Drew Hardware LLC v. Hartford Fire Insurance Company et al

Filing 23

ORDER re 16 MOTION to Amend/Correct Complaint filed by Drew Hardware LLC; To assist the undersigned in analyzing the issue of third party beneficiaries, Plaintiff shall file with the Court a copy of the entire insurance policy at issue by January 15, 2015, as more fully set out. Signed by Honorable David L. Russell on 1/9/15. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DREW HARDWARE, L.L.C.,

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Plaintiff,
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v.
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(1) HARTFORD FIRE INSURANCE, )
CO., and
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(2) SENTINEL INSURANCE
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COMPANY, LTD.,
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Defendants.
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Case No. CIV-14-845-R

ORDER
Before the Court is Plaintiff’s Motion to Amend Petition [Doc. No. 16], Motion to
Amend Complaint [Doc. No. 17], and Third Amended Motion to Amend Complaint
[Doc. No. 18]. Plaintiff has sued Defendants for breach of contract, breach of the duty of
good faith and fair dealing, violation of the Oklahoma Consumer Protection Act, and
agent neglect. Pet. 8-12. This action stems from Defendants’ denial of insurance coverage
for roof damage allegedly done to Plaintiff’s commercial building as a result of a hail
storm on April 26, 2013 in Harrah, Oklahoma. Pet. ¶¶ 2, 6-8, 16. Plaintiff owns the
building, but seeks to amend its Petition to add Judy Hood and Beverly Hoster as
additional plaintiffs to assert claims for breach of contract and violation of the duty of
good faith and fair dealing. Id. ¶ 2; Doc. No. 18, at 2. Plaintiff argues that its members,
Hood and Hoster, are the “third party beneficiaries of the insuring agreement which
insures the structure inherited by them and which is the subject of this lawsuit.” Doc. No.
21, at 1; Doc. No. 17, at 1. Defendants object, arguing that Hood and Hoster do not have
standing and are not the real parties in interest. Doc. No. 20, at 1.

“A court properly may deny a motion for leave to amend as futile when the
proposed amended complaint would be subject to dismissal for any reason, including that
the amendment would not survive a motion for summary judgment.” E.SPIRE Commc’ns,
Inc. v. New Mexico Pub. Regulation Comm’n, 392 F.3d 1204, 1211 (10th Cir. 2004)
(citations omitted). Under Oklahoma law, a third party beneficiary to a contract may sue
to enforce that contract before it is rescinded. OKLA. STAT. ANN. tit. 15, § 29 (West).
Whether a party is a third party beneficiary is determined by “the parties’ intent ‘as
reflected in the contract which must provide the answer to the question of whether the
contracting parties intended that a third person should receive a benefit which might be
enforced in the courts.’” Shebester v. Triple Crown Insurers, 974 F.2d 135, 138 (10th Cir.
1992) (quoting Keel v. Titan Const. Corp., 639 P.2d 1228, 1231 (Okla. 1981)). This
requires looking at “the terms of the contract as a whole.” G.A. Mosites Co. of Ft. Worth,
Inc. v. Aetna Cas. & Sur. Co., 545 P.2d 746, 749 (Okla. 1976) (quoting 17 Am.Jur.2d,
Contracts § 304, pp. 727-28).
Defendants have attached to their brief a copy of, what they assert is, to the best of
their knowledge, the entire insurance policy at issue. Doc. No. 20, Ex. 2. The last page of
the attached document, however, states “CONTINUED ON NEXT PAGE.” Id., Ex. 2, at
7. Additionally, the first page of the policy states that the document includes the
Declarations, Coverage Forms, and Common Policy Conditions, but the only information
provided in the attachment is the Declarations. Id. at 3-7.

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To assist the undersigned in analyzing the issue of third party beneficiaries,
Plaintiff shall file with the Court a copy of the entire insurance policy at issue by January
15, 2015.

IT IS SO ORDERED this 9th day of January, 2015.

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