United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE.
the court is the Motion to Dismiss Count II of
Plaintiff's Amended Complaint filed by defendant,
Berkshire Hathaway Homestate Insurance Company. Doc. 30. In
its motion, defendant seeks dismissal of plaintiff Surfside
Japanese Auto Parts and Service's bad faith claim.
Plaintiff opposes the motion.
Allegations of the First Amended Complaint
First Amended Complaint alleges that the parties entered into
a contract to insure real and personal property located at
6247 E. 15th Street in Tulsa from casualty lost, effective
from August 15, 2016, to August 15, 2017. Doc. 18, ¶5.
On or about May 11, 2017, the property sustained a casualty
loss as the result of a hailstorm-a covered loss.
Id., ¶6. Plaintiff submitted estimates for
damage from third parties to facilitate payment of the claim
in the amount of $79, 251.56. Id.
October 20, 2017, defendant sent a letter denying coverage of
the claim. Id., ¶7. The sole basis for the
denial was the opinion of an engineer retained by defendant
which “concluded the hail damage that damaged the roof
was likely from 4/23/11 or earlier.” Id. Thus,
defendant claimed the hail damage occurred outside the policy
period and denied coverage for the claim. Id.
First Amended Complaint alleges that, upon information and
belief, defendant “turned over all claims handling
responsibilities to its retained third-party engineer and
later solely relied upon the engineer's findings to
support the denial in violation of its non-delegable duty of
good faith and fair dealing, ” and
“[d]efendant's engineer ignored relevant weather
data showing numerous hailstorms during the coverage period
with hail sufficient in size and wind sufficient in speed to
cause the damage at issue, which would have made this loss
covered under the Policy.” Id., ¶8.
Furthermore, “[d]efendant knowingly refused to provide
a copy of the engineering report to the insured and its
representatives, misleading the insured about the information
therein and the insurer's obligations under Oklahoma law
with regard to disclosing relevant information applicable to
the claim and to coverage under the Plaintiff's
policy.” Id., ¶9. Plaintiff alleges that
“defendant's refusal to pay the claim in full
amounts to a breach of contract and a violation of its
non-delegable duty of good faith and fair dealing.”
asserts claims for breach of contract and bad faith, and
seeks compensatory and punitive damages, interest and
attorney's fees. With respect to the bad faith claim, the
Complaint alleges that Defendant:
• Failed to fully disclose to Plaintiff “benefits,
coverages, or other provisions of any insurance policy or
insurance contract when such benefits, coverages or other
provisions are pertinent to the claim;”
• Knowingly misrepresented to Plaintiff pertinent facts
or policy provisions relating to coverage at issue; •
Failed to adopt and implement reasonable standards for prompt
investigations of claims arising under the insurance policies
or insurance contracts;
• Did not attempt in good faith the effectuate prompt,
fair, and equitable settlement of claims submitted in which
liability has become reasonably clear; and
• Without just cause, compelled Plaintiff to institute
suit to recover amounts due under its insurance policies or
insurance contracts by offering substantially less than the
reasonable amount to repair the damages covered under
• Failed to promptly provide (within 30 days) necessary
claims forms, instruction, and reasonable assistance so that
Plaintiff could comply with policy conditions;
• Failed to promptly provide (within 45 days) acceptance
or denial of the claim; and
• Failed to promptly complete the investigation (within
60 days) after ...