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Williams v. The Travelers Home and Marine Insurance Co.

United States District Court, E.D. Wisconsin

August 15, 2019



          J. P. Stadtmueller, U.S. District Judge

         1. INTRODUCTION

         Plaintiffs 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).

         Now 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.


         The 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) (citation omitted).

         In 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).


         The 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.

         On June 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.

         On July 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.

         On July 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.

         On 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 Plaintiffs' property.

         4. DISCUSSION

         Plaintiffs 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 ...

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