United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.
Progressive Casualty Insurance Company moves to dismiss, for
failure to state a claim, Count II in the amended complaint
by plaintiff Tom Devore. For the reasons discussed below, the
motion to dismiss is denied.
early morning of June 27, 2015, Devore, who owned a tow-truck
company, was dispatched to Highway 63 in Boone County to
remove a disabled vehicle. First Amended Complaint, Doc. 12,
¶¶ 8-9. He found the disabled vehicle facing north
on the right shoulder of the northbound lanes of Highway 63,
just over the crest of a hill. Id., ¶ 10.
Devore decided to connect the rear of the north-facing
disabled vehicle to the rear of his tow truck, which left his
tow truck facing south on the northbound shoulder.
Id., ¶ 11. After connecting his truck to the
disabled vehicle, Devore attempted to execute a three-point
turn on northbound U.S. 63 so that he could proceed north.
Id., ¶ 12. As he was executing the three-point
turn, his tow truck and the disabled vehicle blocked the
northbound lanes of Highway 65, just past the crest of a
hill. Id., ¶ 13. At the same time, Mallory
Embree was proceeding northbound on Highway 63. Id.,
¶ 14. She crested the hill at highway speed and struck
the disabled vehicle attached to Devore's truck.
result of the collision, a passenger in Embree's vehicle,
Alexander Wiesner, suffered life-threatening injuries,
including a torn thoracic aorta, various organ lacerations,
and a comminuted bilateral nasal bone fracture. Id.,
¶ 16. Wiesner was rushed to the hospital and
underwent surgeries to repair his torn aorta and nasal bone
fractures. Id., ¶ 17.
highway patrol officer who responded to the collision noted
that Devore's improper turn and improper lane usage were
contributing causes of the accident. Id.., ¶
18. The officer noted no contributing causes on the part of
Embree. Id., ¶ 19.
notified Progressive of the accident. Id., ¶
25. As of June 27, 2014, Progressive insured Devore and his
tow truck company under a policy of automobile liability
insurance with a combined single limit of $300, 000.
Id.., ¶¶ 20-21. Progressive promised to
“pay damages . . . for bodily injury . . . for which an
insured becomes legally responsible because of an accident
arising out of the ownership, maintenance or use of [an]
insured auto.” Id.., ¶ 22. Progressive
also reserved the exclusive right to defend and settle any
claims asserted against Devore. Id., ¶ 23. The
policy provided that Progressive's defense and settlement
duties would end only “after the Limit of Liability for
this coverage has been exhausted by payment of judgments or
settlements.” Id., ¶ 24. There is no
dispute as to coverage in this case.
about July 11, 2014, Wiesner notified Progressive that he was
asserting a claim against Devore, enclosing a copy of the
Missouri Highway Patrol Crash Report and medical records
describing his life-threatening injuries, and requested that
Progressive pay its policy limit in settlement on
Devore's behalf no later than July 21, 2014.
Id., ¶ 26. Progressive did not accept that
settlement offer, nor did it respond with a different offer.
23, 2014, Wiesner filed suit against Devore and Embree,
claiming that Devore's and Embree's negligence caused
him massive heart and body trauma and physical and emotional
suffering. Id., ¶ 32.
same day, Progressive's claims adjuster said to
Wiesner's attorney of Wiesner's claim,
“It's a big case . . . . It will bring big money
in. That should make you smile.” Id., ¶
31. The same claims adjuster had texted Wiesner's
attorney the prior week that she was his
“favorite” because she “give[s] [him]
January 15, 2015, Progressive's investigation allegedly
had revealed that Devore was responsible for the collision
and it knew that Devore faced the possibility of an excess
judgment. Id., ¶¶ 36-37. By February 3,
2015, Wiesner's medical bills for injuries caused in the
collision exceeded $250, 00. Id., ¶¶ 40.
Nonetheless, even after these dates, Progressive rejected
Wiesner's counsel's offer to settle the claim at the
policy limit and instead offered only sums ranging from $91,
650 to $150, 000. Id., ¶¶ 38-47.
judgment was entered against Devore in the amount of $793,
797.74, which exceeded the policy limit by $493, 797.74.
Id., ¶ 65.
complaint must contain allegations showing the material
elements to recover “under a viable theory.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562
(2007). However, generally, a plaintiff is not required
“to plead ‘specific facts' explaining
precisely how the defendant's conduct was unlawful.
Rather, it is sufficient for a plaintiff to plead facts
indirectly showing unlawful behavior, so long as the facts
pled give the defendant fair notice of what the claim is and
the grounds upon which it rests, and allow the court to draw
the reasonable inference that the plaintiff ...