United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE.
case comes before the court on Defendants' motion to
dismiss Plaintiff's amended complaint for failure to
state a claim. (Doc. 25.) The motion has been fully briefed and
is ripe for decision. (Docs. 10, 17, 26, 30.) Defendants'
motion is GRANTED for the reasons set forth herein.
Motion to Dismiss Standards
order to withstand a motion to dismiss for failure to state a
claim, a complaint must contain enough allegations of fact to
state a claim to relief that is plausible on its face.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 127 S.Ct. 1955, 1974 (2007)). All well-pleaded facts and
the reasonable inferences derived from those facts are viewed
in the light most favorable to Plaintiff. Archuleta v.
Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory
allegations, however, have no bearing upon the court's
consideration. Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007). In the end, the issue is
not whether Plaintiff will ultimately prevail, but whether he
is entitled to offer evidence to support his claims.
Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir.
worked for Trash-B-Gone in Hays, Kansas, as a
“trash-collector” and a “trash-truck
operator.” (Doc. 24 at ¶ 20.) On July 7, 2015,
Plaintiff was injured in the regular course of his
employment. Id. As a result of his injuries,
Plaintiff has incurred medical bills which have not been
alleges that at some point, prior to July 7, 2015,
“Justin Ziegler, David Stecklein and/or John Ziegler,
” who are owners or agents of Trash-B-Gone,
“entered into a written and/or oral contract”
with “Farm Bureau Agent Tina Quigley and/or other
agent, servant and/or employee” of Defendants
“Farm Bureau Financial Services, Farm Bureau Property
& Casualty Insurance and/or Western Agricultural
Insurance Company.” (Doc. 24 at ¶ 8.) The
insurance contract was to provide worker's compensation
coverage for Trash-B-Gone. Plaintiff further alleges that
Defendants failed to procure the worker's compensation
insurance as required by the contract.
Plaintiff alleges that Quigley - or another agent of
Defendants - made fraudulent representations regarding the
insurance coverage. In paragraph 29 of the amended complaint,
Plaintiff alleges that there were oral representations made
by an agent of Defendants to Justin Ziegler, David Stecklein
and/or John Ziegler in which it was represented that
Defendants would obtain a valid policy of worker's
compensation insurance to indemnify Trash-B-Gone for any
employee injuries that occurred during the course of
employment. These representations were either made at the
offices of Defendants or the offices of Trash-B-Gone
on an unknown date prior to July 7, 2015. In paragraph 30,
Plaintiff alleges that Quigley and other agents fraudulently
represented to Justin Ziegler and/or other Trash-B-Gone
owners or representatives that Plaintiff and/or the employees
were “listed on the [Trash-B-Gone Worker's
Compensation] policy” or were “covered.”
(Doc. 24 at ¶ 30.) These representations were allegedly
made by telephone, at the offices of Defendants, or
at the offices of Trash-B-Gone on an unknown date prior to
July 7, 2015.
the representations were not made to Plaintiff, Plaintiff
alleges that the representations were “repeated by
Trash-B-Gone to its employees including the Plaintiff.”
(Doc. 35 at ¶ 30.) Plaintiff further alleges that
Defendants fraudulently omitted the fact that
Trash-B-Gone's employees were not covered by a
worker's compensation policy. These omissions allegedly
occurred prior to July 7, 2015.
contends that Defendants' actions have caused damages due
to unpaid medical bills and poor credit. Additionally,
Plaintiff allegedly suffered bodily injuries as a result of
his severe mental anguish when he realized that he did not
have insurance to pay the medical bills. (Doc. 24 at ¶
41.) On or about August 26, 2015, Plaintiff filed a
worker's compensation claim with the Kansas Department of
Labor, Division of Workers Compensation. (See Doc.
226, exh. 1.)
7, 2017, Plaintiff filed this diversity action against
Defendants. (Doc. 1.) Plaintiff was granted leave to amend
and filed his amended complaint on January 24, 2018. (Doc.
24.) In his amended complaint, Plaintiff brings several
claims against Defendants which all stem from Defendants'
alleged failure to procure worker's compensation
insurance for Trash-B-Gone.
Counts I and IV
move to dismiss counts I (failure to procure insurance) and
IV (breach of contract) on the basis that Plaintiff cannot
state a claim against Defendants until a final determination
is made on his worker's compensation claim, citing
Keith v. Schiefen Stockham Ins. Agency, Inc., 209
Kan. 537, 498 P.2d 265 (1972). In Keith, the Kansas
Supreme Court recognized that an employee has a cause of
action against an insurance broker for failing to procure
insurance for worker's compensation liability. The
plaintiffs in Keith brought an action against the
insurer after the conclusion of a worker's
compensation proceeding in which it was determined that the
employer did not have insurance coverage. The Court held that
the “plaintiffs were effectively prevented from suing
defendants until it was finally determined in Otta v.
Johnson, supra [the worker's compensation ...