Taylor Moye v. Avis Budget Group

Filing 28

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 1/27/2015. (kns, Deputy Clerk)(c/m 1/28/15)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

CHERYL A. TAYLOR MOYE,
Plaintiff,

v.

Civil Action No. TDC-14-2714

A VIS BUDGET GROUP,
Defendant.

MEMORANDUM

OPINION

This matter is before the Court on a Motion to Dismiss filed by Defendant A vis Budget
Group ("Avis").

ECF No. 21. The issue before the Court is whether PlaintifTCheryl A. Taylor

Moye ("Taylor Moye") has sufficiently stated a claim entitling her to relief.

The Court has

reviewed the pleadings and briefs and heard oral argument on January 23, 2015.

For the

following reasons, the Motion is GRANTED.
BACKGROUND
On March 5, 2014, Taylor Moye, a Maryland resident proceeding pro se, filed suit in the
Circuit Court for Prince George's County, Maryland, alleging that Avis, a rental car company
that self-insures its own vehicles, engaged in bad faith settlement practices with her after she was
injured in a November 3, 2012 collision with a driver who was driving an Avis rental car. See
Compl., ECF No. I. On June 20, 2014. the state court granted a motion to dismiss for ineffective
service and failure to state a claim, but granted Taylor Moye leave to amend her complaint.

See

Order (Prince George's Cnty. Cir. Ct.), ECF No. 10. On July 23, 2014, Taylor Moye filed her
Amended Complaint. alleging additional facts and adding a claim for libel, see Am. Compl.,

ECF No. II, and had it properly served on Avis on August 4,2014.

Notice Removal

9, ECF

No. I. Avis removed the case to this Court on the basis of diversity jurisdiction on August 25,
2014. [d.
In the Amended Complaint, Taylor Moye seeks "relief for an injury. and restitution for a
breach of contract, pain and suffering, and libel experienced as a result of a life[ -]altering injury"
that she sustained during the November 3. 2012 accident. Am. Compl. at 1. Taylor Moye also
alleges that Avis "refused to settle this claim although liability was clearly established."
Specifically,

Id.

Taylor Moye alleges that sometime after April 2013, Avis made an initial

settlement offer of $5,000, which Taylor Moye declined.

[d. at 1-2

2. Taylor Moye alleges

that when she made her ovyn settlement offer. Avis "refused to proceed with the settlement and
continually indicated for several months [that] the claim was being further investigated," and
made "repetitious requests for information and documentation ...

[that] became very stressful

and counteljJroductive toward [her) recovery." [d. at 1-2'~ 2-3.
Taylor Moye further alleges that she eventually obtained a representative with "limited
power of attorney" to complete the settlement process on her behalf, and that Avis "'libeled [her]
and made false accusations" to her representative regarding her "'being involved in an additional
automobile accident" after November 3.2012

and accused her of "knowing the driver of the

other vehicle in an effort to insinuate that [she] arranged the automobile accident."

Id. at 2 , 3.

Taylor Moye seeks monetary relief in the sum of $2.5 million for physical injury and pain and
suffering and an order mandating that Avis "enforce all legally binding contracts" and comply
with Maryland insurance settlement laws. Id. at 3. On September 2. 2014, Avis filed the present
Motion to Dismiss, arguing that Taylor Moye has failed to state sufficiently a cause of action

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against Avis and requesting that the Court dismiss all of Taylor Moye's claims.

Mot. Dismiss

at 8.
DISCUSSION
I. Legal Standard
In order to defeat a Federal Rule of Civil Procedure 12(b)(6) motion, a complaint must
allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible 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 (emphasis added).

In

assessing whether this standard has been met. the Court must examine the complaint as a whole.
consider the factual allegations in the complaint as true, and construe the factual allegations in
the light most favorable to the plaintitT. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v.
Bd ofComm 'rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005). Notably,"a

document

filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded. must
be held to less stringent standards than fonnal pleadings drafted by lawyers."
Pardus, 551 U.S. 89. 94 (2007) (internal citations omitted).

Erickson v,

However, legal conclusions or

conclusory statements do not suffice and are not entitled to the assumption of truth. Iqbal, 556
U.S. at 678.
II. Motion to Dismiss for Failure to State a Claim
Construed liberally. the Amended Complaint alleges the following causes of action:
(I) negligence; (2) bad faith failure to settle a claim. in violation of the Maryland Unfair Claim
Settlement Practices Act or tort law; (3) breach of contract; and (4) libel. After Avis asserted in
its Motion that the libel claim is barred by Maryland's one-year statute oflimitations,

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Mot. at 7-8

(citing Md. Code. Ann., Cts. & Jud. Proc. ~ 5-105 (West 2014)), Taylor Moye withdrew that
claim by stating in her Opposition to the Motion to Dismiss, "I accept and subject my claim for
libel to the statute of limitations and request redaction from my Amended Complaint filed July
24,2014."

Opp. Mot. Dismiss at 2, ECF No. 23. For the reasons set forth below, the remaining

claims fail to state a claim upon which relief can be granted and are therefore dismissed.
A.

Negligence
In the Amended Complaint, Taylor Moye pleads "relief for an injury," including "pain

and suffering ...

experienced as a result of a life altering injury sustained in an automobile

accident on November 3, 2012," and requests "[m]onetary relief in the sum of Two Million, Five
Hundred Thousaod Dollars, ($2,500,00) for a life altering injury aod for the pain aod suffering
which continues with the possibility of a life-long injury."

Am. CampI. at 1,4.

To the ex.tent

that this is an attempt to plead a negligence claim under a theory of vicarious liability for the
driver's conduct, such a claim is barred by the Graves Amendment.

This federal statute provides

that:
An owner of a motor vehicle that rents or leases the vehicle to a person ... shall
not be liable under the law of any State ... by reason of being the owner of the
vehicle ... for harm to persons or property that results or arises out of the usc,
operation or possession of the vehicle during the period of the rental or lease if:
(I) the owner ... is engaged in the trade or business of renting or leasing motor
vehicles; and
(2) there is no negligence or criminal wrongdoing on the part of the owner (or an
affiliate of the owner).
49 U.S.C. ~ 30106(a) (2012).

Here, Avis is a rental car compaoy engaged in the business of

renting motor vehicles, and the Amended Complaint contains no allegations of Avis's direct
negligence or criminal wrongdoing in the November 3, 2012 car accident. Therefore, although
Taylor Moye presumably could bring a negligence action against the driver, she is not permitted

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to plead that Avis was negligent under a theory of vicarious liability. See Kelsey v. Hirano, No.
WDQ-08-1041,

2009 WL 2151845, at '2-3 (D. Md. July 15, 2009) (dismissing negligence

claims against a car rental company as barred by the Graves Amendment where the complaint
did not allege that any negligence by the company led to the accident).
Notably. the state court, in considering Avis's first motion to dismiss Taylor Moye's
initial complaint, reached the same conclusion regarding any claim for negligence and granted
Taylor Moye leave to amend her claims. Order (Prince George's Cnty Cir. Ct.) at 2-3. Given
this opportunity, Taylor Moye still did not include in her Amended Complaint any factual
allegations regarding negligence by Avis itself. Accordingly. the Court concludes that there is
no basis to support a claim that Avis was directly negligent, such that additional opportunities to
amend on this issue would be futile. Cozzare/li v. Inspire Pharm., Inc .• 549 F.3d 618, 630-31
(4th Cir. 2008) (explaining that a district court may dismiss a complaint with prejudice where it
is clear that amendment would be futile).

The negligence claim is therefore dismissed with

prejudice.
B.

Had Faith Failure to Settle Claim
Taylor Moye alleges that Avis's initial settlement offer of $5.000, its refusal of her

counteroffer

of an unspecified

amount,

and its repeated

requests

for information

and

docwnentation constitute a bad faith failure to settle. See Am. CampI. at 1-2'~2-3. Although it
is not entirely clear on the face of the Amended Complaint, Taylor Moye appears to allege that
this failure to settle establishes a cause of action under the Maryland Unfair Claim Settlement
Practices Act, Md. Code Ann., Ins. ~~ 27-301-306, or on the basis of tort, or both.
The Unfair Claim Settlement Practices Act prohibits an insurer from failing to act in good
faith solely with respect to settling first-party

claims.

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Md. Code Ann., Ins. ~ 27-303(9).

Furthermore, the statute provides for only administrative remedies, to he received through the
Maryland Insurance Administration ("MIA").

Md. Code Ann., Ins. ~ 27-301; Hartz v. Liberty

Mul. Ins. Co., 269 F.3d 474, 475-76 (4th Cir. 2001) ("[FJederal courts simply have no license to
upend Maryland's decision to resolve this sort of insurance complaint administratively.").

At the

hearing, Taylor Moye explained that she had unsuccessfully filed a complaint with the MIA prior
to filing the present suit. Hearing on Motion to Dismiss, Taylor Moye v, Avis Budget Group, No,
14-cv-2714-TDC, at 10:36:11 a.m. (D. Md. Jan. 23, 2015). To the extent that Taylor Moye seeks
review of that determination, any available appeal would need to be brought in Maryland Circuit
Court in accordance with Md. Code Ann., Ins. ~~ 27-306 and 2-215.

Accordingly, any claim

brought under the provisions of the Unfair Claims Settlement Practices Act is not properly before
the Court and is dismissed with prejudice,
The Court also dismisses any bad faith claim sounding in tort, as such a claim may also
only be brought by a first-party claimant. Maryland law recognizes a tort cause of action only by
an insured party where an insurer refuses in bad faith to settle a third-party's claim against the
insured. Mesmer v. Md Aula. Ins. Fund, 725 A.2d 1053, 1061-62 (Md. 1999). The basis for the
insurer's tort duty to the insured arises from the insurer's "exclusive control" of "settlement and
defense of any claim or suit against the insured," such that "there is a potential, if not actual,
conflict of interest giving rise to a fiduciary duty," ld. at 1063 (quoting Sweeten v, Nat 'I MUI.
Ins. Co. o/D.C.,

194 A.2d 817, 818 (Md. 1963)). In this case, however, Taylor Moye is a third-

party claimant, to whom the insurer owes no such tort duty. See King v, Gov'/ Emps. 1ns. Co"
843 F. Supp. 56, 57 (D. Md. 1994) (applying Maryland law to determine that a third party may
not bring a bad faith tort claim against an insurer), Therefore, the Court dismisses with prejudice
any tort claim against Avis alleging a bad faith failure to settle.

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C.

Breach of Contract
Avis further argues that Taylor Moye has failed to state a claim for breach of contract.

Under Maryland law, in order to sustain a breach of contract claim, "a plaintiff must prove that
the defendant owed the plaintiff a contractual obligation and that the defendant breached that
obligation."

Taylor v. Nalions8an/c, N.A., 776 A.2d 645, 651 (Md. 2001). Taylor Moye appears

to allege that Avis breached a Supplemental Liability Insurance (SLI) agreement, which she
alleges is a "legally binding contract used in the State of Maryland for which [Avis] is paid a fee
by its renters to obligate indemnification in the sum of between One Million to Two Million
Dollars to injured parties in automobile accidents where liability is established by its renters, for
the protection of its renters."

Am. Compl. at 2 ~ 5. lbese allegations acknowledge that the

agreement is between Avis and its renters, and that Taylor Moye is not a party to a contract with
Avis.

Avis argues that Taylor Moye's breach of contract claim must be dismissed because

Taylor Moye has failed to allege that a contract existed between Avis and Taylor Moye.
Taylor Moye nevertheless

argues she is a third-party

beneficiary of the agreement

between A vis and its renters and is therefore entitled to bring the breach of contmct claim. See
Opp. Mot. Dismiss at 2 ~ 2. Under Maryland law, however, in order for a party to recover for
breach of contract as a third-party beneficiary, "it must clearly appear" that the parties to the
contract intended to "recognize [the third party] as the primary party in interest and as privy to
the promise." Shillman v. Hobslelter, 241 A.2d 570, 575 (Md. 1968). "[I]t is not enough that the
contract may operate to [the third party's] benefit."
omitted).

ld. (internal citation and quotation marks

Such an incidental beneficiary, "who benefits from the contract although the benefit

was not specifically intended or planned by the contracting parties, has no rights against the
promisor or the promisee." ld.

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In this case, Taylor Moye does not allege that the SLI agreement was expressly made for
her benefit or for the benefit of other potential tort victims, thereby making her an intended
beneficiary.

In fact, the text of the SLI agreement, which Taylor Moye has attached to her

Opposition to the Motion to Dismiss,

I

states only that it is intended to "protect[1 all authorized

drivers of the rental vehicle against third.party bodily injury and property-damage
makes no mention of benefiting or protecting others.

claims" and

Opp. Mot. Dismiss, Ex. 5 at 2, ECF

No. 23. Thus, Taylor Moye is not an intended third-party beneficiary of the agreement between
Avis and the driver of the rental car. Cf Parielle v, Parielle, 596 A.2d 665, 699-70 (Md. Ct.
Spec. App. 1991) (holding that the insured's mother had properly alleged that she was an
intended beneficiary of his life insurance policy because the insured had been promised that his
mother's name would be listed as the "designated beneficiary").
Rather, the SLI agreement is designed to benefit the driver who rented the Avis vehicle,
not a third-party claimant such as Taylor Moye.

Presumably, if Taylor Moye had brought a

negligence action against the driver of the vehicle, the driver could receive the benefit of the
agreement by asserting a third-party claim against Avis to enforce the terms of the contract and
require A vis to pay, up to the value of the policy, any judgment against the driver. Because the
Amended Complaint is against Avis, however, Taylor Moye fails to state a claim for breach of
contract.

I A court may consider extrinsic evidence in determining whether to dismiss the complaint if the
document was integral to and explicitly relied on in the complaint and the plaintiff does not
challenge the authenticity of the document. Phillips v. Lellnt'l. Inc., 190 F.3d 609, 618 (4th
Cir. 1999). Although Taylor Moye failed to attach the SLI Agreement to her Amended
Complaint, the Court may consider it here because Taylor Moye explicitly relies on it in her
Amended Complaint, see Am. CompI. at 2 5, and has offered it as the authentic document by
attaching it to her Opposition to Avis's Motion to Dismiss.

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D.

Personal Injury Protection Under tbe Maryland Insurance Code
In her Opposition to the Motion to Dismiss, Taylor Moye, for the first time, appears to

argue that she is entitled to relief under ~~ 19-505(a)(3) and 19-513(c) of the Maryland Insurance
Code. Opp. Mot. Dismiss at 2

2. The proper avenue for asserting new claims is not in a

response to a motion to dismiss, but by amending the pleadings. See Fed. R. Civ. P. J 5. Because
these claims have not been alleged anywhere in the pleadings, the Court need not consider them
here. See Freilich v. Bd. of Dirs. of Upper Chesapeake Health, Inc., 142 F. Supp. 2d 679, 691
n.7 (D. Md. 2001) (explaining that the court will not consider a new claim raised in response to a
motion to dismiss in absence of amended complaint), affd., 313 F.3d 205 (4th Cir. 2002).
However, even if the claims were properly before the Court, the Court would dismiss
them. The referenced provisions of the Maryland Insurance Code apply to individuals who are
In

an accident involving an insured motor vehicle where an individual is injured "while

occupying the insured motor vehicle," "as a pedestrian," or "while in, on, or alighting from a
vehicle that is operated by animal or muscular power."
19-5J3(c) (West 2014).

Md. Code Ann., Ins. ~~ 19-505(a)(3),

Because at the time of the accident, Taylor Moye was in her own

vehicle, not the A vis-owned vehicle, and was neither a pedestrian nor on a bicycle or other
vehicle operated by animal or muscular power, any cause of action that might arise from these
provisions of the Maryland Insurance Code is not available to Taylor Moye. Accordingly, this
claim is dismissed with prejudice.

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CONCLUSION
For the foregoing reasons, the Motion to Dismiss is GRANTED and the claims are
dismissed with prejudice, such that no amended claims will be pennitted.
follows.

Date: January 27, 2015

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A separate Order