United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, United States District Judge
before the Court is Defendant Nationwide General Insurance
Company's (“Nationwide”) Motion to
Dismiss. (ECF No. 5.) For the following reasons,
this Court GRANTS IN PART and DENIES IN PART the motion.
Further, the Court DISMISSES Count I of the Complaint;
DISMISSES IN PART Count II of the Complaint insofar as it
alleges claims of bad faith and breach of good faith and fair
dealing relating to Nationwide's failure to pay Ms.
Blevins' insurance claim; and DISMISSES IN PART Count III
of the Complaint insofar as it alleges that Nationwide denied
and failed to remit payment on Ms. Blevins' claim.
action arises out of a fire that occurred on March 14, 2017
that damaged Plaintiff Linda Blevins' (“Ms.
Blevins”) property at 48 Godby Street in Logan, West
Virginia, which was insured by Nationwide. (ECF No. 1-1 at
¶ 5-6.) This property was occupied by Ms. Blevins'
son and daughter-in-law, a fact that Ms. Blevins alleges she
disclosed to Nationwide when she applied for the policy on
August 17, 2015. (Id. at ¶ 10.)
Blevins asserts that she notified Nationwide of her loss soon
after the fire. (Id. at ¶ 16.) Ms. Blevins
further alleges that she also attempted to give Nationwide
her sworn statement in proof of loss form but was told to
hold on to it. (Id. at ¶ 27.) Subsequent to
receiving notification of Ms. Blevins' loss, Nationwide
issued a reservation of rights letter to Ms. Blevins stating
that her insurance policy may not cover the claim because the
property had not been occupied by the owner for eight years.
(Id. at ¶ 6.) However, Nationwide still
assigned a claim number to Ms. Blevins' claim.
(Id. at ¶ 17.)
states that it subsequently investigated the claim and
requested an examination under oath (“EUO”) of
Ms. Blevins to be held on May 2, 2017. (ECF No. 6 at 2.) Ms.
Blevins, through counsel, made several requests to postpone
the EUO, to which Nationwide obliged. (Id.) On May
31, 2017, Ms. Blevins sent Nationwide her verified statement
of loss and again requested the EUO be postponed until June
15, 2017. (Id. at 2.) Nationwide agreed and
conducted Ms. Blevins' EUO on that date. (Id. at
19, 2017, Ms. Blevins filed this action in the Circuit Court
of Logan County alleging the following: (1) breach of
contract, (2) breach of the covenants of good faith and fair
dealing, and (3) violations of the West Virginia Unfair Trade
Practices Act (“UTPA”). (See ECF No.
1-1.) Nationwide subsequently removed this action to this
Court. (See ECF No. 1.) On August 11, 2017,
Nationwide accepted Ms. Blevins' claim and remitted
payment of $92, 017.50 for her claim. (See ECF No.
at 5-1 at 49.) Nationwide then filed this Motion to Dismiss
on August 28, 2017. (See ECF No. 5.) Ms. Blevins
filed her response to the motion on September 11, 2017, (ECF
No. 7), and Nationwide timely replied on September 18, 2017,
(ECF No. 8). The matter is now ripe for review.
Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Allegations “must be simple, concise, and direct”
and “[n]o technical form is required.”
Fed.R.Civ.P. 8(d)(1). A motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6) tests the legal sufficiency of a
civil complaint. See Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th Cir. 1999). “[I]t does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (citing 5A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 1356 (3d ed. 1990)).
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, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A court decides whether this standard is met by
separating the legal conclusions from the factual
allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer that “the defendant
is liable for the misconduct alleged.” Id. A
motion to dismiss will be granted if, “after accepting
all well-pleaded allegations in the plaintiff's complaint
as true and drawing all reasonable factual inferences from
those facts in the plaintiff's favor, it appears certain
that the plaintiff cannot prove any set of facts in support
of his claim entitling him to relief.”
Edwards, 178 F.3d at 244.
present motion, Nationwide argues that this Court lacks
subject matter jurisdiction because Ms. Blevins' claims
are not ripe since Nationwide never denied the insurance
claim at issue. (See ECF No. 6 at 3-7.) Ms. Blevins
argues that her claims are ripe because, even if Nationwide
has satisfied her claim, Nationwide still fraudulently
asserted a defense to the insurance coverage. (ECF No. 7 at
6.) Ms. Blevins further argues that her common law bad faith
and UTPA claims are separate and distinct from her contract
Court lacks subject matter jurisdiction to hear any case that
is not ripe for adjudication. Fed.R.Civ.P. 12(b)(1). A case
is ripe when “the issues are purely legal and when the
action in controversy is final and not dependent on future
uncertainties.” See Miller v. Brown, 42 F.2d
312, 318 (4th Cir. 2006). Thus, a claim “should be
dismissed as unripe if the plaintiff has not yet suffered
injury and any future impact remains wholly speculative.
Doe v. Va. Dep't of State Police, 713 F.3d 745,
758 (4th Cir. 2013). To determine if a case is ripe, a court
must “balance ‘the fitness of the issues for
judicial decision with the hardship of the parties of
withholding the court's consideration.'”
Franks v. Ross, 313 F.3d 184, 194 (4th Cir. 2002)
(quoting Ohio Forestry Ass'n v. Sierra Club, 523
U.S. 726, 733 (1998)). The Court will address the ripeness of
each of Ms. Blevins' claims separately.