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Vossoughi v. AIG Property Casualty Co.

United States District Court, S.D. California

June 9, 2017



          Barry Ted Moskowitz Chief Judge

         Defendants have filed a motion seeking partial dismissal of Plaintiff's complaint. (ECF No. 5.) For the reasons below, Defendants' motion will be granted in part and denied in part.

         I. BACKGROUND

         Plaintiff Mehdi Vossoughi sues defendants AIG Property Casualty Company (“AIG”) and National Union Fire Insurance Company of Pittsburgh Pennsylvania (collectively, “Defendants”) for claims sounding in insurance bad faith. He alleges his sister purchased insurance policies from Defendants (the “policies”) that provided a death benefit to be paid to him as her sole beneficiary in the event of her accidental death. Compl. ¶ 6.

         After Plaintiff's sister was struck by a vehicle and killed, Plaintiff submitted a claim to Defendants seeking benefits under the policies' accidental death provisions. Compl. ¶ 7. Defendants requested further information, which Plaintiff provided. Id. Defendants thereafter represented “that no coverage existed” and denied Plaintiff's claim. Id.

         Plaintiff retained counsel, who “reviewed such Policies as Plaintiff had available to him” and concluded they provided coverage. Compl. ¶ 8. Counsel sent a letter to Defendants demanding payment. Id. “[D]efendants responded, first, with a claim that the insurance Policies provided no such coverage” and later took the position that the policies “had been canceled for non-payment of the premiums.” Id. Plaintiff determined that contrary to these contentions, all premiums had, in fact, been paid, via Defendants' automatic withdrawals from his sister's bank account, which had continued months after her death. Id.

         Plaintiff's counsel also asked Defendants to provide copies of the relevant policies so he could investigate their coverage positions. Compl. ¶ 9. Despite these requests, Defendants refused and have continued to refuse to provide copies of the policies or pay Plaintiff's benefits. Id.

         On December 21, 2016, Plaintiff filed this action in state court. Not. of Removal. He states four claims for relief: (1) insurance bad faith; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; and (4) breach of fiduciary duty; and he seeks general and punitive damages.

         On February 8, 2017, Defendants removed the action to this Court on the basis of diversity jurisdiction. Not. of Removal (ECF No. 1).

         On February 15, 2017, Defendants filed the instant motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), seeking dismissal of Plaintiff's first, third, and fourth claims for relief. Plaintiff opposes the motion.


         A. Legal Standard

         Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint in whole or in part if the plaintiff has failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A district court's dismissal for failure to state a claim under Rule 12(b)(6) is proper if there is a “‘lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'” Conservation Force v. Salazar, 646 F.3d 1240, 1241 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988)). A complaint will survive a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         If a court dismisses a claim, it must consider whether to allow plaintiff the opportunity to amend it to cure the deficiencies. Rule 15 advises that "leave shall be freely given when justice so requires, ” a policy that is “to be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). “Dismissal without leave to amend is improper unless it is clear…that the complaint could not be saved by any amendment." Thinket Ink Info Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) (citation omitted). A “district court does not err in denying leave to amend where the amendment would be futile.” Id. (internal quotation marks omitted). An amendment is ...

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