United States District Court, D. Maine
DECISION AND ORDER ON DEFENDANT'S MOTION TO
DISMISS AMENDED COMPLAINT
E. WALKER UNITED STATES DISTRICT JUDGE
True North Maine Inc. and Cooke Aquaculture, Inc.
(collectively “True North” or
“Plaintiffs”), bring this diversity action
asserting claims against Defendant, Liberty Mutual Insurance
Company for breach of contract and violation of Maine's
Unfair Claims Settlement Practices Act as well as seeking
both a declaratory judgment and injunctive relief following
Liberty's refusal to provide a defense and
indemnification against a suit initiated against Plaintiffs
by Plaintiffs' employee, Brian Taylor. Amended Complaint
(ECF No. 11). Defendant has requested dismissal of the action
and has not otherwise answered the original or amended
complaint. For the reasons explained herein, Defendant's
motion to dismiss the original complaint is denied as moot
and Defendant's motion to dismiss Plaintiffs' amended
complaint is granted in part and denied in part.
accept as true the Plaintiffs' well-pleaded allegations
and will draw all reasonable inferences in the
Plaintiffs' favor. Fed.R.Civ.P. 12(b)(6); Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 55 (1st
Cir. 2012); Sanchez v. Pereira-Castillo, 590 F.3d
31, 41 (1st Cir. 2009).
True North Maine, Inc., is a Maine corporation with a place
of business in Machiasport, Maine. Amended Complaint
(“Am. Compl.”) ¶ 1 (ECF No. 11). True North
is a subsidiary of True North Salmon U.S., Inc., which is a
wholly owned subsidiary of Cooke Aquaculture, Inc., a
Canadian corporation. Id. ¶¶ 2, 3.
True North and Cooke were insured persons under three
separate insurance policies issued by the Defendant, Liberty
Mutual Insurance Company: (1) Canadian Commercial General
Liability Policy No. 1000043008-04, effective June 14, 2016,
through June 14, 2017 (“Canadian CGL Policy”);
(2) United States Commercial General Liability Policy No.
TB1-B71-170961-026, effective June 14, 2016, through June 14,
2017 (“U.S. CGL Policy”); and (3) Umbrella
Liability Policy No. 1000050660-04, effective June 14, 2016,
through June 14, 2017 (“Umbrella Policy”). Am.
Compl. ¶ 5.
August 11, 2017, Brian Taylor filed suit against True North
and Cooke in Washington County Superior Court (the
“Taylor Suit”). Id. ¶ 7. Taylor, a
resident of Baileyville, Maine, alleges that while working at
True North's Machiasport location on November 25, 2016,
he purchased from a co-worker and then ingested heroin and/or
cocaine. Id. ¶¶ 1, 17, 18-19.
After ingesting the drugs, Taylor fell as he attempted to put
on a pair of rubber boots needed for work, struck his head on
the floor, and lost consciousness. Id. ¶ 20.
Shortly thereafter, Taylor's coworkers discovered him in
his unconscious state and claim to have called a True North
supervisor and informed the supervisor about the injury.
Id. ¶ 21. These same coworkers then moved
Taylor into a shower stall, turned on the water, and left him
in a state of unconsciousness for nearly four and a half
hours. Id. ¶¶ 24-25. Eventually, a True
North manager called 911. Id. ¶¶ 27, 28.
After administering care for a heroin overdose and
hypothermia at the scene, an ambulance crew transported
Taylor to the hospital. Id. ¶¶ 30-33.
Taylor was treated as an inpatient at various medical
facilities over the next five months and alleges serious and
permanent injuries “as a direct and proximate result of
his co-workers' failure to furnish appropriate medical
and related assistance.” Id. ¶¶
of his suit, Taylor asserts two primary claims. First, Taylor
asserts a claim for negligent failure to render competent aid
arising from the actions of his co-workers, who he asserts
acted as agents of True North when they failed to give him
“competent medical and related assistance after he
became helpless.” Id. ¶¶ 44-46.
Second, Taylor asserts a claim for premises liability and a
negligent failure to furnish a reasonably safe workplace,
arising from True North's failure to enforce its Alcohol
and Drug Policy which prohibits “the possession, use
and or sale of alcohol [or] illicit drugs.”
Id. ¶¶ 4, 48-51.
North timely notified Liberty of Taylor's claims and
provided Liberty with a copy of the complaint. Am. Compl.
¶ 8. On August 18, 2017, Liberty sent a letter to Cooke
and True North in which it denied both a defense against Mr.
Taylor's claims and indemnification of True North and
Cooke under all three policies. Id. ¶ 9. In its
response, Liberty stated:
There is no coverage under the U.S. CGL policy as that policy
specifically excludes claims for bodily injury to employees.
While there is Employers Liability Coverage under the
Canadian CGL policy, that coverage only applies to Canadian
workers. The Umbrella Liability Policy follows the Canadian
CGL and contains a similar insuring agreement, definitions
Am. Compl., Ex. B, 5 (ECF No. 11-2).
18, 2018, True North and Cook asserted that Liberty owed them
a duty to defend in the Taylor Suit. Am. Compl. ¶ 10.
Liberty did not respond further and has continued to refuse
to provide a defense or indemnification to True North.
Id. ¶ 11.
Plaintiffs assert Liberty has “refused to properly
investigate the claim or to perform a proper comparison test
as required by law.” Id. ¶ 12.
24, 2018, True North filed the instant suit against Liberty
in Washington County Superior Court. Compl. (ECF No. 1-3).
Liberty promptly removed the suit to this Court. Notice of
Removal (ECF No. 1). On September 27, 2018, Liberty moved to
dismiss True North's complaint. Mot. Dismiss
(“First Motion”) (ECF No. 9). On October 18,
2018, True North filed an opposition brief to the amended
complaint. Opposition to Def.'s Mot. Dismiss
(“First Opposition”) (ECF No. 10); Am. Compl.
(ECF No. 11). In light of the amendment of the complaint,
Liberty filed another motion to dismiss. Mot. Dismiss
Pl.'s First Am. Compl. (“Second Motion”) (ECF
No. 13). Plaintiffs then filed a second opposition brief.
Opp. to Def.'s Mot. Dismiss First Am. Compl.
(“Second Opposition”) (ECF No. 14). Defendant
filed two reply memoranda. Def.'s Reply Memo.
(“First Reply”) (ECF No. 12); Def.'s Reply
Memo. (“Second Reply”) (ECF No. 15).
Rule of Civil Procedure 15 permits a party to amend its
pleading once as a matter of course within 21 days following
service of a motion to dismiss under Rule 12(b). Because
Plaintiffs filed their First Amended Complaint 21 days after
Defendant filed its motion to dismiss, the operative pleading
is the First Amended Complaint, which supersedes and
supplants the original complaint. Additionally, because
Defendant has filed a new motion to dismiss the amended
complaint, I dismiss as moot the original Motion to Dismiss
(ECF No. 9) and review the Motion to Dismiss the Amended
Complaint (ECF No. 13). As the second motion incorporates
arguments made in the first motion papers, I will at times
discuss and cite arguments pressed in the original motion
assert claims against Liberty for breach of contract and
violation of Maine's Unfair Claims Settlement Practices
Act, 24-A M.R.S. § 2436-A. In addition, Plaintiffs seek
both a declaratory judgment and injunctive relief arising
from Liberty's refusal to provide a defense and
indemnification in the Taylor Suit. I will consider each
cause of action in turn, mindful that a motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure
is not a crucible in which to resolve the merits, but rather
a means to tests whether Plaintiffs have alleged
“sufficient facts to show that he has a plausible
entitlement to relief.” Sanchez, 590 F.3d at
41. To avoid dismissal, Plaintiffs' amended 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). “If the factual allegations in
the complaint are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture,
the complaint is open to dismissal.” SEC v.
Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc).
Breach of Contract
Count I of their First Amended Complaint, Plaintiffs allege
that by refusing to provide a defense, the Defendant breached
all three insurance contracts. Am. Compl. ¶¶ 14-17.
Thus, the core question presented is whether True North and
Cooke have alleged sufficient facts to make out a plausible
argument that Liberty owed them a duty to defend and
indemnify against Taylor's claims.
the “duty to indemnify is merely a subset of the larger
sphere of actions for which there is a duty to defend,
” I will limit my consideration to the question of a
duty to defend. Anderson v. Virginia Sur. Co., 985
F.Supp. 182, 187 (D. Me. 1998). If I find that Plaintiffs
have alleged facts that state a plausible basis for finding a
duty to defend under one or more ...