United States District Court, N.D. Oklahoma
1 LANCE W. HIGHTOWER and 2 SUE I. HIGHTOWER, Plaintiffs,
1 USAA CASUALTY INSURANCE CO., and 2 THOMAS A. FULTON, Independent Appraiser, Defendants.
OPINION AND ORDER
DOWDELL UNITED STATES DISTRICT JUDGE.
the Court are defendant Thomas A. Fulton's Motion to
Dismiss and Brief in Support (Doc. 9) and defendant USAA
Casualty Insurance Company's Partial Motion to Dismiss
and Brief in Support (Doc. 10). Plaintiffs have opposed both
motions. (Docs. 15, 16).
purchased a home insurance policy underwritten by defendant
USAA Casualty Insurance Co. (“USAA CIC”).
Plaintiffs allege that they promptly submitted a claim under
the policy after their home incurred wind and roof damage in
October 2015. USAA CIC retained defendant Thomas Fulton to
inspect and appraise plaintiffs' home to evaluate the
damage. (Doc. 2, Exh. 3 at 18-25).
filed this lawsuit in the Tulsa County District Court on
April 12, 2016. (Doc. 2, Exh. 2). Plaintiffs' Amended
Petition alleges claims of bad faith, breach of contract, and
intentional infliction of emotional distress against
defendant USAA CIC and a claim of negligence against
defendant Fulton, due to USAA CIC's alleged refusal to
pay plaintiffs the “proper amount.” (Doc. 2, Exh.
3 at 18-25). Plaintiffs' Amended Petition attaches as an
exhibit the affidavit of their expert, Mark Pollack, a
licensed insurance adjuster. (Id. at 25). Defendants
timely removed the action to this Court on May 16, 2016.
considering a Rule 12(b)(6) dismissal motion, a court must
determine whether the plaintiff has stated a claim upon which
relief may be granted. See Fed. R. Civ. P. 12(b)(6).
The Federal Rules of Civil Procedure require “a short
and plain statement of the claim to show that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
complaint must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The standard does
“not require a heightened fact pleading of specifics,
but only 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. at 555-56, 570
(citations omitted). The Twombly pleading standard
is applicable to all civil actions. See Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009). For the purpose of
making the dismissal determination, a court must accept all
the well-pleaded factual allegations of the complaint as
true, even if doubtful, and must construe the allegations in
the light most favorable to the plaintiff. See
Twombly, 550 U.S. at 555; Alvarado v. KOB-TV,
L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).
Defendant Thomas A. Fulton's Motion to Dismiss and Brief
in Support (Doc. 9)
have asserted one negligence claim against defendant Fulton.
Plaintiffs' Amended Petition alleges that defendant
Fulton was “negligent in that he departed from the
professionally expected standards of care when he
deliberately falsified his final findings to report that the
roof damage to Plaintiffs' home, although clearly caused
by the wind, was somehow a result of a pre-existing condition
to the home.” (Doc. 2, Exh. 3, at ¶ 36).
Fulton's Motion argues that plaintiffs have failed to
state a negligence claim against him under Fed.R.Civ.P.
12(b)(6) because Oklahoma law does not recognize claims of
negligence against independent insurance adjusters, as set
forth in Trinity Baptist Church v. Brotherhood Mutual
Insurance Services, LLC, 341 P.3d 75 (Okla. 2014). (Doc.
9 at 3-4). In response, plaintiffs assert that Trinity
Baptist does not foreclose their negligence claim
because their Amended Petition alleges that defendant Fulton
is an insurance appraiser, not an insurance adjuster. (Doc.
17 at 2-3). Plaintiffs further challenge the Court's
subject-matter jurisdiction over this case, on the ground
that there is no diversity of jurisdiction because a
negligence claim may be brought against defendant
Fulton. (Id. at 3). In his Reply,
defendant Fulton contends that his Motion should be granted
because the reasoning set forth in Trinity Baptist
applies regardless of his status as an insurance adjuster or
an insurance appraiser. (Doc. 17 at 1-2). In the alternative,
defendant Fulton argues that plaintiffs' Amended
Complaint falsely alleges that he is an “independent
appraiser” instead of an “independent
adjuster.” (Id. at 4-5).
Court concludes that plaintiffs may not assert a negligence
claim against defendant Fulton based on the reasoning set
forth in Trinity Baptist. There, the Oklahoma
Supreme Court adopted the majority view that “an
insured cannot maintain a separate tort action for negligence
against an independent insurance adjuster hired by the
insurer because the independent adjuster owes the insured no
duty of care.” Trinity Baptist, 341 P.3d at
83. From a policy standpoint, the court reasoned that
“it makes little sense to hold that the adjuster has an
independent duty when the insurer itself is subject to
liability for the adjuster's mishandling of claims in
actions alleging breach of contract and bad faith.”
Id. at 86. The court cautioned that imposing a legal
duty upon an independent adjuster could potentially allow a
plaintiff “double recovery, ” i.e.,
recovery from both the adjuster and the insurance company on
the basis of the adjuster's conduct. Id.
outset, the Court notes that plaintiffs' assertion that
defendant Fulton is not an insurance adjuster is inconsistent
with the affidavit of plaintiffs' expert, which states
that defendant Fulton was defendant USAA CIC's
“appraiser/adjuster.” Nonetheless, the Court
agrees with defendant Fulton that it is irrelevant whether he
is an insurance appraiser or an insurance adjuster because
the reasoning in Trinity Baptist, although it
pertained to an independent insurance adjuster, is broadly
worded and the same policy concerns are applicable here.
Specifically, given the existence of USAA CIC's legal
duty to plaintiffs, it would be fundamentally unfair to
permit plaintiffs to potentially recover from both defendants
USAA CIC and Fulton for defendant Fulton's allegedly
negligent conduct. See Trinity Baptist, 341 P.3d at
Court's conclusion is further supported by the fact that
the adjuster in Trinity Baptist and defendant Fulton
functioned in essentially identical capacities. Both were
third parties retained by insurance companies to assist in
the evaluation of an insured's claim. Both were also sued
for their conduct in handling the insurance claim.
Specifically, the plaintiff in Trinity Baptist
alleged the adjuster's “handling and
investigation” of the insurance claim was negligent.
Id. at 78. In this case, plaintiffs allege that
defendant Fulton was negligent in his evaluation and
reporting of their insurance claim. Thus, the reasoning
supporting the Oklahoma Supreme Court's conclusion ...