United States District Court, N.D. Oklahoma
MICHAEL T. TORRONE, JR., Plaintiff,
SAFECO INSURANCE COMPANY OF AMERICA, Defendant.
OPINION AND ORDER
V. EAGAN O UNITED STATES DISTRICT JUDGE
before the Court is defendant Safeco Insurance Company of
America's motion for partial dismissal (Dkt. # 9) of
plaintiff Michael T. Torrone, Jr.'s complaint (Dkt. #
following are plaintiff's allegations in his complaint:
On or about July 14, 2016, inclement weather caused
plaintiff's vehicle to collide with a median on an
Oklahoma interstate. Dkt. # 2-3, at 2-3. The collision
rendered plaintiff's vehicle inoperable. Id. at
3. Plaintiff and defendant are parties to an insurance
contract, under which defendant provided plaintiff coverage
for vehicular damage. Id. After the accident,
plaintiff, a cattle rancher, informed defendant of the
collision and explained that, while his vehicle remained
inoperable, he would needed to rent a vehicle capable of
performing ranching activities. Id.
about July 15, 2016, plaintiff took his vehicle to a repair
shop, which gave plaintiff a damages estimate of $9, 119.50.
Id. at 4. On or about July 26, 2016, an independent
adjuster working for defendant created a damage report that
estimated the total cost of repairs at $7, 642.20 ($1, 477.30
less than the repair shop's estimate); the report also
stated that the vehicle's damage had reached the
“total loss threshold.” Id.
Subsequently, however, an agent for defendant contacted
plaintiff to inform him that defendant did not consider his
vehicle a total loss. Id. at 5. Defendant's
agent explained that “total loss threshold
reached” was printed on all damage reports by default.
August 25, 2016, defendant sent plaintiff a check for $7,
142.20. Id. at 6. Plaintiff declined to accept this
check, however, because plaintiff believed that
defendant's refusal to consider the vehicle a total loss
was in violation of the parties' contract. Id.
Plaintiff then incurred costs for (1) renting a vehicle
suitable for conducting ranching operations, (2) towing and
storing his damaged vehicle, and (3) ultimately purchasing a
new vehicle in order to continue operating his ranch
business. Id. In addition, because defendant did not
consider plaintiff's vehicle a total loss, plaintiff was
unable to exercise his rights under his IAS GAP insurance
policy, which, had defendant considered his vehicle a total
los, would have satisfied the difference between the salvage
value of his vehicle and the amount that plaintiff still owed
his lender on the vehicle. Id. at 6-7.
November 11, 2016, plaintiff again, by letter, urged
defendant to consider his vehicle a total loss. Id.
But a second agent for defendant contacted plaintiff and told
him that defendant was not going to change its determination
and explained that the phrase “total loss threshold
reached” on the initial damage report was merely an
internal statement and not meant to have any legal
significance. Id. at 7.
August 25, 2017, plaintiff filed this lawsuit in the District
Court for Mayes County, State of Oklahoma. Dkt. # 2. On
September 21, 2017, defendant removed this case to this
Court. Id. In his complaint, plaintiff brings claims
for breach of contract (count one), bad faith (count two),
fraud and misrepresentation (count three), and tortious
interference with contract (count four). Dkt. # 2-3, at 8-10.
Defendant moves to dismiss plaintiff's claims for fraud
and misrepresentation (count three) and tortious interference
with contract (count four) (Dkt. # 9).
considering a motion to dismiss under Rule 12(b)(6), a court
must determine whether the claimant has stated a claim upon
which relief may be granted. A motion to dismiss is properly
granted when a complaint provides no “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). A complaint must
contain 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. (citations omitted).
“Once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 562.
Although decided within an antitrust context,
Twombly “expounded the pleading standard for
all civil actions.” 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
allegations of the complaint as true, even if doubtful in
fact, and must construe the allegations in the light most
favorable to claimant. Twombly, 550 U.S. at 555;
Alvarado, 493 F.3d at 1215; Moffett v.
Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231
(10th Cir. 2002). However, a court need not accept as true
those allegations that are conclusory in nature. Erikson
v. Pawnee County Bd. Of County Comm'rs, 263 F.3d
1151, 1154-55 (10th Cir. 2001). “[C]onclusory
allegations without supporting factual averments are
insufficient to state a claim upon which relief can be
based.” Hall v. Bellmon, 935 F.2d 1106,
1109-10 (10th Cir. 1991).
Federal Rule of Civil Procedure Rule 9(b), “a party
must state with particularity the circumstances constituting
fraud or mistake.” This is a heightened pleading
requirement and, “[a]t a minimum, Rule 9(b) requires
that a plaintiff set forth the ‘who, what, when, where
and how' of the alleged fraud.” United States
ex rel. Sikkenga v. Regence Bluecross Blueshield of
Utah, 472 F.3d 702, 726-27 (10th Cir. 2006) (quoting
Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d
899, 903 (5th Cir. 1997)).
argues that plaintiff fails to state a claim for fraud and
misrepresentation (count three) and tortious interference
with contract (count four). Dkt. # 9. Plaintiff responds that
defendant's motion to dismiss should be denied because he
has sufficiently asserted both these claims (Dkt. # 11).
Fraud and ...