United States District Court, W.D. Kentucky, Paducah Division
MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff/Counter-Defendant
PREFERRED SAFETY, LLC, Defendant/Counter-Plaintiff PREFERRED SAFETY, LLC, Third Party Plaintiff,
WHITE & ASSOCIATES INSURANCE AGENCY INC., WHITE & ASSOCIATES INSURANCE WIMBERLY AGENCY, LLC, and JOHN DYER, Third Party Defendants MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff/Counter-Defendant/Cross-Plaintiff,
WHITE & ASSOCIATES INSURANCE AGENCY, INC., WHITE & ASSOCIATES INSURANCE WIMBERLEY AGENCY, LLC and JON DYER, Third Party Defendants/Cross-Defendant.
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge United States District Court
matter comes before the Court upon a Motion to Strike filed
by Plaintiff/Counter-Defendant Massachusetts Bay Insurance
Company (“MBIC”). [DN 27.]
Defendant/Counter-Plaintiff, Preferred Safety,
(“Preferred”) has responded [DN 30.] MBIC has
filed its reply. [DN 33.] As such, this matter is ripe for
adjudication and, for the following reasons, IT IS HEREBY
ORDERED MBIC's Motion to Strike, [DN 27], is GRANTED.
an insurance company located in Kentucky. [Counterclaim
¶ 3.] It issued a Businessowners Policy, No.
OD5-D416536-00 (“2017 BOP Policy”), to Preferred
for the period of November 13, 2017 to November 13, 2018.
[Complaint ¶ 31.] As of September 12, 2018, the policy
was amended to include a Commercial Umbrella Policy for the
period of September 12, 2018 to November 13, 2018.
[Counterclaim ¶30.] MBIC subsequently issued
Businessowners Policy No. OD5-D416536-01 to Preferred for the
period of November 13, 2018 to November 13, 2019 (“2018
BOP Policy”). [Id.] MBIC filed this action
seeking declaration that it owes no duty to defend or
indemnify Preferred for the suit against it. [DN 1.]
filed a Counterclaim against MBIC alleging: negligence,
negligent misrepresentation, fraudulent misrepresentation and
inducement, equitable estoppel and promissory estoppel.
states that White and Associates Insurance Agency, Inc.,
White & Associates Insurance Wimberly Agency, LLC, and
Jon Dyer (collectively, “White Agency
Defendants”) were MBIC agents at all times relevant to
the allegations. [Counterclaim ¶ 8-9.] Preferred also
asserts that the White Agency Defendants had authority to
solicit applications for insurance, receive applications,
answer questions, and sell policies. [Id. at
alleges that, “while White Agency Defendants were
acting within the authority as MBIC's agents”, they
told Preferred that the policies would cover bodily injury
claims arising from Preferred's safety consulting work.
[Counterclaim ¶ 23.] Preferred claims the White Agency
Defendants made these statements with knowledge that
Preferred's work exposed it to bodily injury claims, and
knowledge that there was an open claim against Preferred.
[Id. at ¶¶ 20-21.] Preferred seeks to
recover against MBIC on a theory of vicarious liability.
[Id. at ¶¶ 43, 53, 63, 71, 82.] Preferred
sought relief in the form of punitive damages, and
attorney's fees and costs. Id. at 32.]
filed this motion seeking to strike the prayer for punitive
damages and attorney's fees. Preferred has withdrawn its
prayer for attorney fees so the Court will only address its
request for punitive damages. [DN 30 at 2.]
12(f) allows a court to “strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
A court may strike portions of the pleading acting on its own
initiative or “on a motion made by a party . . . before
responding to the pleading.” Id. Courts are
given considerable discretion in deciding whether to strike
portions of pleadings under 12(f). See id.; see also
Delta Consulting Group, Inc. v. R. Randle Constr., Inc.,
554 F.3d 1133, 1141 (7th Cir. 2009); Talbot v. Robert
Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir.
1992). However, “the action of striking a pleading
should be used sparingly by the courts.” Anderson
v. United States, 39 Fed.Appx. 132, 135 (6th Cir. 2002)
(quoting Brown & Williamson Tobacco Corp. v. United
States, 201 F.2d 819, 822 (6th Cir. 1953)). It is only
to be used “when required for the purposes of justice
and the pleading to be stricken has no possible relation to
the controversy.” Id. “The function of
the motion is to avoid the expenditure of time and money that
must arise from litigating spurious issues by dispensing with
them early in the case.” Operating Eng'rs Local
324 Health Care Plan v. G&W Constr. Co., 783 F.3d
1045, 1050 (6th Cir. 2015) (citing Kennedy v.
City of Cleveland, 797 F.2d 297, 305 (6th Cir. 1986).
“A motion to strike may be used to strike any part of
the prayer for relief when the damages sought are not
recoverable as a matter of law.” Nat'l Inst.
For Strategic Tech. Acquisition & Commercialization v.
Nissan of N. Am., 2012 U.S. Dist. LEXIS 117941 * 12
(E.D. Mich. Aug. 21, 2012).
asserts Preferred has not pled any facts to support an award
of punitive damages. In support, MBIC has citied case law and
a statute that requires proof the employer/principal either
authorized, ratified, or should have anticipated the conduct
in question before punitive damages are assessed. KRS
411.184(3); Saint Joseph Healthcare, Inc. v. Thomas,
487 S.W.3d 864, 873 (Ky. 2016). In response, Preferred argues
it has met the notice requirements imposed by Federal Rule of
Civil Procedure 8. Preferred further asserts that the
repeated statement in the Counterclaim- “all of the
foregoing occurred while MBIC agents White Agency Defendants
were acting within the authority as MBIC's agent(s)
and/or affiliates”-puts MBIC “on notice” of
the claims against it. The Court will first discuss the
pleading requirements of Rule 8.