United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
American Modern Home Insurance Company brings this
declaratory judgment action seeking a declaration that there
is no coverage under a renters' insurance policy issued
to defendants Aaron and Aimee Thomas on their claim for
property damage caused by fire. In their counterclaim, the
Thomases raise claims of vexatious refusal to pay and
intentional infliction of emotional distress, which American
Modern Home now moves to dismiss for failure to state a
claim. For the following reasons, I will permit
these claims to proceed.
Modern Home moves to dismiss the Thomases' claims under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim. When
reviewing a Rule 12(b)(6) motion to dismiss, I assume the
allegations in the complaint to be true and construe the
complaint in favor of the complaining party. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007);
Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d
853, 862 (8th Cir. 2010); Anzaldua v. Northeast Ambulance
& Fire Prot. Dist., 978 F.Supp.2d 1016, 1021 (E.D.
Mo. 2013). To survive a motion to dismiss, the complaint need
not contain “detailed factual allegations, ” but
it must contain facts with enough specificity “to raise
a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. The issue in determining a
Rule 12(b)(6) motion is not whether the complaining party
will ultimately prevail, but whether he is entitled to
present evidence in support of his claim. See Skinner v.
Switzer, 562 U.S. 521, 529-30 (2011) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Vexatious Refusal to Pay
Count II of their counterclaim, the Thomases invoke Mo. Rev.
Stat. §§ 375.296 and 375.420 to allege that
American Modern Home's failure and refusal to pay on
their insurance claim amounts to vexatious refusal to pay
under Missouri law.
extent the Thomases invoke § 375.296 as a basis for
recovery, I will grant the motion to dismiss. The present
state of Missouri law supports American Modern Home's
argument that § 375.296 applies only to insurance
companies not authorized to transact business in the State of
Missouri. See Irish v. Allied Prop. & Cas. Ins.
Co., No. 13-05015-CV-SW-JTM, 2013 WL 3773982, at *2
(W.D. Mo. July 18, 2013) (citing Missouri cases). Because
American Modern Home is authorized to do business in
Missouri, the Thomases cannot recover against it on a claim
of vexatious refusal to pay brought under § 375.296.
Accordingly, to the extent Count II seeks recovery under
§ 375.296, it will be dismissed for failure to state a
claim. The claim survives, however, under § 375.420 and
will be permitted to go forward. Irish, 2013 WL
3773982, at *2.
also grant American Modern Home's motion to the extent it
seeks to dismiss the Thomases' claim that American Modern
Home's conduct giving rise to their claim of vexatious
refusal to pay also violated Mo. Rev. Stat. § 375.1000
and constituted a breach of its fiduciary duty of good faith
and fair dealing. The Thomases concede that they cannot bring
a private cause of action under § 375.1000 and, further,
aver that they intended to assert only a statutory claim of
vexatious refusal to pay and not a common law claim of breach
of fiduciary duty.
to the extent American Modern Home argues that Count II fails
to state a claim generally because an insurer may seek a
judicial determination of a factual question without being
penalized for vexatious refusal to pay, I will deny the
motion. American Modern Home's averments in support of
this argument rely on matters outside the pleadings, which I
may not consider on a Rule 12(b)(6) motion to dismiss.
Enervations, Inc. v. Minnesota Mining & Mfg.
Co., 380 F.3d 1066, 1069 (8th Cir. 2004).
Intentional Infliction of Emotional Distress
Count III of their counterclaim, the Thomases sufficiently
allege that American Modern Home engaged in tortious conduct
independent and “quite distinct” from conduct
merely constituting breach of an insurance contract. That
this conduct is alleged to have occurred during the course of
American Modern Home's investigation into the
Thomases' insurance claim does not immunize the insurer
against this tort claim. Overcast v. Billings Mut. Ins.
Co., 11 S.W.3d 62, 68-69 (Mo. banc 2000).
contrary to American Modern Home's assertion, it is not
apparent from the face of the counterclaim that the alleged
tortfeasor was an independent contractor for whom American
Modern Home cannot be held vicariously liable. Cf. C.H.
Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 764
(8th Cir. 2012) (affirmative defense can provide basis for
dismissal under Rule 12(b)(6) if defense is apparent on face
of complaint). Nor are the Thomases required to ...