United States District Court, S.D. West Virginia
CONNIE R. HUNDLEY, individually and on behalf of those similarly situated, Plaintiff,
AIR EVAC EMS, INC., d/b/a AirMedCare Network; and MED-TRANS CORPORATION, Defendants.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge
are defendants' motions to dismiss, filed December 29,
2016 and February 2, 2017.
Facts and Procedural Background
R. Hundley is a resident of Mingo County, West Virginia. Upon
solicitation by Matthew Ellis, Ms. Hundley paid $300 to buy a
“membership” to the “AirMedCare Network,
” a trade name of defendant Air Evac EMS, Inc.,
(hereinafter “AirMedCare” or “AirMedCare
Network”), a Missouri Corporation. Compl. ¶ 7. The
AirMedCare Network is an association of air ambulance
providers that sells memberships which “provide Network
members with no out-of-pocket expenses for air ambulance
services provided by the following companies: defendant Air
Evac EMS, Inc.; EagleMed LLC; REACH Air Medical Services,
LLC, and defendant Med-Trans Corporation.” Compl.
¶ 5. As stated in the Terms and Conditions of
membership, a membership ensures “no out-of-pocket
flight expenses if flown by the Company or another AirMedCare
Network participating provider . . . by providing prepaid
protection against [AirMedCare Network] Provider air
ambulance costs that are not covered by a member's
insurance or other benefits or third party
responsibility[.]” ECF # 4, Exhibit 2 at 2. The terms
and conditions clarify that in certain circumstances beyond
the company's control, air ambulance services may be
unavailable. Id. Defendant Med-Trans Corporation is
one of the affiliated companies in the AirMedCare Network.
AirMedCare and Med-Trans are separate legal entities; the
latter is incorporated in North Dakota. Compl. ¶ 2.
25, 2015, Ms. Hundley was involved in a motorcycle accident
in Tennessee. Compl. ¶ 8. Due to her injuries, she was
transported to the University of Tennessee Medical Center by
an air ambulance operated by defendant Med-Trans.
Id. at ¶ 9. She was an AirMedCare Network
member at the time. Id. at ¶ 11. Following the
incident, Hundley received from Med-Trans a demand for
payment by her or third parties in the amount of Thirty-Three
Thousand Eight Hundred Ninety-Three Dollars and Twenty-Two
Cents ($33, 893.22), the full cost of the flight.
Id. at ¶ 13. Hundley then brought this lawsuit,
individually and on behalf of a class of “persons who
are citizens of the State of West Virginia as of the date
this action is filed and who have purchased or renewed
memberships with AirMedCare Network, ” Compl. ¶
25, claiming that her membership should have indemnified her
for the full flight cost, and that AirMedCare was not
authorized to collect the $300 she paid for her membership
because AirMedCare was not a licensed insurer.
brought claims for breach of contract against AirMedCare and
Med-Trans (Counts I and V), violation of West Virginia Unfair
Trade Practices Act, W.Va. Code § 33-11-1,
(“WVUTPA”) against AirMedCare and Matthew
Ellis (Count II), common-law bad faith against
AirMedCare (Count III), and illegal debt collection under the
West Virginia Consumer Credit and Protection Act
(“WVCCPA”), W.Va. Code §46A-2-127, against
AirMedCare (Count IV). On December 22, 2016, AirMedCare
removed the case to federal court pursuant to the Class
Action Fairness Act, 28 U.S.C. § 1453.
Motion to Dismiss Standard
Rule of Civil Procedure 8(a)(2) requires that a pleading
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Rule
12(b)(6) correspondingly provides that a pleading may be
dismissed when there is a “failure to state a claim
upon which relief can be granted.”
survive a motion to dismiss, a pleading must recite
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also Monroe
v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir.
2009) (quoting Giarratano v. Johnson, 521 F.3d 298,
302 (4th Cir. 2008)). In other words, the “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555
resolving a motion pursuant to Rule 12(b)(6)[, ] a district
court cannot consider matters outside the pleadings without
converting the motion into one for summary judgment.”
Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th
Cir. 2013) (citing Fed.R.Civ.P. 12(d)). “A court may,
however, consider a ‘written instrument' attached
as an exhibit to a pleading, ‘as well as [documents]
attached to the motion to dismiss, so long as they are
integral to the complaint and authentic.'”
Id. (alteration in original) (internal citation
omitted) (quoting Fed.R.Civ.P. 10(c) and Phillips v. Pitt
Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir.
district court's evaluation of a motion to dismiss is
underlain by two principles. First, the court “must
accept as true all of the factual allegations contained in
the [pleading].” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (citing Twombly, 550 U.S. at 555-56). Such
factual allegations should be distinguished from “mere
conclusory statements, ” which are not to be regarded
as true. Iqbal, 556 U.S. at 678 (“[T]he tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.”).
Second, the court must “draw all reasonable factual
inferences . . . in the [nonmovant's] favor.”
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
seeks to dismiss each of Ms. Hundley's claims. First,
AirMedCare argues that the AirMedCare Network membership
program is not insurance under West Virginia law and any
claim resting on that premise (Counts I-IV) must be
dismissed. Second, AirMedCare contends that the non-contract
claims (Counts II-IV) must be dismissed for being preempted
by the Airline Deregulation Act of 1978. Finally, AirMedCare
seeks dismissal of the breach of contract claims (Counts I
and V) for failing as a matter of law.
initial matter, the court dismisses Count IV pursuant to its
recent decision in Hinkle v. Matthews,
2:15-cv-13856, 337 F.Supp.3d 674 (S.D.W.Va. 2018). See
also Justice v. CNA Nat'l Warranty Corp.,
2:17-cv-1997, 346 F.Supp.3d 873 (S.D.W.Va. 2018). Count IV
claims that AirMedCare engaged in illegal debt collection
pursuant to the WVCCPA by collecting a $300 premium while not
being a licensed insurer. In Hinkle, the court discussed a
similar issue. There, the court determined whether the sale
of so-called “GAP insurance, ” and the collection
of a “premium” therefrom, constituted debt
collection under the WVCCPA. The court held that it did not,
because a “‘claim' [under the WVCCPA] is
fairly and most logically read as a duty to pay money
resulting from a prior contract. . . . [A] point of sale
exchange is not a ‘claim[.]'” Hinkle at 683.
The analysis is the same here. The $300 sale was not a claim
for debt collection purposes ...