United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND
GRANTING PLAINTIFF LEAVE TO AMEND
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Allstate
Insurance's (“Allstate”) motion to dismiss.
Dkt. 7. The Court has considered the pleadings filed in
support of and in opposition to the motion and the remainder
of the file and hereby grants the motion for the reasons
PROCEDURAL AND FACTUAL BACKGROUND
2005, Gonzales was involved in two automobile accidents. Dkt.
1-1, ¶ 2.3. In 2009, Gonzales was examined by doctors
Duff and Dietrich. Id. ¶ 2.18. On November 9,
2019, these doctors produced a report that Gonzales suffered
no permanent injuries or further impairments from the 2005
collisions. Id. ¶ 2.18. In December 2009,
Gonzales was involved in another accident while insured by
Allstate. Id. ¶ 3.1. On November 13, 2013,
Gonzales submitted a claim to Allstate for underinsured
motorist coverage (“UIM”). Id. ¶
2.15. Allstate hired Dr. John Wendt to evaluate
Gonzales's injuries. Id. ¶ 4.7. Dr. Wendt
was not provided the report from Drs. Duff and Dietrich and
concluded that Gonzales's current limitations were caused
by the 2005 collisions. Id. ¶ 4.15. On January
6, 2015, Gonzales alleges that “Allstate refused to pay
[Gonzales] any UIM benefits.” Id. ¶ 4.16.
On October 19, 2015, Gonzales “provided written notice
of the basis for his [Washington's Insurance Fair Conduct
Act (“IFCA”)] cause of action to the Washington
Insurance Commissioner and Allstate.” Id.
April 25, 2019, Gonzales filed a complaint against Allstate
and others in Clark County Superior Court for the State of
Washington. Dkt. 1-1. Gonzales asserts claims for breach of
contract, bad faith, violations of Washington's Consumer
Protection Act (“CPA”), and violations of IFCA.
Id. ¶¶ 6.1-9.7.
21, 2019, Allstate removed the matter to this Court. Dkt. 1.
18, 2019, Allstate filed the instant motion to dismiss
Gonzales's bad faith, CPA, and IFCA claims. Dkt. 7. On
August 2, 2019, Gonzales responded and submitted numerous
documents in support of his position. Dkt. 8. On August 9,
2019, Allstate replied. Dkt. 10.
to dismiss brought under Rule 12(b)(6) of the Federal Rules
of Civil Procedure may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under such a theory. Balistreri v. Pacifica
Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Material allegations are taken as admitted and the complaint
is construed in the plaintiff's favor. Keniston v.
Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive
a motion to dismiss, the complaint does not require detailed
factual allegations but must provide the grounds for
entitlement to relief and not merely a “formulaic
recitation” of the elements of a cause of action.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Plaintiffs must allege “enough facts to state a
claim to relief that is plausible on its face.”
Id. at 1974.
case, Allstate moves to dismiss (1) Gonzales's bad faith,
CPA, and IFCA claims because they are barred by the statute
of limitations and (2) his CPA claim because he fails to
allege a cognizable injury. Dkt. 7. Regarding the first
issue, Gonzales contends that he did not become aware of the
factual basis for his claims until June 2016 when he
discovered that Allstate did not provide Dr. Wendt with Drs.
Duff and Dietrich's report. Dkt. 8 at 5-6. The problem
with this argument is that none of these allegations are in
his complaint. In fact, Gonzales alleges that he gave notice
of Allstate's IFCA violations in October of 2015, which
predates his now alleged accrual date of June 2016. It seems
impossible to satisfy a notice requirement before the claim
accrues. Regardless, Gonzales's claims, as alleged, are
subject to dismissal as time-barred.
next issue is whether the Court should grant leave to amend.
In the event the court finds that dismissal is warranted, the
court should grant the plaintiff leave to amend unless
amendment would be futile. Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). While
Allstate provides authorities for the proposition that the
statute of limitations begins upon Allstate's first
denial of Gonzales's claim for benefits, the Court
prefers to rule on actual claims in a complaint instead of
speculative claims advanced for the first time in a response
brief. Similarly, Allstate provides authority for the
proposition that Gonzales is not entitled to equitable
tolling, but that issue is usually one for summary judgment
because it involves an analysis of facts as opposed to
allegations. See, e.g., Cornejo v. Channel
Lending Co., C03-3181C, 2005 WL 668388 (W.D. Wash. Mar.
11, 2005). Thus, the Court grants Gonzales leave to amend his
complaint because it is at least unclear whether any
amendment would be futile.
it is hereby ORDERED that Allstate's
motion to dismiss, Dkt. 7, is GRANTED and
Gonzales is GRANTED leave to amend. Gonzales
shall file an ...