Dollarhide v. Hartford Accident & Indemnity Company et al

Filing 59

ORDER Granting 23 and 47 Motions to Dismiss. This action is dismissed without prejudice pursuant to Rule 12(6)(b) based on plaintiffs failure to state a claim. Denying 50 request for leave to amend the complaint. Signed by Judge James C. Mahan on 6/16/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ROPER DOLLARHIDE,

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2:13-CV-1986 JCM (VCF)

Plaintiff(s),

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v.

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THE HARTFORD FINANCIAL
SERVICES GROUP, INC.,

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Defendant(s).

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ORDER

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Presently before the court are defendants Hartford Financial Services Group, Inc.’s

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(“Hartford”) and Sentinel Insurance Group, Ltd.’s (“Sentinel”) motions to dismiss plaintiff Roper

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Dollarhide’s complaint under Federal Rule of Civil Procedure 12(b)(6). (Docs. # 23 & 31). Plaintiff

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opposes both motions to dismiss, and requests leave to submit a second amended complaint. (Docs.

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# 31 & 50). Both defendants have submitted replies to plaintiff’s opposition in support of the

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motions to dismiss. (Docs. # 39 & 53).

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I.

Background

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The instant dispute arises out of a personal automobile insurance policy. (Doc. # 18). On

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June 21, 2010, plaintiff was involved in an automobile accident. (Doc. # 18). Plaintiff asserts that

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at the time of the accident, he was insured by Hartford, Sentinel, or both. (Doc. # 18). A

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disagreement arose between plaintiff and defendants over plaintiff’s entitlement to underinsured

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motorist benefits. (Doc. # 18). As a result, plaintiff filed the instant action against Hartford in

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James C. Mahan
U.S. District Judge

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Nevada state court on September 13, 2013. (Doc. # 1-1). The case was removed to the United States

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District Court for the District of Nevada on October 29, 2013. (Doc. # 1-6). The complaint was

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amended on November 26, 2013, to include defendant Sentinel. (Doc. # 18).

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Plaintiff’s first amended complaint asserts claims of: (1) breach of contract; (2) breach of the

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covenant of good faith and fair dealing; (3) violation of Nevada's Unfair Claims Practices Act; (4)

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negligent infliction of emotional distress; (5) intentional infliction of emotional distress;

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vicarious liability; (7) breach of fiduciary duty; and (8) negligent hiring, training, and supervision.

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(Doc. # 18). Plaintiff does not specify which causes of action are brought against which defendants.

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II.

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Legal Standard

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A court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can

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be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual

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allegations, it demands more than “labels and conclusions or a formulaic recitation of the elements

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of a cause of action. . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted) (internal

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quotations omitted). “Factual allegations must be enough to rise above the speculative level.”

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Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient

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factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation

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omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when

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considering motions to dismiss. First, the court must accept as true all well-pled factual allegations

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in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. Mere

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recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice.

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Id. Second, the court must consider whether the factual allegations in the complaint allege a

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plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint

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alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the

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alleged misconduct. Id. at 678.

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James C. Mahan
U.S. District Judge

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Where the complaint does not permit the court to infer more than the mere possibility of

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misconduct, the complaint has “alleged – but not shown – that the pleader is entitled to relief.” Id.

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at 679 (internal quotations omitted). When the allegations in a complaint have not crossed the line

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from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

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III.

Discussion

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Plaintiff’s complaint does not specify which causes of action plaintiff is bringing against

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which defendant. However, even if the court were to construe all of plaintiff’s claims against each

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defendant, Hartford’s and Sentinel’s motions to dismiss plaintiff’s allegations prevail because of the

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complaint’s dearth of factual allegations.

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The assertions contained within the breach of contract claim, though that section of the

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complaint “repeats and realleges each and every allegation set forth in paragraphs 1 through 13 of

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[the] [c]omplaint,” are conclusory. (Doc. # 18 at 3). These averments state that a legal claim exists,

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yet they do not describe how it emerged. Moreover, the plaintiff asserts that either one or both of

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the insurers paid the defendant $5,000 for medical expenses and an “undisputed amount of $35,000

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. . . .” (Doc. # 18 at 3). There is no factual indication in the complaint how or in what way this

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disbursement breaches the insurance contract’s terms.

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Plaintiff’s second claim for relief, bad faith, also fails to provide the requisite level of factual

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allegations. See Iqbal, 556 U.S. at 678. Paragraph twenty of the amended complaint alleges the

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“[d]efendants breached this covenant of good faith and fair dealing by [their] refusal to fairly

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evaluate [p]laintiff’s claim . . .” yet does not mention how the evaluation method could be, or was,

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unfair. (Doc. # 18 at 4). Furthermore, the court agrees with Sentinel’s argument that the subjective

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element of plaintiff’s bad faith claim has not been properly asserted with factual allegations to

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establish even a presumption of unreasonability. See Iqbal, 556 U.S. at 678; Falline v. GNLV Corp.,

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823 P.2d 888, 891 (Nev. 1991) (quoting Noble v. Nat’l Am. Life Ins. Co., 624 P.2d 866, 868 (Ariz.

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1981) (en banc)); (Doc. # 39).

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The allegations under the Nevada Unfair Claims Practices Act (N.R.S. 686A.310) in both

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paragraph twenty-two of the claim of bad faith and the content of the unfair claims practices claim

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James C. Mahan
U.S. District Judge

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fail under the same application of the Iqbal test. See Iqbal, 556 U.S. at 678-79; (Doc. # 18). Neither

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the N.R.S. 686A.310 averments in the second nor the third claim possess the necessary factual

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allegations to survive a motion to dismiss under Rule 12(b)(6). Paragraph twenty-two simply refers

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to the third claim accusing N.R.S. 686A.310 violations without asseverating supporting facts.

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Moreover, paragraphs twenty-six through thirty-six of the complaint generally reflect the statutory

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text of N.R.S. 686A.310. (Doc. # 18). However, a recitation of the statute incorporating context-

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specific conclusory statements constitutes an insufficient pleading. Iqbal, 556 U.S. at 678.

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Plaintiff’s claims of negligent infliction of emotional distress and intentional infliction of

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emotional distress are time-barred per N.R.S. 11.190(4)(e) and were dismissed in the court’s April

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17, 2014, order. (Doc. # 54).

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The sixth claim for relief is infeasible because vicarious liability is not an independent cause

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of action. See Okeke v. Biomat USA, Inc., 927 F. Supp. 2d 1021, 1028 (D. Nev. 2013). Moreover,

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the accompanying claim against employee Chris Maxwell was dismissed on April 17, 2014, so this

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theory of liability has no basis in any alleged tortious conduct by an employee of the defendants.

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(Doc. # 54).

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The seventh claim, breach of fiduciary duty, fails because of its solely conclusory allegations.

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See Iqbal, 556 U.S. at 678 (“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid

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of ‘further factual enhancement.’”) (quoting Twombly, 550 U.S. at 557).

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The eighth claim, negligent hiring, training and supervision, states in paragraph fifty-four:

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“As described in detail in the above paragraphs incorporated herein, these [d]efendants failed to meet

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this obligation and breached this duty to adequately hire, train and supervise each of their staff and

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other agents.” (Doc. # 18 at 8). However, much of the amended complaint’s contents prior to

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paragraph fifty-four have been conclusory statements themselves and thus do not elevate the instant

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claim to the standard of “plausibility.” See Iqbal, 556 U.S. at 678. Hence, plaintiff has failed to

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allege with sufficient facts any causes of action against defendants Hartford and Sentinel.

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...

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...

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James C. Mahan
U.S. District Judge

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While the proposed, second-amended complaint includes new factual allegations regarding

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the alleged pecuniary amount at stake, the complaint remains replete with conclusory statements.

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(Doc. # 31). Thus, for the aforementioned reasons, the proposed amended complaint is also

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insufficient. Therefore, leave to amend the complaint is denied.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this action is dismissed

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without prejudice pursuant to Rule 12(6)(b) based on plaintiff’s failure to state a claim. Defendants’

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motions to dismiss (docs. # 23 & 47) are GRANTED.

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IT IS FURTHER ORDERED that plaintiff’s request for leave to amend the complaint (doc.
# 50) be, and the same hereby is, DENIED.

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IT IS FURTHER ORDERED that plaintiff, if he chooses to amend his complaint, file a

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motion to amend within thirty (30) days of the date of the issuance of this order and comply with the

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requirements of Local Rule 15-1.

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DATED June 16, 2014.

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UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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