1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

MILES SWEENEY, 

No. 3:15-cv-001863-MO

Plaintiff,

 OPINION AND ORDER

 v. 

PHOENIX LIFE INSURANCE 

COMPANY, a Connecticut 

corporation,

Defendant. 

MOSMAN, J., 

Defendant Phoenix Life Insurance Company filed a Motion to Dismiss under FRCP 

12(b)(6), seeking to dismiss Plaintiff Miles Sweeney’s claim arising from the termination of 

Sweeney’s life insurance policy. I have concluded that Sweeney’s Complaint sufficiently alleges 

a promissory estoppel claim against Phoenix. I therefore DENY Phoenix’s motion to dismiss [8]. 

BACKGROUND

Plaintiff Miles Sweeney alleges that on October 15, 1982, he purchased a life insurance 

policy from Defendant Phoenix Life Insurance Company. For thirty years, Sweeney regularly 

made premium payments on the Policy. On January 4, 2007, Sweeney instructed Phoenix to pay 

his premiums directly from the Policy’s annual dividends. Phoenix confirmed the arrangement 

and the dividends satisfied the premiums that came due until October 15, 2014. On December 

15, 2014, Phoenix advised Sweeney that it had cancelled the Policy due to an alleged lapse in 

payment of premiums. 
2 – OPINION AND ORDER

On January 20, 2015, Sweeney sent a letter to Phoenix explaining he was surprised to 

learn of the alleged late payments since he had relied for so long on the annual dividends 

satisfying the next year’s premiums. Sweeney stated in the letter that he considered the Policy to 

be reinstated in light of the circumstances and enclosed a $6,042.08 check in full satisfaction of 

the outstanding premiums due. Shortly thereafter, Phoenix cashed the check. On April 15, 2015, 

Phoenix sent a letter to Sweeney stating that it still considered the Policy cancelled due to 

Sweeney’s failure to reinstate the account. 

In August 2015, Sweeney filed this action in Multnomah County Circuit Court which 

Phoenix subsequently removed to this court. Sweeney seeks a judgment declaring that Phoenix 

wrongfully terminated the Policy and ordering Phoenix to reinstate the Policy. Phoenix filed this 

FRCP 12(b)(6) motion to dismiss on November 9, 2015. 

LEGAL STANDARDS

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency 

of the claims asserted in a complaint. “While a complaint attacked by a Rule 12(b)(6) motion to 

dismiss does not need detailed factual allegations,” the complaint must contain “enough facts to 

state a claim of relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

555, 570 (2007). A claim is facially plausible only where “the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pleadings need not contain detailed factual 

allegations, but the plaintiff must provide more than “labels and conclusions, and a formulaic 

recitation of the elements of a cause of action. . . .” Twombly, 550 U.S. at 555 (citation omitted). 

A complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon 

which it rests.” Id. at 545 (quotation omitted). This standard “does not require ‘detailed factual 
3 – OPINION AND ORDER

allegations,’” but does demand “more than an unadorned, the defendant-unlawfully-harmed-me 

accusation.” Iqbal, 556 U.S. at 678 (quotation omitted).

In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all material 

allegations in the complaint, as well as all reasonable inferences to be drawn from them. Pareto 

v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be read in the light most 

favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th 

Cir. 2001). Ultimately, “[d]etermining whether a complaint states a plausible claim for relief will 

. . . be a context-specific task that requires the reviewing court to draw on its judicial experience 

and common sense.” Iqbal, 556 U.S. at 679. 

Unless a court converts a Rule 12(b)(6) motion into a motion for summary judgment, a 

court cannot consider material outside of the complaint (e.g., facts presented in briefs, affidavits, 

or discovery materials). In re American Cont’l Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 

1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom. Lexecon, Inc. v. Milberg Weiss 

Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court may, however, consider exhibits 

submitted with or alleged in the complaint and matters that may be judicially noticed pursuant to 

Federal Rule of Evidence 201. In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 

1999); Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001). 

DISCUSSION

Defendant Phoenix asserts that Sweeney has failed to state a claim under a theory of 

promissory estoppel.1 To state a claim on a theory of estoppel in the insurance context, a plaintiff 

 

1 Phoenix also asserts Sweeney has failed to state a claim under the terms of the Policy. Sweeney does not appear to 

allege such a claim in his Complaint and he does not address such a claim in his response to the motion to dismiss. 

See Pl.’s Response [11] at 1 (referring to Plaintiff’s singular “claim for promissory estoppel”); id. at 2 (“Plaintiff’s 

Complaint pleads a claim that Defendant is estopped from refusing to reinstate the Policy . . .”). Because Sweeney 

appears to acknowledge, through his lack of response on the matter, that such a claim is absent from his Complaint, 

the court declines to infuse the Complaint with a claim that Sweeney has expressed no interest in pursuing. 
4 – OPINION AND ORDER

must allege: 1) “a representation or conduct amounting to a representation by someone acting on 

behalf of the insurer that was inconsistent with the express terms of the policy[;]” and 2) “that he 

reasonably relied on the representation.” Kabban v. Mackin, 104 Or. App. 422, 426-27, 801 P.2d 

883, 886 (1990) (citing Farley v. United Pacific Ins. Co., 269 Or. 549, 525 P.2d 1003 (1974)). 

Promissory estoppel requires a promise “that the promissor [sic] intends, actually or 

constructively, to induce reliance on the part of the promisee. From such intention courts infer 

the intention that the promise be legally enforceable.” Barnes v. Yahoo! Inc., 570 F.3d 1096, 

1107 (2009). 

Sweeney’s allegations are sufficient to support a promissory estoppel claim. Sweeney 

alleges that Phoenix sent a letter explaining his surprise regarding the alleged late payments and 

stating that he considered the Policy to be reinstated and, to that end, he enclosed a check for 

$6,042.08 in full satisfaction of the premiums alleged to be owed. (Compl. [1] at ¶ 8.) Sweeney 

also alleges Phoenix cashed the check after it received the letter. While it would have been best 

practice for Sweeney to attach a copy of the Policy to his Complaint, Lee v. City of Los Angeles, 

250 F. 3d at 688, it can be easily inferred from the Complaint that Phoenix’s act of cashing of the 

check was inconsistent with the terms of the Policy pertaining to timely payment of premiums. 

Taken together, these allegations satisfy the first element of a promissory estoppel claim. 

Sweeney also alleges that he relied on Phoenix’s cashing of the check as a signal from Phoenix 

that his policy had been reinstated. (Compl. [1] at ¶ 13.) Sweeney alleges that he received no 

indication to the contrary until about three months later, when he received a letter from Phoenix 

informing him once again that the Policy was cancelled. (Id. at ¶ 14.) Sweeney claims that but 

for Phoenix’s cashing the check as an indication that his policy had been reinstated, he would 
5 – OPINION AND ORDER

have taken actions to mitigate the effects of a cancelled policy. (Id. at ¶ 15.) These allegations 

satisfy the second element of a promissory estoppel claim. 

 Phoenix argues that several of Sweeney’s allegations constitute legal conclusions that 

should be disregarded by the court. It is true that I should disregard any legal conclusions that 

Sweeney makes in his Complaint. Twombly, 550 U.S. at 555 (“[O]n a motion to dismiss, courts 

are not bound to accept as true a legal conclusion couched as a factual allegation.”) (internal 

quotations and citation omitted). Sweeney alleges that when Phoenix cashed the check, it 

“accepted payment” and “agreed to reinstate the Policy.” (Compl. [1] at ¶ 9.) These allegations 

of acceptance and agreement are legal conclusions that I am not bound to accept as true. 

However, even if I do not accept these particular legal conclusions as true, Sweeney has alleged 

enough facts to support a promissory estoppel claim, as I have set forth above. 

Phoenix claims after it cashed the check, it “promptly” returned Sweeney’s payment of 

premiums and informed Sweeney that the Policy remained cancelled and not reinstated. (Def. 

Reply [12] at 3-4.) Based on Phoenix’s alleged facts, it contends that its act of cashing the check 

could not be a representation inconsistent with the express terms of the policy upon which 

Sweeney could reasonably rely to form the basis of his promissory estoppel claim. However, at 

the motion to dismiss stage of this case, it would be inappropriate for me to consider additional 

facts presented by Phoenix not found in the Complaint. See, e.g., ScripsAmerica, Inc. v. 

Ironridge Global LLC, 56 F. Supp. 3d 1121, 1136 (C.D. Cal. 2014) (“Because Rule 12(b)(6) 

review is confined to the complaint, the court typically does not consider material outside the 

pleadings (e.g., facts presented in briefs, affidavits, or discovery materials) in deciding such a 

motion.”) (citing In Re American Continental Corp., 102 F.3d at 1537) (emphasis added). 

Confining my review to the facts alleged in the Complaint, I find no mention of the $6,042.08 
6 – OPINION AND ORDER

that Sweeney paid being returned to Sweeney nor any mention of how long it took Phoenix to 

return those funds. Therefore, Phoenix’s arguments to dismiss the Complaint on this ground are 

premature. 

CONCLUSION

 For the reasons stated, I DENY Defendant Phoenix’s motion to dismiss Sweeney’s claim 

for promissory estoppel [8]. 

IT IS SO ORDERED. 

DATED this 26th day of February, 2016. 

/s/ Michael W. Mosman_________ 

MICHAEL W. MOSMAN

Chief United States District Judge