United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE.
this Court is Plaintiff Gemini Insurance Company's
(“Plaintiff”) motion for judgment on the
pleadings and to dismiss the counterclaims asserted against
it by Defendants Sirnaik, LLC; Green Sustainable Solutions,
LLC; Surnaik Holdings of WV, LLC; Polymer Alliance Services,
LLC; Intercontinental Export Import, Inc.; Dr. Saurabh Naik;
Saurabh Naik; Shraddha Naik; Rajiv Naik; Upen Naik; Upendra
Naik; and Jyoti Naik (collectively,
“Defendants”). (ECF No. 26.) For the reasons
explained more fully herein, Plaintiff's motion, (ECF No.
26), is GRANTED.
insurance coverage action arises out of a warehouse fire that
occurred on October 21, 2017, in Parkersburg, West Virginia.
(ECF No. 1 at 2.) Plaintiff seeks declaratory judgment as to
certain aspects of the insurance policy it issued to
Defendants and makes an unjust enrichment claim for defense
costs in a number of lawsuits filed against Defendants as a
result of the warehouse fire. (Id. at 10-14.)
filed its motion for judgment on the pleadings and to dismiss
the counterclaims on September 10, 2018. (ECF No. 26.)
Defendants filed a timely response, (ECF No. 34), and
Plaintiff filed a timely reply, (ECF No. 36). As such, the
motion is fully briefed and ripe for adjudication.
Motion to Dismiss
general, a pleading must include “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2); see
McCleary-Evans v. Md. Dep't of Transp., State Highway
Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that
this requirement exists “to give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests” (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007))). However, to withstand a motion to
dismiss made pursuant to Federal Rule of Civil Procedure
12(b)(6), a complaint must plead enough facts “to state
a claim to relief that is plausible on its face.”
Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d
193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Stated another way, the
factual allegations in the complaint “must be
sufficient ‘to raise a right to relief above the
speculative level.'” Woods v. City of
Greensboro, 855 F.3d 639, 647 (4th Cir. 2017) (quoting
Twombly, 550 U.S. at 555). A complaint that alleges
enough facts “to satisfy the elements of a cause of
action created by [the relevant] statute” will survive
a motion to dismiss. Id. at 648 (quoting
McCleary-Evans, 780 F.3d at 585).
evaluating the sufficiency of a complaint, this Court first
“identif[ies] pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. This Court
then “assume[s] the veracity” of the
complaint's “well-pleaded factual
allegations” and “determine[s] whether they
plausibly give rise to an entitlement to relief.”
Id. Review of the complaint is “a
context-specific task that requires [this Court] to draw on
its judicial experience and common sense.” Id.
“[T]o satisfy the plausibility standard, a plaintiff is
not required to plead factual allegations in great detail,
but the allegations must contain sufficient factual heft to
allow a court, drawing on judicial experience and common
sense, to infer more than the mere possibility of that which
is alleged.” Nanni v. Aberdeen Marketplace,
Inc., 878 F.3d 447, 452 (4th Cir. 2017) (internal
quotation marks omitted).
Motion for Judgment on the Pleadings
considering a motion for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c), this Court applies the
same standard it applies to a motion to dismiss made pursuant
to Federal Rule of Civil Procedure 12(b)(6). Drager v.
PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014). That
is, this Court accepts as true all the well-pleaded factual
allegations in the complaint and draws all reasonable factual
inferences in the non-movant's favor. Pulte Home
Corp. v. Montgomery Cty., 909 F.3d 685, 691 (4th Cir.
2018). “A motion for judgment on the pleadings is
properly granted if ‘it appears certain that the
[non-moving party] cannot prove any set of facts in support
of [its] claim entitling [it] to relief.'”
Id. (quoting Priority Auto Grp., Inc. v. Ford
Motor Co., 757 F.3d 137, 139 (4th Cir. 2014)).
moves for judgment on the pleadings as to Count I of its
complaint, which requests declaratory judgment as to the
applicability of the pollution exclusion in the policy it
issued to Defendants. (ECF No. 27 at 5.) Plaintiff also
contends that Defendants' coverage-based counterclaims,
Counts I and II, should be dismissed if this Court grants
judgment in its favor as to the pollution exclusion. (See
id.) Plaintiff argues that the exclusion precludes
insurance coverage for the claims alleged in the suits
against Defendants arising out of the warehouse fire.
(Id. at 11-14.) Indeed, the pollution exclusion
provides that the policy does not apply to bodily injury or
property damage caused by “the actual, alleged or
threatened discharge, dispersal, seepage, migration, release
or escape of ‘pollutants.'” (ECF No. 1-5 at
10.) The policy likewise does not apply to any
“[r]equest, demand, order or statute or regulatory
requirement that any insured or others test for, monitor,
clean up, remove, contain, treat, detoxify or neutralize, or
in any way respond to, or assess the effects of,
‘pollutants.'” (Id. at 11.) The term
“pollutants” is defined in the policy to mean
“any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapor, soot, fumes, acids,
alkalis, chemicals and waste.” (Id. at 22.)
This language is clear and unambiguous. See Syl. Pt.
1, Flowers v. Max Specialty Ins. Co., 761 S.E.2d 787
( W.Va. 2014) (per curiam) (“The interpretation of an
insurance contract, including the question of whether the
contract is ambiguous, is a legal determination.”
(quoting Syl. Pt. 2, Riffe v. Home Finders Assoc.,
Inc., 517 S.E.2d 313 ( W.Va. 1999))).
the pollution exclusion applies to the claims alleged in the
warehouse fire lawsuits. See Id. at 791
(“Determination of the proper coverage of an insurance
contract when the facts are not in dispute is a question of
law.” (quoting Farmers & Mechs. Mut. Ins. Co.
of W.Va. v. Cook, 557 S.E.2d 801, 806 ( W.Va. 2001))).
The Callihan plaintiffs allege that “an
overwhelming amount of chemical smoke, odors, gases and/or
fumes, particulate matter, and other harmful ‘fallout
material' were released . . . by the destruction and/or
combustion of harmful chemicals, compounds, hazardous waste,
and/or otherwise harmful substances.” (ECF No. 1-1 at
7; ECF No. 26-1 at 11.) They claim that they “and their
real and personal property . . . were significantly exposed .
. . to an overwhelming amount of chemical smoke, odors, gases
and/or fumes, particulate matter, and other harmful
‘fallout material'” as a result of the fire.
(ECF No. 1-1 at 10; ECF No. 26-1 at 16.) The Barker
plaintiffs aver that the fire “releas[ed] smoke, soot,
pollutants, air contaminants, and noxious odors” that
caused them to be exposed “to pollutants, horrific
odors, and air contaminants” and “interfered with
the use and enjoyment of their property.” (ECF No. 1-2
at 1, 5.) The Snider plaintiffs claim
“personal injury and property damages arising from
toxic smoke from a warehouse fire.” (ECF No. 1-3 at 1.)
And the Mohwish plaintiffs allege that
“hazardous materials” ...