United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge.
is the motion to dismiss of defendant State Farm Fire and
Casualty Company, filed August 4, 2017.
25, 2017, Shawna Fisher, a resident of West Virginia,
initiated this action against State Farm Fire and Casualty
Insurance Company (“State Farm”) in the Circuit
Court of Kanawha County. On August 4, 2017, State Farm timely
filed notice of removal, invoking this court's diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a). Not.
Removal ¶ 3. Ms. Fisher seeks compensatory and punitive
damages against defendant as well as attorney's fees.
Compl. ¶ 27.
26, 2015, plaintiff's home and possessions therein were
destroyed by a fire. Compl. ¶ 3. Plaintiff filed a claim
for the destruction of this property under the fire and
casualty insurance policy issued to her by defendant, but
asserts that her losses exceeded the limits of this policy.
Id. at ¶ 4-5.
Fisher's complaint asserts one count alleging that
“defendant violated their [sic] duties described in
[the Unfair Trade Practices Act], and specifically violated .
. . the provisions of West Virginia Code 33-11-4.”
Id. at ¶ 12. She alleges particular harms under
W.Va. Code § 33-11-4(9)(b-g) and (m-n) which prohibits
unfair claim settlement practices that are “perform[ed]
with such frequency as to indicate a general business
practice.” W.Va. Code § 33-11-4(9); see
Id. at ¶¶ 12, 18-21.
August 4, 2017, State Farm filed its motion to dismiss under
Rule 12(b)(6), contending that plaintiff's complaint
“fails . . . to set forth even minimal facts which
would state a claim for an alleged violation of the Unfair
Trade Practices Act.” Mem. in Supp. of Mot. to Dismiss
at 2. The time for briefing on this motion elapsed without
response from Ms. Fisher.
Rule of Civil Procedure 8(a)(2) requires that a pleader
provide “a short and plain statement of the claim
showing . . . entitle[ment] to relief.” Fed.R.Civ.P.
8(a)(2); Erickson v. Pardus, 127 S.Ct. 2197, 2200
(2007). Rule 12(b)(6) correspondingly permits a defendant to
challenge a complaint when it “fail[s] to state a claim
upon which relief can be granted . . . .” Fed.R.Civ.P.
required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled
on other grounds, Twombly, 550 U.S. at 563); see
also Anderson v. Sara Lee Corp., 508 F.3d 181, 188
(4th Cir. 2007). In order to survive a motion to dismiss,
“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, 129
S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S.
at 570); see also Monroe v. City of Charlottesville,
579 F.3d 380, 386 (4th Cir. 2009).
of the Rule 12(b)(6) standard requires that the court
“‘accept as true all of the factual allegations
contained in the complaint. . . .'” Erickson, 551
U.S. at 94 (quoting Twombly, 550 U.S. at 555-56);
see also S.C. Dept. of Health and Envt'l Control v.
Commerce and Indus. Ins. Co., 372 F.3d 245, 255 (4th
Cir. 2004) (quoting Franks v. Ross, 313 F.3d 184,
192 (4th Cir. 2002)). The court must likewise “draw
all reasonable . . . inferences from th[e] facts in the
plaintiff's favor. . . .” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Although
“detailed factual allegations" are not necessary,
the facts alleged must be enough “to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. This requires “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation, ” and
“threadbare recitals of a cause of action's
elements, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 663, 678.
Unfair Trade Practices Act (“The Act”), West
Virginia Code § 33-11-1 et seq., provides a cause of
action for unfair trade practices. Section 33-11-4(9) of the
Act provides remedies for conduct determined to be unfair
claim settlement practices that are “commit[ed] or
perform[ed] with such frequency as to indicate a general
business practice.” To maintain a cause of action under
the Act “more than a single isolated violation . . .
must be shown” to demonstrate the existence of a
“general business practice.” Syl. Pt. 3,
Jenkins v. J.C. Penney Cas. Ins. Co., 167 W.Va. 597
(1981). When a violation of the Act is based upon an
insurance company's conduct in the settlement of a single
[T]he evidence should establish that the conduct in question
constitutes more than a single violation of [the Act], that
the violations arise from separate, discrete acts or
omissions in the claim settlement, and that they arise from a
habit, custom, usage, or business policy of the insurer, so
that, viewing the conduct as a whole, the finder of fact is
able to conclude that the practice or practices are
sufficiently pervasive or sufficiently sanctioned by the
insurance company that the conduct ...