United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO DISMISS (DOC. 10)
CARAM STEEH UNITED STATES DISTRICT JUDGE.
the court is Defendant's motion to dismiss. The court
heard oral argument on August 5, 2019, and took the matter
under advisement. For the reasons explained below,
Defendant's motion is granted in part and denied in part.
action arises out of an insurance claim for property damage.
Plaintiff Luxury Limousine, Inc., provides transportation
services. On June 4, 2018, Plaintiff obtained a commercial
policy of insurance from Defendant National Indemnity Company
(“NIC”) covering several vehicles. See
Doc. 5 at ¶ 7. Plaintiff alleges that on September 4,
2018, five of its vehicles were vandalized, including four
buses and a Rolls Royce. Plaintiff submitted a claim to NIC
the following day.
an appraisal performed on the five damaged vehicles.
Plaintiff's counsel sent a letter to NIC on September 28,
2018, regarding the claim, but received no immediate
response. Id. at ¶ 13. On October 26, 2018,
Plaintiff received a request from NIC for certain records.
Plaintiff's counsel attempted to set up a meeting to
discuss the claim in December 2018; Plaintiff alleges that
its overtures were “not responded to” during
December and that a meeting was not held until January 2019.
Plaintiff contends that NIC has unreasonably delayed in
processing its claim and that it continues to lose
significant revenue as the damaged vehicles await repairs.
also alleges that the lost revenue has resulted in its
inability to pay its insurance premiums. NIC cancelled
Plaintiff's policy on February 3, 2019. Plaintiff alleges
that it is unable to operate its business without insurance
coverage, which is required under state law.
complaint alleges the following causes of action: Count I,
breach of contract; Count II, specific performance; Count
III, breach of policy and statutory duties to give notice of
cancellation; Count IV, statutory interest; Count V, tortious
interference with business relations; and Count VI,
arbitrary, reckless, indifferent and/or intentional actions
in disregard of the duties owed to policy holder (bad faith).
Defendant has filed a motion for partial dismissal with
respect to Plaintiff's specific performance, tortious
interference, and bad faith claims.
Standard of Review
motion under Rule 12(b)(6) of the Federal Rules of Civil
Procedure seeks dismissal based upon the plaintiff's
failure to state a claim upon which relief can be granted. To
survive a motion to dismiss, the plaintiff must allege facts
that, if accepted as true, are sufficient “to raise a
right to relief above the speculative level” and to
“state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The complaint “must contain
either direct or inferential allegations respecting all the
material elements to sustain a recovery under some viable
legal theory.” Advocacy Org. for Patients &
Providers v. Auto Club Ins. Ass'n, 176 F.3d 315, 319
(6th Cir. 1999) (internal quotation marks omitted).
general, the court does not consider matters outside the
complaint when assessing whether the plaintiff has stated a
claim. Rondigo, L.L.C. v. Township of Richmond, 641
F.3d 673, 680-81 (6th Cir. 2011). If the court considers
materials outside of the complaint, it must ordinarily treat
the motion as one for summary judgment. Id. However,
the court may consider exhibits attached to the complaint,
public records, and exhibits that are “referred to in
the complaint and central to the claims contained
therein” without converting a motion to dismiss to a
motion for summary judgment. Id.
attached exhibits to its response brief, including a police
report, appraisals, correspondence, and an affidavit. These
outside materials are not appropriate for the court to
consider in conjunction with a Rule 12(b)(6) motion.
Additionally, the court finds that these materials are not
relevant to the question of whether Plaintiff has stated
viable claims for relief. The court will disregard the
exhibits and rely upon the four corners of Plaintiff's
characterized as a separate claim in the complaint, specific
performance is an equitable remedy, not a cause of action.
See Ruegsegger v. Bangor Twp. Relief Drain, 127
Mich.App. 28, 30-31 (1983). Specific performance is an
appropriate remedy for a breach of contract when there is an
“inadequate remedy at law.” JPMorgan Chase
Bank, N.A. v. Winget, 510 F.3d 577, 584 (6th Cir. 2007).
“The equitable remedy of specific performance may be
awarded where the legal remedy of damages is
impracticable.” Ruegsegger, 127 Mich.App. at
31. A damages remedy is deemed impracticable when “it
is impossible to arrive at a legal measure ...