Gamble

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

JUSTIN GAMBLE and BRITTANY )

GAMBLE, )

)

Plaintiffs, )

)

vs. ) Case No. CIV-25-396-R

)

STATE FARM FIRE AND )

CASUALTY COMPANY, )

)

Defendant. )

ORDER

Before the Court is Defendant State Farm Fire and Casualty Company’s Partial

Motion to Dismiss [Doc. No. 3] Plaintiffs’ Petition [Doc. No. 1-5]. Plaintiffs filed a

Response [Doc. No. 27] and Defendant Replied [Doc. No. 28]. The matter is now at issue.

For the reasons below, the Court grants Defendant’s Motion.

BACKGROUND

Plaintiffs Justin and Brittany Gamble allege the following in their Petition:1 In or

around 2018, Plaintiffs entered an insurance contract with State Farm for replacement cost

homeowners’ insurance coverage for their property. Compl., ¶¶ 5, 25(a). Plaintiffs entered

into this contract through Tyler McCall Insurance Agency, Inc. and Tyler McCall, who

owned and operated a State Farm Agency in Tulsa.2 Id. ¶¶ 7, 13. To procure the Policy and

1 In accordance with this District’s nomenclature, the Petition, Doc. No. 1-5, which is the

operative pleading, will hereinafter be called the Complaint.

2 Tyler McCall and Tyler McCall Insurance Agency were formerly Defendants in this

action, but the claims against both have been dismissed without prejudice [Doc. No. 25].

coverage, “Agent insured the Insured Property to 100% of its alleged replacement cost

value.” Id. ¶ 25(c). Agent did so without inspecting the Insured Property, verifying its

condition, or advising Plaintiffs that it had any defect that might exclude it from

replacement cost coverage. Id. ¶ 26.

On or about June 18, 2023, a wind- and hailstorm substantially damaged the Insured

Property. Id. ¶ 40(a). That same day, Plaintiffs submitted a claim to State Farm and

uploaded photos of the damage to State Farm’s claim-handling website. Id. ¶ 40(b). On or

about June 27, 2023, a State Farm adjuster inspected the property, considering only “wind”

damage. Id. ¶ 40(d). On June 30, 2023, State Farm stated it would provide $2,325.71 to

cover the property damage, denying Plaintiffs a full roof replacement. Id. ¶ 40(e). State

Farm attributed the roof’s damage to pre-existing, non-covered causes such as wear-and-

tear. Id. ¶ 40(f). Plaintiffs, “[d]ue to the obvious mishandling of the [c]laim,” had multiple

roofing companies inspect the roof, and “were repeatedly advised that the Insured Property

required . . . a full roof replacement.” Id. ¶ 40(g)-(h). Around January of 2024, Plaintiffs’

contractor insisted that spot-repair to damaged shingles would be insufficient to fix the roof

and stated “he would like to either discuss the matter with State Farm or conduct a joint

inspection of the roof with an appropriate State Farm employee to clarify to them the extent

of the damage.” Id. ¶ 40(i).

But on February 15, 2024, State Farm “stated it was unwilling to participate in” the

joint inspection and told Plaintiffs to obtain a new quote from a different contractor. Id.

¶ 40(j). In September of 2024, Plaintiffs asked Agent to help them seek their desired

coverage, but Agent informed them convincing State Farm to reconsider the claim would

be a “hail mary.” Id. ¶ 40(l)-(m). Agent told Plaintiffs that State Farm “‘did not see where

the roofer sent’ documents requested by State Farm” and recommended Plaintiffs hire

another contractor and submit or resubmit the documents. Id. ¶ 40(n).

Plaintiffs allege State Farm’s handling of their claim illustrates State Farm’s bad

faith and systematic scheme aimed at “maximizing profits for State Farm at the expense of

its insureds.” Id. ¶¶ 10, 40. That scheme, Plaintiffs allege, is as follows: State Farm’s agents

“almost never perform or acquire an in-person inspection of the property to be insured.”

Id. ¶ 23. Those agents then represent properties as eligible for insurance without proper

verification, leaving those like Plaintiffs vulnerable to a misattribution of the source of

property damage or later determination by State Farm that their property does not qualify

for full coverage. Id. ¶¶ 26, 36. State Farm then utilizes “bad-faith claims handling tactics”

to “deny valid property insurance claims,” such as (1) employing a narrow definition for

hail damage that is absent from its policies and hidden from the insured, (2) the

misattribution of damage to non-covered causes of loss, (3) misstating the date of loss so

it falls outside the one-year limitation for bringing claims against State Farm, (4) arbitrary

time limits, and (5) sham reports by engineering firms. Id. ¶¶ 34-39.

Plaintiffs filed suit on March 18, 2025, bringing claims against Defendant for breach

of contract, bad faith, negligent procurement of insurance, and constructive fraud and

negligent misrepresentation. Id. ¶¶ 45-79. Plaintiffs allege that, although they brought suit

later than the one-year period allowed by the Policy, Defendant’s concealment of material

facts is fraudulent concealment that tolled the running of any applicable statute of

limitations. Id. ¶¶ 41-44. In its Partial Motion to Dismiss, Defendant argues that because

Plaintiffs failed to adequately plead fraudulent concealment, the statute of limitations was

not tolled, and Plaintiffs’ breach of contract claim is time-barred. Doc. No. 3.

LEGAL STANDARD

Dismissal under Rule 12(b)(6) is proper when a complaint fails “to state a claim

upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). “To survive a Rule 12(b)(6)

motion, the complaint ‘must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.’” Brown v. City of Tulsa, 124 F.4th 1251, 1263

(10th Cir. 2025) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). And while the Court

“must accept the truth of all properly alleged facts and draw all reasonable inferences in

the plaintiff’s favor, the plaintiff still ‘must nudge the claim across the line from

conceivable or speculative to plausible.’” Id. (quoting Brooks v. Mentor Worldwide LLC,

985 F.3d 1272, 1281 (10th Cir. 2021)). “Mere ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action’ will not suffice.” Id. (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)).

“In addition to the complaint, the district court may consider documents referred to

in the complaint if the documents are central to the plaintiff’s claim and the parties do not

dispute the documents’ authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941

(10th Cir. 2002). Plaintiffs allege a breach of the Policy and frequently reference the Policy

in the Complaint. See generally Compl.; id. ¶¶ 45-52. Furthermore, “if a plaintiff does not

incorporate by reference or attach a document to its complaint, but the document is referred

to in the complaint and is central to the plaintiff’s claim, a defendant may submit an

indisputably authentic copy to the court to be considered on a motion to dismiss.” GFF

Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997)

(citations omitted). Defendant filed a copy of the Policy, which is central to Plaintiffs’

claims [Doc. No. 3-1]. Neither party disputes its authenticity. The Court thus properly

considers the Policy when evaluating Defendant’s Motion.

DISCUSSION

I. As an Initial Matter, State Farm’s Policy Language Determines the

Limitations Period. 3

Defendant argues that pursuant to the Policy, Plaintiffs had one year from the date

of the loss to their property to bring their breach of contract claim. Plaintiffs contend that

the breach of contract claim did not accrue until State Farm breached the contract sometime

after the loss. This, Plaintiffs argue, extends the period during which they could bring suit

past one year from the date of loss.

In Oklahoma, “it is generally understood that a breach of contract action accrues

when the contract is breached.” Morgan v. State Farm Mut. Auto. Ins. Co., 488 P.3d 743,

748 (Okla. 2021). But OKLA. STAT. tit. 36 § 3617 permits property insurance contracts to

restrict the time to bring a legal action to “one (1) year from the date of occurrence of the

event resulting in the loss.” Courts have regularly upheld this statute’s application to

property insurance contracts such as the Policy. See Zewdie v. Safeco Ins. Co. of Am., 304

3 “The Court can address a limitations issue in a motion to dismiss ‘when the dates given

in the complaint make clear that the right sued upon has been extinguished.’” Marshall v.

State Farm Fire & Cas. Co., No. CIV-24-00780-JD, 2025 WL 817606, at *2 (W.D. Okla.

Mar. 13, 2025) (quoting Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th

Cir. 1980)). In such situations, “the plaintiff has the burden of establishing a factual basis

for tolling the statute.” Aldrich, 627 F.2d at 1041 n.4.

F. Supp. 3d 1101, 1107 n.5 (W.D. Okla. Jan. 19, 2018) (citing § 3617) (“Oklahoma law

allows insurers to shorten the time period within which an action for breach of a property

insurance policy can be brought.”); Marshall, 2025 WL 817606, at *2-3; Root v. State

Farm Fire & Cas. Co., No. CIV-23-00870-PRW, 2024 WL 5239456, at *1-2 (W.D. Okla.

Dec. 27, 2024).

The relevant Policy language provides: “Any action by any party must be started

within one year after the date of loss or damage.” Doc. No. 3-1 at p. 25. Accordingly, the

Policy’s contractual limitations period governs the time during which Plaintiffs could bring

suit. Because the loss occurred on June 18, 2023, Plaintiffs had one year from that date to

bring their breach of contract claim against Defendant.

To avoid this outcome, Plaintiffs argue the Policy’s one-year limitations period

should not be applied to their claim because public policy “requires that the statute of

limitations set by the Oklahoma legislature must control over an arbitrary contractual

provision requiring any suit be brought within a year.” Doc. No. 27 at pp. 20-21. Plaintiffs

base this argument on OKLA. STAT. tit. 36 § 1250.5(7), which provides that “[a]ny policy

that specifies a time limit covering damage to a roof due to wind or hail must allow the

filing of claims after the first anniversary but no later than twenty-four (24) months after

the date of the loss, if the damage is not evident without inspection.” This statute, Plaintiffs

argue, conflicts with § 3617, which permits insurers to limit the time to bring a legal action

to one year from the date of the loss.

Other courts in this district have found no conflict between § 1250.5(7) and § 3617.

See Root, 2024 WL 5239456, at *2 (holding § 1250.5(7) and § 3617 did not conflict

because “one section deals with claims, the other with actions. . . . Accordingly, under the

well-pleaded facts in the Complaint, the policy language controls.”); Marshall, 2025 WL

817606, at *3 (deciding consistently with Root that § 1250.5(7) did not conflict with State

Farm’s one-year limitations period for bringing suit). This Court agrees: the Policy

language controls, and Plaintiffs had one year from the date of the loss, June 18, 2023, to

bring their breach of contract claim against Defendant.4

II. Plaintiffs Failed to Adequately Allege Fraudulent Concealment.

Plaintiffs additionally argue that the contractual limitations period is tolled by

Defendant’s fraudulent concealment of material facts.

“Fraudulent concealment is an implied exception to the statute of limitations

defense.” AMC W. Housing LP v. NIBCO, Inc., No. CIV-18-959-D, 2019 WL 4491331, at

*6 (W.D. Okla. Sept. 18, 2019) (citing Kan. City Life. Ins. Co. v. Nipper, 51 P.2d 741, 747

(Okla. 1935)). “‘[A] party who wrongfully conceals material facts . . . is not allowed to

take advantage of his own wrong by pleading the statute, the purpose of which is to prevent

wrong and fraud.’” Id. (quoting Nipper, 51 P.2d at 747). “However, the ‘mere failure to

disclose that a cause of action exists is not sufficient to prevent the running of the statute.

There must be something more; some actual artifice to prevent knowledge of the fact; some

4 The Court notes that § 1250.5(7) applies to damage that is not evident without inspection.

Defendant argues Plaintiffs did not claim “they suffered latent roof damage such that

Section 1250.5(7) even applies with respect to their time to submit a claim.” See Root, 2025

WL 5239456, at *2. This Court agrees: Plaintiffs allege the damage was “patent” and

indicate their awareness of it on the date of loss. Compl., ¶ 40(a), (e).

affirmative act of concealment or some misrepresentation to exclude suspicion and prevent

inquiry.’” Id. (citing Nipper, 51 P.2d at 747).

Defendant argues Plaintiffs fail to plead fraudulent concealment because they “do

not (and cannot) point to any specific affirmative act by State Farm separate from the bases

of their constructive fraud claim.” Doc. No. 28 at p. 4.5 “The Tenth Circuit draws a

distinction between acts underlying a plaintiff’s potential fraud claim and acts establishing

fraudulent concealment to toll the statute of limitations.” NIBCO, 2019 WL 4491331, at *6

(citing Legacy Crossing, LLC v. Travis Wolff & Co., 229 Fed. App’x 672, 681 (10th Cir.

Apr. 9, 2007)). “[U]nder the fraudulent concealment doctrine there must be a separate

affirmative act of concealment intended to cover up the original fraudulent act. Otherwise,

the exception (tolling for fraudulent concealment) would become the rule. In fraud cases,

the limitations period would never begin to run until the defrauding party committed an

affirmative act to reveal his fraud.” Legacy Crossing, 229 Fed. App’x at 681.

Plaintiffs allege Defendant’s failure to reveal material facts of the scheme concealed

the accrual of any cause of action against Defendant and that the scheme itself “is an

artifice.” Compl., ¶¶ 42-43. But the scheme cannot form the same basis for Plaintiffs’

5 Defendant argues Federal Rule of Civil Procedure 9(b), requiring fraud claims to be

pleaded with particularity, applies to Plaintiffs’ fraudulent concealment claim and that

Plaintiffs have failed to comply with it. Doc. No. 3 at p. 9 (citing Dinwiddie v. Suzuki Motor

of Am., Inc., 111 F. Supp. 3d 1202, 1211-12 (W.D. Okla. May 27, 2015)). Plaintiffs do not

dispute that 9(b) applies, instead arguing that their Complaint “spells out the ‘who, what,

when, and where’” of the alleged fraud. Doc. No. 27 at p. 10. Plaintiffs spend several pages

of their Response reiterating their fraud allegations, but do not specifically indicate what

affirmative act constituted fraudulent concealment. Id. at pp. 10-15.

constructive fraud claim and Plaintiffs’ fraudulent concealment claim. See NIBCO, 2019

WL 4491331, at *6 (finding defendant’s alleged acts of concealment regarding the

defective nature of its products were not separate from plaintiff’s fraud claim regarding

defendant’s fraudulent warranty of those products); Legacy Crossing, 229 Fed. App’x at

681 (finding the issuance of an allegedly fraudulent audit report was “the very act upon

which Legacy Crossing bases its fraud claim” and did not constitute a separate act

sufficient to plead fraudulent concealment).

The acts underlying Plaintiffs’ fraud allegations mimic those of their fraudulent

concealment allegations and as such fail to plead an affirmative act of concealment. See

Compl., ¶ 73(g) (claiming Defendant engaged in constructive fraud by, among other things,

failing to disclose “any material facts regarding the Scheme”) and id. ¶¶ 41-44 (claiming

Defendant fraudulently “concealed material facts about State Farm’s Scheme” which hid

the accrual of the cause of action from Plaintiffs).

Moreover, Plaintiffs’ allegations indicate they were not reasonably diligent in

pursuing their claim. To adequately plead fraudulent concealment, plaintiffs “‘must not

only show that [they] did not know the facts constituting a cause of action, but that [they]

exercised reasonable diligence to ascertain said facts.’” NIBCO, 2019 WL 4491331, at *6

(quoting Masquat v. DaimlerChrysler Corp., 195 P.3d 48, 55 (Okla. 2008)) (citation and

quotation marks omitted). “‘[I]f the means of knowledge exist and the circumstances are

such as to put a man of ordinary prudence on inquiry, it will be held that there was

knowledge of what could have been readily ascertained by such inquiry’ and a plaintiff

cannot successfully assert fraudulent concealment in answer to the defense of the statute

of limitations.” Id. (quoting Masquat, 195 P.3d at 55) (citation and quotation marks

omitted).

Plaintiffs’ allegations indicate that by February 15, 2024, they were, at least, on

inquiry notice of State Farm’s breach of contract: They knew of their property damage on

June 18, 2023, and knew State Farm, “ignoring the vast majority of patent wind- and

hailstorm damage to the home,” had at least partially denied their claim by June 30, 2023.

Compl., ¶ 40(f). They knew various roofing companies agreed their roof needed extensive

repair by January of 2024. They knew Defendant refused to participate in a joint roof

inspection in February of 2024. Yet Plaintiffs allege that after Defendant’s refusal, they

waited over six months to re-attempt to convince State Farm to reconsider their claim and

over a year to file suit.

Plaintiffs’ “own failure to exercise diligence in pursuing [their] claims against

Defendant precludes the application of fraudulent concealment.” NIBCO, 2019 WL

4491331, at *6 (citing Daugherty v. Farmers Coop. Ass’n, 689 P.2d 947, 951 (Okla.

1984)). The Court thus finds Plaintiffs have not pleaded fraudulent concealment sufficient

to warrant tolling of the contractual limitations period.6

6 Though neither party asserts the argument directly, the briefing contains echoes of a

related ground for a delayed start to the limitations period for fraud claims. See Doc. No. 3

at pp. 11-12; Doc. No. 28 at p. 4. “[I]f the nature of the original fraudulent act was such

that it hid the fraud from the defrauded party, then the limitations period would not begin

until the fraud was uncovered.” Legacy Crossing, 229 Fed. App’x at 681 (citing Brookshire

v. Burkhart, 283 P. 571, 577-78 (Okla. 1929)). “But that situation is governed by the

[Oklahoma fraud] statute’s instruction that causes of action for fraud do not accrue until

the fraud is discovered, not by the fraudulent concealment doctrine.” Id. Defendant’s partial

motion to dismiss and the briefings focus upon the breach of contract claim and the Court

will do the same here.

III. Defendant Did Not Waive the Contractual Limitations Period.

Lastly, Plaintiffs argue Defendant waived the one-year contractual limitations

period.

Oklahoma does recognize that an insurer can waive its ability to assert a

limitations defense in certain circumstances. . . . However, the caselaw

reveals that the basis for asserting an insurer's conduct amounted to waiver

generally is that the insurer's own conduct interrupted the limitations period.

. . . Examples of conduct by the insurer that amount to waiver include

situations where the insurer leads the insured to believe it will pay a claim,

leading the insured to not file suit within the limitations period. . . . Courts

have found waiver of the limitations period in other situations where the

insurer has displayed “dilatory tactics.” . . . The Court does not interpret the

caselaw to support [the] argument that mere negotiation of a claim outside

the limitations period for a lawsuit can constitute waiver. Instead, the focus

is upon whether the insurer's conduct caused the insured to be unable to

initiate a lawsuit within the limitations period.

Marshall, 2025 WL 817606, at *4 (citing Zewdie, 304 F. Supp. 3d at 1108-09) (citations

omitted).

Furthermore, where an insurer has waived the limitations period, it merely

“‘operate[s] to suspend the running of the statute of limitations until denial of liability and

. . . thereafter the statute begins to run again and, if insufficient time remains to institute

the action within the year, the insured may have a reasonable time thereafter to bring

action.’” Zewdie, 304 F. Supp. 3d at 1109-10 (quoting Ins. Co. of N. Am. v. Bd. of Educ. of

Indep. Sch. Dist. No. 12, 196 F.2d 901, 904 (10th Cir. 1952)). See Roemer v. State Farm

Fire & Cas. Co., No. 06-CV-0663-CVE-PJC, 2007 WL 527863, at *2-3 (N.D. Okla. Feb.

14, 2007)) (granting motion to dismiss plaintiff’s claim as time-barred where State Farm,

even if it had delayed investigation for a time, denied plaintiff’s claims three months before

the statute of limitations expired).

Plaintiffs allege Defendant’s actions entitled them “to the reasonable expectation

that State Farm may afford . . . their full replacement cost benefits,” thus waiving the

limitations period. Compl., ¶ 40(n); Doc. No. 27 at p. 17. These actions include

Defendant’s instructions to Plaintiffs in February of 2024 to get a new contractor and the

“textbook delay tactic” in September of 2024 when State Farm essentially told Plaintiffs to

“restart the process of appealing a decision on the Claim.” Compl., ¶ 40(j)-(n).

Plaintiffs’ allegations do not suggest Defendant waived the limitations period by

using dilatory tactics or leading them to believe it might fully replace their roof. Instead,

they allege State Farm calculated and issued payment for Plaintiffs’ loss within mere weeks

of Plaintiffs’ claim. Furthermore, by February of 2024, when Defendant refused to jointly

inspect the property and instructed Plaintiffs to get a new contractor, Plaintiffs were,

according to their own allegations, aware Defendant was not going to reconsider their

claim. See id. ¶ 40(k) (“State Farm’s unwillingness to budge . . . demonstrates its

commitment to the pre-textual denial of full roof replacements by way of the Scheme.”).

Plaintiffs had roughly four months after the events of February of 2024 to bring suit

against Defendant and did not. They make no allegations of any communications or actions

by Defendant during those four months which might warrant their belief that Defendants

would reconsider their claim.7 The next alleged actions taken by Defendant regarding their

7 In their Response, Plaintiffs assert that “State Farm negotiated settlement of the Claim . .

. between June 30, 2023, . . . through June 18, 2024[,] . . . and . . . September 2024.” Doc.

claim did not occur until September of 2024, when Plaintiffs once again attempted to

convince State Farm to reconsider its decision. Yet again, Plaintiffs fail to allege that their

failure to timely file suit should be excused.

CONCLUSION

Accordingly, Plaintiffs’ breach of contract claim is DISMISSED as time-barred. In

their Response, Plaintiffs requested the opportunity to amend their Complaint to properly

plead fraudulent concealment. Plaintiffs’ request is granted. Plaintiffs have fourteen days

from the date of this order to file an Amended Complaint.

IT IS SO ORDERED this 24" day of October, 2025.

UNITED STATES DISTRICT JUDGE

No. 27 at p. 17. Plaintiffs attempt to argue that “State Farm purportedly investigated

Plaintiffs’ Claim throughout this time.” /d. This was not included in the Complaint.

13