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Banks v. Nationwide Property & Casualty Insurance Co.

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

July 23, 2018

CALEB BANKS, Plaintiff,


          Thomas E. Johnston, Judge

         Pending before the Court is Defendant Nationwide Property & Casualty Insurance Company's (“Nationwide”) Motion to Dismiss, (ECF No. 6). For the reasons stated herein, the Court GRANTS IN PART and DENIES IN PART Nationwide's Motion to Dismiss.

         I. BACKGROUND

         On October 22, 2017, a fire occurred at Plaintiff's residence resulting in severe damage to the dwelling and the personal property inside. (Id. at 5.) Plaintiff insured his residence through Nationwide and submitted a claim for insurance benefits to Nationwide following the fire. (Id.) Upon Plaintiff's submission, Nationwide began its investigation, which included requiring Plaintiff to produce certain materials and documents, execute releases and authorizations, and submit to an examination under oath. (Id. at 6.) Nationwide additionally interviewed Plaintiff's neighbors and acquaintances. (Id.) Having complied with Nationwide's requests but not having received his payment, Plaintiff took legal action. (ECF No. 11 at 3.)

         On December 29, 2017, Plaintiff filed his Complaint in the Circuit Court of Kanawha County, West Virginia. (ECF No. 1-1 at 4.) The Complaint states that despite Plaintiff's full cooperation and timely filing of his claim, Nationwide denied his claim and failed to properly settle the claim, and as a result, he “has been deprived of the use and enjoyment of [his residence], as well as his personal property, and . . . has not been compensated and paid by Defendant Nationwide for the covered losses and damages.” See Compl. ¶¶ 1-20, 29. The Complaint further alleges that these actions by the Defendants were “part of a general business practice and constitutes unfair claims settlement practices under applicable consumer protection statutes and regulations.” See Compl. ¶¶ 28-38. The Complaint demands compensatory damages for Plaintiff's net economic damages, for “Defendants' business practice of violating the Unfair Trade Practices Act, ” interest, costs and attorney's fees, and punitive damages against Nationwide. (See ECF No. 1-1 at 11.)

         Defendants removed the case to this Court on February 5, 2018. (ECF No. 1.) On July 13, 2018, this Court denied Plaintiff's Motion to Remand, granted Defendants Kenneth Conway, Betsy Ross, and Lisa McGahan's Motion to Dismiss Count III of Plaintiff's Complaint, and dismissed Count III and those defendants from this action. (ECF No. 44.) Nationwide filed the current Motion to Dismiss on February 12, 2018, (ECF No. 6), asserting that Plaintiff has prematurely filed his claim and that this Court lacks subject matter jurisdiction based on ripeness. (See ECF No. 7 at 1.) Plaintiff responded to the motion on February 26, 2018, (ECF No. 11), and Nationwide filed its reply brief on March 5, 2018, (ECF No. 14). As such, this motion is fully briefed and ripe for adjudication.


         Federal 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, 551 U.S. 89 (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. 12(b)(6).

         The 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, 556 U.S. 662, (2009) (quoting Twombly, 550 U.S. at 570); see also Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009).

         Application 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, ” or “threadbare recitals of a cause of action's elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663, 678.

         III. ANALYSIS

         Nationwide argues that this Court lacks subject matter jurisdiction because Plaintiff's claims are not ripe since Nationwide never denied the insurance claim at issue. (See ECF No. 7 at 2-6.) Plaintiff argues that Nationwide's motion is actually a motion for summary judgment prior to discovery. (ECF No. 11 at 6-7.) Plaintiff further maintains that he has set forth valid causes of actions against Nationwide due to Nationwide's delay in payment of the benefits due. (Id. at 7-14.)

         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)). As noted earlier, the Court has already dismissed Count III from Plaintiff's Complaint. (See ECF No. 44.) Therefore, the Court will address the ripeness of Plaintiff's two remaining claims separately.

         A. Breach of Contract In his Complaint, Plaintiff alleges that “Nationwide's failure and refusal to pay for the covered damages the Plaintiff sustained as a result of the October 22, 2017 fire loss constitutes a breach of the terms of Defendant Nationwide's Policy and Defendant Nationwide's contractual duties to the Plaintiff.” (See ECF No. 1-1 at ΒΆ 22.) Nationwide argues that since it has not denied Plaintiff's claim and is ...

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