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Kinsale Insurance Co. v. Brandon Steven Motors, LLC

United States District Court, D. Kansas

May 2, 2019

KINSALE INSURANCE COMPANY, Plaintiff,
v.
BRANDON STEVEN MOTORS, LLC and EDDY'S MOTORS, LLC Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         Plaintiff Kinsale Insurance Company brings this declaratory judgment action against Defendants Brandon Steven Motors, LLC (“BSM”) and Eddy's Motors, LLC seeking a declaration that BSM is not entitled to coverage under Kinsale's excess property insurance policy. Defendants filed an Answer and set forth five defenses under an “Affirmative Defenses” section. Plaintiff has now filed a Motion to Strike all of Defendants' defenses (Doc. 10). The Court finds that several of Defendants' defenses are not true Affirmative Defenses. In addition, the Court finds that several of Defendants' Affirmative Defenses were not plead with adequate notice. Thus, the Court strikes these defenses without prejudice to refiling.

         I. Factual and Procedural Background

         Plaintiff Kinsale issued an excess property insurance policy to BSM and Eddy's Motors. BSM is a car dealership with its principal place of business in Wichita, Kansas. On March 21, 2018, BSM notified Plaintiff of a claim for alleged damages to vehicles at eight of its car dealerships. Approximately two weeks earlier, on March 6, 2018, winds blew dust particles that affected approximately 1, 200 new and used vehicles. The resulting granule-size specks on the vehicles were not visible to the naked eye in most instances.

         Defendant BSM requested payment for the cost of removing and repairing sections of the vehicles with a speck. Despite its claim, BSM sold most of the vehicles. No. repairs were made to the vehicles. BSM received $2, 500, 000 in insurance proceeds from its primary insurer in excess of its $500, 000 deductible. Plaintiff requested information from BSM to complete its investigation in evaluating coverage. BSM failed to provide Plaintiff with complete information.

         Plaintiff brought suit on August 24, 2018, asserting seven claims related to its insurance contract with BSM. Plaintiff contends that it does not owe Defendants any coverage. Defendants filed an Answer, asserting five enumerated defenses, in November. Plaintiff has now filed a Motion to Strike Defendants' defenses asserted in the Answer.

         II. Legal Standard

         Federal Rule of Civil Procedure 12(f) permits the Court to strike from a pleading “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” It is well-settled that motions to strike are generally disfavored because they are drastic measures and can be used as a dilatory tactic.[1] The decision of whether to strike material from a pleading is within the discretion of the Court.[2] “A defense is insufficient if no circumstances exist under which it can succeed as a matter of law.”[3] The Court, in its discretion, may defer ruling on the sufficiency of a defense.[4] “Even when striking a defense is warranted, the Court may grant leave to amend to address the insufficiency.”[5]

         The Twombly/Iqbal heightened pleading standard is applicable to Affirmative Defenses.[6]“In both stages of pleading-claims for relief and affirmative defenses-the opposing party must be given notice, at minimum, that there is a plausible basis for the claim or defense.”[7] Conclusory or vague statements generally do not provide adequate notice.[8]

         III. Analysis

         Defendant asserted all five of its defenses under a section entitled “Affirmative Defenses.” Plaintiff seeks to strike each defense. It contends that they are conclusory, vague, and do not meet the heightened pleading requirement for Affirmative Defenses.

         A. First defense

         Defendants assert, as their first defense, that Plaintiff fails to state a claim. Both parties appear to agree that this defense is not an Affirmative Defense.[9] Thus, the Court will strike it as an Affirmative Defense. Practically speaking, however, even though not an Affirmative Defense, the Defendants can still assert it as a defense in this case at a later date.

         B. ...


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