JULY 2014 BAD FAITH CASES: NO SEPARATE TORT CAUSE OF ACTION FOR BREACH OF DUTY OF GOOD FAITH; STATUTORY BAD FAITH CLAIM PLEADED MERE POSSIBILITY OF BAD FAITH, NOT A PLAUSIBLE BAD FAITH CLAIM, AND WAS DISMISSED WITH LEAVE TO AMEND (Western District)
In Plummer v. State Firm Fire & Casualty Insurance Company, the insureds made a first party damage claim, involving storm damage to its roof. The insureds claimed that the insurer failed to pay anything toward the roof damage, while paying a claim for roof damage to their neighbor for damage to the neighbor’s roof from the same storm. There was a finding in arbitration in state court, solely on a breach of contract claim, that the carrier owed damage payments for the roof to the insureds.
After a somewhat complicated procedural history, the case was removed to federal court, and included breach of contract, breach of the duty of good faith and fair dealing, and statutory bad faith claims. As to the breach of the duty of good faith and fair dealing claim, the court treated this as a distinct tort claim and dismissed it under the gist of the action doctrine. Any such claim was subsumed in the breach of contract claim, and would have to be pursued as a breach of contract.
As to the statutory bad faith claim, the insureds/plaintiffs attached numerous documents to their response to the carrier’s motion to dismiss that claim. The court observed that it could not consider these documents to the extent they were outside the complaint. It found that although the insured listed 14 different kinds of bad faith in the complaint, these were conclusory allegations that did not meet the Twombly standard.
The only specifically pleaded allegations addressing bad faith were that a claim was paid on the neighbor’s roof on the same storm, but not plaintiff. The court found that it was left to speculate as to why the neighbor’s circumstances were the same as the insured/plaintiff, and thus made the bad faith claim on this basis a mere possibility, and not a plausible claim under Twombly.
However, the plaintiff was given leave to file an amended complaint if they could set out a plausible bad faith claim.
