The opinion of the court was delivered by: WILLIAM STIEHL, Senior District Judge
Before the Court is counter-defendant Ohio Casualty Insurance
Company's motion to dismiss Count II of counter-plaintiff Mick
Keane's Express Delivery Service, Inc.'s Second Amended
Counterclaim pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, to which counter-plaintiff has filed a response.
Plaintiff/counter-defendant Ohio Casualty Insurance Company
("Ohio Casualty") seeks a declaratory judgment that it has no
duty to defend or indemnify defendant/counter-plaintiff Mick Keane's Express Delivery Service, Inc. ("Mick Keane") in an
underlying personal injury lawsuit filed by defendant Freddie
Washington against Mick Keane. In its counterclaim, Mick Keane
seeks a declaratory judgment that Ohio Casualty is liable to Mick
Keane for damages incurred as a result of the judgment entered
against Mick Keane in the underlying Washington action (Count I),
and also alleges a breach of contract claim (Count II). Ohio
Casualty moves to dismiss Count II on the ground that it fails to
state a claim for breach of contract under Missouri law.*fn1
Dismissal is proper under Rule 12(b)(6) only where "it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957). To state a
cause of action for breach of contract under Missouri law, "a
plaintiff must allege the following: 1) the existence of an
enforceable contract between the parties; 2) mutual obligations
arising under the terms of the contract; 3) defendant did not
perform; and 4) plaintiff was thereby damaged from the breach."
Rice v. West End Motors, Co., 905 S.W.2d 541, 542 (Mo.Ct.App.
Ohio Casualty argues that Count II is deficient because it
states only that "Ohio Casualty breached its duties pursuant to
the contracts for insurance between it and Keane" and that "Ohio
Casualty has refused to defend and indemnify Keane's for the
$825,000 judgment plus interest, costs and attorney's fees." Ohio
Casualty argues that: "Without any allegations setting forth that
Ohio Casualty had a duty to defend or indemnify, the reader is
left to wonder at the relevance of this [latter] statement.
Upon review of Count II, the Court finds that Ohio Casualty's
argument is spurious. Clearly, one may reasonably infer from the allegations in Count
II of the counterclaim that the duties that Ohio Casualty
allegedly breached are the duties to defend and indemnify Mick
Keane with respect to Washington's underlying personal injury
action. See, Panaras v. Liquid Carbonic Indus. Corp.,
74 F.3d 786, 791 (7th Cir. 1996) (Court "accept[s] as true the well
pleaded allegations of the complaint and the inferences that may
be reasonably drawn from those allegations") (cite omitted).
Based on the foregoing, the Court DENIES counter-defendant
Ohio Casualty Insurance Company's motion to dismiss (Doc. 123)
Count II of counter-plaintiff Mick Keane's Express Delivery
Service, Inc.'s Second Amended Counterclaim.