United States District Court, D. Massachusetts
PHILIP C. BARRON, D.C.; GILBERT S. WEINER, D.C.; and BRIAN T. FARRELL, D.C., Plaintiffs,
NCMIC INSURANCE CO., Defendant.
MEMORANDUM AND ORDER ON MOTION TO DISMISS
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
(the “Barron Chiropractors”) are chiropractors
who are insured under a professional liability insurance
policy provided by Defendant NCMIC Insurance Co.
(“NCMIC”). They filed this lawsuit asserting that
NCMIC has a duty to defend and indemnify them in an action
that is currently pending before this Court: Government
Employees Insurance Company v. Barron Chiropractic &
Rehabilitation, P.C., et al., No. 16-cv-10642-ADB (D.
Mass. Apr. 1, 2016) (the “Underlying Action”).
NCMIC moves to dismiss the complaint for failure to state a
claim. [ECF No. 5]. For the reasons that follow, the motion
to dismiss is GRANTED and the complaint is
DISMISSED without prejudice. The Barron
Chiropractors may file an amended complaint within 30 days of
the date of this Order.
evaluating NCMIC's motion to dismiss, the Court accepts
the well-pleaded allegations as true. See Ruivo v. Wells
Fargo Bank, 766 F.3d 87, 90 (1st Cir. 2014). The Barron
Chiropractors have attached several documents to the
Complaint, which the Court may consider as part of the
pleadings. See Giragosian v. Ryan, 547 F.3d 59, 65
(1st Cir. 2008); Trans-Spec Truck Serv., Inc. v.
Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008).
Barron Chiropractor is insured under a Professional Liability
Insurance Policy issued by NCMIC (the “Policy”)
and has paid all of the required premiums. Compl.
¶¶ 9-12; [ECF Nos. 1-1, 1-2, 1-3]. In relevant part,
the Policy's “Coverage Agreement” states:
We will pay on behalf of an
insured all sums to which this insurance
applies and for which an insured becomes
legally obligated to pay as damages because
of an injury. The injury
must be caused by an accident arising from an
incident during the policy
period. The injury must also be
caused by an insured under this policy.
[ECF No. 1-1 at 22]. The Policy's “Defense and
Settlement Clause” further provides:
We have the right and duty to defend any
claim or suit brought seeking
damages against the insured
for an injury covered by this policy.
We have the right to appoint counsel and
we may investigate any
claim made or suit brought. With
your written consent, we
may settle any claim or suit as
we believe may be proper.
We shall not be obligated to pay any
claim or judgment or to defend or continue
to defend any suit after the limit of our
liability is exhausted because of payment of judgments or
settlements. Your consent shall not be
required to make a settlement or payment after a judgment has
been entered against you.
[ECF No. 1-1 at 22]. “We” refers to NCMIC and
“You” refers to the insured. Id. at 21.
“Claim” means “a written demand for money
or services arising from an alleged injury
to which this insurance applies.” Id.
“Injury” is defined as “bodily injury,
sickness, disease or death sustained by any one
person.” Id. “Incident” refers to
“any negligent omission, act or error in the providing
of professional services by an insured or
any person for whose omissions, acts or errors an
insured is legally responsible.”
Id. “Professional services” covers
“services which are within the scope of practice of a
chiropractor in the state or states in which the chiropractor
is licensed.” Id. “Damages” means
“the monetary portion of any judgment, award or
settlement, ” except for punitive or exemplary damages,
multiplied compensatory damages, uninsurable judgments or
awards, and fines, penalties, or sanctions. Id.
April 20, 2016, the Barron Chiropractors notified NCMIC of
the Underlying Action which had been filed on April 1, 2016,
and requested defense and indemnity from NCMIC under the
Policy. Compl. ¶¶ 2, 15. NCMIC denied coverage on
May 10, 2016. Id. ¶¶ 15-16. On October 12,
2017, the Barron Chiropractors filed their complaint
asserting that NCMIC breached the Policy by failing to defend
and indemnify them with respect to the Underlying Action, and
seeking a declaration of the parties' defense and
indemnification rights and duties under the Policy. [ECF No.
1]. NCMIC moved to dismiss the Complaint shortly thereafter
on November 6, 2017. [ECF Nos. 1, 5].
MOTION TO DISMISS STANDARD
evaluate a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), the Court
must “accept as true all well-pleaded facts alleged in
the complaint and draw all reasonable inferences therefrom in
the pleader's favor.” A.G. ex rel. Maddox v. v.
Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting
Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir.
2011)). The complaint must set forth “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” and should “contain ‘enough
facts to state a claim to relief that is plausible on its
face.'” Maddox, 732 F.3d at 80 (quoting
Fed.R.Civ.P. 8(a)(2) and Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “To cross the plausibility
threshold a claim does not need to be probable, but it must
give rise to more than a mere possibility of
liability.” Grajales v. P.R. Ports Auth., 682
F.3d 40, 44-45 (1st Cir. 2012) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A determination
of plausibility is ‘a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.'” Id. at 44
(quoting Iqbal, 556 U.S. at 679). “[T]he
complaint should be read as a whole, not parsed piece by
piece to determine whether each allegation, in isolation, is
plausible.” Hernandez-Cuevas v. Taylor, 723
F.3d 91, 103 (1st Cir. 2013) (quoting Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 14 (1st Cir. 2011)).
“The plausibility standard invites a two-step
pavane.” Maddox, 732 F.3d at 80. First, the
Court “must separate the complaint's factual
allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be
credited).” Id. (quoting Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)).
Secondly, the Court “must determine whether the
remaining factual content allows a ‘reasonable
inference that the defendant is liable for the misconduct
alleged.'” Id. (quoting
Morales-Cruz, 676 F.3d at 224).
Relevant Principles of ...