United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANT RENTAL INSURANCE SERVICES,
INC.'S MOTION TO DISMISS AMENDED COMPLAINT PURSUANT TO
FRCP 12(B)(6) AND 9(B)
B. Leighton United States District Judge.
MATTER comes before the Court on Defendant Rental Insurance
Services, Inc.'s Motion to Dismiss Amended Complaint
Pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b). Dkt. 28.
Initiated on January 31, 2018, this tort case arises out of a
February 12, 2015 auto accident allegedly caused by a federal
employee. RIS insured Enterprise, the car rental company used
by the federal employee, and allegedly made a
misrepresentation to the plaintiffs about the applicable
statute of limitations. As discussed below, RIS' motion
to dismiss should be granted in part, on two grounds: (1)
FTCA claims alleged against RIS which should be dismissed,
and (2) claims that sound in fraud should be dismissed for
failure to state a claim under the heightened pleading
standard of Fed.R.Civ.P. 9(b). RIS' motion should be
denied in part as to the claim for negligent
April 25, 2017, Plaintiff Venus Flynn filed a negligence
action in Pierce County Superior Court for damages arising
out a February 12, 2015 auto accident, naming as defendants
Beatrice and “John Doe” Ashburn. W.D.Wash. Cause
No. 3:17-cv-05316-RBL, Dkt. 1-2. Ms. Ashburn removed the case
on April 28, 2017, averring that at the time of the incident
she was an employee of the Federal Deposit Insurance
Corporation (FDIC), a federal agency, acting within the
course and scope of her employment. Id. at Dkt. 1 at
2. The United States substituted itself as a party for Ms.
Ashburn and John Doe Ashburn pursuant to 28 U.S.C. §
2679(d)(4). Id. at Dkt. 5. On June 14, 2017, the
Court dismissed the United States from the case for Ms.
Flynn's failure to exhaust administrative remedies under
the Federal Tort Claims Act. Id. at Dkt. 12, citing
28 U.S.C. § 2675(a).
4, 2017, Ms. Flynn, along with two family members, Autumn
Flynn and G.F. (collectively, “the Flynns”) filed
administrative claims with the FDIC, which denied the
Flynns' administrative claims on November 6, 2017. Dkt.
18 at ¶¶7, 8. The Flynns filed this case on January
31, 2018. Dkt. 1.
purposes of this motion, the following facts alleged in or
incorporated by the Amended Complaint are taken as true.
Flynns sustained harm in a three car chain-reaction accident
on February 12, 2015, caused by two other drivers, Ms.
Ashburn and Defendant Lorraine Craig. Dkt. 18 at
¶¶10, 12, 13, 14. Ms. Ashburn, then-employed by a
federal agency and acting within the scope of her employment,
was not wearing anything to indicate that she was a federal
employee, and she made no representations about her federal
employment to the Flynns. Id. at ¶¶15, 16.
Ms. Ashburn was driving an Enterprise rental car. Dkt. 5 at
February of 2015, counsel to the Flynns contacted Enterprise,
and Enterprise directed counsel to RIS for its claims
handling. Dkt. 5 at 2. RIS, which accepted tender of the
Flynns' insurance claims, negotiated the claims on behalf
of Ms. Ashburn and the United States. Id.; Dkt. 18
at ¶17. On March 18, 2015, RIS sent a letter the Flynns
acknowledging its investigation of their claims. Dkt. 1-2 at
2. The letter warns the Flynns: “Under Washington state
law, you have three years from the date of the accident to
file a lawsuit for bodily injury . . . This means you must
settle your claim or file a lawsuit by that date or you will
be barred from recovery.” Id. The Flynns'
counsel first learned of Ms. Ashburn's federal employee
status on April 16, 2017. Id. at ¶21.
Parties and claims.
Amended Complaint names as defendants the United States,
liable for its employee, Ms. Ashburn, who is not separately
named; Ms. Craig; and RIS. Dkt. 18 at ¶¶2, 3.
According to the “Claims” portion of the Amended
Complaint, RIS is liable for damages “under RCW 46.61
and/or Washington common law.” Id. at
¶26. The Prayer for Relief requests: (1) judgment
against the defendants for damages from the February 12, 2015
collision, and (2) “application of the doctrine of
equitable tolling to allow plaintiffs' claims to proceed
against the United States[.]” Id. at p. 5.
to the Flynns, the Amended Complaint alleges three common law
causes of action against RIS: fraud, fraudulent concealment,
and negligent misrepresentation. Dkt. 30 at 3. In support of
these three claims, the Amended Complaint alleges that the
United States and RIS “fraudulently concealed that
[Ms.] Ashburn was a federal employee . . . and induced or
tricked plaintiffs into believing that claims . . . fell
under Washington State law and its three-year statute of
limitations.” Dkt. 18 at ¶¶22, 24. Particular
to RIS, it is also alleged that RIS “negligently
represented to plaintiffs that their claims against [Ms.]
Ashburn were subject to Washington law and ...