United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN, UNITED STATES DISTRICT JUDGE.
Shana Cole brought a claim in state court against Defendant
State Farm Mutual Automobile Insurance Company (“State
Farm”) alleging breach of contract and a violation of a
Kansas state insurance statute. State Farm removed the case to
this Court on the basis of diversity jurisdiction. Before the
Court is State Farm's Amended Motion to Dismiss (Doc.
25). State Farm is not currently seeking to dismiss
Cole's breach of contract claims, only her claim under
K.S.A. § 40-2404. Plaintiff has not filed a response;
thus, State Farm's motion is unopposed. Because K.S.A.
§ 40-2404 does not create a private cause of action, the
Court grants State Farm's motion.
Factual and Procedural
August 24, 2015, Cole was rear-ended by another driver while
she was stopped at a traffic light. The other driver's
insurance policy covered only $25, 000 of liability, while
Cole's injuries and damages allegedly far exceed that
amount. Cole filed a claim with her insurance company, State
Farm, to pay for her damages under her underinsured motorist
coverage. State Farm refused.
filed a complaint against the other driver in state court.
The parties subsequently agreed to dismiss the other driver,
and Cole filed a First Amended Petition, naming State Farm as
the defendant. State Farm removed the action to this
Court on December 13, 2017, and filed its Amended Motion to
Dismiss on April 5, 2018. Cole failed to file a response, and the
deadline to do so has passed.
Federal Rule of Civil Procedure 12(b)(6), a defendant may
move for dismissal of any claim for which the plaintiff has
failed to state a claim upon which relief can be
granted.Upon such motion, the Court must decide
“whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its face.'
” A claim is facially plausible if the
plaintiff pleads facts sufficient for the Court to reasonably
infer that the defendant is liable for the alleged
misconduct. The plausibility standard reflects the
requirement in Rule 8 that pleadings provide defendants with
fair notice of the nature of claims as well the grounds on
which each claim rests.Under Rule 12(b)(6), the Court must
accept as true all factual allegations in the complaint, but
need not afford such a presumption to legal
conclusions. Viewing the complaint in this manner, the
Court must decide whether the plaintiff's allegations
give rise to more than speculative
possibilities. If the allegations in the complaint are
“so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiff
‘[has] not nudged [her] claims across the line from
conceivable to plausible.' ”
Farm argues that Cole cannot state a claim based on K.S.A.
§ 40-2404(9). That statute sets out a number of
prohibited practices in the insurance industry, including
unfair claim settlement practices. The statutory scheme
devised by the Kansas legislature vests enforcement power in
the Commissioner of Insurance for the state. It does not
provide for a private cause of action to recover damages
beyond those attributable to breach of
court in Earth Scientists clearly decided this
issue. Cole has not offered any authority to the contrary.
“[T]he aggrieved insured has only two remedies to
pursue-[s]he may file suit for breach of the insurance
contract and/or [s]he may report the insurer to the Insurance
Commissioner who may proceed under the [Kansas Uniform Trade
IS THEREFORE ORDERED that State Farm's Amended
Motion to Dismiss (Doc. 25) is hereby
GRANTED. State Farm's Motion to Dismiss
(Doc. 23) is hereby DENIED as moot.