United States District Court, E.D. Wisconsin
DAVID B. WILLIAMS and KATHLEEN E. WILLIAMS, Plaintiffs,
THE TRAVELERS HOME AND MARINE INSURANCE COMPANY, JOE O'GRADY, and ROB GROSS, Defendants.
Stadtmueller, U.S. District Judge
David and Kathleen Williams (collectively, the
“Plaintiffs”) filed this action in Walworth
County Circuit Court against Defendants The Travelers Home
and Marine Insurance Company (“Travelers”), Joe
O'Grady (“O'Grady”), and Rob Gross
(“Gross”), alleging claims for breach of
contract, bad faith, misrepresentation, and breach of
fiduciary duty. (Docket #1-2). Defendants removed the case to
this Court pursuant to 28 U.S.C. § 1441. (Docket #1).
before the Court are two motions to dismiss, one filed by
O'Grady and Gross, (Docket #9), and the other filed by
Travelers, (Docket #11). Both motions are fully briefed and
ripe for adjudication. For the reasons explained below,
Travelers' motion will be granted in part and denied in
part. O'Grady and Gross' motion will be granted.
STANDARD OF REVIEW
defendants bring their motions to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a
viable claim for relief. Fed.R.Civ.P. 12(b)(6). To state a
viable claim, a complaint must provide “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). In other
words, the complaint must give “fair notice of what the
. . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
reviewing the Plaintiffs' Complaint, the Court is
required to “accept as true all of the well-pleaded
facts in the complaint and draw all reasonable inferences in
[Plaintiffs'] favor[.]” Kubiak v. City of
Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016) (citation
omitted). Ultimately, dismissal is only appropriate “if
it appears beyond doubt that the plaintiff[s] could prove no
set of facts in support of [their] claim that would entitle
[them] to the relief requested.” Enger v. Chicago
Carriage Cab Corp., 812 F.3d 565, 568 (7th Cir. 2016).
following factual allegations are taken from Plaintiffs'
Complaint. (Docket #1-2). Plaintiffs have a homeowners
insurance policy through Travelers covering their home in
Williams Bay, Wisconsin. They allege that on May 2, 2018, a
hail storm caused damage to the roof and siding of their
Williams Bay home, as well as to adjacent sheds. Id.
Plaintiffs contacted their contractor, Bull Dog Builders LLC
(“Bull Dog Builders”), to inspect their property
and advise on whether they had a valid insurance claim. The
contractor concluded they did.
2, 2018, Travelers insurance agent Gross went to the property
to inspect the alleged damage. He found two damaged
downspouts, but no hail damage to the roof. Plaintiffs allege
that Gross's inspection was insufficient because he did
not go up on the roof and he did not inspect the two sheds.
14, 2018, at Plaintiffs' request, Travelers agent
O'Grady performed another inspection with Plaintiffs'
contractor. O'Grady used a drone to perform the
inspection and did not go up on the roof. He also did not
inspect the sheds. At this meeting, Plaintiffs gave
O'Grady a letter invoking their right of appraisal.
17, 2018, O'Grady informed Plaintiffs by letter that
their claim was denied because the damage to their property
was due not to hail but to wear and tear, blisters, and
damage from fallen tree limbs. His letter referenced an
appraisal provision which allowed Plaintiffs to demand an
appraisal if they disagreed with Travelers' assessment of
damage. On August 15, 2018, Plaintiffs sent an email to
Travelers inquiring about their right of appraisal. Travelers
denied the request because the estimated damage did not
exceed Plaintiffs' insurance deductible.
September 12, 2018, Plaintiffs' counsel gave notice to
Travelers that it was violating the terms of Plaintiffs'
policy by denying a valid insurance claim and operating in
bad faith. Travelers responded that no hail damage was
identified. On October 23, 2018, Plaintiffs provided
Travelers with a report from Bull Dog Builders that included
an estimate of damages and pictures of the roof, siding, and
sheds. O'Grady again denied there was any hail damage to
bring four causes of action. The first, breach of contract,
is alleged only against Travelers. The other three causes of
action-bad faith, misrepresentation, and breach ...