United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGERUNITED STATES DISTRICT JUDGE
before the court are Defendant's Motion to Dismiss
(Docket No. 6), Plaintiffs' Response (Docket No. 11), and
Defendant's Reply (Docket No. 16). Also pending before
the court are Plaintiffs' Motion to Remand to State Court
(Docket No. 12) and Defendant's Response thereto (Docket
No. 16). For the reasons stated herein, Defendant's
Motion to Dismiss will be GRANTED, and Plaintiff's Motion
to Remand to State Court will be DENIED as moot.
action, originally filed in state court, concerns an
automobile collision and resulting injuries to Plaintiff
Endrawes. The third-party driver of the other
vehicle was at fault. That driver's insurance carrier has
accepted liability and paid its policy limits per person of
$25, 000 to Plaintiffs. Plaintiffs assert that the $25, 000
is “close to the past medical bills.” Plaintiffs
are now suing Endrawes' own insurance carrier, Safeco
Insurance Co., pursuant to its under-insured motorist
coverage. Plaintiffs allege that Safeco owed them a
contractual duty to properly and promptly investigate the
collision in good faith and to pay for Plaintiffs'
damages up to the policy limits.
contend that Defendant's failures constitute a breach of
contract, a bad faith act, and an unfair, deceptive act in
violation of the Tennessee Consumer Protection Act
seek compensatory damages for their personal injuries and
treble damages for Defendant's alleged bad faith.
Defendant asks the court to dismiss this action for failure
to state a claim upon which relief may be granted, arguing
that Plaintiffs have failed to provide sufficient factual
allegations to support their causes of action.
purposes of a motion to dismiss, the court must take all of
the factual allegations in the complaint as true.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. Id. A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice. Id. When there are well-pleaded
factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief. Id. at 1950. A legal
conclusion couched as a factual allegation need not be
accepted as true on a motion to dismiss, nor are recitations
of the elements of a cause of action sufficient. Fritz v.
Charter Township of Comstock, 592 F.3d 718, 722 (6th
argues that Plaintiffs have failed to allege sufficient facts
to support a breach of contract claim, such as which
provision(s) of the insurance contract Defendant allegedly
violated or how Defendant's investigation and settlement
offer were not “prompt.” Defendant points out
that its adjuster made a settlement offer to Plaintiffs less
than two months after the collision. Despite Plaintiffs'
characterization of the offer as “shameful, ”
failing to pay the amount Plaintiffs want is not a breach of
the contract. Moreover, Defendant did not deny coverage; it
simply did not offer the amount Plaintiffs sought. The
Complaint makes no citation to the policy provisions that
Plaintiffs contend Defendant breached. Moreover, the
Complaint offers no explanation as to what “properly
and timely” mean in this context, how Defendant's
actions were improper and untimely, or how Defendant failed
to act in good faith. Plaintiffs rely on Leverette v.
Tennessee Farmers Mut. Ins. Co., 2013 WL 817230 (Tenn.
Ct. App. 2013) to support their breach of contract claim, but
in Leverette, the insurer denied coverage. Defendant
has not denied coverage in this case.
noted above, a claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. The factual content of
Plaintiffs' Complaint does not allow the court to draw
such an inference. Defendant's Motion to Dismiss
Plaintiffs' breach of contract claim will be granted.
also assert that Defendant acted in bad faith in failing
properly and promptly to investigate their claim and resolve
it. The Complaint includes no facts as to when or how the
claim was investigated. The Complaint states that
Defendant's representative made a settlement offer to
Plaintiffs on April 27, 2017. The Complaint includes no facts
as to how this offer was improper, not prompt, or the result
of Defendant's bad faith.
Chandler v. Prudential Ins. Co., 715 S.W.2d 615, 621
(Tenn. Ct. App. 1986), the court held that the tort of bad
faith is not cognizable in Tennessee between an insurer and
an insured; but rather, the bad faith penalty statute, Tenn.
Code Ann. § 56-7-105, provides the exclusive remedy for
bad faith claims against insurers by the insured. See
also Persian Galleries, Inc. v. Transcontinental Ins.
Co., 38 F.3d 253, 259 (6th Cir. 1994) and
Wesley v. Liberty Ins. Corp., 2015 WL 5999879 at * 2
(M.D. Tenn. Oct. 14, 2015). The statute applies to insurers
and provides that, in all cases when a loss occurs and an
insurance company of this state refuses to pay the loss
within sixty days after a demand has been made by the
insured, the insurer shall be liable to pay the insured, in
addition to the loss and interest, a sum not exceeding
twenty-five percent of the liability for the loss, provided
the refusal to pay the loss was not in good ...