United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. PAYNE DISTRICT JUDGE
the Court is a Partial Motion to Dismiss filed by Defendant
CSAA Fire & Casualty Insurance Company d/b/a AAA
Insurance (“CSAA”) (Dkt. 9). Plaintiffs David
Larue McCutchen and Joan McCutchen (“Plaintiffs”)
have filed a Response in opposition (Dkt. 11), and CSAA has
filed a Reply (Dkt. 12). After consideration of the briefs,
and for the reasons stated below, CSAA's Partial Motion
to Dismiss is GRANTED.
filed this action in state court against their insurer CSAA,
on December 7, 2016. (Dkt. 2-2 (Petition)). In the Petition,
Plaintiffs allege causes of action against CSAA for (1)
breach of the duty to deal fairly and in good faith, (2)
breach of contract, and (3) actual fraud. (Id.
¶¶ 18-25). Plaintiffs allege damage to their roof
occurred at an unspecified date as a result of an unspecified
event. (Id. ¶ 10). Plaintiffs allege they
properly notified CSAA of the roof damage, and CSAA sent an
inspector to review the damage. (Id. ¶¶
11-12). The inspector allegedly notified Plaintiffs that the
roof needed to be replaced. (Id. ¶ 12).
However, CSAA thereafter “only offered to patch the
damage to the Plaintiffs' roof.” (Id.
¶ 13). Plaintiffs allege they repeatedly requested that
CSAA properly investigate, evaluate, and pay their claim,
including paying for roof replacement, but CSAA refused their
demands. (Id. ¶¶ 14-15). As a result of
the ongoing damage, the roof leaked during a subsequent
storm, causing significant interior damage to the
Plaintiffs' residence. (Id. ¶ 16).
removed the action to this Court based on diversity
jurisdiction. (Dkt. 2). CSAA has now moved to dismiss only
Plaintiffs' fraud claim pursuant to Federal Rule of Civil
considering a Rule 12(b)(6) motion, the court must accept all
well-pleaded allegations of the complaint as true, and must
construe them in the light most favorable to the plaintiff.
See Anderson v. Merrill Lynch Pierce Fenner & Smith,
Inc., 521 F.3d 1278, 1284 (10th Cir. 2008). To withstand
a motion to dismiss, a complaint must contain enough
allegations of fact “to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The plaintiff bears
the burden to frame “a complaint with enough factual
matter (taken as true) to suggest” that he or she is
entitled to relief. Twombly, 550 U.S. at 556.
“A pleading that offers ‘labels and
conclusions' or a formulaic recitation of the elements of
a cause of action will not do.' Nor does a complaint
suffice if it tenders ‘naked assertion[s]' devoid
of further factual enhancement.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555, 557).
claim must satisfy Fed.R.Civ.P. 9(b). This rule requires the
circumstances constituting fraud to be alleged “with
particularity, ” while “[m]alice, intent,
knowledge, and other conditions of a person's mind may be
alleged generally.” Fed.R.Civ.P. 9(b). See
also 12 Okl. St. § 2009(B) (“In all averments
of fraud . . . the circumstances constituting fraud . . .
shall be stated with particularity. Malice, intent,
knowledge, and other condition of mind of a person may be
averred generally.”). In the Tenth Circuit, a complaint
must “‘set forth the time, place and contents of
the false representation, the identity of the party making
the false statements and the consequences
thereof.'” Koch v. Koch Indus., Inc., 203
F.3d 1202, 1236 (10th Cir. 2000) (quoting Lawrence
Nat'l Bank v. Edmonds (In re Edmonds), 924 F.2d 176,
180 (10th Cir. 1991)). Oklahoma law similarly requires a
pleading alleging fraud to specify “the time, place
and content of an alleged false representation, but not
the circumstances or evidence from which fraudulent intent
could be inferred.” Gianfillippo v. Northland Cas.
Co., 861 P.2d 308, 311 (Okla. 1993) (emphasis in
original). Moreover, “[m]ere conclusory allegations of
falsity are insufficient” to satisfy Rule 9(b).
Grossman v. Novell, Inc., 120 F.3d 1112, 1124 (10th
Cir. 1997). Rather, “the plaintiff must set forth what
is false or misleading about a statement, and why it is
false.” Id. (quotation omitted).
the Petition claims CSAA caused Plaintiffs' damages by
“performing a woefully inadequate and incomplete
investigation of Plaintiffs' original roof claim and/or
acting with actual fraud in order to pay Plaintiffs less than
the amount due them under the policy issued by AAA.”
(Dkt. 2-2, ¶ 18). The Petition further alleges that
CSAA, “with no basis, only offered to patch the damage
to the Plaintiffs' roof” despite the
inspector's oral recommendation that the roof should be
replaced. (Dkt. 2-2, ¶ 13). These allegations set forth
none of the specific allegations required by Rule 9(b) or 12
Okl. St. § 2009(B)(4). The Petition fails to allege the
time, place, contents, or speaker of any false statements.
Plaintiffs' allegations, without more, do not suffice to
state a claim for fraud. Plaintiffs' fraud claim is
therefore subject to dismissal without prejudice.
their Response brief, Plaintiffs argue the Petition
specifically pleads CSAA's “false representations
regarding the condition of the roof and what would be
required to make Plaintiffs whole” and CSAA's
“attempt to conceal the fact that the roof needed
replacement as opposed to repair.” (Dkt. 11, at 2).
However, CSAA's alleged refusal to act in accordance with
the inspector's recommendation to replace Plaintiffs'
roof, taken as true, does not indicate either that CSAA made
a false representation to Plaintiffs regarding the roof's
condition or that CSAA attempted to conceal any fact from
Plaintiffs. Factual allegations regarding these elements of
fraud are plainly absent from Plaintiffs' pleading.
further contend the crux of their fraud claim is that
CSAA's “investigation and representations to
Plaintiffs were intentionally misleading and false in an
attempt to induce Plaintiffs to settle their claim for less
than the amount of damages they incurred.” (Dkt. 11, at
2). However, the Petition fails to point to the time, place,
or contents of any specific misleading or false
representations CSAA made to Plaintiffs. As the Oklahoma
Supreme Court explained in Gianfillippo, a plaintiff
alleging fraud must raise more than conclusory allegations
that the insurer committed fraud in order to pay less than
the insurer believed was due. 861 P.2d at 311. Rather, the
plaintiff must specify the time, place, and content of the
alleged false representation or face dismissal of the fraud
claim. Id. at 310-11. In their Response, Plaintiffs
correctly identify this standard but fail to point to any
allegations in the Petition that would satisfy this
specificity requirement. Accordingly, dismissal of
Plaintiffs' fraud claim is appropriate.
reasons detailed above, the Partial Motion to Dismiss filed
by Defendant CSAA Fire & Casualty Insurance Company d/b/a
AAA Insurance (Dkt. 9) is GRANTED.
Plaintiffs' claim for actual fraud is DISMISSED
WITHOUT PREJUDICE. Plaintiffs' claims for bad
faith and breach of contract remain for resolution.
is hereby granted fourteen days to file an amended complaint
to list additional allegations regarding a claim for fraud.
CSAA's time to file an answer or other response is
extended to the earlier of: (1) fourteen days ...