United States District Court, D. Kansas
THOMAS BECHER, individually and on behalf of those similarly situated, Plaintiff,
UNITED HEALTHCARE SERVICES, INC., et al.,
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
Thomas Becher, individually and on behalf of those similarly
situated, filed this lawsuit against defendants United
Healthcare Services, Inc. (“United”), The
Prudential Insurance Company of America
(“Prudential”), and AARP. Plaintiff asserts that
he and his wife, Jerri Becher, purchased an insurance policy
from an AARP agent, and that this policy insured both of
them. Since purchasing this policy, plaintiff alleges, both
Prudential and United have underwritten the policy.
Plaintiff's Complaint asserts that defendants breached
the insurance policy when United refused to indemnify him for
a hospital visit. Now, all defendants, together, ask the
court to dismiss plaintiff's Complaint under Federal Rule
of Civil Procedure 12(b)(6). Doc. 14. They argue dismissal is
proper because plaintiff was not an insured party under the
has filed a Response (Doc. 22), and defendants have filed
their Reply (Doc. 23). But, plaintiff asks the court to
strike defendants' Reply because it includes a copy of
what defendants assert is the application form for the
insurance policy at issue. Doc. 24. This application,
plaintiff alleges, falls outside the collection of materials
that a federal court can consider on a motion to dismiss. The
court discusses this issue first, and then addresses the
merits of defendants' Motion to Dismiss. Ultimately, the
court concludes that plaintiff has stated plausible claims
and denies defendants' Motion to Dismiss.
Motion to Strike
attached the application form for the insurance policy at
issue to their Reply in support of their Motion to Dismiss.
Doc. 23-2. Plaintiff asks the court to strike defendants'
Reply. While the court agrees with plaintiff that it cannot
consider the application form when ruling on a 12(b)(6)
motion, the court declines to strike defendants' Reply in
its entirety. Instead, for reasons explained below, the court
declines to consider the application form and any argument
relying on it.
considering a motion to dismiss under Rule 12(b)(6), the
court generally “may not look beyond the four corners
of the complaint.” Am. Power Chassis, Inc. v.
Jones, No. 13-4134-KHV, 2017 WL 3149291, at *3 (D. Kan.
July 25, 2017) (citing Rubio ex rel. Z.R. v. Turner
Unified Sch. Dist. No. 202, 475 F.Supp.2d 1092, 1097 n.3
(D. Kan. 2007)). However, “if a plaintiff does not
incorporate by reference or attach a document to its
complaint, but the document is referred to in the complaint
and is central to plaintiff's claim, a defendant may
submit an indisputably authentic copy to the court to be
considered on a motion to dismiss.” Geer v.
Cox, 242 F.Supp.2d 1009, 1016 (D. Kan. 2003) (internal
quotation marks and citation omitted). Otherwise, to consider
a matter outside the pleadings, the court must convert the
motion to dismiss into one for summary judgment under Federal
Rule of Civil Procedure 56. Id. at 1015-16
(“Reversible error may occur . . . if the district
court considers matters outside the pleadings but fails to
convert the motion to dismiss into a motion for summary
judgment.”). At the motion to dismiss stage, the court
cannot properly consider extrinsic evidence that isn't
central to a plaintiff's claim. This is the rule even if
the extrinsic evidence is central to the defendant's
“theories of defense.” Capital Sols., LLC v.
Konica Minolta Bus. Sols. USA, Inc., Nos. 08-2027-JWL,
08-2191-JWL, 2008 WL 3538968, at *3 (D. Kan. Aug. 11, 2008).
court agrees that the insurance policy itself is a document
that is central to plaintiff's claim. Indeed, plaintiff
already has attached the policy to the Complaint. But
defendants ask the court also to consider the application
form that led to the insurance policy. The court may not do
so without converting the motion into a summary judgment
motion. The application does not fall within any of the three
exceptions recognized by the Tenth Circuit that permit a
district court to consider a matter outside the pleadings
without converting the motion into one seeking summary
judgment. The Circuit has recognized the following three
exceptions to the four corners of the complaint rule: (1)
“documents that the complaint incorporates by
reference”; (2) “documents referred to in the
complaint if the documents are central to the plaintiff's
claim and the parties do not dispute the documents'
authenticity”; and (3) matters “which a court may
take judicial notice.” Gee v. Pacheco, 627
F.3d 1178, 1186 (10th Cir. 2010) (internal quotation marks
and citations omitted).
here do not argue that the application qualifies under any of
the three exceptions. Doc. 25 at 1-3. Instead, defendants
argue that the court should consider the application as part
of the policy based on Kansas law. Id. at 3 (citing
Lightner v. Centennial Life Ins. Co., 744 P.2d 840,
843 (Kan. 1987) (holding that “[t]he application for
insurance is to be construed with the policy as a whole to
determine the parties' intent”)). Plaintiff
responds, arguing that an application is part of the policy
only when the insurer meets certain requirements.
See Doc. 26 at 1 (citing Kan. Admin. Regs. §
40-4-12 (requiring insurer to attach the application and
disclose the following: “This application is a part of
the policy and the policy was issued on the basis that
answers to all questions and the information shown on the
application are correct and complete.”)); see
also Kan. Stat. Ann. § 40-2205 (providing that
“[t]he insured shall not be bound by any statement made
in an application for a policy unless a copy of such
application is attached to or endorsed on the policy when
issued as a part thereof”). Here, the facts that the
court properly can consider on a motion to dismiss do not
show that the court can construe the application at issue as
part of the insurance policy.
different showing, the issue whether the court could consider
the application for insurance would pose an interesting
question. But the Kansas Administrative Regulation above and
several Kansas case authorities require insurers to comply
with that regulation before an application is part of an
insurance policy. Here, nothing establishes that the
application form qualifies for one of the limited exceptions
to the rule against considering matters outside the
pleadings. Also, defendants have not demonstrated that they
complied with the Kansas regulation. The court thus cannot
consider the application form as part of plaintiff's
policy and, subsequently, when deciding defendants'
Motion to Dismiss.
court also declines to convert defendants' Motion into a
motion for summary judgment. Several reasons support this
outcome. First, none of the parties ask the court to convert
the Motion in this fashion. See Geer, 242 F.Supp.2d
1009, 1016 (D. Kan. 2003). Second, defendants “filed
their motion at an early stage” in this case. See
Ledbetter v. Bd. of Cty. Comm'rs, No. 00-2180-KHV,
2001 WL 705806, at *2 (D. Kan. May 31, 2001) (“Because
defendants filed their motion at an early stage of the
proceedings and discovery is not scheduled to close [for more
than one month], the Court decline[d] to consider evidence
outside the pleadings.”). Third, the court also
“has not notified the parties that it will apply a
summary judgment standard.” Grogan v.
O'Neil, 292 F.Supp.2d 1282, 1292 (D. Kan. 2003).
Fourth, defendants' Motion does not provide “a
concise statement of material facts, ” as D. Kan. Rule
56.1 requires for summary judgment motions. Id.
Together, these reasons convince the court that it should not
convert defendants' motion into one seeking summary
plaintiff asks the court to strike defendants' Reply in
its entirety. Rather than striking the whole Reply, the court
exercises its discretion and simply will disregard the
application form and all arguments that reference it. See
Rezac Livestock Comm'n Co. v. Pinnacle Bank, 255
F.Supp.3d 1150, 1163-64 (D. Kan. 2017) (concluding that a
bank check was a matter outside the pleadings and, after
declining to convert the motion to dismiss into a motion for
summary judgment, the court disregarded only the check when
considering a motion to dismiss). The court thus grants
plaintiff's Motion to Strike (Doc. 24) in part and denies
it in part.
Defendants' Motion to Dismiss (Doc. 14)
court now turns to the substance of defendants' Motion to
Dismiss (Doc. 14). Its analysis begins by identifying the
operative facts governing defendants' motion.
following facts come from plaintiff's Complaint (Doc. 1).
The court accepts facts asserted by the Complaint as true and
views them in the light most favorable to plaintiff.
Burnett v. Mortg. Elec. Registration Sys., Inc., 706
F.3d 1231, 1235 (10th Cir. 2013) (citing Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)).
April 1, 1993, plaintiff and his wife, Jerri Becher, met with
an AARP agent and purchased an insurance policy titled
“Plan B8.” Plan B8 policies provide fixed daily
benefits for specified hospital stays, intensive care unit
stays, and outpatient hospital care (collectively called
“covered events”). The Plan B8 policy was issued
on April 1, 1993.
mid- to late-1990s, United began underwriting and
administrating Plan B8 policies. Prudential underwrote and
administered Plan B8 policies when it issued the policy at
issue here. In the section of the Plan B8 policy titled,
“Who is Covered, ” the policy provides:
“The person or persons (the member and the spouse of
the member) named above are covered from the Effective Date
shown if the required premium contribution has been paid when
due. The term you refers individually to
each person named.” Doc. 1-1 at 1. “Mrs. Jerri
Becher” is named under the heading “issued
to.” Id. These provisions appeared in Doc.
1-1-the document plaintiff attached to his Complaint.
April 1993 to about October 2004, plaintiff and his wife paid
a monthly premium of $36.25 in exchange for coverage under
Plan B8. And from November 2004 to January 2016, plaintiff
and his wife paid a monthly ...