Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cortez v. Hallmark Cty. Mut. Insur. Co.

United States District Court, E.D. Louisiana

July 29, 2015

LEMCY CORTEZ,
v.
HALLMARK CTY. MUT. INSUR. CO., Section:

ORDER AND REASONS

JAY C. ZAINEY, District Judge.

Before the Court is a Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted and Rule 12(b)(3) Motion to Dismiss Based on Improper Venue/Forum Non Conveniens (Rec. Doc. 4) filed by defendant Hallmark County Mutual Insurance Company ("Defendant"). Plaintiff Lemcy Cortez ("Plaintiff") opposes the motion. The motion, set for hearing on March 11, 2015, is before the Court on the briefs without oral argument.[1]

I. BACKGROUND

The instant case arises out of an automobile accident on an Oklahoma state highway. Plaintiff alleges that on or about June 25, 2014, he was traveling westbound when the driver of another vehicle veered into his lane. Plaintiff claims that he suffered significant injuries and that the other driver was killed as a result of the accident. Plaintiff alleges that the accident occurred as a result of the negligence of the other driver.

According to the Plaintiff, the other driver carried an insurance policy with Safeco Insurance with a $50, 000 liability limit. Plaintiff reports that he settled with the other driver and Safeco under that policy.

Plaintiff now seeks via this litigation to recover uninsured/underinsured motorist and medical benefits from Defendant, whom Plaintiff claims had issued a policy of insurance to the vehicle which Plaintiff was driving at the time of collision.

II. DISCUSSION

As Defendant has presented arguments under both 12(b)(6) and 12(b)(3), the Court will divide its analysis into two sections. It will first address the arguments under 12(b)(6).

a. Motion to Dismiss via 12(b)(6)

In the context of a motion to dismiss the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Lovick v. Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)). However, the foregoing tenet is inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Thread-bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. (citing Bell Atlantic Corp. v. Twombly, 550, U.S. 544, 555 (2007)).

The central issue in a Rule 12(b)(6) motion to dismiss is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief. Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)). To avoid dismissal, a plaintiff must plead sufficient facts to "state a claim for relief that is plausible on its face." Id. (quoting Iqbal, 129 S.Ct. at 1949). "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. The Court does not accept as true "conclusory allegations, unwarranted factual inferences, or legal conclusions." Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Legal conclusions must be supported by factual allegations. Id. (quoting Iqbal, 129 S.Ct. at 1950).

Defendant argues that Plaintiff settled his claim with the alleged tortfeasor and the alleged tortfeasor's insurance carrier without either giving notice to Defendant or allowing Defendant to tender an amount equal to the tentative settlement. Defendant contends that these actions trigger exclusions in its policy and, in the alternative, render the policy null and void.

As an essential foundation for these arguments, Defendant relies on record document evidence consisting not only of the policy at issue, but also other items such as an endorsement letter issued by Defendant and an affidavit. Additionally, both the opposition filed by Plaintiff and the reply filed by Defendant rely heavily on affidavits, emails, vehicle registrations, and corporate information to either make or rebut the arguments presented. The Court may not consider such materials in determining the merits of a 12(b)(6) motion. Thus, the Court cannot address the merits of the arguments; if the parties choose to raise ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.