The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MATTHEW BAESE, )
d/b/a Plumbing Plus, )
)
Plaintiff, )
)
v. ) Case No. 4:24 CV 1687 CDP
)
NATIONWIDE MUTUAL )
INSURANCE COMPANY, et al., )
)
Defendants. )
MEMORANDUM AND ORDER
Upon careful review of plaintiff Matthew Baese’s Motion for Leave to
Amend Complaint and defendants’ opposition thereto, I conclude that the claims
raised in the proposed amended complaint fail to state a claim upon which relief
can be granted. I will therefore deny Baese leave to file his proposed amended
complaint given its futility. As Baese has failed to cure the deficiencies of the
claims that remain in the original petition, I will grant defendants’ motion to
dismiss those claims. As a result, this case is dismissed in its entirety.
Legal Standards
Leave to Amend
Under Federal Rule of Civil Procedure 15(a)(2), the Court has discretion to
grant leave to amend a complaint and should freely do so “when justice so
requires.” Denial of leave to amend is appropriate in limited circumstances where
the motion to amend was filed in bad faith, with dilatory motive, or with undue
delay; where leave to amend would be unduly prejudicial to the opposing party; or
where amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962);
Hillesheim v. Myron’s Cards & Gifts, Inc., 897 F.3d 953, 955 (8th Cir. 2018). An
amendment is futile if it cannot withstand a Rule 12(b)(6) motion to dismiss.
Hillesheim, 897 F.3d at 955. Defendants invoke Rule 12(b)(6) here and argue that
Baese’s proposed amended complaint fails to state a claim upon which relief can
be granted and that amendment is therefore futile. My futility analysis is therefore
guided by the legal standard that governs Rule 12(b)(6) motions to dismiss. See
Northland Parent Ass’n v. Excelsior Springs Sch. Dist. #40, 571 F. Supp. 3d 1104,
1109 (W.D. Mo. 2021); Mitchell v. Wells Fargo Co., No. 4:24 CV 377 CDP, 2024
WL 3580938, at *1 (E.D. Mo. July 30, 2024).
Motion to Dismiss
For Baese’s proposed amended complaint to survive Rule 12(b)(6) scrutiny,
it “must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citations omitted). Legal conclusions couched as factual
allegations are not taken as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); Iqbal, 556 U.S. at 677-78. I must liberally construe the complaint and
grant all reasonable inferences in Baese’s favor. Cook v. George’s, Inc., 952 F.3d
935, 938 (8th Cir. 2020).
The requirement of facial plausibility means that the factual content of the
complaint’s allegations must “allow[ ] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Park Irmat Drug Corp. v.
Express Scripts Holding Co., 911 F.3d 505, 512 (8th Cir. 2018) (quoting Iqbal, 556
U.S. at 678) (alteration in Park Irmat). Threadbare recitals of a cause of action,
supported by mere conclusory statements, do not suffice. Iqbal, 556 U.S. at 678;
Twombly, 550 U.S. at 555.
Background
Plaintiff Matthew Baese filed this action in Missouri state court on October
3, 2024, raising various claims arising out of defendants Nationwide Mutual
Insurance Company’s and Allied Insurance Company of America’s actions taken
in relation to an investigation of a fire that occurred on October 4, 2019, at an
apartment building they insured in Maplewood, Missouri. The damage to the
building exceeded more than $1 million. In his state-court petition, Baese brought
claims of defamation (Count I), injurious falsehood (Count II), intentional
infliction of emotional distress (Count III), and negligent infliction of emotional
distress (Count IV).
On December 13, 2024, defendants removed the case to this Court on the
basis of diversity jurisdiction under 28 U.S.C. § 1332, and they promptly moved to
dismiss Baese’s four-count petition. In response, Baese requested to dismiss his
claims of defamation and intentional infliction of emotional distress and alluded to
filing an amended complaint on his claim of negligent infliction of emotional
distress. In a Memorandum and Order entered January 23, 2025, I granted Baese’s
request to dismiss Counts I and III of his state-court petition and directed that any
motion to amend his pleading must comply with the relevant rules. (ECF 14.) As
a result, Counts II and IV of the petition remained before the Court, and
defendants’ motion to dismiss remained pending.
Baese now moves for leave to file an amended complaint in which he raises
a new claim of negligence and reasserts his claims of injurious falsehood and
negligent infliction of emotional distress. Defendants oppose the motion on the
basis of futility. Baese did not file a reply brief to address defendants’ arguments,
and the time to do so has passed.
In his proposed amended complaint, Baese alleges that within three days of
the fire, on October 7, 2019, Allied – acting at the request and on behalf of
Nationwide – completed a Subrogation Referral Form wherein it stated that
Baese’s negligence caused the fire. Baese asserts that Allied reached that
conclusion before a formal fire investigation was conducted and before a formal
written fire investigation report was produced. Baese claims that after Allied
provided the Subrogation Form to Nationwide, Nationwide paid the building
owner for the damage caused by the fire and thereafter brought a subrogation
action against Baese and his plumbing company for damages caused by the fire.
That subrogation case was filed on April 15, 2020.
Baese asserts that if Nationwide and Allied had conducted a proper
investigation into the fire, they would have learned that neither he nor his
plumbing company was involved with any work performed at the apartment
building and, further, that the person responsible for the work that allegedly gave
rise to the fire obtained work permits under false pretenses (with the building
owner’s knowledge) by using Baese’s and/or his plumbing company’s name to
secure the permits. Baese further alleges that even after learning that he and his
company were not involved in the work at the building and that the permits were
fraudulently obtained by others, defendants nevertheless continued in their
litigation against him, made misrepresentations and harmful statements to third
parties regarding his alleged role in the fire, and harassed him with collection
attempts.
Baese claims that because of defendants’ conduct, he has expended time and
attorney’s fees defending the subrogation action and has suffered lost business
opportunities, harm to his credibility as a licensed plumber, emotional distress, and
impaired personal and professional relationships. His proposed amended
complaint asserts three claims against the defendants: negligence (Count I),
injurious falsehood (Count II), and negligent infliction of emotional distress (Count
III). Defendants contend that Baese’s attempt to file the proposed amended
complaint is futile as none of the claims state a claim upon which relief can be
granted. For the following reasons, I agree.
Discussion
Count I – Negligence
In Count I of his proposed amended complaint, Baese asserts that
defendants’ role in the subrogation claim process “should have included assessing
the fire in a timely, thorough, complete, well-documented, and fair manner and
gathering evidence.” (ECF 18, Prop. Amd. Comp. at ¶ 86.) Baese further asserts
that defendants’ subrogation process “should have included conducting a formal
fire investigation and obtaining written Fire Investigation Reports[.]” (Id. at ¶ 87.)
Baese claims defendants “had a duty to exercise reasonable care in performing
these services.” (Id. at ¶ 88.)
To prove his claim of negligence under Missouri law, Baese must establish
that the defendants had a duty to protect him from injury, that they failed to
perform that duty, and that that failure proximately caused his injury. Brown v.
Davis, 813 F.3d 1130, 1136 (8th Cir. 2016). Whether defendants owed a duty to
Baese is a question of law to be decided by the Court. Hansen v. Ritter, 375
S.W.3d 201, 208 (Mo. Ct. App. 2012). In determining the existence of a duty, “the
common denominator that must be present is the existence of a relationship
between the plaintiff and defendant that the law recognizes as the basis of a duty of
care.” Emmons v. Bridgestone Americas Tire Operations, LLC, No. 1:10CV41
JAR, 2012 WL 6200411, at *5 (E.D. Mo. Dec. 12, 2012) (cleaned up). “Where no
duty is indicated by Missouri statute, case law, or otherwise, a fundamental
prerequisite to establishing negligence is absent.” Id. (quoting Ford v. GACS, Inc.,
265 F.3d 670, 682 (8th Cir. 2001)).
An insurer may owe its insured a duty to investigate based on the contract
between them. See, e.g., Pitt v. Leonberger, 528 S.W.3d 1, 13 (Mo. Ct. App.
2017) (duty based on contract). But an insurer generally owes no duty to parties
with whom it does not have a contractual relationship. See Hardcore Concrete,
LLC v. Fortner Ins. Servs., Inc., 220 S.W.3d 350 (Mo. Ct. App. 2007). While
Baese’s claim here asserts negligence and is not based on a contractual duty, I
nevertheless am not aware of any authority under Missouri law – by statute, case
law, or otherwise – that imposes a duty upon an insurer to its insured’s alleged
tortfeasor in relation to its investigation of a subrogation claim against him. Cf.
Megown v. Auto Club Fam. Ins. Co., 687 S.W.3d 189, 193 (Mo. Ct. App. 2024)
(“insured’s tortfeasor [is] a thirty party to whom the insurer owed no duty”). Nor
does Baese cite to any such law.
Because Baese’s negligence claim does not identify a legally recognized
duty, and Baese fails to cite to any Missouri law imposing the duty he asserts,
Baise has failed to state a claim of negligence upon which relief may be granted.
See Thornburg v. Federal Express Corp., 62 S.W.3d 421, 427 (Mo. Ct. App.
2001).
Count II – Injurious Falsehood
Under Missouri law, an action for injurious falsehood must be brought
within two years after the cause accrued. Mo. Rev. Stat. § 516.140 (2014). As
Baese brought this case on October 3, 2024, his cause of action for injurious
falsehood must have accrued on or after October 3, 2022, to be considered timely.
A cause of action is deemed to accrue when the damages resulting from the
alleged wrong is sustained and capable of ascertainment. Mo. Rev. Stat. §
516.100; City of N. Kansas City v. Archer Daniels Midland Co., 575 S.W.3d 270,
275-76 (Mo. Ct. App. 2019). Baese’s proposed amended complaint, the exhibits
attached thereto, and the public record of the underlying subrogation action1
conclusively show that Baese’s claim for injurious falsehood accrued long before
October 3, 2022, and at least as early as May 2021 based on the representations
made in a letter to Baese’s attorney summarizing Baese’s assertion that the
1 When conducting an analysis under Rule 12(b)(6), I consider the allegations of the complaint as
well as exhibits attached thereto. Fed. R. Civ. P. 10(c). I may also consider matters of public
record. Humphrey v. Eureka Gardens Pub. Facility Bd., 891 F.3d 1079, 1081 (8th Cir. 2018);
Ryan v. Ryan, 889 F.3d 499, 505 (8th Cir. 2018).
subrogation action was fraudulently brought. (ECF 18-3, Exh. 2 to Prop. Amd.
Compl.)
As Baese failed to bring his claim of injurious falsehood within the time
prescribed by Missouri law, his attempt to pursue the claim now is futile.
Count III – Negligent Infliction of Emotional Distress
To state a claim for negligent infliction of emotional distress under Missouri
law, Baese must plead the general elements of negligence – that is, legal duty,
breach of duty, and proximate cause of injury – as well as two additional elements
– that the defendants should have realized that their conduct involved an
unreasonable risk of causing distress, and that the emotional distress or mental
injury must be medically diagnosable and of sufficient severity so as to be
medically significant. Couzens v. Donohue, 854 F.3d 508, 518 (8th Cir. 2017).
Defendants argue that Baese’s claim of emotional distress is based on the same
alleged negligent failure to conduct a proper investigation as raised in Count I,
which Missouri law does not recognize; and, further, that the claim is premised on
defendants’ alleged untrue statements and misrepresentations, which can proceed
only as a claim for defamation, see Monroe v. CMMG, Inc., No. 2:15-cv-04172-
NKL, 2015 WL 9581853, at *9 (W.D. Mo. Dec. 30, 2015), which itself would be
time-barred in this action under Mo. Rev. Stat. § 516.140.
Aside from defendants’ alleged negligent failure to investigate and alleged
false statements – which, for the reasons stated above, do not give rise to
actionable claims in this case – Baese asserts that he suffered emotional distress by
defendants’ continued pursuit of the subrogation action against him and attempted
collection efforts despite their having obtained evidence showing that Baese and
his plumbing company had nothing to do with the work performed at the apartment
building, let alone work that gave rise to the fire. But Baese does not identity any
duty of which that alleged conduct runs afoul. A general assertion that defendants
engaged in injurious actions does not describe a legally recognizable duty.
Couzens, 854 F.3d at 518.
As Baese has not provided any basis demonstrating that defendants owed
him a legally cognizable duty, Baise has failed to plead a plausible case of
negligent infliction of emotional distress. Cf. Brown v. Circle, No. 2:19-cv-04135-
NKL, 2019 WL 6720499, at *4 (W.D. Mo. Dec. 10, 2019).
Accordingly, none of Baese’s claims asserted in his proposed amended
complaint state a claim upon which relief can be granted. I will therefore deny his
motion for leave to amend as futile. As a result, Counts II and IV of Baese’s
original state-court petition remain before the Court.
Motion to Dismiss Original Petition
Baese’s claims of injurious falsehood and negligent infliction of emotional
distress set out in Counts II and IV of the original petition are deficient for the
same reasons set out above in relation to those claims in the proposed amended
complaint. I will therefore grant defendants’ motion to dismiss those claims under
Rule 12(b)(6) for failure to state claim. Because Baese has already dismissed the
claims raised in Counts I and III of his original petition, defendants’ motion to
dismiss those claims is moot.
Accordingly,
IT IS HEREBY ORDERED that plaintiff Matthew Baese’s Motion for
Leave to Amend Complaint [18], as amended [19], is DENIED.
IT IS FURTHER ORDERED that defendants Nationwide Mutual
Insurance Company and Allied Insurance Company of America’s Motion to
Dismiss Under Fed. R. Civ. P. 12(b)(6) [7] is DENIED as moot as to Counts I and
of plaintiffs original state-court petition, and GRANTED as to Counts IT and
IV of the state-court petition.
As all claims from the original petition have now been dismissed, and
plaintiff has been denied leave to amend his complaint, this case is now closed. A
separate Order of Dismissal is entered this date.
CATHERINE D. PERRY. 2
UNITED STATES DISTRICT JUDGE
Dated this 11th day of April, 2025.
-ll-