United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge.
before the court is defendant J.W.'s motion to dismiss
the complaint for declaratory relief, pursuant to Rules
12(b)(6) and 57 of the Federal Rules of Civil Procedure and
28 U.S.C. § 2201, filed on March 24, 2017. Plaintiff
Westfield Insurance Company (hereinafter
“Westfield”) filed a timely response in
opposition to the motion on April 7, 2017.
to the complaint, defendant J.W. is one of several West
Virginia residents asserting that they have had colonoscopies
performed by co-defendant Steven R. Matulis, M.D., in
Charleston, Kanawha County, West Virginia. It is alleged that
a number of the patient defendants, designated by their
initials, have claimed that while they were under anesthesia,
Dr. Matulis sexually assaulted them or inappropriately placed
his hands upon them, and that he performed their procedures
while distracted or impaired. A number of the patient
defendants have filed civil actions against Dr. Matulis in
the Circuit Court of Kanawha County, West Virginia (although
J.W. states in her motion to dismiss that she is not one of
them). One or more of the patients have sought to assert
class claims. These civil actions include claims against
defendant Charleston Gastroenterology Associates, PLLC
(hereinafter “Charleston Gastroenterology”), with
which Dr. Matulis was affiliated.
to Westfield's response to the motion, in April of 2016,
J.W. submitted formal Notices of Claim to both Dr. Matulis
and Charleston Gastroenterology, pursuant to Section 55-7B-6
of West Virginia Code, which requires such notice at least
thirty days prior to filing a medical professional liability
action (ECF No. 51, at 6-7). Westfield's response states
that J.W. asserted that she is “entitled to damages for
the alleged conduct of Dr. Matulis and/or Charleston
Gastroenterology, ” and that had it not been for the
filing of the Notices of Claim, Westfield would have had
“no way to include [J.W.] as a party defendant”
(ECF No. 51, at 7).
alleges that it issued a policy of liability insurance,
Policy No. BOP3157951, to Charleston Gastroenterology. The
policy purports to provide liability coverage for damages
because of “bodily injury, ” “property
damage” or “personal and advertising injury,
” subject to specified exclusions. On Westfield's
construction, the patients' claims do not fall within the
scope of the policy's coverage on its face, and are also
barred by the policy's exclusions. Accordingly, Westfield
seeks a declaratory judgment stating that its policy does not
provide coverage for claims in connection with the alleged
sexual assault and/or provision of inadequate medical care of
the patient co-defendants, including any class actions, and
that plaintiff does not owe its insured Charleston
Gastroenterology or Dr. Matulis a duty to defend or indemnify
either of them against such claims.
memorandum in support of her motion to dismiss, J.W. claims
that the suit against her rests on a speculative and
hypothetical premise because she has not filed an action that
would implicate the scope of the insurance policy.
Standard of Review
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.
of the Rule 12(b)(6) standard requires that the court
“‘accept as true all of the factual allegations
contained in the complaint . . . .'”
Erickson, 127 S.Ct. at 2200 (quoting Twombly, 127
S.Ct. at 1965); see also South Carolina Dept. Of Health
And Environmental Control v. Commerce and Industry 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 also “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).
claims that plaintiff's request for declaratory relief is
not ripe for adjudication because it fails to allege an
actual, justiciable controversy between the two parties. The
memorandum in support of the motion (ECF No. 41) notes that
jurisdiction under the Declaratory Judgment Act, 28 U.S.C.
§ 2201, is discretionary. It further argues that the
court is called upon to render an opinion on a purely
counters that because J.W. submitted formal notices of claim
to both Dr. Matulis and Charleston Gastroenterology, her
claim is not “hypothetical” and is in fact ripe
for a declaratory judgment action. Westfield also notes that
in circumstances such as these, “declaratory judgment
actions are routinely filed to resolve disputes which have
not yet resulted in litigation between a claimant and an