Shiloah v. Geico Indemnity Company

Filing 40

ORDER denying 4 Motion to Dismiss. Signed by Hon. Elizabeth A. Wolford on 03/12/2025. (MGB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RENATA SHILOAH, on behalf of herself
and all others similarly situated,
ORDER

Plaintiff,
v.

6:24-CV-06447 EAW

GEICO INDEMNITY COMPANY,
Defendant.
Plaintiff Renata Shiloah (“Plaintiff”) brings this putative class action against
defendant GEICO Indemnity Company (“GEICO” or “Defendant”), asserting a claim for
breach of contract based on Defendant’s failure to pay sales tax for total loss vehicles that
are leased. (Dkt. 1). Defendant has moved to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Dkt. 4).
The pending motion raises the same issues that the Court previously addressed in
Marcelletti v. GEICO Gen. Ins. Co., 720 F. Supp. 3d 243 (W.D.N.Y. 2024). That case
involves the same attorneys as involved in the present litigation. Yet, surprisingly,
GEICO’s counsel avoided any reference to the Marcelletti decision in its motion to dismiss.
Appropriately, Plaintiff’s counsel highlighted this failure in its opposition papers. But in
reply, GEICO’s counsel persisted with the tactic of largely ignoring the Marcelletti
decision, simply stating in a footnote that it disagreed with the decision and it was “not
controlling.” (Dkt. 12 at 4 n.2). Of course, Defendant is free to disagree with the Court’s

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prior decision. But to ignore it and then, when confronted with that failure, to dismiss it in
a cursory footnote, is to say the least not persuasive advocacy.
In any event, for the same reasons that the Court already addressed in Marcelletti, it
finds that Plaintiff’s proffered interpretation of the policy is not unreasonable—to require
actual cash value to include the payment of sales tax on a leased vehicle. As a result, the
motion to dismiss must be denied. In other words, while GEICO takes a somewhat
different tactic in crafting some of its arguments as compared to the way they were
presented in Marcelletti, in the end it makes no difference in the resolution of the motion
to dismiss. That is because even if New York law is correctly interpreted as argued by
GEICO to not require the payment of sales tax on leased total loss vehicles, this does not
mean that GEICO was prohibited from contractually agreeing to pay sales tax. And again,
Plaintiff’s proffered interpretation of the policy as requiring the payment of sales tax is not
unreasonable. (See Dkt. 11 at 12 (Plaintiff contending that the policy’s definition of “actual
cash value” as “the replacement cost of the auto or property less depreciation or betterment”
is reasonably interpreted to include sales tax and collecting cases holding the same)).
Therefore, Defendant’s motion to dismiss (Dkt. 4) is denied.
SO ORDERED.
____________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court

Dated: March 12, 2025
Rochester, New York

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