United States District Court, D. Kansas
ROBERT C. HEDGES, JR., Plaintiff,
ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, District Judge.
This matter comes before the Court on defendant's motion to dismiss Counts 2, 3, and 4 of plaintiff's amended complaint (Doc. # 14). For the reasons set forth below, the motion is granted, and the Court hereby dismisses those claims. Plaintiff is granted leave, however, to amend those claims, on or before November 10, 2014, to cure the pleading deficiencies noted herein.
By this action, plaintiff, a Kansas resident and an insured of defendant insurer, alleges that he owns property in Kansas that suffered damage after a fire in October 2012, and that defendant has failed to resolve and pay his insurance claim. Plaintiff initiated this suit in state court in July 2014, and defendant removed the case to this Court. By his petition, plaintiff asserted claims of breach of contract, outrage, "misrepresentation", and "fraud"; he alleged actual and consequential damages on each claim in excess of $75, 000; and he also sought punitive damages and statutory attorney fees. After defendant filed a motion to dismiss the tort claims, plaintiff filed a short response brief, in which he argued that his amended complaint, which he had filed contemporaneously, rendered the pending motion moot (the Court subsequently agreed and mooted the first motion). In the amended complaint, plaintiff added a few factual allegations in the second and third counts, and he increased the amount of his alleged actual damages for the three tort claims to an amount in excess of $150, 000, an amount in excess of $225, 000, and an amount in excess of $300, 000, respectively.
In response to the amended complaint, defendant has again moved to dismiss the three counts asserting tort claims. In response, plaintiff filed the same short brief (containing approximately one full page of text) that he filed in response to defendant's first motion. In that brief, plaintiff argues that the amended complaint, with its additional facts and damage amounts, sets forth meritorious claims pleaded in sufficient detail, and that any defects originally argued by defendant have been cured. Plaintiff, however, has not addressed any of the particular arguments raised by defendant in the motion to dismiss the amended complaint.
II. Governing Standards
The Court's consideration of a motion to dismiss is governed by the following standards. The Court will dismiss a cause of action for failure to state a claim only when the factual allegations fail to "state a claim to relief that is plausible on its face, " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), or when an issue of law is dispositive, see Neitzke v. Williams, 490 U.S. 319, 326 (1989). The complaint need not contain detailed factual allegations, but a plaintiff's obligation to provide the grounds of entitlement to relief requires more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not do. See Bell Atlantic, 550 U.S. at 555. The Court must accept the facts alleged in the complaint as true, even if doubtful in fact, see id., and view all reasonable inferences from those facts in favor of the plaintiff, see Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). Viewed as such, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic, 550 U.S. at 555. The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Defendant first argues that plaintiff may not separately maintain his tort claims-or seek punitive damages as a remedy on those claims-because they are based on the same conduct that underlies plaintiff's contract claim, namely, the failure to pay and investigate properly plaintiff's insurance claim. In seeking dismissal of plaintiff's outrage claim, defendant cites Spencer v. Aetna Life & Casualty Co., 227 Kan. 914 (1980), in which the Kansas Supreme Court held that Kansas did not recognize the tort of bad faith as alleged by an insured against an insurer. See id. Spencer is of limited relevance, here, however, because plaintiff has not asserted such a claim in this case. Indeed, the court in Spencer, in reviewing rationales for rejecting such a cause of action, noted that a claim for the tort of outrage is already available in Kansas. See id. at 919-20. Similarly, in Osgood v. State Farm Mutual Automobile Insurance Co., 848 F.2d 141 (10th Cir. 1988)-a case cited by defendant-the Tenth Circuit specifically stated that Kansas's failure to recognize the tort of bad faith does not necessarily bar other types of tort claims against an insurer, such as outrage or misrepresentation claims. See id. at 144. In this case, plaintiff has alleged outrage and misrepresentation claims based, at least in part, on conduct by defendant separate from its denial of his insurance claim.
Defendant also argues that plaintiff's amended complaint does not contain sufficient factual allegations to state claims under Kansas law for outrage or for misrepresentation. In support of that argument, defendant has noted the particular elements for those causes of action, but it has not engaged in any analysis of plaintiff's particular allegations in each of these three counts. Nor, as noted above, has plaintiff engaged in any such analysis in his response brief. Nevertheless, the Court will consider the legal sufficiency of plaintiff's tort claims.
In his second count, plaintiff asserts a claim of outrage under Kansas law. "In Kansas, the tort of outrage is the same as the tort of intentional infliction of emotional distress." See Valadez v. Emmis Communications, 290 Kan. 472, 476 (2010) (citing Hallam v. Mercy Health Ctr. of Manhattan, Inc., 278 Kan. 339 (2004)). To recover on such a claim, the plaintiff must show that the defendant's conduct was extreme and outrageous. See id.
Conduct that rises to the level of tortious outrage must transcend a certain amount of criticism, rough language, and occasional acts and words that are inconsiderate and unkind. The law will not intervene where someone's feelings merely are hurt. In order to provide a sufficient basis for an action to recover for emotional distress, conduct must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.
See id. (citation omitted).
In his outrage claim, plaintiff alleges the following ...