United States District Court, D. Arizona
DOUGLAS L. RAYES UNITED STATES DISTRICT JUDGE.
the Court is Defendants Christopher Miller and Nathan
Fesler’s motion to dismiss. (Doc. 14.) The motion is
fully briefed. For the reasons stated below, the motion
September 2012, Plaintiff Marc Rosso was injured on the job
while employed with Fresh and Easy Neighborhood. (Doc. 1,
¶ 6.) He filed a claim for workers’ compensation
with Defendant Liberty Mutual Insurance Corp., which assigned
the claim to one of its adjusters, Fesler. (Id.,
¶ 7.) Fesler denied the claim on behalf of Liberty
Mutual on August 28, 2013. (Id.) On November 12,
2013, Liberty Mutual rescinded its denial, but later denied
benefits on April 9, 2014. (Id.) On February 17,
2015, the Industrial Commission of Arizona overturned Liberty
Mutual’s denial. (Id.) The claim was
reassigned to Miller, and benefits were again denied on
February 11, 2016. (Id.)
alleges, inter alia, that Defendants failed to
conduct a reasonable investigation of his claim and that he
is entitled to benefits. (Id., ¶ 9a.) He brings
claims for insurance bad faith against Liberty Mutual and for
aiding and abetting Liberty Mutual’s bad faith against
Fesler and Miller. (Id., ¶¶ 13-26.) Rosso
also seeks punitive damages. (Id., ¶¶
27-30.) Fesler and Miller now move to dismiss the aiding and
abetting claim. (Doc. 14.)
survive dismissal for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6), a complaint must
contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
task when ruling on a motion to dismiss “is to evaluate
whether the claims alleged [plausibly] can be asserted as a
matter of law.” See Adams v. Johnson, 355 F.3d
1179, 1183 (9th Cir. 2004); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). When analyzing the
sufficiency of a complaint, the well-pled factual allegations
are taken as true and construed in the light most favorable
to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063,
1067 (9th Cir. 2009). However, legal conclusions couched as
factual allegations are not entitled to the assumption of
truth, Iqbal, 556 U.S. at 680, and therefore are
insufficient to defeat a motion to dismiss for failure to
state a claim, In re Cutera Sec. Litig., 610 F.3d
1103, 1108 (9th Cir. 2008).
argue the aiding and abetting claim fails as a matter of law
for two reasons: (1) Rosso fails to allege that Defendants
engaged in secondary conduct that aided or abetted
Liberty’s alleged bad faith, and (2) under Arizona law,
an insurer and its adjuster act as one entity, and thus
cannot aid or abet itself. Because Defendants’ first
argument is dispositive, the Court will not address whether
an insurer and its adjuster are one entity under Arizona law.
Arizona, an individual is liable for aiding and abetting the
commission of a tort if: “(1) the primary tortfeasor
committed a tort that injured the plaintiff; (2) the
secondary tortfeasor defendant knew that the primary
tortfeasor’s conduct was a breach of its duty; and (3)
the secondary tortfeasor substantially assisted or encouraged
the primary tortfeasor in the achievement of the
breach.” Lambert v. Liberty Mut. Fire Ins.
Co., No. 2:14-cv-00521-JWS, 2014 WL 5432154, at *2 (D.
Ariz. Oct. 24, 2014); see also Wells Fargo Bank v. AZ
Laborers, Teamsters & Cement Masons Local No. 395 Pension
Trust Fund, 38 P.3d 12, 23 (Ariz. 2002). “For
there to be harm to a third person, there must be at least
two tortfeasors.” Ortiz v. Zurich Am. Ins.
Co., No. CV-13-02097-PHX-JAT, 2014 WL 1410433, at *3 (D.
Ariz. April 11, 2014). In addition, “there must be some
factual allegation showing [the secondary tortfeasor] took
separate action in concert with the action giving rise to
[the plaintiff’s] claim against the [primary
tortfeasor].” Id.; see also Jones v. Colo.
Cas. Ins. Co., No. CV 12-1968-PHX-JAT, 2013 WL 4759260,
at *3 (D. Ariz. Sept. 4, 2013).
alleges Liberty Mutual committed bad faith by “refusing
to properly investigate and effectively denying necessary
medical care and other benefits, without any reasonable basis
to do so.” (Doc. 1, ¶ 15.) He asserts Liberty
Mutual unreasonably interpreted its obligations under the
Arizona Workers’ Compensation Act, abused the
litigation process and procedures of the Industrial
Commission of Arizona to delay benefits administration, and
needlessly compelled him through administrative litigation.
(Id., ¶ 16a-d.) With respect to Fesler and
Miller, Rosso alleges that they knew his claim was “not
fairly debatable” and “substantially assisted or
encouraged” Liberty Mutual in denying his claim.
(Id., ¶¶ 22-23.) Rosso alleges that all
Defendants failed to conduct a reasonable investigation of
the claim, failed to recognize the extent of his injuries,
failed to accept medical evidence, denied the existence and
extent of his injury without input from medically-trained
individuals, ignored information favorable to his claim, and
created pretextual reasons to delay and deny his claim.
(Id., ¶¶ 9a-f.).
the truth of these allegations, Rosso has alleged that
Liberty Mutual committed the tort of insurance bad faith by
failing to adequately handle his claim. In order to state a
claim for aiding and abetting, however, Rosso “must not
only allege actions that constitute a breach of the
insurer’s duty, but also separate actions performed by
the adjuster that substantially assisted or encouraged the
breach.” Lambert, 2014 WL 5432154, at *3.
Here, there are no allegations that Fesler or Miller engaged
in any separate tortious conduct that aided or abetted the
alleged bad faith. Rosso explicitly alleges that the same
actions give rise to his claims of bad faith and aiding
and abetting. (See id., ¶¶ 9a-f, 22-23.)
Liberty Mutual could not have committed the alleged bad faith
without Fesler and Miller, both of whom actually handled the
claim. In other words, Fesler and Miller are alleged to have
actually committed the primary tort; they are not alleged to
have taken separate actions to assist Liberty Mutual in
committing the primary tort. Similar allegations have been
found insufficient by numerous courts in this District.
See e.g., Lemaster v. Hartford Ins. Co. of the
Midwest, No. CV-13-02017-PHX-JJT, 2016 WL 705125, at *10
(D. Ariz. Feb. 23, 2016) (granting summary judgment in favor
of adjuster on aiding and abetting claim where there was no
evidence adjuster “performed separate actions that
substantially assisted or encouraged” the alleged bad
faith); Lambert, 2014 WL 5432154, at *3
(plaintiff’s allegations that adjuster’s
“filing of a Notice of Claim Status with the Arizona
Industrial Commission without a reasonable basis and without
first conducting an adequate investigation”
insufficient to plead aiding and abetting claim);
Ortiz, 2014 WL 1410433, at *1, 3 (finding similar
allegations of wrongdoing alleged against all the defendants
failed to state a claim for aiding and abetting because the
plaintiff “allege[d] the same actions give rise to both
the bad faith claim and the aiding and abetting
claim”); Jones, 2013 WL 4759260, at *3 (same);
Young v. Liberty Mut. Grp., Inc., No.
CV-12-2302-PHX-JAT, 2013 WL 840618, at *3 (D. Ariz. March 6,
2013) (same). Consequently, the Court finds Rosso fails to
state a claim for aiding and abetting against Fesler and
argues that several courts in this District have permitted
such a claim. These cases, however, are not binding and are
distinguishable from the case at hand. See Haney v. ACE
Am. Ins. Co., No. CV-13-02429-PHX-DGC, 2014 WL 1230503,
at *4 (D. Ariz. March 25, 2014) (noting that a separate tort
must be alleged, but finding bare allegations that the
adjuster unreasonably delayed the claim sufficient);
Inman v. Wesco Ins. Co., No. CV-12-02518-PHX-GMS,
2013 WL 2635603, at *4 (D. Ariz. June 12, 2013) (not
addressing whether separate tort was pled, instead finding
that such a claim is “not barred simply because a
person worked for the alleged primary tortfeasor and was
acting within the scope of her employment”). Moreover,
these decisions carry even less weight given that “no
conclusive Arizona case law exists” regarding whether
“Arizona law would permit a claim against an adjuster
for aiding and abetting” at all. Lambert, 2014
WL 5432154, at *3.
addition, contrary to Rosso’s argument, Morrow v.
Boston Mutual Life Insurance Co., CIV 06-2635-PHX-SMM,
2007 WL 3287585 (D. Ariz. Nov. 5, 2007) supports the
Court’s analysis. In Morrow, the plaintiff
alleged two distinct tortious actions against two defendants:
(1) the insurer hired a biased medical examiner to review the
claim, and (2) the medical examiner knowingly provided a
biased and unsupported opinion in order to deny benefits.
Id. at * 1, 5. The Court found that these
allegations were sufficient to state a claim of aiding and
abetting against the medical examiner. Id. at *6.
Unlike Morr ...