MEMORANDUM-DECISION AND ORDER*fn1
Plaintiff/Cross-Defendant Employers Insurance Company of Wausau ("Wausau") alleges damages resulting from Defendant/Cross-Plaintiff Crouse-Community Center, Inc.'s ("Crouse") failure to pay "the balance due and owing to Wausau for outstanding insurance premium, dividend, and New York surcharge." Amended Complaint (Dkt. No. 10) at ¶ 24. The claim arises from a Workers' Compensation policy issued by Wausau in favor of Crouse. See id. at ¶ 7. This Court has jurisdiction over this matter under 28 U.S.C. § 1332(a) based upon the diversity of citizenship of the parties. See id. at ¶ 1.
In answering, Crouse raised several affirmative defenses and sought relief through several counterclaims. Wausau has made a Partial Motion to dismiss and a Partial Motion to strike affirmative defenses.*fn2
Crouse has brought a counterclaim and raised an affirmative defense alleging that Wausau breached its fiduciary duty. See First Amended Answer (Dkt. No. 12) ¶¶ 34-41. Crouse alleges that Wausau properly filed a claim with the New York State Second Injury Fund ("Second Injury Fund"), took several steps to perfect the application, but then inexplicably withdrew its application. See id. at ¶¶ 20-24. Crouse argues that Wausau owed it a fiduciary duty when it represented Crouse in application to the Second Injury Fund and that Wausau breached that duty in withdrawing such application without explanation. See id. at ¶ 39.
Crouse has also raised an affirmative defense that Wausau negligently calculated the amount Crouse owed under the insurance policy and failed to handle claims with reasonable care. See id. at ¶ 32. Specifically, Crouse alleges that Wausau improperly calculated premiums by inflating medical reserves under Wausau's Retrospective Rating Plan. See id. at ¶ 29-33.
Wausau argues that neither a fiduciary duty nor a tort duty exists and, therefore, has moved to dismiss Crouse's first counterclaim alleging a breach of fiduciary duty and has moved to strike affirmative defenses alleging a breach of fiduciary duty and negligence. See Plntf's Memorandum in Support of Motion to Dismiss and Strike (Dkt. No. 16, Attach. 6) at 1-2.
A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure must be denied "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In assessing the sufficiency of a pleading, the Court must "assume all well-pleaded factual allegations to be true, and . . . view all reasonable inferences that can be drawn from such allegations in the light most favorable to the plaintiff." Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999).
Motions to strike affirmative defenses under Rule 12(f) of the Federal Rules of Civil Procedure are not generally favored. However, courts should grant these motions when the defenses presented are clearly insufficient. See Simon v. Mfrs. Hanover Trust Co., 849 F. Supp. 880, 882 (S.D.N.Y. 1994). Rule 12(f) motions should be granted only when "it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense." Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds, 478 U.S. 1015 (1986). In making its determination on a Rule 12(f) motion, a court "must accept the matters well-pleaded as true and should not consider matters outside the pleadings." County Vanlines, Inc. v. Experian Info. Solutions, Inc., 205 F.R.D. 148, 152 (S.D.N.Y. 2002) (internal quotations omitted).
B. Breach of Fiduciary Duty Counterclaim
Crouse pleads that Wausau owed it a fiduciary duty as its representative before the Second Injury Fund. See First Amended Answer (Dkt. No. 12) at ¶¶ 38-39. Wausau argues that, as the insurer, it owed no fiduciary duty to Crouse, the insured, and, therefore, Crouse has failed to state a claim upon which relief may be granted. Deft's Memorandum in Opposition to Motion to Dismiss and Strike (Dkt. No. 17) at 3-5. However, Crouse's counterclaim alleging a breach of fiduciary duty is more appropriately and more narrowly dismissed because the statute of limitations for the claim had run prior the filing of Crouse's counterclaim. The statute of limitations period for a breach of fiduciary duty claim under New York law depends upon the remedy sought. Where the party seeks a remedy in damages, the statute of limitations for a breach of fiduciary duty claim is three (3) years; however, where the party seeks a remedy in equity, the period is six (6) years. Carlingford Ctr. Point Assocs. v. MR Realty Assoc., 772 N.Y.S.2d 273, 274 (App. Div. 1st Dep't 2004). Crouse alleges that Wausau breached its fiduciary duty on March 5, 1999 by inexplicably withdrawing an application to the Second Injury Fund. See First Amended Answer (Dkt. No. 12) at ¶ 25. Crouse's original counterclaim was not filed until January 30, 2006. See id. With more than six (6) years elapsing between the alleged breach and the filing of the Crouse's counterclaim, the claim alleging a breach of fiduciary duty must be dismissed and this Court need not address whether the three-year or six-year statutory period applies.
C. Breach of Fiduciary Duty Affirmative Defense
While Crouse's counterclaim alleging breach of fiduciary duty is time barred, the question remains as to whether the affirmative defense raised upon the same alleged duty and breach survives Wausau's motion to strike. The Court finds that this defense does survive a motion to strike; therefore, Wausau's ...