Luxury Limousine, Inc. v. National Indemnity Co.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS (DOC. 10)

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         Before 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.

         BACKGROUND FACTS

         This 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.

         NIC had 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.

         Plaintiff 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.

         Plaintiff's 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.

         LAW AND ANALYSIS

         I. Standard of Review

         A 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).

         In 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.

         Plaintiff 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 complaint.

         II. Specific Performance

         Although 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 ...