United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN United States District Judge.
the Court is Defendant Liberty Mutual Insurance Company's
Motion to Dismiss (Doc. 14) (“Motion to Dismiss”)
pursuant to Federal Rule of Civil Procedure 12(b)(6)
Factual Allegations in Complaint
Summit Labels, Inc. suffered hail damage to its roof
following a severe weather event occurring on March 25, 2015.
Plaintiff alleges that it maintained a policy of insurance
with both Defendants, Liberty Mutual Insurance Company
(“Liberty”) and Ohio Security Insurance Company
(“Ohio Security”). (Compl. ¶ 10.) Plaintiff
sued Liberty and Ohio Security for breach of contract and bad
faith in conjunction with the partial denial of its insurance
Motion to Dismiss
moves to dismiss on grounds that it is not the insurer under
the relevant insurance contract and that Plaintiff's
claims must be filed solely against Ohio Security. As
evidence in support of its motion, Liberty attached pages
23-36 of a document that appears to be a total of 192 pages.
(See Doc. 14- 1.) Liberty represents that these
pages are the “Policy Declarations” for Policy
No. BKS (15) 55 52 68 01 (“Policy Declarations”).
Plaintiff does not dispute the accuracy or authenticity of
the Policy Declarations. Instead, Plaintiff argues they are
not incorporated into the Complaint. The Policy Declarations
correspond with the dates of coverage alleged in the
Complaint, are part of the insurance policy, and are
incorporated into the Complaint by reference. (See
Compl. ¶ 10.) Therefore, they may be considered at the
Rule 12(b)(6) stage without converting the motion to one for
made arguments in its briefs regarding Liberty's
ownership of Ohio Security and the “Liberty”
email addresses of representatives with whom Plaintiff
corresponded. None of these facts are alleged in the
Complaint or supported by record evidence, and the Court will
therefore not consider them in ruling on the Motion to
Rule 12(b)(6) Standard
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. “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 Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[T]he 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.” Ridge at Red Hawk, LLC v.
Schneider, 493 F.3d 1174, 1177 (1Oth Cir. 2007).
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, 519 F .3d at 124 7. 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.”
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.
has failed to meet its burden of showing that Ohio Security
bears the risk on the policy or is definitively the entity in
privity of contract with Plaintiff. First, Liberty did not
submit the entire policy, which the Court finds necessary for
establishing the parties thereto. Second, the Policy
Declarations contain the Liberty logo right next to the
statement that coverage is “provided in” Ohio
Security. Therefore, Liberty's evidence is not sufficient
to demonstrate that Plaintiffs have no plausible claim
against Liberty or that Ohio Security is the actual and