PLAINTIFF CANNOT PLEAD ALTERNATIVELY THAT DEFENDANT IS AN INSURER OR AN HMO WITHOUT FACTUAL SUPPORT; BAD FAITH CLAIM INADEQUATELY PLEADED AS A WHOLE (Middle District)
The insured failed to plead adequately on two levels in this case.
First, the insured attempted to plead in the alternative that the defendant was either an insurer or an HMO. HMOs are not subject to the bad faith statute, so the difference is significant. Moreover, there were facts over which the court could take judicial notice indicating defendant was an HMO.
The court concluded that alternatively alleging the defendant was an insurer or an HMO amounted to mere legal conclusions. Without any supporting facts, the bare bones legal allegation that defendant might be an HMO was inadequate, resulting in dismissal on that basis.
Next, even assuming defendant was an insurer subject to the bad faith statute, plaintiff again only pleaded conclusory legal statements with no factual support. These inadequate allegations included:
Defendant denied plaintiff’s “appeal of a denial of payment of certain benefits, thereby first communicating the results of its inadequate investigation . . . follow[ing] presentation of new evidence and persuasion that [defendant] should have paid coverage for certain benefits”.
Defendant’s “inadequate investigation included a … determination that an appeal was untimely, when [defendant] [k]new that the appeal had been timely submitted”.
Plaintiff was an insured of defendant.
“[A]ll of the aforementioned acts, omissions, and malfeasance were motivated by [defendant’s] self-interest and ill will toward [plaintiff] and those similarly situated, and constitute bad faith”, and
“[A]ll of the aforementioned acts, omissions, and malfeasance are outrageous.”
The court stated that “[e]ach of these assertions constitute unsupported conclusions that need not be credited on a motion to dismiss.”
In its order dismissing the case, the court did not provide the plaintiff with leave to amend the complaint, and directed that the case be closed.
