. No. 38, pg. 5].
In Count Two, Plaintiff contends Defendant Zurich breached its duty of good faith and fair
dealing by vexatiously, knowingly and wantonly refusing to pay Plaintiff’s equitable demands
without reason or cause to do so. [ECF No. 38, pgs. 5, 6]. Finally, Plaintiff contends, in Counts
Three, Four and Five, Defendants Travelers, Federal and American Insurance Company
breached their respective contractual obligations with Plaintiff or TJX to pay sums if Plaintiff’s
damages exceeded the policy limits set forth in Defendant Zurich’s policy [ECF No. 38, pgs. 68].
II.

DISCUSSION
A. Motion to Dismiss
Under Federal Rules of Civil Procedure (“FRCP”) (12(b)(6), a party may move to

dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). The notice pleading standard of FRCP 8(a)(2) requires a plaintiff to give “a short and
plain statement showing that the pleader is entitled to relief.” To meet this standard and to
survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotations and citation omitted). “A claim has facial plausibility when

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the plaintiff pleads factual content that allowed the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. A court accepts “as true all of the factual
allegations in the complaint,” and affords the non-moving party “all reasonable inferences that
can be drawn from those allegations” when considering a motion to dismiss. Jackson v. Nixon,
747 F.3d 537, 540-41 (8th Cir. 2014) (internal quotations and citations omitted). However, the
Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Carton
v. Gen. Motor Acceptance Corp., 611 F.3d 451, 454 (8th Cir. 2010) (internal citations omitted).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements do not suffice.” Iqbal, 556 U.S. at 678 (internal citations omitted). Additionally,
“some factual allegations may be so indeterminate that they require further enhancement in order
to state a claim.” Braden v Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
A well-pleaded complaint may not be dismissed even if it appears proving the claim is
unlikely and if the chance of recovery is remote. Bell Atlantic v. Twombly, 550 U.S. 544, 556
(2007). However, where the allegations on the face of the complaint show “there is some
insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Young v. St John’s Mercy
Health Sys., No. 10-824, 2011 WL 9155, at *4 (E.D. Mo. Jan 3., 2011) (internal citation
omitted). Further, if a claim fails to allege one of the elements necessary to recover on a legal
theory, that claim must be dismissed for failure to state a claim upon which relief can be granted.
Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). Bare assertions construing
merely conclusory allegations failing to establish elements necessary for recovery will not
suffice. See id. (“Plaintiffs, relying on facts not in the complaint, make bare assertions that
[defendants] were not just lenders, but owners that controlled the RICO enterprise . . . these
assertions are more of the same conclusory allegation . . . .”). Courts must assess the plausibility

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of a given claim with reference to the plaintiff’s allegations as a whole, not in terms of the
plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Grp., 592 F.3d
893, 896 n.4 (8th Cir. 2010) (internal citation omitted). This inquiry is a “context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,
556 U.S. at 679.
1. Analysis
In its motion, Defendant Zurich argues Plaintiff, in Count One, has failed to allege
Plaintiff is an insured under Defendant Zurich’s insurance policy issued to TJX. [ECF No. 30,
pg. 3]. Further, Defendant Zurich contends it is unaware of any insurance policy it issued to TJX
containing an underinsured motorist coverage provision under which Plaintiff is an insured,
which warrants compensation for the circumstances of the accident at issue. [ECF No. 30, pg. 3].
Defendant Zurich asserts Plaintiff’s bad faith claim, in Count Two, fails as a matter of law in
Missouri, because an alleged insurer’s wrongful refusal to pay its insured is simply a breach of
contract. [ECF No. 30, pg. 4]. Additionally, Defendant Zurich contends Plaintiff’s vexatious
refusal to pay claim fails because Plaintiff has not pointed to a proper contractual provision in the
insurance contract, nor has Plaintiff established he is an insured under the insurance agreement
between Defendant Zurich and TJX. [ECF No. 30, pg. 4]. Finally, Defendant Zurich, in response
to Plaintiff’s Counts Three, Four and Five, asserts it had no obligation to tender Plaintiff’s claim
to Defendant Travelers, because Plaintiff was not an insured under the policy. [ECF No. 30, pg.
4]. Further, Defendant Zurich argues Federal and American Insurance Company, and Defendant
Travelers, Federal and American Insurance Company, as excess carriers under the Umbrella
Policy, had no contractual obligation to Plaintiff, because excess carriers’ coverage is only

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triggered when a third party claims is made against an insured. [ECF No. 32, pg. 8]. The Court
will address each as follows.
a. Count One – Breach of Contract
Defendant Zurich contends Plaintiff “bears the burden of proving coverage: that he is an
insured and his loss is covered under the policy.” [ECF No. 30, pg. 2]. Defendant Zurich argues
Plaintiff failed to show he was insured under any underinsured motorist coverage provision of
any policy issued by Defendant Zurich to TJX, and merely because TJX purchased a policy from
Zurich is “in and of itself not sufficient.” [ECF. No. 30, pg. 3]. Defendant Zurich does not
dispute it issued an insurance policy to TJX. [ECF No. 32, pg. 3 n. 2]. However, Defendant
Zurich contends Plaintiff has not established he qualified as an insured under TJX’s policy. [ECF
No. 32, pg. 3 n.2]. Further, Defendant Zurich asserts Business Auto Policies, similar to the one at
issue, contain different or desired coverages and/or endorsements. [ECF No. 32, pg. 3]. Under
these commercial policies the purchaser (employer) chooses the coverage. [ECF No. 32, pg. 3].
Defendant Zurich claims UM and UIM insurance is not mandatory in all states, and Defendant
Zurich’s Policy issued to TJX did not include UIM coverage. [ECF No. 32, pg. 4]. Because
Plaintiff fails to demonstrate a contractual relationship, Defendant Zurich contends a required
element for a claim of breach of contract is absent. [ECF No. 30, pg. 3; No. 32, pg. 2].
In his response, Plaintiff argues no “magic words are required to survive a motion to
dismiss.” [ECF No. 31, pg. 4]. Plaintiff alleges he was operating a vehicle owned or leased by
TJX Companies, and was “acting and traveling within the defined and established course and
scope of his employment” when the accident occurred with Marc Smith. [ECF No. 31, pg. 1].
Through this, Plaintiff alleges he is an insured under the policy.

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For a plaintiff to establish prima facie case of insurance coverage, a plaintiff must show:
“(1) the insurer issued its policy to the insured, (2) the insured paid the premium, (3) a loss was
caused by a peril the policy insures against, and (4) the insured have notice of the loss to the
insurer as required by the terms of the policy.” Country Mut. Ins. Co. v. Omicron Capital, LLC,
No. 4:13–CV–1476–SPM, 2015 WL 1894997, at *7 (E.D. Mo. Apr. 27, 2015) (citing Wright v.
Blevin, 380 S.W.3d 8, 11(Mo. Ct. App. 2012)).
Here, Plaintiff has alleged facts to establish all the elements to survive a motion to
dismiss. Plaintiff alleges he was employed by TJX at the time of the collision, and the vehicle
was leased or owned by TJX. [ECF No. 38, pg. 3]. Plaintiff asserts coverage as an insured under
Business Auto Policy 4030146-03, which Defendant Zurich issued to TJX. [ECF No. 32, pg. 3;
No. 38, pg. 4]. Lastly, Plaintiff provided notice to Defendant Zurich about the loss as a result of
the accident. [ECF No. 31, pg. 5]. Defendant Zurich’s reliance on Anton v. National Union Fire
Insurance Company of Pittsburgh Pennsylvania, 634 F.3d 364 (6th Cir. 2011), although
persuasive in authority, is unfounded. In Anton, the Sixth Circuit held the plaintiff’s claim failed,
because his employer’s Business Auto Policy did not provide UIM benefits in Michigan. Id. The
plaintiff was an executive at General Motors. Id. at 367. The plaintiff and his wife were injured
in a car accident, in Michigan, while plaintiff was driving the car. Id. National Union issued a
business auto policy to General Motors. Id. at 365. The insurance policy did not provide an
endorsement for UIM Coverage. Id. at 367. Although Defendant Zurich argues this case is
similar to the situation before the Court, because both plaintiffs were similarly situated
executives, both plaintiffs were injured in a car accident, and, in Defendant Zurich’s
interpretation, Plaintiff’s auto policy, like the plaintiff’s auto policy in Anton, did not include an
endorsement for UIM insurance, this case can be distinguished through its procedural posture.

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Anton, was presented to the Sixth Circuit on appeal from summary judgment, not in response to a
motion to dismiss. Here, we must accept Plaintiff’s allegations as true and Plaintiff has alleged
he is an insured and the policy contained UIM coverage. Therefore, because Plaintiff has pled
the necessary facts to meet the required elements under the cause of action, this Court will not
grant Defendant Zurich’s Motion to Dismiss under Count One.
b. Count Two - Bad Faith/ Vexatious Refusal to Pay
i.

Bad Faith Claim

Defendant Zurich claims Count Two, a bad faith claim, fails as a matter of law, because
Missouri law does not recognize bad faith first-party insured claims against an insurer, but
instead provides that a wrongful refusal to pay is mere breach of contract. [ECF No. 30, pg. 4].
Plaintiff asserts Defendant Zurich, through its failure to equitably compensate Plaintiff for his
medical bills, lost wages and pain and suffering, breached the duties of good faith and fair
dealing. [ECF No. 38, pg. 6].
This Court has previously held “‘[a]s a general principle, no fiduciary duty exists
between an insurer and its insured under Missouri law.’” Cuggino v. Nationwide Ins. Co. of Am.,
No. 4:15-CV-250-CEJ, 2016 WL 233240, at *2 (E.D. Mo. Jan. 20, 2016) (citing Dairy Farmers
of Am., Inc., 292 F.3d 567, 572 (8th Cir. 2002)). However, “‘an insurer-insured fiduciary
relationship can arise in certain circumstances, especially if the insurer is ‘entrusted to defend a
claim on behalf of the insured.’” Id. at *2 (internal citations omitted). Here, however, there are
no third party claims against an insured. Plaintiff, an, insured is pursuing compensation from his
insurer. Therefore, this case remains governed by the general principle no such duty exists where

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“the insured is making a first party claim against the insurer.” Id.; see Pool v. Farm Bureau Town
& Country Ins. Co. of Mo., 311 S.W.3d 895, 905-06 (Mo. Ct. App. 2010).1
The Missouri Supreme Court, in Overcast v. Billings Mutual Insurance Company, limited
first-person insurance claims from insured against insurer by stating “[w]hen an insurance
company wrongfully refuses payment of a claim to its insured, the company has simply breached
its contract.” 11 S.W.3d 62, 67 (Mo. 2000). A plaintiff’s damages for breach of contract are
limited to the loss of the benefit itself, and should place the insured in the position he would have
been in had the contract been performed. Id. The Missouri Supreme Court further explained
“[n]o tort claim has supplanted the basic contract claim and remedy where an insurance company
wrongfully refuses to pay a loss incurred by its own insured.” Id. This principle is further
supported by Missouri Revised Statute § 375.420, which provides additional remedies for
plaintiffs only where the insurer wrongfully refuses to pay “without reasonable cause or excuse.”
Because this statute provides remedies in excess of contractual damages only where an insurer
vexatiously refuses to pay, it further supports the Missouri legislature’s intent, consistent with
Missouri law, to provide contractual damages as the sole source of relief for claims of bad faith
refusal to pay against insurers. Therefore, because bad faith refusal to pay does not exist as a
matter of law in Missouri, Plaintiff’s bad faith claim against Defendant Zurich will be dismissed.
ii.

Vexatious Refusal to Pay Claim

Defendant Zurich asserts, Plaintiff’s claim Defendant Zurich vexatiously refused to pay
Plaintiff’s demand fails, because Plaintiff cannot establish the necessary contractual relationship.
1

This Court, in this action, defers to Missouri case law, because this case arrived in federal court through diversity
of citizenship jurisdiction under 28 U.S.C. § 1332. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“Except in
matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of
the state.”).

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[ECF No. 30, pg. 4]. In his response, Plaintiff asserts Defendant Zurich issued an insurance
policy to TJX, TJX, under which Plaintiff was covered. [ECF No. 38, pg. 6]. Plaintiff also asserts
Defendant Zurich received proper notice of Plaintiff’s claim for compensation, Defendant Zurich
did not perform a reasonable investigation into the claim, and Defendant Zurich’s refusal to pay
was willful and “without reasonable cause or excuse.” [ECF No. 31, pg. 5; 38, pg. 6].
To establish a claim for vexatious refusal to pay, “[insured] must prove (1) they had an
insurance policy with [insurer]; (2) [insurer] refused to pay; and (3) [insurer’s] refusal was
without reasonable cause or excuse.” Country Mut. Ins. Co., 2015 WL 1894997, at *9; see also
Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 457 (Mo. 2006) (citing Mo. Rev. Stat. §
375.420). Plaintiff has plead sufficient facts to state a claim for vexatious refusal to pay. Plaintiff
alleged, as a top-tier management executive within TJX, he was provided with a comprehensive
package of benefits titled TJX Total Rewards, which included an insurance policy coverage for
accidents involving employees. [EFC No. 31, pg. 2]. Additionally, Plaintiff, pursuant to TJX’s
underinsured motorist policy, demanded Defendant Zurich “pay a sum that would equitably
compensate him for his medical bills, lost wages and pain and suffering.” [ECF. No. 38, pg. 6].
Plaintiff alleges a demand for equitable compensation was made to Defendant Zurich in
accordance with the “terms and provisions of the contract of insurance,” and occurred more than
thirty days before Plaintiff filed this lawsuit. Id. Plaintiff alleges Defendant Zurich “vexatiously,
knowingly and wantonly refused to pay said equitable demand,” and supports this statement by
alleging Defendant Zurich “did not conduct a reasonable investigation before denying Plaintiff’s
demand.” Id. Therefore, according to Plaintiff, when Defendant Zurich received notice of
Plaintiff’s claim for compensation and Defendant Zurich did not perform a reasonable

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investigation, Defendant Zurich’s refusal to pay was willful and “without reasonable cause or
excuse.” Id.
Because Plaintiff has sufficiently pled the facts necessary to warrant a cause for relief,
Defendant Zurich’s Motion to Dismiss Count Two- Vexatious Refusal to Pay will be denied.
c. Count Three –Declaratory Relief against Defendant Travelers;
Count Four – Declaratory Relief against Defendant Federal; and
Count Five –Declaratory Relief against Defendant American Insurance
Company
Defendant Zurich asserts the Commercial Umbrella Liability Policy alleged in Counts
Two, Three, Four and Five, issued by American Guarantee & Liability Insurance Company
(AGLIC), does not provide coverage for a first party UIM claim against the insurer. [ECF No.
32, pg. 7]. Therefore, according to Defendant Zurich, coverage from Defendants Zurich,
Travelers, Federal and American Insurance (“Defendants”) would only be triggered when “TJX
and/or its employee(s) are liable to injured third parties above the $1,000,000 Business Auto
liability coverage. [ECF No. 32, pg. 7].
Plaintiff asserts Defendants had a contractual obligation with either Plaintiff, TJX or
Defendant Zurich requiring Defendants to pay sums if Plaintiff’s damages exceeded the policy
limits set forth in Defendant Zurich’s policy. [ECF No. 38, pg. 7]. Plaintiff contends because he
incurred damages in excess of Defendant Zurich’s Policy limits and because Defendants have
not compensated Plaintiff, Defendants have breached their contractual obligation to Plaintiff.
[ECF No. 38, pg. 7].
In these counts, Plaintiff alleged sufficient facts to survive Defendant Zurich’s Motion to
Dismiss. Plaintiff has alleged there was a contractual relationship with Defendants based on an
insurance policy issued by Defendant Zurich and Defendants have not compensated Plaintiff.
[ECF 38, pg. 7]. Defendant Zurich relies on Lero v. State Farm Fire and Casualty Company, 359
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S.W.3d 74 (Mo. Ct. App. 2011) and West v. Transamerica Insurance Company, 614 S.W.2d 752,
754 (Mo. App. 1981) in support of dismissal. Both Lero and Transamaerica Insurance Company
are cases in which Missouri courts have held commercial umbrella policies cover “tort liability to
third persons.” 359 S.W.3d at 82; 614 S.W.2d at 754. In these cases, the plaintiff’s claims were
dismissed on summary judgment. Here plaintiff has alleged facts to satisfy the standards of
FRCP Rule 8, “a short and plain statement of the claim showing that the pleader is entitled to
relief,” and survive a motion to dismiss. Fed. R. Civ. P. 8. Therefore, the Court will not dismiss
Counts Three, Four and Five of Plaintiffs Second Amended complaint.
B. Motion to Strike
Rule 12(f) of the FRCP provides courts “may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. Civ. P. 12(f).
Although district courts enjoy liberal discretion under the rule, striking a party’s pleadings is an
extreme measure, and motions to strike are viewed with disfavor and are infrequently granted.
Stanbury Law Firm, P.A. v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000).
When a defense is insufficient as a matter of law, it should be stricken to eliminate delay
and the unnecessary expense of litigating it at trial. See FDIC v. Collins, 920 F. Supp. 30, 33 (D.
Conn. 1996); RTC v. Youngblood, 807 F.Supp. 765, 769 (N.D. Ga. 1992); FDIC v. Eckert
Seamans Cherin & Mellot, 754 F. Supp. 22, 23 (E.D.N.Y. 1990); Purex Corp., Ltd. v. Gen.
Foods Corp., 318 F. Supp. 322, 323 (D.C. Cal. 1970).
1. Analysis
Defendant Zurich contends Plaintiff’s Second Amended Complaint contains three
paragraphs that are immaterial and impertinent to Plaintiff’s claim and should be stricken Plaintiff’s introduction, second and sixth paragraphs. [ECF No. 30, pg. 5].

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Defendant Zurich first claims the introduction paragraph of Plaintiff’s Second
Amendment Complaint is “purely generalized argument.” [ECF No. 30 pg. 5]. In support of this
allegation, Defendant Zurich asserts the paragraph is purely “argumentative with no factual
specifics,” and as such “lacks a relationship to the claim for relief.” [ECF No. 30 pg. 5].
Defendant Zurich also claims the second and sixth paragraphs of Plaintiff’s Second Amended
Complaint should be stricken. [ECF No. 30-5]. Defendant Zurich asserts Plaintiff conflated
Defendant Zurich with a non-party Zurich Insurance Group Limited and incorrectly alleges
“Defendant [Zurich American Insurance Company] is a Switz [sic] company.” [ECF No. 30 pg.
6]. Thus, according to Defendant Zurich, because Plaintiff’s Second Amended Complaint
“involves an entirely different entity” than Defendant Zurich, it is immaterial, impertinent and
lacks any relationship to the issues or claims in this suit. Id.
In response, Plaintiff asserts “there is nothing in the Amended Complaint that is
redundant, immaterial, impertinent or scandalous.” [ECF No. 31, pg. 8]. Plaintiff emphasizes
nothing in the introduction paragraph supports Defendant Zurich’s Motion to Strike. [EFC No.
31, pg. 9]. Plaintiff argues any “‘scandalous allegations’” are of no fault of the Plaintiff. [ECF
No. 31, pg. 8]. According to Plaintiff, “[i]t is scandalous that an insurance company can receive
over a million dollars a year in premiums from TJX and then claim that [Plaintiff] is not an
‘insured.’” [ECF No. 31, pg. 8]. Thus, according to Plaintiff, it is “scandalous” Defendant Zurich
has taken such “extreme measures” not to compensate Plaintiff. [ECF No. 31, pg. 8].
Although district courts may enjoy liberal discretion under the rule, striking a party’s
pleadings is an extreme measure and is infrequently granted. Stanbury Law Firm, 221 F.3d at
1063. Defendant Zurich’s main contention is Plaintiff has conflated Defendant Zurich with a
non-party affiliate. [ECF No. 30, pg. 6]. However, Plaintiff’s Second Amended Complaint has

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resolved the issue and has expressly named Defendant Zurich and forgone the inclusion of
Zurich Insurance Group Limited. [ECF No. 38, pg. 2]. Furthermore, none of Plaintiff’s alleged
“scandalous allegations” warrant this Court to strike them from Plaintiff’s complaint.
Accordingly, Defendant Zurich’s Motion to Strike will be denied.
Accordingly,
IT IS HEREBY ORDERED that Defendant Zurich American Insurance Company’s
Motion to Dismiss Plaintiff’s Second Amended Complaint, Or, In the Alternative, Motion to
Strike Certain Portions of Plaintiff’s Second Amended Complaint [ECF No. 29] is GRANTED,
in part, and DENIED, in part.
Dated this 28th Day of November, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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