Maritz Holdings, Inc. v. Certain Underwriters at Lloyd's London Subscribing to Policies Numbered B122FI0115 and FI0115116 et al

Filing 170

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Underwriters's Motion to Dismiss Vexatious Refusal to Pay Claim (Doc. 101 ) is DENIED. Signed by District Judge Sarah E. Pitlyk on 11/30/2020. (ANP)

Case: 4:18-cv-00825-SEP Doc. #: 170 Filed: 11/30/20 Page: 1 of 6 PageID #: 3125

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MARITZ HOLDINGS INC.,
Plaintiff,

vs.
CERTAIN UNDERWRITERS AT
LLOYD’S LONDON SUBSCRIBING TO
POLICIES NUMBERED B122F10115115
AND F10115116, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 4:18-CV-00825 SEP

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Certain Underwriters at Lloyd’s London
Subscribing to Policies Numbered B122F10115115 and F10115116’s (“Underwriters”) Motion
to Dismiss Vexatious Refusal to Pay Claim of Plaintiff Maritz Holdings Inc.’s (“Maritz” or
“Plaintiff”) Amended Complaint. Doc. [101]. For the reasons stated below, the Motion to
Dismiss will be denied.
I.

Factual and Procedural Background

This case involves a dispute over insurance coverage for alleged losses arising out of
cyber-security breaches experienced by Plaintiff, through which certain electronically stored
gift card information was stolen. Underwriters issued breach-response insurance coverage to
Maritz for 2015 through 2017 under two separate insurance contracts (“Insurance Contracts”).
The Insurance Contracts provided coverage for, among other things, certain fees and costs
Maritz might incur in responding to such a security breach. Maritz experienced two cybersecurity breaches: one in March 2016, and another in February 2017. Maritz submitted claims
to Underwriters for expenses it alleges are covered under the Insurance Contracts.
Underwriters denied coverage on Maritz’s claims, after which Maritz filed the instant
action, asserting claims for breach of contract against all Defendants, and vexatious refusal

Case: 4:18-cv-00825-SEP Doc. #: 170 Filed: 11/30/20 Page: 2 of 6 PageID #: 3126

against Defendant Underwriters, and seeking damages of between approximately $4.5 and 5.5
million. Maritz’s complaint was initially filed in state court and was removed to this Court on
the basis of diversity of the parties. Doc. [1]. Maritz subsequently filed an Amended
Complaint, adding another of its insurers, Affiliated FM, as an additional Defendant. Doc.
[45]. Underwriters filed the instant Motion to Dismiss Count II of the Amended Complaint for
vexatious refusal to pay pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. [101].
Because Underwriters filed its Motion to Dismiss after it had already answered the
Amended Complaint, a motion to dismiss under subsection (b)(6) of Rule 12 is untimely. See
Fed. R. Civ. P. 12(b) (“A motion asserting [failure to state a claim] must be made before
pleading if a responsive pleading is allowed.”). After Maritz noted this deficiency in its
memorandum in opposition to the Motion to Dismiss (Doc. [108]), Underwriters asked the
Court to treat its motion as one for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). Because the applicable legal standard under either subsection of Rule 12 is
the same, the Court will construe the motion as though it were initially made under Rule 12(c).
II.

Discussion
A. Legal Standard

The Court applies the same standard of review to a motion for judgment on the pleadings
under Rule 12(c) as it does to a motion to dismiss under Rule 12(b)(6). See Gallagher v. City of
Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012). The purpose of either such motion is to test the
legal sufficiency of a claim. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The Court must
view the facts pleaded by the nonmoving party as true and grant all reasonable inferences in
favor of that party. Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009). The Court will
grant the motion only if the moving party has clearly established that it is entitled to judgment as
a matter of law. Waldron v. Boeing Co., 388 F.3d 591, 593 (8th Cir. 2004).
B. Parties’ Arguments
The Insurance Contracts each contain a choice-of-law provision stating:
In case of any dispute arising out of this Insurance, the same shall be governed
by the laws of New York and subject to the exclusive jurisdiction of the courts
of the United States of America in accordance with the attached wording.
Docs. [4-1] at 5; [4-2] at 5.

2

Case: 4:18-cv-00825-SEP Doc. #: 170 Filed: 11/30/20 Page: 3 of 6 PageID #: 3127

Underwriters asserts that Maritz’s claim in Count II for vexatious refusal to pay under
Mo. Rev. Stat. § 375.420 1 is a “dispute arising out of [the] Insurance,” and as such, is governed
by New York law according to the choice-of-law provision in the Insurance Contracts. See Doc.
[102] at 4-5. Underwriters argues that the claim must fail as a matter of law because it is made
under Missouri law, and therefore fails to state a claim under the applicable governing law.
Maritz asserts that the “arising out of” language in the Insurance Contracts only applies to
disputes involving the interpretation of the two policies. Maritz argues that the vexatious refusal
claim is not truly one “arising out of [the] Insurance,” but rather, one arising out of
Underwriters’s allegedly improper conduct in responding to Maritz’s claimed losses after it
submitted its claim on the breaches.
Maritz also argues that even if this Court were to conclude that the Insurance Contracts’
choice-of-law provision applies to its vexatious refusal claim, that still would not preclude its
claim, because the deprivation of such claim would be contrary to a fundamental policy of
Missouri—protecting its residents from unfair practices by insurers—and Missouri courts apply
the law of another jurisdiction only if “th[e] law is not contrary to a fundamental policy of
Missouri.” Sturgeon v. Allied Pros. Ins. Co., 344 S.W.3d 205, 210 (Mo. Ct. App. 2011).
C. Analysis
The Court rejects Maritz’s argument that its vexatious refusal claim is not a “dispute
arising out of [the] Insurance” policies. The unambiguous wording of the clause is not limited to
contractual disputes, but on its face applies to “any” dispute arising out of the Insurance
Contracts. Maritz’s claim for vexatious refusal to pay is plainly one that arises out of the
Insurance Contracts. The claim is predicated on the existence of the policies and could not be
brought if they were not in effect. See Thomas Farms, Ltd. v. Nat'l Union Fire Ins. Co. of

1

Mo. Rev. Stat. § 375.420 provides:
In any action against any insurance company to recover the amount of any loss under a
policy of automobile, fire, cyclone, lightning, life, health, accident, employers’ liability,
burglary, theft, embezzlement, fidelity, indemnity, marine or other insurance except
automobile liability insurance, if it appears from the evidence that such company has
refused to pay such loss without reasonable cause or excuse, the court or jury may, in
addition to the amount thereof and interest, allow the plaintiff damages not to exceed
twenty percent of the first fifteen hundred dollars of the loss, and ten percent of the
amount of the loss in excess of fifteen hundred dollars and a reasonable attorney’s fee;
and the court shall enter judgment for the aggregate sum found in the verdict.

3

Case: 4:18-cv-00825-SEP Doc. #: 170 Filed: 11/30/20 Page: 4 of 6 PageID #: 3128

Pittsburgh, No. 1:18CV00196 AGF, 2019 WL 460503 at *3 (E.D. Mo. Feb. 6, 2019) (“[A] claim
for vexatious refusal to pay is necessarily predicated on a breach of an insurance policy.”); see
also Minden v. Atain Specialty Ins. Co., 788 F.3d 750, 756 (8th Cir. 2015) (A vexatious refusal
claim “requires an insured to prove: (1) the existence of the insurance policy; (2) the insurance
company’s refusal to pay; and (3) such refusal was without reasonable cause or excuse.”). That
is not the end of the analysis, though. The Court must still determine whether New York law
controls and precludes Maritz’s claim for vexatious refusal to pay.
A district court sitting in diversity jurisdiction applies the conflict-of-law rules for the
state in which it sits. DCS Sanitation Mgmt., Inc. v. Castillo, 435 F.3d 892, 895 (8th Cir. 2006);
Inacom Corp. v. Sears, Roebuck & Co., 254 F.3d 683, 687 (8th Cir. 2001) (citing Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487 (1941)); see also Harris v. Am. Mod. Home Ins. Co., 571 F.
Supp. 2d 1066, 1075 (E.D. Mo. 2008) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938))
(“A federal district court sitting in diversity jurisdiction must apply the rules of decision that
would be applied by the courts of the state in which it sits, including the initial choice of the
applicable substantive law.”). Thus, we apply Missouri’s conflict-of-law rules.
Missouri recognizes that contracting parties may choose the state whose law will govern
the interpretation of their contractual rights and duties. See, e.g., Sturgeon, 344 S.W.3d at
209-11 (citing Tri–County Retreading, Inc. v. Bandag Inc., 851 S.W.2d 780, 784 (Mo. Ct. App.
1993)); Nakao v. Nakao, 602 S.W.2d 223, 226 (Mo. Ct. App. 1980). So long as the application
of the chosen law is not contrary to the public policy of Missouri, Missouri courts will generally
honor the parties’ choice-of-law provision. Sturgeon, 344 S.W.3d at 210.
Missouri courts have long recognized, however, that “‘a state may not be required to
enforce in its own courts the terms of an insurance policy normally subject to the law of another
state where such enforcement will conflict with the public policy of the state of the forum.’”
Asel v. Ord. of United Com. Travelers of Am., 197 S.W.2d 639, 645 (Mo. banc. 1946) (quoting
Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316-17 (1943)). See also Milburn v. Zurich
Am. Ins. Co., 4:19-cv-02719-SNLJ, 2020 WL 4673785, at *3 (E.D. Mo. Aug. 12, 2020) (“Long
ago, the Missouri Supreme Court made clear that public policy can override the terms of an
insurance policy normally subject to the laws of another state” when such enforcement would
conflict with the public policy of Missouri.) (internal quotation marks omitted). Consequently,
where the application of the chosen law would be contrary to Missouri public policy, Missouri
4

Case: 4:18-cv-00825-SEP Doc. #: 170 Filed: 11/30/20 Page: 5 of 6 PageID #: 3129

courts may instead choose to apply the law of their own state. See Sturgeon, 344 S.W.3d at 209–
11 (refusing to honor insurance policy choice-of-law provision for California law because
application of California law would deprive Missouri insured of statutory right to avoid
arbitration and therefore violated Missouri public policy). Accordingly, the law of the state
chosen by the parties—here, New York—will only govern if its application would not be
contrary to the public policy of Missouri.
The Missouri Supreme Court informs us that “exceptions based on public policy must
usually find support in . . . statutory provisions,” Halpin v. Am. Fam. Mut. Ins. Co., 823 S.W.2d
479, 483 (Mo. banc. 1992), and are applied where “there is some local interest in the forum state
to be protected” by its application. Asel, 197 S.W.2d at 645. Additionally, Missouri courts have
recognized that the “paramount concern” of Missouri public policy is “the protection of its own
citizens.” Gilmore v. Attebery, 899 S.W.2d 164, 168 (Mo. Ct. App. 1995).
Maritz asserts that these conditions are met here. Maritz notes that the vexatious refusal
statute at issue arises out of the established Missouri public policy of protecting its residents
from unfair and bad faith practices by insurers. See Duncan v. Andrew Cnty. Mut. Ins. Co., 665
S.W.2d 13, 19-20 (Mo. Ct. App. 1983) (the vexatious refusal statute provides “a statutory
procedural remedy in favor of insureds for redress of abuses by insurers” and is “a clear
expression of public policy on the subject”). Maritz contends that it would violate that public
policy to allow an insurer to insulate itself from the vexatious refusal statute by including in an
insurance policy a provision stating, for example, that “the Missouri insured shall have no right
to pursue a claim for vexatious refusal against the insurer no matter the insurer’s behavior.” See
Doc. [108] at 8. Maritz argues that an insurer should not be allowed to achieve that same end via
a choice-of-law provision that works to strip Missouri insureds of the protections afforded by the
vexatious refusal statute. The Court agrees.
Missouri “has a strong interest in protecting its own citizens,” Sheehan v. Nw. Mut. Life
Ins. Co., 44 S.W.3d 389, 396 (Mo. Ct. App. 2000), as well as a “substantial interest in the
business of insurance of its people [and] property,” Asel, 197 S.W.2d at 645. See also Irish v.
Allied Prop. & Cas. Ins. Co., No. 13-05015-CV-SW-JTM, 2013 WL 3773982, at *1 n.1 (W.D.
Mo. July 18, 2013) (“Historically, Missouri courts consistently held that when an insurer refused
to pay a claim without good reason, the insured should be awarded contract damages plus
statutory damages for ‘vexatious refusal to pay.’ The statutory damages . . . were enacted to
5

Case: 4:18-cv-00825-SEP Doc. #: 170 Filed: 11/30/20 Page: 6 of 6 PageID #: 3130

make whole the insured who is forced to litigate to recover contractual damages.”) (citation
omitted)). The insured, Maritz, has been a Missouri-based corporation at all times relevant to
this lawsuit and is still maintains its principal place of business in Missouri today. Doc. [45] at
2. Thus, there is a concrete local interest in Missouri to be protected by the application of
Missouri’s vexatious refusal law. See Milburn, 2020 WL 4673785, at *4 (finding Plaintiffs’
residence in Missouri for four years that included the relevant policy period sufficient to provide
an “identifiable local interest”).
The Missouri vexatious refusal statute, then, relating as it does to the equitable and fair
treatment of Missouri insureds, is not just a matter of Missouri substantive law, but also a
declaration of state public policy. See Duncan, 665 S.W.2d at 19-20. And in this case, there is a
clear local interest to be protected by its application. Under these circumstances, the Court finds
that the choice-of-law provisions in the Insurance Contracts do not preclude Maritz’s statutorily
prescribed remedy for allegedly vexatious conduct by Underwriters.
Accordingly,
IT IS HEREBY ORDERED that Defendant Underwriters’s Motion to Dismiss
Vexatious Refusal to Pay Claim (Doc. [101]) is DENIED.
Dated this 30th day of November, 2020.

SARAH E. PITLYK

6