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Devore v. Progressive Casualty Insurance Co.

United States District Court, W.D. Missouri, Central Division

July 2, 2019

TOM DEVORE, Plaintiff,



         Defendant 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.


         In the 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. Id.

         As a 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.

         The 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.

         Devore 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.

         On or 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.

         On July 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.

         The 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] money.” Id.

         By 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.

         Ultimately, judgment was entered against Devore in the amount of $793, 797.74, which exceeded the policy limit by $493, 797.74. Id., ¶ 65.

         II. STANDARD

         A 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 ...

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