United States District Court, E.D. Missouri, Eastern Division
ROGER L. SMITH, Plaintiff,
ZURICH AMERICAN INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Zurich American
Insurance Company's Motion to Dismiss or, in the
alternative, Motion to Strike Certain Portions of
Plaintiff's Second Amended Complaint. [ECF No. 29].
Roger L. Smith (“Plaintiff”) initiated this
lawsuit by filing a Petition in the Circuit Court of St.
Louis County. [ECF No. 1; No. 3]. On February 11, 2016,
Defendant Zurich American Insurance (“Defendant
Zurich”) removed this matter to this Court. [ECF No. 1;
No. 4]. On July 25, 2016, Defendant Zurich filed a Motion to
Dismiss, or, in the alternative, a Motion to Strike Certain
Portions of Plaintiff's Amended Complaint. [ECF No. 29].
In addition to a response to the Motion, Plaintiff filed a
Motion for Leave to File Second Amended Complaint on August
25, 2016, which this Court granted on August 29, 2016. [ECF
No. 35; No. 37]. Plaintiff's Second Amended Complaint was
filed on August 30, 2016. [ECF No. 38]. Because the Second
Amended Complaint did not resolve the issues in the Motion to
Dismiss, the Court allowed Defendant Zurich to assert its
Motion to Dismiss against the Second Amended Complaint
without re-briefing the issues.
lawsuit arises out of an alleged failure of Defendant Zurich
to disperse an underinsured motorist payment to Plaintiff
under a comprehensive insurance coverage plan provided to
Plaintiff's employer, TJX Companies, Inc.
(“TJX”). This lawsuit further arises out of
Defendant Zurich's alleged failure to properly notice
Travelers Companies (“Defendant Travelers”),
Federal Insurance Company (“Defendant Federal”),
and American Insurance Company (“Defendant American
Insurance Company”) of their alleged duty, as excess
coverage carriers, to compensate Plaintiff for his injuries
pursuant to Plaintiff's employer's commercial
umbrella insurance policy agreement with Defendant Zurich.
The following facts are accepted as true by this Court.
Great Rivers Habitat Alliance v. Fed. Emergency Mgmt.
Agency, 615 F.3d 958, 988 (8th Cir. 2010).
several years before December 21, 2010, Plaintiff was
employed by TJX, where he served as a top-tier management
executive. [ECF No. 31, pgs. 1, 2]. As an executive with TJX,
Plaintiff was compensated, in part, with a comprehensive
package of benefits. [ECF No. 31, pg. 2]. Among these
benefits are “significant thresholds of insurance
policy coverage” for motor vehicle accidents involving
executive employees, while in the course and scope of their
employment. [ECF No. 31, pg. 2]. These benefits were provided
and described under TJX's “Total Rewards
Benefits.” [ECF No. 31, pg. 2]. Plaintiff's TJX
Total Rewards account number is 990566406. [ECF No. 31, pg.
December 21, 2010, in St. Louis County, Missouri, Plaintiff
was involved in a motor vehicle accident. [ECF No. 31, pg.
1]. Plaintiff's motor vehicle was struck by Marc Smith,
an underinsured motorist, when he crossed into
Plaintiff's traffic lane. [ECF No. 31, pg. 1; No. 38, pg.
3]. The motor vehicle Plaintiff was operating at the time of
the accident was owned and insured by TJX. [ECF No. 31, pgs.
1, 4]. At the time of the accident, Defendant Zurich was
TJX's insurance company. [ECF No. 31, pg. 4]. Plaintiff
and Marc Smith subsequently settled their disputed claim for
$25, 000, which was the policy limit of Marc Smith's
liability insurance policy. [ECF No. 31, pg. 1]. At some
point after the accident, Plaintiff received a worker's
compensation settlement from TJX. [ECF No. 31, pg. 4].
result of the accident, Plaintiff incurred actual and lost
wages in excess of $2 million, actual and future medical
bills in excess of $800, 000, as well as pain and suffering.
[ECF No. 38, pg. 4]. As a result of these costs, further
compensation was needed to cover the medical expenses. [ECF
No. 31, pg. 5].
Zurich asserts its underinsured motorist insurance coverage
(“UIM”) with TJX has a policy limit of $25, 000,
and when Plaintiff and Marc Smith settled, for $25, 000,
Defendant Zurich's obligation was voided. [ECF No. 38,
pg. 4]. However, Plaintiff contends Defendant Zurich was
required, under the policy, to notify Defendants Travelers,
Federal and American Insurance (“Defendants”), as
excess carriers under the umbrella insurance policy, that
Plaintiff had exceeded the $25, 000 limit and requested them
compensate Plaintiff. [ECF. 38, pg. 4]. Plaintiff further
contends because Plaintiff's medical expenses exceeded
$25, 000, which was the limit under Defendant Zurich's
policy coverage, and because Plaintiff properly notified
Defendant Zurich Plaintiff's expenses exceeded $25, 000,
Defendant Zurich failed to satisfy the terms and conditions
of its insurance policy and failed to trigger excess
carriers' policies (co-defendants) after Plaintiff
notified Defendant Zurich. [ECF No. 38, pg. 4].
Plaintiff's Counts Against Defendants
contends, in Count One, Defendant Zurich breached its
contractual obligation to Plaintiff by either not properly
tendering Plaintiff's claims to Defendant Travelers,
Defendant Federal and Defendant American Insurance Company,
or by failing to satisfy its contractual obligations to
Plaintiff by cooperating in Defendants Travelers',
Federal's and Defendant American Insurance Company's
reasonable investigation of Plaintiff's insurance claim
pursuant to the insurance contracts Plaintiff had with
Defendant Zurich and/or TJX. [ECF. No. 38, pg. 5]. In Count
Two, Plaintiff contends Defendant Zurich breached its duty of
good faith and fair dealing by vexatiously, knowingly and
wantonly refusing to pay Plaintiff's equitable demands
without reason or cause to do so. [ECF No. 38, pgs. 5, 6].
Finally, Plaintiff contends, in Counts Three, Four and Five,
Defendants Travelers, Federal and American Insurance Company
breached their respective contractual obligations with
Plaintiff or TJX to pay sums if Plaintiff's damages
exceeded the policy limits set forth in Defendant
Zurich's policy [ECF No. 38, pgs. 6-8].