United States District Court, D. Arizona
Murray Snow Chief United States District Judge.
before the Court is the Motion to Dismiss of Defendant Four
Season Travel, LLC (Doc. 14). For the following reasons the
motion is granted.
case is before the Court in diversity jurisdiction, having
been removed by the Defendants from the Superior Court for
Maricopa County on March 18, 2019. (Doc. 1.) The complaint
alleges the following facts, which for purposes of this
motion to dismiss are taken as true. Plaintiffs Sandrine and
Gustave Mounier are residents of France who decided to visit
the American Southwest. As part of their visit, they
contracted with Defendant Geo Tours for two tickets on a bus
tour of various areas in northern Arizona. Geo Tours, as part
of its management of the tour, had an insurance policy that
covered the trip. Geo Tours contracted with Defendant Four
Season Travel to provide a bus and chauffeur for the trip.
Four Season insured the bus with Defendant RLI Corp., and the
contract included an underinsured motorist provision
night of November 10, 2015, apparently after they had been
dropped off at their hotel for the evening, the Mouniers were
in a crosswalk in Page, Arizona, when non-party Albert Henry
“drove his vehicle so as to collide into the Mouniers
and/or lead them to believe they would be collided into as
they traversed a crosswalk on foot.” (Doc. 1 at 7.) Ms.
Mounier was injured and was required to return home early,
where she underwent surgery on her wrist and has since lost
some function in the joint.
Mouniers recovered the limits of Albert Henry's liability
insurance policy and then notified Geo Tours and Four Season
that they would be making claims against their insurance.
They also requested copies of the relevant policies and the
accompanying limits. Four Season forwarded the claim over to
RLI, its insurer. RLI denied the claim and refused to provide
a copy of the entire insurance policy to the Mouniers. The
Mouniers asked RLI to reconsider but were again denied.
Eventually, RLI offered $10, 000 to Ms. Mounier. The Mouniers
then filed this action, alleging-as relevant to the current
motion-a claim of “Negligence, Gross Negligence, [and]
Punitive Damages” against all Defendants, including
Season now moves to dismiss that claim, arguing that the
Mouniers have failed in the complaint to state a plausible
claim on which relief could be granted.
Rule of Civil Procedure 12 (b)(6) is designed to “test[
] the legal sufficiency of a claim.” Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive
dismissal for failure to state a claim pursuant to Rule
12(b)(6), a complaint must contain more than “labels
and conclusions” or a “formulaic recitation of
the elements of a cause of action”; it 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). While
“a complaint need not contain detailed factual
allegations . . . it must plead ‘enough facts to state
a claim to relief that is plausible on its face.'”
Clemens v. DaimlerChrysler Corp., 534 F.3d 1017,
1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at
570). “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) (citing
Twombly, 550 U.S. at 556). Plausibility requires
“more than a sheer possibility that a defendant has
acted unlawfully.” Twombly, 550 U.S. at 555.
analyzing a complaint for failure to state a claim under Rule
12(b)(6), “[a]ll allegations of material fact are taken
as true and construed in the light most favorable to the
nonmoving party.” Smith v. Jackson, 84 F.3d
1213, 1217 (9th Cir. 1996). However, legal conclusions
couched as factual allegations are not given a presumption of
truthfulness, and “conclusory allegations of law and
unwarranted inferences are not sufficient to defeat a motion
to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699
(9th Cir. 1998).
The negligence claim is not barred by the statute of
Season argues that the negligence claim is barred by the
applicable statute of limitations. Negligence actions in
Arizona must be brought within two years of the accrual of
the cause of action. Rowland v. Kellogg Brown and Root,
Inc., 210 Ariz. 530, 532, 115 P.3d 124, 126
(Ariz.Ct.App. 2005) (citing Ariz. Rev. Stat. Ann. §
12-542). The cause of action accrues when “the
plaintiff knows or, in the exercise of reasonable diligence
should know the facts underlying the cause.”
Tavilla v. Cephalon, Inc., 870 F.Supp.2d 759, ...