2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE DISTRICT OF ALASKA 4
5 WILLIAM LAU, 6
7 Plaintiff, Case No. 3:22-cv-00087-JWS
8 vs. 9 ORDER ON GOOD SAM INSURANCE AGENCY and MOTION TO DISMISS 10 NATIONAL GENERAL INSURANCE, [Doc. 12] 11 Defendants. 12 13 GOOD SAM INSURANCE AGENCY and 14 NATIONAL GENERAL INSURANCE,
15 Third-Party Plaintiffs, 16 vs. 17
18 SUE ROBINSON d/b/a BIRCHMERE BOAT AND RV STORAGE, 19
20 Third-Party Defendant.
22 23 I. MOTION PRESENTED 24 At docket 12, Third-Party Defendant Sue Robinson d/b/a Birchmere 25 Boat and RV Storage (“Robinson”), filed a motion to dismiss the subrogation claim 26 filed against her by Defendant/Third-Party Plaintiffs Good Sam Insurance Agency and 27 28 National General Insurance (“Insurance Defendants”). Insurance Defendants filed 1 their opposition at docket 13. Robinson filed her reply at docket 14. Oral argument 2 would not be of assistance to the court. 3 II. BACKGROUND 4 5 Plaintiff in this case, William Lau (“Lau”), acting pro se, alleges that on 6 March 18, 2021, his 2001 Cardinal Fifth Wheel RV was stored at Birchmere Boat and 7 RV Storage in Soldotna, Alaska. “With great snow fall that winter, [the snow] caused 8 9 the roof of the storage facility to collapse upon the Plaintiff’s RV.”1 Plaintiff asserts 10 that his RV was insured pursuant to a policy issued by Insurance Defendants and that 11 they unreasonably processed his insurance claim, causing unnecessary loss of use, 12 untimely assessment and repair, and denial of coverage. 13 14 Insurance Defendants answered the complaint, admitting they had an 15 insurance contract with Lau and “certain obligations pursuant to the contract for losses 16 sustained by [him].”2 They also admit that Lau’s RV was being stored for the winter 17 18 at Birchmere Boat and RV Storage in Soldotna. They brought a third-party claim 19 against the owner of that storage facility, Robinson, alleging she had a contractual 20 obligation to safely store Lau’s RV at her facility and that she breached that duty by 21 22 failing to maintain the facility’s roof so it could withstand the snowfall or otherwise by 23 failing to remove the snow in a timely manner to prevent the roof’s collapse. They 24 assert that “[t]o the extent [Lau] can establish damages to his recreational vehicle that 25 [Insurance Defendants] are obligated to pay, [Insurance Defendants] are subrogated to 26 27
28 1 Docket 1-1 at 2 ¶ 6. 2 Docket 6 at 2 ¶ 4. 1 the rights of [Lau] and are entitled to pursue an action against [Robinson] to recover 2 any monetary damages paid to [Lau].”3 3 Robinson seeks to dismiss Insurance Defendants’ complaint against her. 4 5 She argues that Insurance Defendants have failed to raise a claim pursuant to which 6 relief can be granted because she did not owe a duty of care to Lau and was not the 7 cause of the damage to the RV. 8 9 III. STANDARD OF REVIEW 10 Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s claims. In 11 reviewing such a motion, “[a]ll allegations of material fact in the complaint are taken 12 as true and construed in the light most favorable to the nonmoving party.”4 To be 13 14 assumed true, the allegations “may not simply recite the elements of a cause of action, 15 but must contain sufficient allegations of underlying facts to give fair notice and to 16 enable the opposing party to defend itself effectively.”5 Dismissal for failure to state 17 18 a claim can be based on either “the lack of a cognizable legal theory or the absence of 19 sufficient facts alleged under a cognizable legal theory.”6 “Conclusory allegations of 20 law . . . are insufficient to defeat a motion to dismiss.”7 21 22 23 24 25
26 3 Docket 6 at 5 ¶ 6. 27 4 Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997). 5 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 28 6 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 7 Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). 1 To avoid dismissal, a plaintiff must plead facts sufficient to “state a claim 2 to relief that is plausible on its face.”8 “A claim has facial plausibility when the 3 plaintiff pleads factual content that allows the court to draw the reasonable inference 4 5 that the defendant is liable for the misconduct alleged.”9 “The plausibility standard is 6 not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that 7 a defendant has acted unlawfully.”10 “In sum, for a complaint to survive a motion to 8 9 dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that 10 content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”11 11 In deciding whether to dismiss a claim under Federal Rule of Civil 12 Procedure 12(b)(6), the court generally is limited to reviewing only the complaint, but 13 14 it may review materials which are properly submitted as part of the complaint and may 15 take judicial notice of undisputed matters of public record that are outside the 16 pleadings.12 Furthermore, documents whose contents are alleged in a complaint and 17 18 whose authenticity no party questions, but which are not physically attached to the 19 pleading, may be considered when ruling on a Rule 12(b)(6) motion to dismiss.13 20 21
22 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 23 9 Id. 24 10 Id. (quoting Twombly, 550 U.S. at 556). 11 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009); see also Starr, 652 25 F.3d at 1216. 12 See Gonzalez v. First Franklin Loan Srvs., 2010 WL 144862, at *3 (E.D. Cal. 26 Jan. 11, 2010) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001)); 27 Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). 28 13 Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). 1 IV. DISCUSSION 2 Robinson argues that dismissal of the subrogation claim against her is 3 warranted because she did not owe a duty of care to Lau under the applicable storage 4 5 contract.14 She relies on the “acts of God” provision in the contract, arguing that the 6 alleged “great” snowfall constitutes an unforeseen act of God that precludes any 7 liability for damages on her part. While not defined in the contract, Alaska courts 8 9 recognize an “act of God” as “an irresistible superhuman cause such as no ordinary or 10 reasonable human foresight, prudence, diligence, and care could have anticipated and 11 prevented.”15 To preclude liability in negligence, an act of God must be something 12 that “was incapable of being avoided by reasonable care or foreseen by reasonable 13 14 prudence.”16 15 This court cannot conclude that the claim against Robinson must be 16 dismissed for failure to state a claim.
Free access — add to your briefcase to read the full text and ask questions with AI
2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE DISTRICT OF ALASKA 4
5 WILLIAM LAU, 6
7 Plaintiff, Case No. 3:22-cv-00087-JWS
8 vs. 9 ORDER ON GOOD SAM INSURANCE AGENCY and MOTION TO DISMISS 10 NATIONAL GENERAL INSURANCE, [Doc. 12] 11 Defendants. 12 13 GOOD SAM INSURANCE AGENCY and 14 NATIONAL GENERAL INSURANCE,
15 Third-Party Plaintiffs, 16 vs. 17
18 SUE ROBINSON d/b/a BIRCHMERE BOAT AND RV STORAGE, 19
20 Third-Party Defendant.
22 23 I. MOTION PRESENTED 24 At docket 12, Third-Party Defendant Sue Robinson d/b/a Birchmere 25 Boat and RV Storage (“Robinson”), filed a motion to dismiss the subrogation claim 26 filed against her by Defendant/Third-Party Plaintiffs Good Sam Insurance Agency and 27 28 National General Insurance (“Insurance Defendants”). Insurance Defendants filed 1 their opposition at docket 13. Robinson filed her reply at docket 14. Oral argument 2 would not be of assistance to the court. 3 II. BACKGROUND 4 5 Plaintiff in this case, William Lau (“Lau”), acting pro se, alleges that on 6 March 18, 2021, his 2001 Cardinal Fifth Wheel RV was stored at Birchmere Boat and 7 RV Storage in Soldotna, Alaska. “With great snow fall that winter, [the snow] caused 8 9 the roof of the storage facility to collapse upon the Plaintiff’s RV.”1 Plaintiff asserts 10 that his RV was insured pursuant to a policy issued by Insurance Defendants and that 11 they unreasonably processed his insurance claim, causing unnecessary loss of use, 12 untimely assessment and repair, and denial of coverage. 13 14 Insurance Defendants answered the complaint, admitting they had an 15 insurance contract with Lau and “certain obligations pursuant to the contract for losses 16 sustained by [him].”2 They also admit that Lau’s RV was being stored for the winter 17 18 at Birchmere Boat and RV Storage in Soldotna. They brought a third-party claim 19 against the owner of that storage facility, Robinson, alleging she had a contractual 20 obligation to safely store Lau’s RV at her facility and that she breached that duty by 21 22 failing to maintain the facility’s roof so it could withstand the snowfall or otherwise by 23 failing to remove the snow in a timely manner to prevent the roof’s collapse. They 24 assert that “[t]o the extent [Lau] can establish damages to his recreational vehicle that 25 [Insurance Defendants] are obligated to pay, [Insurance Defendants] are subrogated to 26 27
28 1 Docket 1-1 at 2 ¶ 6. 2 Docket 6 at 2 ¶ 4. 1 the rights of [Lau] and are entitled to pursue an action against [Robinson] to recover 2 any monetary damages paid to [Lau].”3 3 Robinson seeks to dismiss Insurance Defendants’ complaint against her. 4 5 She argues that Insurance Defendants have failed to raise a claim pursuant to which 6 relief can be granted because she did not owe a duty of care to Lau and was not the 7 cause of the damage to the RV. 8 9 III. STANDARD OF REVIEW 10 Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s claims. In 11 reviewing such a motion, “[a]ll allegations of material fact in the complaint are taken 12 as true and construed in the light most favorable to the nonmoving party.”4 To be 13 14 assumed true, the allegations “may not simply recite the elements of a cause of action, 15 but must contain sufficient allegations of underlying facts to give fair notice and to 16 enable the opposing party to defend itself effectively.”5 Dismissal for failure to state 17 18 a claim can be based on either “the lack of a cognizable legal theory or the absence of 19 sufficient facts alleged under a cognizable legal theory.”6 “Conclusory allegations of 20 law . . . are insufficient to defeat a motion to dismiss.”7 21 22 23 24 25
26 3 Docket 6 at 5 ¶ 6. 27 4 Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997). 5 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 28 6 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 7 Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). 1 To avoid dismissal, a plaintiff must plead facts sufficient to “state a claim 2 to relief that is plausible on its face.”8 “A claim has facial plausibility when the 3 plaintiff pleads factual content that allows the court to draw the reasonable inference 4 5 that the defendant is liable for the misconduct alleged.”9 “The plausibility standard is 6 not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that 7 a defendant has acted unlawfully.”10 “In sum, for a complaint to survive a motion to 8 9 dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that 10 content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”11 11 In deciding whether to dismiss a claim under Federal Rule of Civil 12 Procedure 12(b)(6), the court generally is limited to reviewing only the complaint, but 13 14 it may review materials which are properly submitted as part of the complaint and may 15 take judicial notice of undisputed matters of public record that are outside the 16 pleadings.12 Furthermore, documents whose contents are alleged in a complaint and 17 18 whose authenticity no party questions, but which are not physically attached to the 19 pleading, may be considered when ruling on a Rule 12(b)(6) motion to dismiss.13 20 21
22 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 23 9 Id. 24 10 Id. (quoting Twombly, 550 U.S. at 556). 11 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009); see also Starr, 652 25 F.3d at 1216. 12 See Gonzalez v. First Franklin Loan Srvs., 2010 WL 144862, at *3 (E.D. Cal. 26 Jan. 11, 2010) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001)); 27 Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). 28 13 Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). 1 IV. DISCUSSION 2 Robinson argues that dismissal of the subrogation claim against her is 3 warranted because she did not owe a duty of care to Lau under the applicable storage 4 5 contract.14 She relies on the “acts of God” provision in the contract, arguing that the 6 alleged “great” snowfall constitutes an unforeseen act of God that precludes any 7 liability for damages on her part. While not defined in the contract, Alaska courts 8 9 recognize an “act of God” as “an irresistible superhuman cause such as no ordinary or 10 reasonable human foresight, prudence, diligence, and care could have anticipated and 11 prevented.”15 To preclude liability in negligence, an act of God must be something 12 that “was incapable of being avoided by reasonable care or foreseen by reasonable 13 14 prudence.”16 15 This court cannot conclude that the claim against Robinson must be 16 dismissed for failure to state a claim. Lau’s complaint alleges that there was “great 17 18 snow fall that winter” which caused the roof of Robinson’s storage facility to collapse 19 on his RV.17 Insurance Defendants’ complaint in turn alleges that Robinson failed to 20 properly maintain the roof so that it could withstand the snowfall or otherwise failed 21 22 23 24 14 Robinson included a copy of the contract with her motion to dismiss. The contract, while not included with the complaint, may be considered on a Rule 12(b) motion, because 25 the third-party complaint alleges that the contract imposed a duty on Robinson to safely store Lau’s RV in her storage facility, and there is no question about the authenticity of the copy 26 included with Robinson’s motion. 27 15 Widmyer v. Se. Skyways, Inc., 584 P.2d 1, 14 (Alaska 1978) (citing Garrett v. Beers, 155 P. 2, 3 (Kansas 1916)). 28 16 Id. 17 Docket 1-1 at 2 ¶ 6. 1 to remove accumulating snow to reduce weight on the roof and therefore breached her 2 duty to Lau. This sets forth a plausible claim of negligence. 3 The “acts of God” provision in the contract does not, as a matter of law, 4 5 shield Robinson from liability. As noted by Insurance Defendants, “Robinson fails to 6 cite one case where snowfall over a period of time, or even a single snowfall, has been 7 held to be an act of God that immunizes a defendant from liability.”18 Indeed, the court 8 9 cannot reasonably hold that as a matter of law snowfall in Alaska constitutes “an 10 irresistible superhuman cause such as no ordinary or reasonable human foresight, 11 prudence, diligence, and care could have anticipated and prevented.”19 Rather, 12 whether the “great snowfall that winter” that is alleged to have collapsed the storage 13 14 facility’s roof was so extraordinary that it could not be foreseen or otherwise 15 constitutes an “act of God” is a factual issue, inappropriate for determination pursuant 16 to a Rule 12(b)(6) motion. 17 18 Robinson also argues that the complaint against her should be dismissed 19 because “[Insurance Defendants] have failed to establish that [she] caused the . . . 20 damages.”20 Her argument is without merit. Insurance Defendants have adequately 21 22 pled a claim of negligence, including the element of causation: 23 [Robinson] breached [her] duty to safely store [Lau’s] fifth wheel recreational vehicle by failing to properly maintain 24 its storage facility by failing to assure its roof was in a well- 25 built condition to withstand the snowfall in Southcentral Alaska and/or failing to remove the snow in a timely 26
27 18 Docket 13 at 6. 28 19 Widmyer, 584 P.2d at 14. 20 Docket 12 at 5. 1 fashion prior to the roof caving in and causing damage to the plaintiff’s recreational vehicle. . . . [Robinson’s] breach 2 of its duty to maintain a safe place to store plaintiff’s RV 3 has resulted in damage to [Insurance Defendants].21
4 The court must take these allegations as true. That is, contrary to Robinson’s argument, 5 Insurance Defendants do not need to prove their theory of liability at this point in the 6 7 litigation. 8 Robinson argues that proximate causation has not been, and cannot be, 9 adequately pled here because all reasonable jurors in Alaska would “blame the . . . 10 snow” not her. The court disagrees. Here, there are issues of fact surrounding the 11 12 amount of snowfall, the predictability of such snowfall, the condition of the roof, and 13 the effect of the snow on the roof. These facts all are relevant to the issue of causation. 14 It is entirely plausible that a jury could conclude that Robinson’s failure to anticipate 15 16 and plan for a “great” amount of snow accumulation on her facility’s roof makes her 17 legally responsible for the roof’s collapse. 18 V. CONCLUSION 19 20 Based on the preceding discussion, Robinson’s motion to dismiss at 21 docket 12 is DENIED. 22 IT IS SO ORDERED this 12th day of July, 2022, at Anchorage, Alaska. 23
24 /s/ John W. Sedwick 25 JOHN W. SEDWICK Senior United States District Judge 26
27 28 21 Docket 6 at 4–5 ¶¶ 4, 6.