NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

IGLESIA DE JESUCRISTO MINISTERIOS A LOS PIES DEL MAESTRO, 

Plaintiff/Appellant,

v.

BROTHERHOOD MUTUAL INSURANCE COMPANY, et al., 

Defendants/Appellees.

No. 1 CA-CV 21-0358 

Appeal from the Superior Court in Maricopa County

No. CV2020-009227

The Honorable Roger E. Brodman, Judge Retired

AFFIRMED

COUNSEL

Poli Moon & Zane PLLC, Phoenix

By Michael N. Poli, Lawrence R. Moon

Co-Counsel for Plaintiff/Appellant

Taylor Young Appeals, PLLC, Phoenix

By Taylor C. Young

Co-Counsel for Plaintiff/Appellant

FILED 9-20-2022
2

Jones Skelton & Hochuli PLC, Phoenix

By Donald L. Myles, Jr., Patrick C. Gorman

Counsel for Defendant/Appellee Brotherhood Mutual Insurance Company

Udall Law Firm LLP, Phoenix

By Elizabeth L. Fleming

Counsel for Defendant/Appellee Augspurger Komm Engineering Inc.

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie joined. Vice Chief Judge David B. Gass 

dissented.

P A T O N, Judge:

¶1 Iglesia de Jesucristo Ministerios A Los Pies del Maestro (“the 

Church”) appeals from the superior court’s grant of a motion to dismiss its 

aiding and abetting claim against Augspurger Komm Engineering, Inc. 

(“AKE”). We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We take all well-pled factual allegations as true when 

reviewing the superior court’s grant of a motion to dismiss under Arizona 

Rule of Civil Procedure 12(b)(6). Cullen v. Auto-Owners Ins. Co., 218 Ariz. 

417, 419, ¶ 7 (2008).

¶3 In 2016, the Church held an insurance policy with 

Brotherhood Mutual Insurance Company (“Brotherhood”). That year, 

thirty-two out of its thirty-five air conditioning units were damaged in an 

August hailstorm. Following the storm, the units malfunctioned and did 

not adequately cool rooms on the Church’s property. The Church was 

unaware that this loss in function was connected to the 2016 hailstorm and 

did not immediately submit a claim. In 2018, another hailstorm struck the 

Church’s property, and the Church submitted a claim to Brotherhood for 

the damage resulting from both hailstorms.

¶4 Brotherhood acknowledged the claim and retained AKE to 

inspect the units. AKE prepared a report finding that the units exhibited 

fin deformations “most consistent with hailstone impacts.” But AKE found 

the damage was not caused by either the 2016 or 2018 storms but by a 2010 
IGLESIA v. BROTHERHOOD, et al.

Decision of the Court

3

hailstorm, which was prior to the Church purchasing the property and

Brotherhood covering the insured property. 

¶5 Brotherhood denied the claim based on AKE’s finding. The 

Church sued both Brotherhood and AKE—alleging breach of contract, 

breach of implied duty of good faith and fair dealing, and bad faith denial 

of an insurance claim against Brotherhood, and aiding and abetting tortious 

conduct against AKE.

¶6 Brotherhood settled with the Church, and the superior court 

dismissed the claims against it. AKE filed a motion to dismiss for failure to 

state a claim under Arizona Rule of Civil Procedure 12(b)(6). AKE argued

the Church had not alleged, and the court could not infer, that AKE had 

actual knowledge of bad faith committed by Brotherhood. AKE further 

argued that no allegation or inference had been made that AKE had 

substantially assisted the alleged tortious conduct of Brotherhood. The 

court found the Church had not pled facts sufficient to support its action 

against AKE. Specifically, the court noted that “[the Church] has no claim 

against AKE unless AKE’s report was, in fact, knowingly inaccurate.” It 

further explained that the Church had “not pled facts showing that AKE 

knew that [Brotherhood] made [the Church] a lowball offer or that AKE’s 

conduct provided substantial assistance. There is no allegation that AKE 

had any role in the ultimate claim decision.” But the court granted leave 

for the Church to file an amended complaint as a matter of right.

¶7 The Church filed an amended complaint asserting the same 

causes of action with additional allegations, including that AKE knew 

Brotherhood would rely on the report and breach its duties to the Church 

by denying the claim. The Church further alleged that AKE ignored 

contrary evidence that suggested the 2016 storm was responsible for the 

damage to the units. AKE filed a second motion to dismiss for substantially 

the same reasons as before: that the amended complaint lacked any fact 

indicating AKE substantially assisted with a tort and that no allegation or 

inference of actual knowledge was present. The superior court granted this 

second motion to dismiss without leave to amend the complaint.

¶8 The Church filed a motion to alter or amend the judgment 

under Arizona Rule of Civil Procedure 59, which the superior court denied. 

The court awarded costs to AKE as the prevailing party under Arizona 

Revised Statutes (“A.R.S.”) § 12-341. The Church timely appealed.

¶9 We have jurisdiction pursuant to Article 6, Section 9, of the 

Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
IGLESIA v. BROTHERHOOD, et al.

Decision of the Court

4

DISCUSSION

¶10 We review the superior court’s dismissal of a complaint under 

Arizona Rule of Civil Procedure 12(b)(6) de novo. Conklin v. Medtronic, Inc., 

245 Ariz. 501, 504, ¶ 7 (2018). In so doing, we may consider exhibits to the 

complaint. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012). Dismissal 

under Rule 12(b)(6) is proper if, “as a matter of law [Plaintiff] would not be 

entitled to relief under any interpretation of the facts susceptible of proof.”

CVS Pharmacy, Inc. v. Bostwick, 251 Ariz. 511, 576-77, ¶ 10 (2021) (internal 

quotation omitted). While Arizona follows a notice pleading standard, 

“mere conclusory statements are insufficient to state a claim upon which 

relief can be granted.” Cullen, 218 Ariz. at 419, ¶ 7.

I. The superior court correctly dismissed the aiding and abetting 

claim against AKE.

¶11 The tort of aiding and abetting requires proof of three 

elements: (1) the primary tortfeasor committed a tort causing injury to the 

plaintiff, (2) the defendant knew the primary tortfeasor’s conduct 

constituted a breach of its duties to the plaintiff, and (3) the defendant 

substantially assisted or encouraged the primary tortfeasor in achieving the 

breach. Wells Fargo Bank v. Ariz. Laborers, Teamsters and Cement Masons Loc.

No. 395 Pension Tr. Fund, 201 Ariz. 474, 485, ¶ 34 (2002); Restatement 

(Second) of Torts § 876(b).

¶12 The underlying tort in this case, bad faith denial of a claim by 

an insurer, occurs when (1) the insurer acts unreasonably towards its 

insured and (2) the insurer did so either knowingly or with reckless 

disregard to whether it was acting unreasonably. Acosta v. Phoenix Indem. 

Ins. Co., 214 Ariz. 380, 383, ¶ 13 (App. 2007). Bad faith is an intentional tort. 

See Noble v. Nat’l Am. Life Ins. Co., 128 Ariz. 188, 190 (1981). 

¶13 While a plaintiff need not allege that an aiding and abetting

defendant had “[a]ctual and complete knowledge of the details of a primary 

tort,” he must allege that “the defendants knew the conduct they allegedly 

aided and abetted was a tort.” Dawson v. Withycombe, 216 Ariz. 84, 102, 

¶ 50 (App. 2007) (citing Wells Fargo, 201 Ariz. at 485, ¶¶ 33, 35 (2002)).

Courts typically require that a defendant have “actual knowledge of the 

specific primary wrong that he is substantially assisting” to be liable under 

the Second Restatement formulation. See In re Hydroxycut Mktg. and Sales 

Pracs. Litig., 299 F.R.D. 648, 657 (S.D. Cal. 2014) (dismissing claim for aiding 

and abetting deceptive advertising scheme where plaintiffs did not allege 

that defendants had knowledge of the falsity or deceptiveness of primary 
IGLESIA v. BROTHERHOOD, et al.

Decision of the Court

5

tortfeasor’s marketing) (citing In re First Alliance Mortgage Co., 471 F.3d 977, 

993 (9th Cir. 2006); Restatement (Second) of Torts § 876(b)). A conclusory

allegation that an alleged aider-and-abettor knew that a report prepared for 

an insurer would be used for an improper purpose is insufficient to plead 

the knowledge element of an action for aiding and abetting the tortious bad 

faith denial of an insurance claim. See Federico v. Maric, 224 Ariz. 34, 37, ¶¶ 

11-12 (App. 2010).

¶14 Here, the Church advances the following relevant allegations

in its amended complaint: (1) AKE prepared a report for Brotherhood

analyzing the claim of hailstone damage, (2) this report was “biased and 

outcome-oriented,”(3) AKE knew Brotherhood would rely on the report in 

declining the claim, (4) AKE had at least “a general understanding” of 

Brotherhood’s duties given its experience in the insurance industry, and (5) 

the report was incorrect and failed to engage with contrary evidence.

¶15 Taken as true, these allegations fall short of pleading the 

knowledge element of an aiding and abetting claim. In Federico, this court

upheld a grant of summary judgment concerning an aiding and abetting 

claim against a physician who performed an independent medical 

examination (“IME”). 224 Ariz. at 35, ¶¶ 3-4. As here, the non-moving 

party asked the superior court to infer the knowledge element from the fact 

that the physician possessed knowledge of the insurance industry and 

knew his IME would likely result in the denial of the claim. Id. at 37, ¶ 11. 

This was coupled with evidence that the physician was prejudiced against 

his patients and viewed those who appeared for an IME with suspicion. Id.

But even these facts “pertain[ed] only to [the physician’s] own actions” and

did not suggest the defendant knowingly aided another tortfeasor. Id. We 

noted that even accepting each proposed statement of fact as true, “none of 

them suggest in any way that [the defendant] had any knowledge of [the 

insurer’s] intent or even propensity to act in bad faith toward [the] claim.” 

Id.

¶16 A motion to dismiss requires the movant to meet a higher 

standard than a motion for summary judgment. Compare Ariz. R. Civ. P. 

12(b)(6), Fid. Sec. Life Ins. Co. v. Ariz. Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4 

(1998) (requiring the defendant to demonstrate that plaintiff “would not be 

entitled to relief under any interpretation of the facts susceptible of proof”)

with Ariz. R. Civ. P. 56(a) (requiring the movant to demonstrate that there 

are no genuine issues of material fact and the movant is entitled to 

judgment as a matter of law). Our dissenting colleague emphasizes this 

point. This distinction, however, is immaterial here: Federico stands for the 

proposition that even assuming facts that might suggest bias by the reporter
IGLESIA v. BROTHERHOOD, et al.

Decision of the Court

6

does not suffice to prove knowledge of a scheme conducted by the insurer.

If these facts would be inadequate to demonstrate knowledge on a motion 

for summary judgment, they are inadequate as allegations to withstand a 

motion to dismiss.

¶17 Here, as in Federico, none of the allegations suggest AKE knew 

its report would facilitate a breach of Brotherhood’s duty to the Church.

Falling short of even the plaintiff’s allegation in Federico, the Church’s 

allegation of bias is conclusory: no supporting allegations are made to show 

AKE had any biased or outcome-oriented intent in preparing its report. 

Indeed, no well-pled allegation suggests that AKE knew Brotherhood 

would rely on the report to a tortious end, instead of the ordinary reliance 

an insurer places on such a report. Assuming arguendo the report was 

wrong, no further allegations permit us to infer knowledge of 

Brotherhood’s tortious conduct by AKE. Indeed, as in Federico, none of the 

allegations suggest AKE knew Brotherhood’s intended conduct after the 

report was provided. Nor is there anything other than a conclusory 

allegation of “general awareness” of a purported fraudulent scheme by 

Brotherhood. See Dawson, 216 Ariz. at 102, ¶ 50. While general awareness 

is the standard, the bare pleading of the standard is not sufficient, even in 

Arizona. Cullen, 218 Ariz. at 419, ¶ 7. The dissent’s elaboration of the 

pleadings at infra ¶ 35, in our view, does not get the Church any closer.

¶18 While we will not go point by point through the dissent’s 

review of the complaint, we note that the final allegation—that of 

spoliation—is at least in part contradicted by the emails offered as an 

attachment to the Church’s Rule 59 motion. AKE admitted it does not 

electronically preserve emails but represented that it prints emails 

containing information that “need[s] to [be] retain[ed]” and keeps them in 

a case file.

¶19 Further, as the superior court noted, AKE considered the 

Church’s evidence—specifically, the Church’s attached report and letter to 

its amended complaint indicating AKE disagreed with its interpretation of 

the data. This evidence does not support the Church’s otherwise 

conclusory allegations of bias or outcome-oriented reporting nor an 

inference that AKE knew Brotherhood’s conduct constituted a breach of 

duty.

¶20 As the superior court aptly summarized:

The fact that AKE generally works with insurance carriers is 

not a factual contention supporting the claim that AKE was 
IGLESIA v. BROTHERHOOD, et al.

Decision of the Court

7

aware of a strategy by Brotherhood Mutual to act in bad faith 

on this claim . . . . There are no facts supporting a suggestion 

that AKE had some form of “extraordinary motivation.”

With no allegations from which the court could infer knowledge, the second 

element of aiding and abetting was not properly pled, and the court 

properly granted AKE’s motion to dismiss.

¶21 The dissent suggests we are applying a pleading standard at 

odds with our decision in Verduzco v. American Valet, and generally a 

standard higher than what Arizona requires. 240 Ariz. 221 (App. 2016). In 

Verduzco, we noted that “knowledge, and other condition of mind of a 

person may be averred generally.” Id. at 225, ¶ 9 (quoting Ariz. R. Civ. P. 

9(b)). But we did not, in Verduzco or anywhere else, announce a rule 

contrary to that expounded by our supreme court, namely that “[b]ecause 

Arizona courts evaluate a complaint’s well-pled facts, mere conclusory 

statements are insufficient to state a claim upon which relief can be 

granted.” Cullen, 218 Ariz. at 419, ¶ 7. We take the view that the complaint 

here—including the statements highlighted by the dissent—are “mere 

conclusory statements” that do not provide a sufficient factual basis to infer 

AKE had a general awareness of Brotherhood’s scheme.

¶22 Verduzco is also distinguishable. In that case, we examined 

what was necessary to adequately plead that a defendant knew a driver 

was not safe to drive. The plaintiffs appropriately pled that the driver was 

“high on drugs and behaving erratically” and that under those 

circumstances the defendant “should have known” he was unable to safely 

drive. Verduzco, 240 Ariz. at 225, ¶ 10. Plaintiffs alleged a factual predicate 

to the defendant’s knowledge: the driver was visibly behaving “erratically.” 

Id. Further, the plaintiffs only had to prove the defendant’s knowledge of 

the driver’s condition—one level of knowledge. By contrast, the Church 

has not adequately pled any factual predicate to AKE’s purported 

knowledge of a scheme, not making it “susceptible of proof.” CVS 

Pharmacy, Inc., 251 Ariz. at 576–77, ¶ 10. Further, in the instant case, it is not 

merely AKE’s knowledge of the conditions of the roofs or other physical 

facts that are necessary for the aiding and abetting claim. AKE must have

had knowledge of Brotherhood’s breach of duty. Restatement (Second) of 

Torts § 876(b). For the purposes of aiding and abetting a tort of bad faith, 

this requires that AKE knew Brotherhood’s denial was made with reckless 

or knowing wrongfulness. See Federico, 224 Ariz. at 36, ¶¶ 8-9. 

¶23 The dissent also takes issue with our discussion of In re 

Hydroxycut. 299 F.R.D. 648. But In re Hydroxycut merely applies the same
IGLESIA v. BROTHERHOOD, et al.

Decision of the Court

8

elements of aiding and abetting—including the knowledge element —that 

Arizona has already adopted, including in Wells Fargo. Compare In re 

Hydroxycut, 299 F.R.D. at 657-58 (applying Restatement (Second) of Torts 

§ 876(b)) with Wells Fargo, 201 Ariz. at 485, ¶¶ 33-36 (same). While this 

knowledge can be inferred, it cannot be based upon “inference [piled] upon 

inference.” Dawson, 216 Ariz. at 103, ¶ 52. General awareness still 

presupposes some actual awareness. Id. at 102-103, ¶ 51 (citing Wells Fargo, 

201 Ariz. at 487, ¶¶ 37-41). With respect to our dissenting colleague: 

knowledge need not be pled with specificity, but actual knowledge must be 

pled. Id. We do not find that the Church alleged facts susceptible to proof 

of AKE’s scienter sufficient for an aiding and abetting claim.

¶24 Finally, we respectfully disagree with the dissent’s statement 

that requiring adequate pleading for aiding and abetting shuts the 

courthouse door to litigants. While the superior court noted that generally

“[t]he process is first to obtain some facts that support a claim, and then file 

litigation and conduct discovery,” Arizona is not quite so harsh. Our state

has procedural rules for pre-litigation discovery to allow development of 

those facts. See generally Ariz. R. Civ. P. 27. By no means is a party required 

to plead with the benefits of full discovery, but litigants who fear a motion 

to dismiss have options to guard against that result if they have already 

been warned that their pleading is inadequate, as was the case here. The 

Church could have exercised these rights before bringing the action—as 

well as when it was given an opportunity to file an amended complaint 

specifically addressing the court’s concerns—as can any litigant seeking to 

bring an aiding and abetting claim. It is simply the case that different causes 

of action will require different levels of investigative effort on the part of 

attorneys before a case is filed. It is unexceptional that aiding and abetting 

in this context would be more difficult to investigate and plead than 

negligence.

II. The superior court properly awarded costs to AKE.

¶25 A court is required to award taxable costs to a prevailing 

party under Section 12-341. We affirm the judgment and the superior 

court’s award of taxable costs.

III. Attorneys’ Fees and Costs on Appeal

¶26 AKE requests attorneys’ fees and costs on appeal. As the 

prevailing party, AKE is entitled to taxable costs upon compliance with

Arizona Rule of Civil Appellate Procedure 21. We decline to award 

attorneys’ fees.
IGLESIA v. BROTHERHOOD, et al.

Decision of the Court

9

CONCLUSION

¶27 We affirm.
IGLESIA v. BROTHERHOOD, et al.

Gass, V.C.J., dissenting

10

G A S S, V.C.J., dissenting.

¶28 In granting Augsperger Komm Engineering, Inc.’s (AKE’s) 

motion to dismiss, the superior court said, Iglesia de Jesucristo Ministerios 

A Los Pies del Maestro’s (the Church’s) “aiding and abetting claim against 

AKE is entirely conclusory.” To that end, the superior court said, “[f]or the 

purposes of this motion, the key finding of [Federico v. Maric, 224 Ariz. 34 

(App. 2010)] is that a court cannot infer knowledge of bad faith based on an 

allegation that a third-party’s report to an insurance company was biased 

and submitted with the knowledge that it would negatively affect the 

claimant’s claim.” Federico, however, was before this court at the summary 

judgment stage. 224 Ariz. at 35, ¶ 1. If this case was at the summary 

judgment stage, I would join the majority. But this case is at the motion to 

dismiss stage, so the standard of review and the inferences the superior 

court (and we) must apply are fundamentally different. Further, the 

allegations in the Church’s first amended complaint go further than the 

final evidence produced in Federico. I would reverse and remand for further 

proceedings.

¶29 The majority correctly describes the elements of the torts at 

issue in this case: (1) aiding and abetting and (2) insurer’s bad faith denial 

of a claim. See supra ¶¶ 11–12.

¶30 For this dissent, I focus on the aiding and abetting claim. For 

its aiding and abetting claim against AKE, the Church must allege (1) 

Brotherhood breached its duty of good faith and fair dealing and caused 

injury to the Church; (2) AKE knew Brotherhood’s conduct constituted a 

breach of its duties to the Church; and (3) AKE substantially assisted or 

encouraged Brotherhood in achieving the breach. See Dawson v. Withycombe, 

216 Ariz. 84, 102, ¶ 50 (App. 2007) (citing Wells Fargo Bank v. Ariz. Laborers,

Teamsters & Cement Masons Loc. No. 395 Pension Tr. Fund, 201 Ariz. 474, 485, 

¶¶ 33–34, 36 (2002), as corrected (Apr. 9, 2002)). This appeal focuses on the 

second and third elements.

¶31 The majority correctly states aiding and abetting does not 

require the Church to allege AKE had “[a]ctual and complete knowledge of 

the details of a primary tort.” See Dawson, 216 Ariz. at 102, ¶ 50 (citing Wells 

Fargo, 201 Ariz. at 488, ¶ 45). Indeed, the Church need not allege AKE 

actually knew the conduct it allegedly aided and abetted was a tort and 

instead may establish a “general awareness” of the tort. See id.; see also Wells

Fargo, 201 Ariz. at 488, ¶ 45 (“The knowledge requirement can be met, even 

though the bank may not have known of all the details of the primary 

fraud—the misrepresentations, omissions, and other fraudulent practices.” 
IGLESIA v. BROTHERHOOD, et al.

Gass, V.C.J., dissenting

11

(quoting Aetna Cas. and Sur. Co. v. Leahey Const. Co., 219 F.3d 519, 536 (6th 

Cir. 2000) (internal quotation marks omitted))). In short, Arizona requires 

the plaintiff allege the aiding and abetting defendant either have actual 

knowledge or a general awareness of the underlying tort. Sec. Title Agency,

Inc. v. Pope, 219 Ariz. 480, 490, ¶ 42 (App. 2008); see also Wells Fargo, 201 Ariz. 

at 488, ¶ 45 (citing with approval FDIC v. First Interstate Bank of Des Moines,

N.A., 885 F.2d 423 (8th Cir. 1989) for the proposition a “bank can be held 

liable for aiding and abetting a customer who defrauded another bank if 

[the] bank has a ‘general awareness’ of the customer’s fraudulent scheme, 

notwithstanding the fact that the bank may not have had actual knowledge 

of the scheme or an intent to participate in the fraud”).

¶32 I take no issue with the majority’s basic statement of the law 

as it applies to this case. This court reviews the superior court’s dismissal 

of a complaint under Arizona Rule of Civil Procedure (Rule) 12(b)(6) de 

novo. Conklin v. Medtronic, Inc., 245 Ariz. 501, 504, ¶ 7 (2018) (citation 

omitted). In so doing, we may consider exhibits to the complaint. Coleman 

v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012) (citation omitted). Dismissal 

under Rule 12(b)(6) is proper if, “as a matter of law, [Plaintiff] would not be 

entitled to relief under any interpretation of the facts susceptible of proof.” 

CVS Pharmacy, Inc. v. Bostwick, 251 Ariz. 511, 576–77, ¶ 10 (2021) (citation 

omitted). Though Arizona follows a notice pleading standard, “mere 

conclusory statements are insufficient to state a claim upon which relief can 

be granted.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 418, 419, ¶¶ 1, 7

(2008) (rejecting heightened federal pleading standard from Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544 (2007), which requires the pleading establish 

a “plausible” claim for relief).

¶33 Instead, I take issue with the majority’s reliance on Federico, 

which analyzed the knowledge requirement in an aiding and abetting tort 

at the summary judgment stage. Federico, 244 Ariz. at 35, ¶ 1. I would look 

to this court’s more recent discussion of pleading knowledge at the motion 

to dismiss stage. See Verduzco v. Am. Valet, 240 Ariz. 221 (App. 2016). In 

Verduzco, this court made several key points about pleading knowledge 

under the Arizona Rules of Civil Procedure—points I conclude control the 

outcome of this appeal. See id. at 225, ¶¶ 9–12. In Arizona, a plaintiff need 

only make “[a] short and plain statement of the claim showing that the 

pleader is entitled to relief.” Id. at 225, ¶ 9 (quoting Ariz. R. Civ. P. 8(a)(2)). 

Further, “knowledge, and other conditions of a person’s mind may be 

alleged generally.” Ariz. R. Civ. P. Rule 9(b). A plaintiff need not “allege the 

evidentiary details of plaintiff’s claim for relief.” Verduzco, 240 Ariz. at 225, 

¶ 9 (citing Daniel J. McAuliffe & Shirley J. McAuliffe, Arizona Civil Rules 

Handbook at 21 (2015 ed.)). As Verduzo recognized, “[t]he test is whether 
IGLESIA v. BROTHERHOOD, et al.

Gass, V.C.J., dissenting

12

enough is stated to entitle the pleader to relief on some theory of law 

susceptible of proof under the allegations made.” Id. (quoting McAuliffe & 

McAuliffe at 144) (emphasis added).

¶34 In Verduzco, this court reversed a grant of dismissal of a 

negligent entrustment claim based on “[t]he factually intensive nature of a 

‘reason to know’ inquiry.” Id. at ¶ 12. General awareness, like a “reason to 

know,” is a factually intensive question. See id. Under Arizona’s liberal 

pleading standard, the Church need not “speculate” about what AKE knew 

to survive a motion to dismiss. Cf. id. (finding allegations sufficient based 

on the nature of the Arizona common law claim and Arizona’s liberal 

pleading standard such that plaintiff need not speculate about actual 

knowledge especially “given the limited record on a motion to dismiss for 

failure to state a claim, which does not include disclosures, discovery or 

other external evidence”). Instead, the Church may demonstrate general 

awareness with circumstantial evidence, and this court must “indulge all 

reasonable inferences” from the factual allegations presented. See Coleman, 

230 Ariz. at 356, ¶ 9; Dawson, 216 Ariz. at 102, ¶ 50 (holding “knowledge 

may be inferred from the circumstances presented”). “This is particularly 

true given the limited record on a motion to dismiss for failure to state a 

claim, which does not include disclosures, discovery or other external 

evidence.” Verduzco, 240 Ariz. at 225, ¶ 12.

¶35 With the above in mind, this court’s review must consider all 

well-pled factual allegations in the first amended complaint. I believe the 

majority omits some material factual allegations, and I would suggest the 

following italicized and underlined additions to paragraph 14 of the 

majority opinion, quoting directly from the first amended complaint: 

Here, the Church advances the following relevant allegations 

in its amended complaint:

(1) AKE prepared a report for Brotherhood analyzing the 

claim of hailstone damage,

(2) this report was “biased and outcome-oriented,” and 

“intended by AKE to lead to the denial of [the Church]’s claim or 

the under-estimation of the true amount owed to [the Church] by 

Brotherhood Mutual,”

(3) AKE knew Brotherhood would rely on the report in 

declining the claim, “and from its experience working with 

insurance companies, AKE knew that in doing so, Brotherhood 

Mutual breached its duties owed to [the Church],”
IGLESIA v. BROTHERHOOD, et al.

Gass, V.C.J., dissenting

13

(4) AKE had at least “a general understanding” of 

Brotherhood’s duties given its experience in the insurance 

industry, and “AKE substantially assisted Brotherhood Mutual in 

a tortious breach of the duties owed by Brotherhood Mutual to [the 

Church] under the applicable contract of insurance, and under 

general legal principles,”

(5) the report was incorrect and failed to engage with contrary 

evidence,

(6) “AKE, through its agents and/or employees, aided and abetted 

Brotherhood Mutual by failing to reasonably inspect the Property,“

(7) “AKE and its agents knew that the conduct of Brotherhood 

Mutual, including the lowball estimates of Brotherhood Mutual, 

and the repeated refusal to include all damages in the Loss, 

constituted a breach of the duties owed by Brotherhood Mutual to 

[the Church]; in part, this is based on the understanding that AKE 

routinely assists and works with insurance carriers like Brotherhood 

Mutual on insurance claims like the one at issue here,” and

(8) “In an effort to destroy evidence of its knowledge of its clients’ 

use of its reports to improperly deny and/or ‘low-ball’ insurance 

claims, such as [the Church]’s, AKE does not retain 

communications with its clients, such as Brotherhood Mutual. In 

comparison, independent insurance adjusters are required to retain 

all claim file records, including communications, for three years.”

¶36 The above allegations, viewed in concert, should survive a 

motion to dismiss. I focus on one additional allegation regarding AKE’s

knowledge not addressed in the majority’s analysis. The Church makes this 

statement regarding its allegation AKE acted with the intent to lead 

Brotherhood to deny the Church’s claim or underestimate the claim’s true 

value. To support that proposition, the first amended complaint goes on, 

saying,

Some of the AC units were known to have had their 

condenser fins combed after the Prior Event and prior to the 

2016 hailstorm [and] reflect[ed] damage that is consistent 

with the size of the hail stones that AKE has acknowledged 

were contained in the 2016 hailstorm but AKE did not address 

the damages to those units or report[] that the damage to those units 

was from the Prior Event.
IGLESIA v. BROTHERHOOD, et al.

Gass, V.C.J., dissenting

14

(Emphasis added.) Admittedly, the statement would be clearer if it was in 

the active voice, rather than the passive voice. But for motions to dismiss, 

Arizona courts parse words by indulging “all reasonable inferences” from 

the factual allegations presented. See Coleman, 230 Ariz. at 356, ¶ 9; Dawson, 

216 Ariz. at 102, ¶ 50 (holding “knowledge may be inferred from the 

circumstances presented”). The statement was not made in a vacuum, but 

in the context of AKE’s alleged knowing misconduct. The reasonable 

inference here is the condition was known to AKE. See id.

¶37 With the above, the Church’s first amended complaint 

contained well-pled factual allegations of AKE’s knowledge about 

Brotherhood’s alleged breach of its duty of good faith and fair dealing. The 

Church alleged AKE did not reasonably inspect the property, omitted and 

misattributed damages to certain units, created a biased and outcomeoriented report, intended the report to lead to an under-estimation by 

Brotherhood, routinely works with insurance carries and understands their 

duties, and failed to retain its communications with Brotherhood. At the 

very least, these allegations give rise to a reasonable inference AKE was 

generally aware Brotherhood’s conduct would constitute a breach of duty. 

See Coleman, 230 Ariz. at 356, ¶ 9; Dawson, 216 Ariz. at 102, ¶ 50 (“knowledge 

may be inferred from the circumstances presented”).

¶38 By comparison, this court summarized the facts in Federico as 

follows:

1. Maric knew he was working for Liberty Mutual.

2. Maric had done work for Liberty Mutual before.

3. Maric knew that calling somebody a malingerer can have 

a negative connotation.

4. Maric knew that opining that a claimant is motivated by 

secondary gains can have a negative [e]ffect on their claim.

5. Maric knew that his IME report would adversely affect the 

outcome of Federico’s workmans’ compensation claim.

6. Maric prejudges the patients he sees because he believes 

that the honest claims by legitimately injured people are 

settled and he never sees those people.
IGLESIA v. BROTHERHOOD, et al.

Gass, V.C.J., dissenting

15

7. Maric believes the people he sees are seeking monetary 

damages far beyond what is appropriate.

8. Maric finds almost 60% of the people he sees are 

imagining their pain or exaggerating their pain to make 

money from lawsuits.

9. Maric believes that he sees a skewed population of 

patients.

10. Maric finds only about 3.7% of the people on whom he 

performs IMEs are truly injured, and that injury was 

caused by the incident complained of.

11. Maric believes that lawsuits drive the amount of care 

because that is how claimants’ attorneys make more 

money.

12. Maric performed an inadequate medical examination of 

Federico.

Federico, 244 Ariz. at 37, ¶ 11.

¶39 The allegations here go further than those in Federico in 

several key regards. First, the Church alleged AKE’s report was outcome 

oriented. No such allegation appears in the list in Federico. See id. At best, 

Federico suggests the alleged aider and abettor was biased, but did not say 

the report was outcome oriented. See id. And nothing in the list says the 

alleged aider and abettor “intended” the insurer’s denial or underestimation of the claim. See id. The first amended complaint also alleges 

AKE knew Brotherhood engaged in “lowball estimates” and excluded 

damages in violation of its duty to the Church. Nothing in Federico suggests 

a similar allegation. See id. And nothing in Federico suggests the alleged 

aider and abettor knowingly omitted information comparable to allegations 

AKE knowingly omitted damage to some units even though AKE knew the 

units were repaired after the event to which AKE attributed the damages. 

See id. Though those omissions may at some point constitute mere

disagreement, at the pleading stage this court is not able to make that 

determination.

¶40 Moreover, the first amended complaint alleged AKE did not 

retain communications with Brotherhood to conceal its efforts to aid and 

abet Brotherhood. Federico contains no such allegation. See id. Nothing in 
IGLESIA v. BROTHERHOOD, et al.

Gass, V.C.J., dissenting

16

Federico addresses a spoliation of evidence allegation. See id. The majority 

relies on emails attached to the Church’s motion to dismiss. In those emails, 

AKE acknowledges it did not preserve the emails, but says it prints the 

emails that it needs to retain for the claim file.

¶41 I disagree with the majority because in its analysis, it relies on 

those emails to draw inferences to favor AKE. But our cases direct us to 

draw inferences to favor the Church. And one such inference is AKE did 

not keep emails that would have supported the Church’s position—an 

equally plausible inference in my opinion. In the end, it becomes a fact issue 

for the jury, not the superior court or this court. And to prevail on a motion 

to dismiss, AKE must demonstrate the Church “would not be entitled to 

relief under any interpretation of the facts susceptible of proof,” not just one 

of several inference to be drawn from the alleged facts. See Fid. Sec. Life Ins. 

Co. v. Ariz. Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4 (1998).

¶42 As Justice Rehnquist recognized, factually intensive state-ofmind inquiries are best left to factfinders, not courts acting as gatekeepers:

The state of a [person]’s mind is as much a fact as the state of 

[their] digestion. It is true that it is very difficult to prove what 

the state of a [person]’s mind at a particular time is, but if it 

can be ascertained it is as much a[] fact as anything else.

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716–17 (1983) 

(quoting Eddington v. Fitzmaurice, 29 Ch. Div. 459, 483 (1885)).

¶43 Not to put too fine a point on it, but even in the context of 

fraud, which must be pled with specificity and which is not the claim at 

issue here, a plaintiff need only plead knowledge “generally.” See Ariz. R. 

Civ. P. Rule 9(b). This lessened requirement exists to allow plaintiffs the 

opportunity to investigate, exchange disclosures, and find support (or not) 

for an allegation of knowledge—rather than making them speculate about 

what went through another’s mind. See Verduzco, 240 Ariz. at 225, ¶ 12. To 

hold otherwise and require knowledge be pled with specificity, as the 

majority does here, would foreclose almost any aiding and abetting claim 

at the outset. In Arizona, we do not shut the courthouse doors so hastily. 

Cf. id. at 225, ¶¶ 9–12 (“The test is whether enough is stated to entitle the 

pleader to relief on some theory of law susceptible of proof under the 

allegations made.” (Quoting Daniel J. McAuliffe & Shirley J. 

McAuliffe, Arizona Civil Rules Handbook at 144 (2015 ed.))).

¶44 Finally, I do not find persuasive the majority’s citation to In re 

Hydroxycut Mktg. and Sales Pracs. Litig., 299 F.R.D. 648, 657 (S.D. Cal. 2014). 
IGLESIA v. BROTHERHOOD, et al.

Gass, V.C.J., dissenting

17

See supra ¶ 13. To begin, Hydroxycut applied the heightened federal 

pleading standard, which is inimical to Arizona’s relaxed pleading 

standard. See id. at 659. And though Arizona permits “general awareness” 

for an aiding and abetting claim, Hydroxycut confined its analysis to “actual 

knowledge.” Compare Wells Fargo, 201 Ariz. at 488, ¶ 45 with Hydroxycut, 299 

F.R.D. at 657. But even assuming Hydroxycut was relevant, it does not stand 

for the proposition a defendant must have “actual knowledge of the specific 

primary wrong he is substantially assisting” to be liable under the Second 

Restatement formulation. 299 F.R.D. at 657 (emphasis in original). Though 

Hydroxycut includes that statement, upon closer examination, the 

Hydroxycut holding does not go that far. See id. The Hydroxycut plaintiffs 

argued “the Retailer Defendants need not have known about the tortious 

nature of Iovate’s representations to be held liable as aider and abettors.” 

See id. (emphasis added). Put differently, Hydroxycut did not focus on the 

specificity of the pleadings, but rather whether the knowledge allegation 

needed to be pled in the first place. See id. Here, the Church makes no such 

argument. Instead, it argues the first amended complaint provides 

sufficient factual allegations to pass muster.

¶45 Because I believe the Church sufficiently pled the knowledge 

element, I also address the third element: whether the Church adequately 

pled AKE substantially assisted Brotherhood in achieving the breach. See 

Dawson, 216 Ariz. at 102, ¶ 50 (citing Wells Fargo, 201 Ariz. at 485, ¶ 34). 

“The third requirement, substantial assistance by an aider and abettor, can 

take many forms, but means more than ‘a little aid.’” Wells Fargo, 201 Ariz. 

at 488, ¶ 46 (citations omitted). Here, the first amended complaint alleged 

AKE substantially assisted Brotherhood. That bare allegation, standing 

alone, would not survive a motion to dismiss, but the first amended 

complaint went further. As part of that substantial assistance, the Church 

alleged AKE intended its actions to “lead to the denial . . . or the underestimation” of the Church’s claim. As part of AKE’s substantial assistance, 

the first amended complaint alleges AKE failed “to reasonably inspect the 

Property.” And it says AKE did not address or misreported damages to 

some of the units knowing they had been repaired (as in having had their 

condenser fins combed) after the 2010 hailstorm. Taken together, the 

Church satisfied its pleading burden on the third element.

¶46 I would hold the Church adequately pled (1) Brotherhood 

committed a tort (breach of its duty of good faith and fair dealing); (2) AKE 

knew Brotherhood’s conduct constituted a breach of its duties to the 

Church; and (3) AKE substantially assisted or encouraged Brotherhood in 

breaching its duty to the Church. See Dawson, 216 Ariz. at 102, ¶ 50 (citing 

Wells Fargo, 201 Ariz. at 485, ¶¶ 33–34, 36). Putting other weaknesses in the 
IGLESIA v. BROTHERHOOD, et al.

Gass, V.C.J., dissenting

18

first amended complaint aside, its factual allegations are sufficient to 

survive a motion to dismiss. 

¶47 I respectfully dissent.