Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tempel v. Ace American Insurance Co.

United States District Court, D. Montana, Missoula Division

December 6, 2016



          Dana L. Christensen, Chief Judge.

         Before the Court is the motion to dismiss of Defendant Mary Kay Inc. ("Mary Kay").[1] For the reasons given below, the Court grants the motion.


         "On a motion to dismiss, material allegations of the complaint are taken as admitted, and the complaint is to be liberally construed in favor of the plaintiff." Kennedy v. H& MLanding, Inc., 529 F.2d 987, 989 (9th Cir. 1976).

         On December 12, 2009, Launa Benson, drove into a busy street in Missoula, Montana, failing to notice that she was on a collision course with a vehicle driven by Plaintiff Christina Tempel. Tempel suffered injuries as a result of the accident. Benson's vehicle was owned by Defendant Mary Kay and insured through Defendant ACE American Insurance Co. ("ACE"). Mary Kay's policy with ACE contains either a high deductible or a self-insured retention.[2]

         Following the accident, Tempel sought recovery from Benson, including advance payment of her medical claims. Mary Kay and ACE handled her claim. They initially denied her request for advance payment of medical expenses, but "eventually randomly paid some expenses while ignoring other medical expenses." (Doc. 43 at 4.) On August 2, 2012, Tempel sued Benson in the Montana Fourth Judicial District Court, Missoula County. The case proceeded to jury trial, and Tempel received a verdict, recovering $268, 435.94. Judgment was entered on October 2, 2013.[3]


         Mary Kay raises three theories in support of her argument for dismissal: (1) that Tempel failed to allege that Mary Kay was an insurer such that she may bring a bad faith claim against Mary Kay; (2) that Tempel's claims are barred by the relevant statutes of limitations; and (3) that Tempel's common-law bad faith claim is barred by res judicata. The Court disagrees with Mary Kay regarding the first theory. However, the second theory is determinative because Tempel's claims were not timely filed. Finding that dismissal is warranted because Tempel's claims are time-barred, the Court does not address the issue of res judicata.

         A. Judicial Notice

         As a threshold issue, the Court must determine whether to consider documents filed by Mary Kay. The Court's role in ruling on a 12(b)(6) motion is generally limited by the allegations within the Complaint. Where an affirmative defense arises from the complaint, though, it is appropriate for the Court to determine whether the defense operates to bar the claim. "[A] statute-of-limitations defense, if apparent from the face of the complaint, may properly be raised in a motion to dismiss." Seven Arts Filmed Entm 't Ltd. v. Content Media Corp. 733 F.3d 1241, 1254 (9th Cir. 2013) (citation and internal quotation marks omitted).

         Mary Kay asks the Court to consider various documents from the state court proceeding. Because it is ruling on Mary Kay's 12(b)(6) motion, the Court is largely confined to the four corners of the Complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). "However, a court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment, as long as the facts noticed are not subject to reasonable dispute." Intri-Plex Techs., Inc. v. Crest Grp., 499 F.3d 1048, 1052 (9th Cir. 2007) (citations and internal quotation marks omitted).

         Here, Tempel's claims arise from Mary Kay's actions leading up to and throughout the state court litigation. The Complaint itself does not include all of the information relevant to Mary Kay's statute of limitations and res judicata defenses. For example, although the Complaint mentions trial, it does not include trial dates. Nor does the Complaint describe the substance of Tempel's state court claims. Documents from the state court proceeding are therefore relevant. The state court proceedings are "matters of public record, " and their authenticity is undisputed. Thus, it is appropriate for the Court to take judicial notice of these documents.

         B. Mary Kay as Insurer

         Mary Kay argues that Tempel has no statutory or common-law bad faith claim against it because she has failed to allege that Mary Kay was an insurer. Following Mary Kay's motion to dismiss and with permission of the Court, Tempel filed her Third Amended Complaint. The Complaint has now corrected the alleged deficiency in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.