United States District Court, N.D. West Virginia
SUSAN CAPRITA, individually and as mother and natural guardian of K.C., a minor and K.C., individually, Plaintiffs,
THE ESTATE OF FRANCES ZILKO, WHEELING ISLAND GAMING, INC., NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA and LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendants.
MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED
ORDER OF THE COURT GRANTING DEFENDANT NATIONWIDE AFFINITY
INSURANCE OF AMERICA'S MOTION TO DISMISS
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
Nationwide Affinity Insurance Company of America
(“Nationwide”) filed a motion to dismiss Count IV
of the complaint for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). The parties appeared before
this Court for a status conference on May 2, 2016. At the
conference, this Court heard from the parties regarding
Nationwide's motion to dismiss and granted the motion.
This memorandum opinion and order serves to confirm this
Court's oral ruling.
a personal injury case arising out of a motor vehicle
accident. Plaintiff Susan Caprita (“Caprita”) and
her minor son K.C. were in Caprita's vehicle stopped at
the drive through of a fast-food restaurant in Wheeling, West
Virginia. Frances Zilko (“Zilko”) then struck
with his vehicle another vehicle and a billboard support.
Zilko then allegedly reversed his vehicle and struck the
front of Caprita's vehicle, injuring Caprita and K.C.
After the accident but before this civil action was filed,
Zilko died with his last residence in Pittsburgh,
Pennsylvania. Caprita alleges that Zilko was intoxicated
during the accident.
alleges a claim for negligence against The Estate of Frances
Zilko and a claim for uninsured motorist coverage against her
own insurer, Liberty Mutual Fire Insurance Company. In Count
IV, she alleges a claim against Zilko's insurer
Nationwide that does not specify a particular cause of
action. Wheeling Island has since been dismissed.
survive a motion to dismiss under Rule 12(b)(6), “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). This plausibility standard requires a
plaintiff to articulate facts that, when accepted as true,
demonstrate that the plaintiff is plausibly entitled to
relief. Francis v. Giacomelli, 588 F.3d 186, 193
(4th Cir. 2009) (citing Iqbal, 556 U.S. at 678;
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The plausibility standard is not a
probability requirement, but asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Hall v. DirectTV, 846 F.3d 757, 765 (4th Cir. 2017).
“[C]ourts must accept as true all of the factual
allegations contained in the complaint and draw all
reasonable inferences in favor of the plaintiff.”
Id. “[A] complaint is to be construed
liberally so as to do substantial justice.”
Id. (internal quotation marks omitted).
IV of Caprita's complaint sets out allegations against
Nationwide. Caprita alleges that Zilko had liability
insurance coverage through Nationwide, that Nationwide was
aware of the accident and Caprita's alleged injuries, and
that the Nationwide policy is applicable to Zilko's
alleged liability in this case. Count IV does not state any
particular cause of action. At the status conference held on
May 2, 2017, Caprita confirmed that Count IV was stated for
the sole purpose of alleging that Zilko had insurance
coverage through Nationwide. Thus, Count IV does not purport
to state any cause of action, and the only potential cause of
action that it seems Count IV could be liberally construed to
state is one for bad-faith settlement of an insurance claim.
However, West Virginia Code § 33-11-4A prohibits a
third-party claimant from bringing “a private cause of
action or any other action against any person for an unfair
claims settlement practice, ” and provides that a
“third-party claimant's sole remedy [for such a
claim] . . . is the filing of an administrative complaint
with the [Insurance] Commissioner [of West Virginia].”
W.Va. Code § 33-11-4A(a). Thus, even if this Court
liberally construes Count IV as a third-party bad-faith
claim, Caprita has failed to state a claim for relief against
above reasons, Nationwide Affinity Insurance Company of
America's motion to dismiss (ECF No. 7) is GRANTED.
Accordingly, Count IV of the complaint is DISMISSED WITH
Clerk is DIRECTED to transmit a copy of this memorandum
opinion and ...