Submitted: May 10, 2017
Appeal
from United States District Court for the District of
Nebraska - Omaha
Before
RILEY, BEAM, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
McShane
Construction, LLC (McShane), a general contractor, sued
Gotham Insurance Company (Gotham) directly for failing to pay
its insurance claim related to the alleged improper
installation of a fire protection and suppression system by
one of McShane's subcontractors, Mallory Fire Protection
Services (Mallory)-whom McShane has sued separately in
Nebraska state court. The district court[1] granted
Gotham's Federal Rule of Civil Procedure 12(b)(6) motion
to dismiss for failure to state a claim upon which relief can
be granted, and McShane now appeals. Having jurisdiction
under 28 U.S.C. § 1291, we affirm.
I.
Background
In
2012, McShane began general contract work on the construction
of a 196-unit, $15 million apartment complex (Project) in
Omaha, Nebraska. McShane hired Mallory as a subcontractor to
design and install a fire suppression and protection system
for the Project.
McShane
and Mallory executed a subcontract on June 8, 2012, that
included a provision requiring Mallory to obtain insurance
policies and to list McShane as an Additional Insured on the
Commercial General Liability (CGL) insurance policy. Mallory
subsequently purchased and Gotham issued on September 15,
2012, Gotham Policy No. GL2012FSC00451(Policy) to fulfill
this requirement. The "Additional Insured"
endorsement modified the insurance provided under the
"Commercial General Liability Coverage Part." It
listed "Blanket where required by written
contract"-which includes McShane since it contracted
with Mallory-as the Additional Insured, and Gotham provided
McShane with a Certificate of Liability Insurance verifying
McShane as an Additional Insured.
Under
its subcontract with McShane, Mallory designed and installed
a fire suppression and protection system, which McShane
determined was faulty. To replace the faulty system, McShane
removed previously installed drywall and installation leading
to damages and losses that McShane alleges exceed $614,
291.17.
Mallory
and McShane each filed independent claims with Gotham to
cover the damages and losses. Gotham eventually combined the
two claims into a single claim with Mallory listed as the
insured. After a comprehensive adjustment process including
McShane, Gotham's primary adjuster for this claim sent a
final report recommending payment of $499, 453.57 "for
payment of the claim relating to the improper installation of
the fire sprinkler system." Gotham subsequently stopped
communicating with McShane other than through an attorney and
ultimately refused to provide McShane with a formal coverage
determination.
McShane
filed this lawsuit on December 23, 2014, asserting eight
causes of action including (in the order asserted by McShane)
violation of the Nebraska Unfair Insurance Trade Practices
Act (Count 1), violation of the Nebraska Unfair Insurance
Claims Settlement Practices Act (Count 2), violation of the
implied covenant of good faith and fair dealing (Count 3), a
claim for attorney's fees under Neb. Rev. Stat. §
44-359 (Count 4), breach of contract (Count 5), waiver and
estoppel (Count 6), a claim under the rescue doctrine (Count
7), and declaratory relief (Count 8).
On
March 29, 2016, the district court granted Gotham's
motion to dismiss all counts. McShane subsequently filed a
Federal Rule of Civil Procedure 59(e) motion to reconsider
and vacate the judgment, which the district court denied on
May 9, 2016. McShane now appeals.[2]
II.
Analysis
We
review de novo the district court's grant of a motion to
dismiss, "accepting as true the complaint's factual
allegations and granting all reasonable inferences to the
non-moving party." Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 591 (8th Cir. 2009).
To
survive a 12(b)(6) motion to dismiss, "a complaint 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 omitted). The complaint must
provide "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556
U.S. at 678. Two working principles underlie the analysis:
(1) the court's obligation to accept the non-movant's
allegations as true "is inapplicable to legal
conclusions, " such that "[t]hreadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice"; and (2)
"only a complaint that states a plausible claim for
relief survives a motion to dismiss, . . . [and]
[d]etermining whether a complaint states a plausible claim
for relief . . . [is] a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense." Id. at 678-79.
We find
that the district court's dismissal of all counts was
proper. To explain, we will group McShane's six remaining
causes of action into (A) statutory claims, (B) those
...