Kimbro et al v. Davis H. Elliot Company, Inc.

Filing 21

OPINION AND ORDER by Judge Terence Kern ; denying 13 Motion to Dismiss (vah, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

BEN KIMBRO and MARY KIMBRO,
individually and as parents and next
friends of their minor children, F.C.K and
C.P.K..
Plaintiffs,
v.
DAVIS H. ELLIOT COMPANY,
INC.,
Defendant.

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Case No. 13-CV-208-TCK-TLW

OPINION AND ORDER
Before the Court is Defendant’s Motion to Dismiss Fraud Allegations (Doc. 13), wherein
Defendant Davis H. Elliot Company, Inc. moves the Court to dismiss Plaintiffs’ fraud claim
pursuant to Federal Rules of Civil Procedure 12(b)(6), 12(c), and (12)(h)(2). Because the motion
was filed after Defendant’s Answer, the motion is properly construed as a motion for judgment on
the pleadings pursuant to Rule 12(c). See Brown v. Montoya, 662 F.3d 1152, 1160 (10th Cir. 2011)
(“Because qualified immunity is an affirmative defense . . . raised in their answer, their motion is
more accurately described as a motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) rather than a motion for failure to state a claim under Rule 12(b)(6).”).
I.

Factual Allegations
During December of 2007 and January of 2008, Defendant performed work on Plaintiffs’

home in conjunction with an American Public Service Company of Oklahoma (“PSO”) project to
convert Plaintiffs’ home to underground power lines. Defendant installed and rewired certain
electrical components in Plaintiffs’ home. On September 16, 2011, a fire began in Plaintiffs’ attic.

The fire caused minor damage before being extinguished by the Tulsa Fire Department. On January
2, 2012, a second fire began in the attic. This fire caused more extensive damage and led to
Plaintiffs’ ceiling collapsing.
In addition to alleging that Defendant performed negligent work, Plaintiffs also allege that
Defendant committed fraud. Specifically, Plaintiffs allege that “Defendant was aware of damage
to an electrical panel cover caused by electrical arcing and shorting due to its defective and negligent
work, but had concealed that evidence without repairing the defective and negligent work.” (Pet.
¶ 8.) Plaintiffs further allege:
Defendant . . . fraudulently concealed the evidence of its negligent and defective
work, and thereby concealed the defects in the home’s electrical system caused by
Defendant in order to deceive Plaintiffs into believing that their home was safe and,
in fact, that they were safe in their home. Defendant . . . misrepresented the
condition of Plaintiffs’ home . . . .
(Id. ¶¶ 14, 15.) In their response to the motion to dismiss, Plaintiffs further explained that
Defendant’s employees “conceal[ed] an electrical panel cover that, once found, showed signs of
electrical arcing and shorting indicative of Defendant’s negligence.” (Resp. to Mot. to Dismiss 3.)
II.

Rule 12(c) Standard
The Court applies the same standard to Rule 12(c) motions as it applies to Rule 12(b)(6)

motions. See Brown, 662 F.3d at 1160 n.4. In considering a motion to dismiss under Rule 12(b)(6),
a court must determine whether the plaintiff has stated a claim upon which relief may be granted.
The inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is
plausible on its face.’” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). In order to survive a Rule
12(b)(6) motion to dismiss, a plaintiff must “‘nudge [ ] [his] claims across the line from conceivable

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to plausible.’” Id. (quoting Twombly, 550 U.S. at 547). Thus, “the mere metaphysical possibility
that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the
complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.” Id.
The Tenth Circuit has interpreted “plausibility,” the term used by the Supreme Court in
Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be
true.” Robbins v. Okla. ex rel. Okla. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).
Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it
innocent, then the plaintiffs have not nudged their claims across the line from conceivable to
plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to
be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement
of plausibility serves not only to weed out claims that do not (in the absence of additional
allegations) have a reasonable prospect of success, but also to inform the defendants of the actual
grounds of the claim against them.” Id. at 1248. In addition, the Tenth Circuit has stated that “the
degree of specificity necessary to establish plausibility and fair notice, and therefore the need to
include sufficient factual allegations, depends on context.” Id.
III.

Analysis
Defendant argues that the fraud claim is not adequately pled and, alternatively, that the

allegations fail to state a claim for relief. First, Defendant contends that it is entitled to dismissal
because Plaintiffs have failed to satisfy Rule 9(b), which requires that “a party must state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). At a minimum,
this requires Plaintiffs to set forth the time, place, and contents of the false representation, the

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identity of the party making the false statements, and the consequences thereof. See United States
ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 727 (10th Cir. 2006).
Plaintiffs have alleged that the individual or individuals who performed repair work on their home
engaged in fraudulent concealment by physically concealing an electrical panel cover that, once
eventually found, revealed signs of electrical shorting caused by Defendant’s negligence. The
alleged time of fraud is upon the completion of the work performed in December 2007 and January
2008. The alleged place of fraud is Plaintiffs’ home. The alleged content of the fraud was the
physical concealment of the panel and non-disclosure of problems with the panel. The alleged
consequence of fraud was Plaintiffs’ inability to see or detect problems with the electrical panel
cover, leading to an inability to prevent the first or second fire. The precise identity of Defendants’
employees who worked on Plaintiffs’ home is unknown to Plaintiffs at this time but should be
ascertainable from Defendant’s records. Plaintiffs have satisfied Rule 9(b)’s requirements.
Second, Defendant argues that Plaintiffs have failed to state a claim for fraud under
Oklahoma law because “concealing something, without more, does not rise to the level of fraud in
Oklahoma.” (Reply in Support of Mot. to Dismiss 3 (citing Parris v. Limes, 277 P.3d 1259 (Okla.
2012).) However, the Oklahoma Supreme Court has recently explained:
This Court has often said that fraud is a generic term embracing the multifarious
means which human ingenuity can devise so one can get advantage over another by
false suggestion or suppression of the truth. When fraud is alleged, every fact or
circumstance from which a legal inference of fraud may be drawn is admissible.
Actual fraud is the intentional misrepresentation or concealment of a material fact,
with an intent to deceive, which substantially affects another person, while
constructive fraud is a breach of a legal or equitable duty to the detriment of another,
which does not necessarily involve any moral guilt, intent to deceive, or actual
dishonesty of purpose.

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Croslin v. Enerlex, Inc., - - - P.3d - - - - , 2013 WL 2316553, at *3-4 (Okla. 2013) (emphasis added);
see also Okla. Stat. tit. 15, § 58 (actual fraud committed by a party to a contract includes the
“suppression of that which is true, by one having knowledge or belief of the fact” or “any other act
fitted to deceive”). Plaintiffs’ allegations of intentional concealment of defective workmanship are
sufficient to state a claim under the Oklahoma Supreme Court’s definition of fraud.1
IV.

Conclusion
Defendant’s Motion to Dismiss Fraud Allegations (Doc. 13) is DENIED.
SO ORDERED this 21st day of August, 2013.

_______________________________________
TERENCE C. KERN
UNITED STATES DISTRICT JUDGE

1

The Parris case cited by Plaintiffs arose in the medical malpractice context. The court
held that a physician, who allegedly concealed a medical fact from his patient, was entitled to
summary judgment on a fraud claim but not a claim for breach of informed consent. See id. at
1265. The Court does not interpret Parris as overruling the legion of precedent cited in Croslin
or as standing for the broad proposition that concealment may never support a fraud claim in any
context.

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