Myers et al v. Travelers Home and Marine Insurance Company, The
Filing
20
OPINION AND ORDER by Judge Claire V Eagan ; denying 10 Motion to Dismiss (Re: 5 Notice of Docket Entry Modification, 2 Complaint ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ROBERT MYERS, and MARY MYERS,
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
TRAVELERS HOME AND MARINE
INSURANCE COMPANY,
Defendant.
Case No. 12-CV-0056-CVE-PJC
OPINION AND ORDER
Now before the Court is Defendant’s Motion to Dismiss and Brief in Support (Dkt. # 10).
Defendant argues that plaintiffs have failed to state a claim upon which relief may be granted
because plaintiffs’ alleged damages and/or the cause of the damages are not covered by or are
excluded from coverage under the insurance policy. Plaintiffs oppose the motion and argue that they
have alleged sufficient facts to state a claim against defendant.
I.
Plaintiffs Robert Myers and Mary Myers allege that defendant Travelers Home and Marine
Insurance Company issued a homeowner insurance policy to plaintiffs, which was effective for the
policy period of March 24, 2011 to March 24, 2012. Dkt. # 2 at 7. Plaintiffs allege that, on April
25, 2011, they suffered a loss that is covered under the policy. Plaintiffs allege that they filed a
claim with defendant immediately following the loss and that defendant has wrongfully refused to
pay any benefits due under the policy.
Plaintiffs filed the complaint on February 9, 2012, alleging breach of contract, bad faith and
breach of the duty of good faith claim handling, and negligence and gross negligence. Plaintiffs
attached the following documents to the complaint: (i) the insurance policy; (ii) correspondence
between plaintiffs’ attorneys and defendant; and (iii) the report of an independent engineer
conducted after the alleged loss.
The engineer’s report states that the “visible portions of the site conditions” at plaintiffs’
home included: “Exterior concrete cracks, i.e. driveway; Downspouts need splash block; Hairline
veneer cracks (1/4" or smaller); Separation of the wall from ceiling on the south central part of the
house; Buckled tape/joint separation at wall corner(s).” Id. at 90. In the section of the report
entitled “Interior Foundation,” the report states that the “interior concrete slab under south central
part of the original house has dished causing the sheet rock cracks over interior doors and openings.
This settlement, in our opinion, is likely due to [a] plumbing leak.” Id.
II.
In considering a motion under Rule 12(b)(6), a court must determine whether the claimant
has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when
a complaint provides no “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint
must contain enough “facts to state a claim to relief that is plausible on its face” and the factual
allegations “must be enough to raise a right to relief above the speculative level.” Id. (citations
omitted). “Once a claim has been stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Id. at 562. Although decided within an antitrust
context, Twombly stated the pleadings standard for all civil actions. See Ashcroft v. Iqbal, 556 U.S.
662 (2009). For the purpose of making the dismissal determination, a court must accept all the
well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the
2
allegations in the light most favorable to claimant. Twombly, 550 U.S. at 555; Alvarado v.
KOB–TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc.,
291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those allegations
that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. Of Cnty. Com’rs, 263 F.3d 1151, 115455 (10th Cir.2001). “[C]onclusory allegations without supporting factual averments are insufficient
to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.3d 1106, 1109-10 (10th
Cir. 1991). “In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the
complaint itself, but also attached exhibits.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.
2009).
III.
Defendant argues that plaintiffs’ alleged damages and/or the cause of plaintiffs’ alleged
damages are not covered by the insurance policy or are excluded from coverage under the policy.
Specifically, defendant seizes on plaintiffs’ allegation that certain damages were caused by a
“plumbing leak,” and argues that damages caused by a leak are not covered or are excluded from
coverage under the policy. Defendant also argues that any damages caused by movement of the
earth are not covered or excluded from coverage under the policy.
“The interpretation of an insurance contract is governed by state law and, sitting in diversity,
we look to the law of the forum state.” Houston Gen. Ins. Co. v. Am. Fence Co., Inc., 115 F.3d 805,
806 (10th Cir.1997). In Oklahoma, interpretation of an insurance contract is a matter of law. Max
True Plastering Co. v. U.S. Fid. and Guar. Co., 912 P.2d 861, 869 (Okla.1996). The insured has the
burden of showing that its claim is covered under the policy. See U.S. Fid. & Guar. Co. v. Briscoe,
205 Okla. 618, 239 P.2d 754, 756 (1952) (noting that “the contractor must bring himself within the
3
terms of the policy, before he can establish insurer’s liability thereon”); see also Pitman v. Blue
Cross & Blue Shield of Okla., 217 F.3d 1291, 1298 (10th Cir. 2000) (“the insured has the burden
of showing that a covered loss has occurred”). Once the insured establishes coverage, “the insurer
has the burden of showing that a loss falls within an exclusionary clause of the policy.” Pitman, 217
F.3d at 1298.
The parties argue that these contractual interpretation principles and this burden shifting
analysis should be applied to the facts of this case. However, the cases cited above articulate a
burden of proof to be applied at the summary judgment stage or at trial. They do not articulate a
pleading standard that must be met in order to state a claim under which relief can be granted. At
this stage of the litigation, plaintiffs are merely required to state a claim that is “plausible on its
face.” Twombly, 550 U.S. at 555.
In order to determine whether plaintiffs’ damages and/or the cause of those damages are
covered, and not excluded from coverage, under the policy, it is necessary to know the precise nature
and cause of those damages. The complaint alleges only that some of the damages were caused by
a plumbing leak or were the result of earth movement. There is no allegation in the complaint or
in the engineer’s report that the entirety of the damages were caused by a plumbing leak or earth
movement. The Court has carefully reviewed the policy provisions cited by the parties and, even
if damages caused by a plumbing leak and earth movement were excluded from coverage, which the
Court does not decide at this time, the Court cannot find as a matter of law that all damages alleged
in the complaint are entirely excluded from coverage. Plaintiff has made factual allegations
sufficient to state a plausible claim for relief that rises above a speculative level and the motion to
dismiss is denied.
4
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss and Brief in Support
(Dkt. # 10) is denied.
DATED this 11th day of May, 2012.
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?