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Hundley v. Air Evac EMS, Inc.

United States District Court, S.D. West Virginia

March 29, 2019

CONNIE R. HUNDLEY, individually and on behalf of those similarly situated, Plaintiff,
v.
AIR EVAC EMS, INC., d/b/a AirMedCare Network; and MED-TRANS CORPORATION, Defendants.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr. Senior United States District Judge

         Pending are defendants' motions to dismiss, filed December 29, 2016 and February 2, 2017.

         I. Facts and Procedural Background

         Connie 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.

         On July 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.

         Hundley 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[1] (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.

         II. Motion to Dismiss Standard

         Federal 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.”

         To 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 (citation omitted).

         “In 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. 2009)).

         A 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 Cir. 1999).

         III. Discussion

         AirMedCare 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.

         As an 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 ...


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