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Wild Affiliated Holdings, Inc. v. Hukill Hazlett Harrington Agency, Inc.

United States District Court, E.D. Kentucky, Northern Division, Covington

March 13, 2014



DAVID L. BUNNING, District Judge.


This matter is before the Court on two motions to dismiss. Defendant G. Wayne Oetjen has moved the Court to dismiss all claims against him pursuant to Federal Rule of Civil Procedure 12(b)(6) because he was acting as an agent of a disclosed principal, Defendant Hukill Hazlett Harrington Agency, Inc., at all times relevant to the Complaint and is therefore absolved of liability for any of his conduct. (Doc. # 22). Defendants Hukill Hazlett Harrington Agency, Inc. and G. Wayne Oetjen have also moved to dismiss the Complaint (Doc. # 23) because it is not ripe for review. Alternatively, if the Court finds this matter is ripe for review, Defendants ask the Court to compel Plaintiffs to name all necessary parties to this action as Defendants. If joinder is not possible, Defendants ask the Court to dismiss this case.

The Court held oral argument on Defendants' motions on March 6, 2014. The parties were present as noted in the Court's minutes. (Doc. # 45). At the conclusion of the oral argument, the Court submitted the motions pending written decision.

Having considered both the parties' oral arguments and their briefing, the Court will grant the Defendants' motion to dismiss this case because it is not ripe for review. In light of this ruling, the Court need not consider Defendants' additional motions. They will therefore be denied as moot.


In briefing Defendants' motion to dismiss, the parties brought numerous facts to the Court's attention that are not mentioned in the Complaint. They have done so in both their oral arguments to the Court[1] and in various documents they have attached to their briefing on the pending motions. ( See, e.g. Docs. 23-2, 25-2, 25-3, 25-4, 26-2). But is it proper for the Court to consider these additional facts and documents?

A lack of ripeness claim is properly construed as a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Hearns Concrete Const. Co. v. City of Ypsilanti , 241 F.Supp.2d 803, 810 (E.D. Mich. 2003) (citing Bigelow v. Michigan Dept. of Natural Res. , 970 F.2d 154, 157 (6th Cir. 1992)). The Court applies different standards depending on whether the defendant makes a facial or factual attack to the complaint and the facts giving rise to subject matter jurisdiction. Id. When the defendant mounts a facial attack-that is, the defendant does not dispute the facts underlying the ripeness of the complaint-"the court must apply the same standard applicable to Rule 12(b)(6)." Id.

Defendants have lodged a facial attack here. That is, they have argued that the facts in the Complaint do not support a claim that is ripe for the Court's review. Thus, the Court will apply the Rule 12(b)(6) standard to Defendants' motion. Under that standard, the Court must look only to the Complaint and determine whether it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Shuler v. Garrett , ___ F.3d ___, 2014 WL 563272, at *1 (6th Cir. Feb. 14, 2014) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009)).


When the events giving rise to this dispute occurred, Plaintiffs Wild Affiliated Holdings, Inc. and Wild Flavors, Inc. had an eighteen-year working relationship with Defendants Hukill Hazlett Harrington Agency, Inc. ("HHH") and G. Wayne Oetjen at the time the events surrounding this litigation took place. Plaintiffs contracted with Defendants HHH-an insurance agency-and Mr. G. Wayne Oetjen-the agency's president-to represent them in all of their insurance needs beginning in 1994. However, the scope of the parties' business relationship changed in 2012, when Plaintiffs hired Defendants solely for the purpose of counseling them about their insurance needs "and procuring certain types of health and benefits insurance coverage...." (Doc. # 1 at ¶ 13).

In Defendants' reduced role, Plaintiffs asked them to procure umbrella and excess insurance coverage on their behalf for the period of April 12, 2011 to April 12, 2012. Plaintiffs expected this insurance to provide coverage over and above that provided by their primary commercial general liability insurance. Defendants, with the help of an intermediary broker, obtained multiple proposals and quotations on Plaintiffs' behalf. However, they never presented the proposals and quotations to Plaintiffs as they were contractually obligated to do. Defendants ultimately procured an umbrella policy from Allied World National Insurance Company ("Allied") on Plaintiffs' behalf, which Defendants described as "the same, or better, coverage as the expiring 2010/2011 umbrella and excess liability coverage." ( Id. at ¶ 19). The umbrella policy contained an important exclusion: it did not cover any loss caused by mold in food or other consumables.

In June 2011, Plaintiffs received a claim from one of their customers that they had provided the customer with a defective product which, in turn, damaged property owned by the customer. Specifically, Plaintiffs allegedly provided their customer with a product containing heat-resistant mold.

Defendant HHH reported the claim to Plaintiffs' insurance carriers for both the 2010-2011 and 2011-2012 policy years. On September 9, 2011, Allied issued a reservation of rights letter to Plaintiffs stating that their 2011-2012 umbrella insurance policy did not cover the claim. "Among other reasons, a mold exclusion contained in the Allied policy allegedly precluded coverage." ( Id. at ¶ 26). On April 27, 2012, Allied issued a coverage position reiterating the points raised in its ...

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