A plaintiff must also show that they suffered damages. See Great W. Sav. Bank v. George W. Easley Co., 778 P.2d 569, 577-78 (Alaska 1989) (holding that alleging a contractual obligation, a breach of that obligation, and a suffering of damages is sufficient under Alaska's notice-pleading standard to state a claim for breach of contract and survive a motion to dismiss). Whether a breach of contract has occurred is a question of fact.

As such, there could still be a plausible meeting of the minds as to a payment of a UCR in the 80th percentile unrelated to the Alaska law as shown by the parties' course of dealing and the alleged industry norm. See Great W Sav. Bank v. George W Easley Co., 778 P.2d 569, 577-78 (Alaska 1989) (holding that complaint alleging that defendant “had a contractual obligation to make direct payments to” plaintiff, defendant “breached this contract,” and plaintiff “suffered damages” was sufficient for purposes of pleading breach of contract claim). Ashcroft, 556 U.S. at 678 (citation omitted).

Having alleged that they paid Defendant for the Policy and were damaged by Defendant's failure to meet its contractual commitment to provide coverage, Plaintiffs have met the requirements of Rule 8(a) needed to survive a 12(b)(6) motion to dismiss.See Great W. Sav. Bank v. George W. Easley Co., 778 P.2d 569, 577-78 (Alaska 1989) (finding a complaint for breach of contract sufficiently stated a claim for which relief could be granted because it alleged that a contractual obligation existed, the defendant breached the contract, and the plaintiff suffered damages). Docket 26 at 5-6.

But she does not identify a contractual provision that requires the insurer to so explain its coverages and limitations to her, and indeed there appears to be none in the agreement.Great W. Sav. Bank v. George W. Easley Co., J.V., 778 P.2d 569, 577 (Alaska 1989). ECF No. 25 at ¶¶ 13-20.

Under Alaska law, “[i]n order to assert a claim for breach of contract, a plaintiff must generally allege: (1) the existence of a contract; (2) breach; (3) causation; and (4) damages.” Nicdao v. Chase Home Fin., 839 F.Supp.2d 1051, 1068 (D.Alaska 2012) (citing Great W. Sav. Bank v. George W. Easley Co., 778 P.2d 569, 577–78 (Alaska 1989) ; Winn v. Mannhalter, 708 P.2d 444, 450 (Alaska 1985) ). Under New York law, the elements of a cause of action for breach of contract are “(1) the existence of a contract between [the plaintiff] and [the] defendant; (2) performance of the plaintiff's obligations under the contract; (3) breach of the contract by [the] defendant; and (4) damages to the plaintiff caused by [the] defendant's breach.

The existence of a contract, in turn, requires “an offer including all essential terms, an unequivocal acceptance of those terms by the offeree, consideration, and an intent to be bound by the contract....” See Great W. Sav. Bank v. George W. Easley Co., 778 P.2d 569, 577–78 (Alaska 1989) (finding that a complaint was sufficient where it alleged that the parties had a contractual obligation, that the other party breached the contract, and that the plaintiff suffered damages); Winn v. Mannhalter, 708 P.2d 444, 450 (Alaska 1985) (“Causation is a required element in an action for breach of contract”); cf., e.g., Ledcor Indus. (USA) Inc. v. Virginia Surety Co., No. C09–1807RSM, 2011 WL 6140957, at *7 (W.D.Wash. Dec. 9, 2011) (stating that under Washington law, “The elements of a cause of action for breach of contract are: (1) the existence of a legal duty under the contract; (2) breach of that duty; and (3) damages proximately caused by the breach.” (citation omitted)); Gray v. Carolina Energy Solutions, LLC, No. CV–10–0698–PHX–NVW, 2010 WL 2691563, at *5 (D.Ariz. July 6, 2010) (“To establish a claim for breach of contract in Arizona, a plaintiff must prove the existence of an enforceable contract, a breach of that contract, and damages caused by the breach.”

And where the damage occurs may also be significant.Great W. Sav. Bank v. George W. Easley Co. , 778 P.2d 569, 577-78 (Alaska 1989) (holding that complaint alleging that defendant "had a contractual obligation to make direct payments to" plaintiff, defendant "breached this contract," and plaintiff "suffered damages" was sufficient for purposes of pleading breach of contract claim); see Nicdao v. Chase Home Fin. , 839 F.Supp.2d 1051, 1068 (D. Alaska 2012) ("In order to assert a claim for breach of contract, a plaintiff must generally allege: (1) existence of a contract; (2) breach; (3) causation; and (4) damages.").Abramoff v. Shake Consulting, L.L.C. , 288 F.Supp.2d 1, 5 (D.D.C. 2003) (concluding that although "the finalized agreement was a prerequisite to the defendants' alleged breach, ... the act of finalizing the agreement was not itself wrongful and did not directly give rise to the plaintiff's claim").

Cases cited by ACI II are consistent with this conclusion. ACI II contends that Great Western Sav. Bank v. George W. Easley Co., 778 P.2d 569 (Alaska 1989), establishes its third party beneficiary status. In that case, we did hold that the defendant lender's loan to a borrower created enforceable rights in a third party creditor.

Creating a broader tort remedy would disrupt the certainty of commercial transactions and allow parties to escape contractual allocation of losses. Therefore, an action for breach of the implied covenant of good faith and fair dealing sounds in contract alone.Id.; Great Western Sav. Bank v. George W. Easley Co., 778 P.2d 569, 581 (Alaska 1989). Transamerica also relies on a California case, Seaman's Direct Buying Serv., Inc. v. Standard Oil Co., 36 Cal.3d 752, 206 Cal.Rptr. 354, 363, 686 P.2d 1158, 1167 (1984).

'"Sturm, Ruger Co., Inc. v. Day, 594 P.2d 38, 46 (Alaska 1979) (quoting Restatement (Second) of Torts § 908 (Tent. Draft No. 19, 1973)), modified, 615 P.2d 621 (Alaska 1980), cert. denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981), overruled on other grounds, Dura Corp. v. Harned, 703 P.2d 396 (Alaska 1985); accord Great Western Sav. Bank v. George W. Easley Co., J.V., 778 P.2d 569 (Alaska 1989); Lee Houston Associates, Ltd. v. Racine, 806 P.2d 848 (Alaska 1991). Punitive damages require proof by clear and convincing evidence.