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Blevins v. Nationwide General Insurance Co.

United States District Court, S.D. West Virginia, Charleston Division

December 28, 2017

LINDA BLEVINS, Plaintiff,
v.
NATIONWIDE GENERAL INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, United States District Judge

         Pending before the Court is Defendant Nationwide General Insurance Company's (“Nationwide”) Motion to Dismiss.[1] (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.

         I. BACKGROUND

         This 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.)

         Ms. 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.)

         Nationwide 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 2-3.)

         On June 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.

         II. LEGAL STANDARD

         Under 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)).

         “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, 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.

         III. DISCUSSION

         In the 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 claim. (Id.)

         This 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.

         A. Breac ...


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