Kmart Corporation v. Seguros Triple-S Inc. et al
Filing
16
OPINION AND ORDER denied 12 Motion to Dismiss. Signed by Judge Carmen C. Cerezo on 8/28/2013. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
KMART CORPORATION
Plaintiff
vs
CIVIL 12-1626CCC
SEGUROS TRIPLE-S, INC.,
d/b/a TRIPLE-S PROPIEDAD; CAPARRA
CENTER ASSOCIATES, LLC; JOHN
DOES I-X; ABC INSURANCE
COMPANIES, as well as any other joint
tortfeasors
Defendants
OPINION AND ORDER
On August 3, 2013 plaintiff Kmart Corporation (hereinafter “plaintiff”) filed suit against
defendant Seguros Triple-S, Inc. d/b/a Triple-S Propiedad (hereinafter “defendant” or
“defendant TSP”) alleging claims of breach of contract, negligence, and bad faith for
defendant TSP’s failure to cover or repair damages caused to the Kmart store at San
Patricio Mall on October 23, 2009 from the explosion at the Caribbean Petroleum
Company’s facility (hereinafter “CAPECO”) (docket entry 1). Before the Court is defendant
TSP’s Motion to Dismiss for Plaintiff’s Failure to State a Claim Upon which Relief Can Be
Granted filed on January 7, 2013 (docket entry 12), along with plaintiff’s Response in
Opposition filed on January 24, 2013 (docket entry 13).
In its motion to dismiss
defendant TSP alleges that plaintiff failed to state a claim under Fed. R. Civ. P. 12(b)(6)
because nowhere in the Complaint does plaintiff state that the insurance contract
defendant TSP issued to insure Caparra Center Associates, LLC (hereinafter “CAA”)
building against damage or destruction by fire or other casualties includes Kmart
Corporation and/or Kmart 4490 as an insured under the property coverage of the policy
issued. Movant alleges that said policy does not include property or first party insurance in
favor of plaintiff. It further claims that pursuant to Article 1209 of the Civil Code of Puerto
CIVIL 12-1626CCC
2
Rico, plaintiff is without privity of contract to claim rights under the policy of insurance issued
by it, which rights are reserved to its insured CCA.
Failure to State a Claim Upon which Relief may be Granted
Under Rule 12(b)(6), a defendant may move to dismiss an action against him for lack
of federal subject-matter jurisdiction or for failure to state a claim upon which relief can be
granted.” Benítez-Navarro v. González-Aponte, 660 F. Supp. 2d 185, 188 (D.P.R. 2009).
“In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court held that to survive
a motion to dismiss under Rule 12(b)(6), a complaint must allege ‘a plausible entitlement to
relief’.” Martínez-Díaz v. Doe, 683 F. Supp. 2d 171, 173 (D.P.R. 2010). When ruling on a
motion to dismiss the “court must accept the complaint's well-pleaded facts as true and
indulge all reasonable inferences in the plaintiff's favor.” Cook v. Gates, 528 F.3d 42, 48
(1st Cir. 2008).
Although “Twombly does not require heightened fact pleading of
specifics . . . it does require enough facts to ‘nudge [plaintiffs'] claims across the line from
conceivable to plausible’.” Quirós v. Muñoz, 670 F. Supp. 2d 130, 131 (D.P.R. 2009).
“Accordingly, in order to avoid dismissal, the plaintiff must provide the grounds upon which
his claim rests through factual allegations sufficient to ‘raise a right to relief above the
speculative level’.”
Maldonado-Concepción v. Puerto Rico, 683 F. Supp. 2d 174,
175-76 (D.P.R. 2010).
In Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937 (2009), the Supreme Court upheld
Twombly and clarified that two underlying principles must guide this Court's assessment of
the adequacy of a plaintiff's pleadings when evaluating whether a complaint can survive a
Rule 12(b)(6) motion. “First, the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Iqbal, 129 S.Ct. at 1949. “Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Id. at 1950. “Thus, any nonconclusory factual allegations in
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3
the complaint, accepted as true, must be sufficient to give the claim facial plausibility.” Id.
“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., at 1949. “Determining whether a complaint states a plausible claim for relief will . . . be
a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id., at 1950. “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged -but it has not
‘show[n]'- ‘that the pleader is entitled to relief’.” Id. “Furthermore, such inferences must be
at least as plausible as any ‘obvious alternative explanation’.” Martínez-Díaz v. Doe,
683 F. Supp. 2d at 174 (quoting Ashcroft v. Iqbal, 129 S.Ct. at 1950-51).
Analysis
The instant complaint clearly sets forth as its second and third cause of action
defendant TSP’s alleged breach of contract and negligence/bad faith. Plaintiff alleges as
to defendant TSP’s breach of contract: (1) that it insured the structure and associated
materials and is required per the terms of the applicable insurance policy to cover the
damages suffered by the structure and Kmart, including any costs to bring the structure back
to its pre-incident condition (general allegation #26); (2) that it provided insurance coverage
to the building and permanent improvements located at Kmart 4490 during a period
including October 23, 2009 (allegation #41); (3) that pursuant to the terms of the insurance
policy, it was responsible for any loss or damage caused to the commercial development
including Kmart 4490 resulting from fire, explosion, or other casualty (allegation #42);
(4) that it was responsible for coverage and payment for the loss and damages caused to
the building leased by Kmart as a direct result of the CAPECO explosion on October 23,
2009 (allegation #43), (5) that the October 23, 2009 CAPECO explosion caused damage
to Kmart 4490, the building, metal deck, permanent improvements, and/or fireproofing
materials in the amount no less than $161,000 (allegation #44); (6) that despite being
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4
notified of the covered loss suffered at Kmart 4490, defendant TSP has refused to comply
with the terms of the applicable insurance policy (allegation #45); and (7) that its breach of
the insurance policy and failure to take legal responsibility for the losses suffered by
Kmart 4490 as a result of the CAPECO explosion have resulted in damages to plaintiff in
an amount no less than $161,000 (allegation #46).
Plaintiff’s specifically allege as to defendant TSP’s negligence/bad faith: (1) that
TSP owed a duty to Kmart to operate in good faith and to timely assess and pay all valid
insurance claims made on policies issued by it for coverage of Kmart 4490 (allegation #50)
and (2) that TSP failed to operate in good faith and to timely assess and pay all valid
insurance claims on policies issued by it for coverage of Kmart 4490 (allegation #52).
Defendant TSP’s arguments regarding the scope or coverage of the insurance policy
cannot be raised as a basis to dismiss the complaint for failure to state a claim under
Rule 12(b)(6). Plaintiff is correct in asserting that defendant is free to argue that the
insurance contract does not apply or that its terms were not breaches but that such
arguments, however, must be raised in a motion for Summary Judgment, not in a
Rule 12(b)(6) motion.
For the reasons stated above, defendant TSP’s Motion to Dismiss for Plaintiff’s
Failure to State a Claim Upon which Relief Can Be Granted (docket entry 12) is DENIED.
SO ORDERED.
At San Juan, Puerto Rico, on August 28, 2013.
S/CARMEN CONSUELO CEREZO
United States District Judge
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