United States District Court, D. Nebraska
MILLARD GUTTER COMPANY, a Corporation d/b/a MILLARD ROOFING AND GUTTER, Plaintiff,
CONTINENTAL CASUALTY, a/k/a CNA, a/k/a or d/b/a CONTINENTAL CASUALTY COMPANY, Defendant.
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge
are two insurance policies at the center of the parties'
dispute. Filing 1 at 5. The first policy is owned by David
Schroeder, and the second policy is owned by Midwest Screw
Products. Filing 1 at 5. Claims under both of those policies
were assigned to the plaintiff, Millard Gutter Company,
following a series of hail storms in Nebraska. Filing 1 at 5.
Gutter alleges that under the Schroeder and Midwest Screw
policies, the defendant, Continental Casualty, is obligated
to indemnify Millard Gutter for losses sustained as a result
of the hail storms. Seefiling 1 at 5. But according
to Millard Gutter, Continental Casualty has failed to do so.
Filing 1 at 6. So, Millard Gutter sued Continental Casualty
for breach of contract. Filing 1 at 7.
Casualty moves to dismiss that claim. Filing 5 at 1. For the
reasons explained below, the Court will grant that motion in
part and deny it in part.
complaint must set forth a short and plain statement of the
claim showing that the pleader is entitled to relief.
Fed.R.Civ.P. 8(a)(2). This standard does not require detailed
factual allegations, but it demands more than an unadorned
accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complaint need not contain detailed factual
allegations, but must provide more than labels and
conclusions; and a formulaic recitation of the elements of a
cause of action will not suffice. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). For the purposes of a
motion to dismiss a court must take all of the factual
allegations in the complaint as true, but is not bound to
accept as true a legal conclusion couched as a factual
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must also contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. Iqbal, 556 U.S. at 678. 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. Id. Where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but has not shown-that
the pleader is entitled to relief. Id. at 679.
Casualty claims that Millard Gutter's complaint must be
dismissed because Continental Casualty is not a party to
either insurance policy involved in this dispute. Filing 7 at
3-5. In support of that contention, Continental Casualty
points out that, at least under the Midwest Screw policy, the
insurance coverage is provided by "NATIONAL FIRE
INSURANCE COMPANY OF HARTFORD." Filing 6-2 at 5; 155. In
light of this, Continental Casualty argues that National
Fire, not Continental Casualty, is obligated, if at all, to
indemnify Millard Gutter for its losses. Seefiling
6-2 at 5; 155.
Gutter does not dispute the fact that the insurance coverage
under the Midwest Screw policy was provided by National Fire.
Filing 9 at 3. Instead, Millard Gutter claims that the
insurance policy is not embraced by the pleadings, and as
such, the Court should disregard that language at this stage
of the proceedings. Filing 9 at 2-3. Although it is true that
if the Court considers matters outside the pleadings, the
motion to dismiss must be converted to one for summary
judgment. Fed.R.Civ.P. 12(d). It is also true that the Court
may consider exhibits attached to the complaint and materials
that are necessarily embraced by the pleadings without
converting the motion. Mattes, 323 F.3d at 697 n.4.
Documents necessarily embraced by the pleadings include those
whose contents are alleged in a complaint and whose
authenticity no party questions, but which are not physically
attached to the pleading. Ashanti v. City of Golden
Valley, 666 F.3d 1148, 1151 (8th Cir. 2012).
case, the language of the Midwest Screw's insurance
policy is clearly embraced by the pleadings. Millard
Gutter's complaint explicitly alleges that Midwest Screw
assigned the benefits of its insurance policy to Millard
Gutter. Filing 1 at 5. And under the terms of that policy,
Millard Gutter claims that Continental Casualty "has a
contractual obligation to pay the full amount of the losses,
including the cost to repair, restore or replace the damages,
less the applicable deductible" to Millard Gutter.
Filing 1 at 7. The complaint also acknowledges that
"Millard Roofing's claim arises pursuant to an
instrument in writing"--i.e., the language of
the policies. Seefiling 1 at 8. So, contrary to
Millard Gutter's contention, the policies are necessarily
embraced by the pleadings, and the Court may consider those
policies when deciding whether Millard Gutter has
sufficiently stated a breach of contract claim.
brings the Court to the merits of Continental Casualty's
argument: Millard Gutter cannot, as a matter of law, state a
contract claim against Continental Casualty. Filing 5 at 1.
To state a cause of action for breach of contract, the
plaintiff must plead and prove the existence of a promise,
its breach, damage, and compliance with any conditions
precedent that activate the defendant's duty.
Henriksen v. Gleason, 643 N.W.2d 652 (Neb. 2002).
Millard Gutter's allegations under the Midwest Screw
policy fail to state a breach of contract claim. Indeed, as
the Court noted above, under the plain language of that
policy, that coverage is provided by National Fire
Insurance--not Continental Casualty. Filing 6-2 at 103. And
Continental Casualty cannot breach an agreement for insurance
coverage that it did not provide. Filing 6-2 at 103. The
Court is also not persuaded by Millard Gutter's
contention that even if Continental Casualty did not issue
the Midwest Screw policy, Continental Casualty is still a
party to that agreement.
to Millard Gutter, the existence of the letters
"CNA"--which appear at the top of several pages of
the Midwest Screw policy, seefiling 6-2 at 4-6; 24;
26; 29; 69-70; 86; 91-93; 101-103; 128; 130; 140-142--are
actually references to Continental Casualty. Filing 9 at 5-7.
But as Continental Casualty points out, "CNA" is a
service mark owned by a different entity: CNA Financial
Corporation. Filing 12-1 at 1; seeLevy v.
Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (public records
may be considered in deciding Rule 12(b)(6) motion);
Quinn v. Ocwen Fed. Bank FSB, 470 F.3d 1240, 1244
(8th Cir. 2006). And nothing in Continental Casualty's
complaint alleges that CNA Financial Corporation might be