Hernandez v. Liberty Insurance Corporation et al

Filing 34

ORDER granting 22 Motion for Partial Judgment on the Pleadings. Signed by Honorable Timothy D. DeGiusti on 5/11/2015. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FERNANDO “PAUL” HERNANDEZ,

)
)
Plaintiff,
)
)
v.
)
)
LIBERTY INSURANCE CORPORATION,)
et al.,
)
)
Defendants.
)

Case No. CIV-14-892-D

ORDER
Before the Court is Defendant’s Motion for Partial Judgment on the Pleadings or for
Dismissal of Plaintiff’s Third and Sixth Causes of Action [Doc. No. 22], filed pursuant to
Fed. R. Civ. P. 12(b)(6) and 12(c). Defendant Liberty Insurance Corporation (“Liberty”)
seeks the dismissal of two negligence claims asserted against it in Plaintiff’s pleading.1 The
complaint contains as its “Third Cause of Action” a negligence claim brought against Liberty
based on its conduct in allegedly miscalculating the replacement cost of Plaintiff’s dwelling
and conducting a deficient underwriting analysis; the “Sixth Cause of Action” was brought
against Liberty and its agent and seeks to impose vicarious liability on Liberty for the agent’s
alleged negligence in procurement of the homeowner’s insurance policy at issue. In ruling
on a motion to remand, the Court has previously determined that the agent, Michael Sohn,
and another local defendant were fraudulently joined to defeat diversity jurisdiction, and
Plaintiff’s claims against these defendants were dismissed without prejudice. See Order of
1

Because this case was filed in state court and later removed, Plaintiff’s pleading is denominated
a petition, but in keeping with federal practice, the Court will refer to it as a complaint.

Dec. 22, 2014 [Doc. No. 14]. Liberty now asserts that Plaintiff’s pleading fails to state any
negligence claim under federal pleading standards and that both negligence claims should
be dismissed.
Plaintiff has made a curious response to the Motion. Plaintiff states that, due to the
dismissal of Mr. Sohn, he believes these claims have already been dismissed and Liberty’s
Motion “is moot and should be stricken.” See Pl.’s Resp. Br. [Doc. No. 26]. The Court
understands from this response that any negligence claim asserted against Liberty was based
on the conduct of its agent, Mr. Sohn. However, the Court does not find Liberty’s Motion
to be moot because Plaintiff’s claims against Liberty have not been dismissed and Plaintiff’s
claim against Mr. Sohn was dismissed without prejudice to refiling.
Liberty’s Motion is governed by Rule 12(c).2 However, the standard for decision is
the same as Rule 12(b)(6). See Aspenwood Investment Co. v. Martinez, 355 F.3d 1256, 1259
(10th Cir. 2004). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id.

2

After the time for filing a Rule 12(b) motion has expired, the defense of failure to state a claim may
be included in a pleading or may be raised “by a motion under Rule 12(c).” See Fed. R. Civ. P. 12(h)(2).
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The Court has previously ruled that Plaintiff has no viable negligence claim based on
Mr. Sohn’s conduct in procuring a homeowner’s insurance policy that covered a tornado loss
in May, 2013, but allegedly failed to provide “appropriate and adequate” replacement cost
coverage. See Petition [Doc. No. 1-2] ¶¶ 65, 67. Plaintiff’s claim directly against Liberty
similarly alleges that it conducted a negligent underwriting analysis and failed to provide a
policy with “appropriate and adequate coverage.” Id. ¶¶ 29, 36-37. Plaintiff’s response to
Liberty’s Motion effectively concedes that under the Court’s prior ruling, neither of these
negligence claims states a claim upon which relief can be granted under Oklahoma law.
Further, Plaintiff has presented no legal authority that would support liability of an
insurance agent or insurer under Oklahoma law consistent with the allegations of his
pleading. The Oklahoma Court of Civil Appeals has declined to impose on an insurance
agent or insurer a duty to provide an “adequate amount” of coverage. See Cosper v. Farmers
Ins. Co., 309 P.3d 147, 149 (Okla. Civ. App. 2013). The court has also held that
“‘[i]nsurance companies and their agents do not have a duty to advise an insured with respect
to his insurance needs.’” See id. (quoting Rotan v. Farmers Ins. Group of Cos., 83 P.3d 894,
895 (Okla. Civ. App. 2003)); see also Mueggenborg v. Ellis, 55 P.3d 452, 453 (Okla. Civ.
App. 2002). Upon consideration of Plaintiff’s allegations, the Court agrees with Liberty that
the complaint fails to state a negligence claim.
IT IS THEREFORE ORDERED that Defendant’s Motion for Partial Judgment on the
Pleadings or for Dismissal of Plaintiff’s Third and Sixth Causes of Action [Doc. No. 22] is

3

GRANTED.

The negligence claims asserted against Defendant Liberty Insurance

Corporation are DISMISSED.
IT IS SO ORDERED this 11th day of May, 2015.

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