MARTIN, et al. v. NAUTILUS INSURANCE COMPANY

Filing 18

MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 9/19/2022; that Defendant's Motion to Dismiss, (ECF No. 12 ), is GRANTED in part and DENIED in part. With Respect to the Unfair and Deceptive T rade Practices Claim Defendant's motion is granted as to the claims that Defendant violated N.C. Gen. Stat. § 75-1.1 by committing predicate violations of N.C. Gen. Stat. § 58-63- 11(a) or (f); and is denied as to the claim that Defendant violated § 75-1.1 by committing a predicate violation of § 58-63-11(n.) The motion is also denied to the extent that it seeks dismissal of Plaintiff Martin from the action. (Carter, Alexus)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Marquett Martin d/b/a Blazing 7’s Skill
Game & Fish, and Blazing 7’s Skill Game
and Fish Table, LLC,
Plaintiffs,
v.
Nautilus Insurance Company,
Defendant.

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1:20CV858

MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Plaintiffs Marquett Martin d/b/a Blazing 7’s Skill Game & Fish (“Martin”) and Blazing
7’s Skill Game and Fish Table, LLC (“Blazing 7’s”) bring this action against Defendant
Nautilus Insurance Company, alleging breach of contract and unfair and deceptive trade
practices. (ECF No. 11 ¶¶ 14–32.) Specifically, Plaintiffs allege that Defendant did not pay
their claim when an insured building was burglarized and destroyed by fire. (Id. ¶ 13.) Before
the Court is Defendant’s Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. (ECF No. 12.) For the reasons stated herein, Defendant’s motion will be
granted in part and denied in part.
I.

BACKGROUND1
The First Amended Complaint alleges that Defendant Nautilus issued to Plaintiffs an

insurance policy (“the Policy”) covering Plaintiffs’ commercial property and business personal
1

When considering a motion to dismiss, the court accepts as true all well-pleaded allegations in the
complaint and views the complaint and any attached exhibits to it in the light most favorable to the
plaintiff. See Mylan Lab’ys, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); Fayetteville Invs. v. Com.

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property located in Eden, North Carolina. (ECF No. 11 ¶ 4). The Policy included, among
other provisions, a “Burglary and Robbery Protective Safeguards Endorsement,” which had a
clause that mandated the Property maintain a burglary alarm. (Id. ¶ 11.)
During the Policy’s term of coverage, on or about October 6, 2019, the Property was
burglarized. (Id. ¶¶ 7–8.) Following the burglary, that same day, the Property was destroyed
by fire. (Id. ¶ 8.) Soon thereafter, Plaintiffs notified Defendant that they had suffered a
covered loss under the Policy. (Id. ¶ 10.) After investigating the claim, Defendant determined
that the Property did not have a burglary alarm as required by the policy at the time of the
loss. (Id. ¶ 11.) Defendant subsequently denied the claim. (Id.)
While Plaintiffs conceded that the Property did not have a burglary alarm, they argued
that this failure only precluded coverage for stolen items and did not affect their claim, which
they characterized as one for fire damage. (Id. ¶ 12.) Nevertheless, Defendant continued to
refuse coverage. (Id. ¶ 13.)
Plaintiffs began this action in state court and Defendant removed it to this Court on
the basis of diversity on August 20, 2020. (ECF No. 1.) On September 18, 2020, Plaintiffs
filed the First Amended Complaint which contains the two claims outlined above. (ECF No.
11.) Defendant Nautilus now moves to dismiss Plaintiff Martin from this lawsuit and to
dismiss the unfair and deceptive trade practices claim. (ECF No. 13 at 19–20.)
II.

STANDARD OF REVIEW
A motion made under Rule 12(b)(6) challenges the legal sufficiency of the facts in the

complaint, specifically whether the complaint satisfies the pleading standard under Rule
8(a)(2). Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a “short
Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991); see also Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,
165–66 (4th Cir. 2016).
2
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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S 544, 570 (2007)). A claim is plausible when the complaint
alleges sufficient facts to allow “the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir.
2015) (quoting Iqbal, 556 U.S. at 678). The court “view[s] the complaint in a light most
favorable to the plaintiff.” Mylan Lab’ys, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
When considering a motion to dismiss, “a [district] court evaluates the complaint in its
entirety, as well as documents attached [to] or incorporated into the complaint.” E.I. du Pont
de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).
III.

DISCUSSION
Under North Carolina law,2 an insurance policy is a contract, and its terms govern the

parties’ rights and duties. Fidelity Bankers Life Ins. Co. v. Dortch, 348 S.E.2d 794, 796 (N.C. 1986).
Here, Defendant argues that Plaintiff Martin is not named as an insured in the Policy (i.e., is
neither a party to the contract of insurance nor a beneficiary of it), and therefore cannot bring
any action based on it and should be dismissed entirely from this suit. (ECF No. 13 at 18–
19.) Furthermore, Defendant argues that Plaintiffs have not stated a claim for unfair and
deceptive trade practices. (Id. at 6–18.)

2

“[North Carolina law] mandates that the substantive law of the state where the last act to make a
binding contract occurred, usually delivery of the policy, controls the interpretation of the contract.”
Fortune Ins. Co. v. Owens, 526 S.E.2d 463, 466 (N.C. 2000). The Policy indicates it was delivered in
North Carolina. (ECF No. 11-1 at 4.)
3
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A.

Defendant Has Failed to Show That Plaintiff Martin d/b/a Blazing 7’s
Skill Game & Fish Is Not a Proper Party to This Action

Defendant argues that the allegations in Plaintiffs’ Complaint are incorrect insofar as
they claim that both Plaintiff Blazing 7’s and Plaintiff Martin are insured under the Policy. (See
ECF No. 13 at 18–19). Defendant claims that the Policy was originally issued to Plaintiff
Martin, but the parties amended the Policy by endorsement shortly after it was issued to
substitute Plaintiff Blazing 7’s as the sole insured. (Id.) To support its argument, Defendant
does not rely on the Policy that Plaintiffs attached to the Complaint; rather, Defendant relies
on a different version of the Policy that it has attached to its brief in support of its motion.
(Compare ECF No. 11-1, with ECF No. 13-1.) Consistent with Defendant’s contentions,
Defendant’s version has endorsements in its final pages that amend the contract to replace
Plaintiff Martin with Plaintiff Blazing 7’s so that Plaintiff Blazing 7’s (and only Plaintiff Blazing
7’s) is the insured. (ECF No. 13-1 at 92–94.) These final pages are not in Plaintiffs’ version,
which names Plaintiff Martin (and only Plaintiff Martin) as the insured. (ECF No. 11-1 at 4.)
“[C]onsideration of a document attached to a motion to dismiss ordinarily is permitted
only when the document is ‘integral to and explicitly relied on in the complaint,’ and when ‘the
plaintiffs do not challenge [the document’s] authenticity.’” Zak v. Chelsea Therapeutics Int’l, Ltd.,
780 F.3d 597, 606–07 (4th Cir. 2015) (quoting Am. Chiropractic Ass’n v. Trigon Healthcare, Inc.,
367 F.3d 212, 234 (4th Cir. 2004)). Here, the fact that the two versions of the Policy contradict
one another presents a glaring authenticity issue. Nevertheless, Defendant claims that
Plaintiffs do not dispute the authenticity of Defendant’s version and therefore the Court
should treat Defendant’s version of the Policy as superseding the version attached to the
Complaint. (ECF No. 16 at 8.) Plaintiffs’ brief, however, contains no concession on this
point. (See ECF No. 15 at 7–8.) Instead, Plaintiffs insist that Plaintiff Martin should not be
4
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dismissed, and that the document they attached to the Complaint is a copy of what Defendant
sent them after they reported their claim. (Id. at 8.) The Court construes this as disputing
which document is the operative Policy. Accordingly, the striking discrepancy between these
two documents prevents the Court from considering Defendant’s copy.3
At this stage of the proceeding the Court is required to view the facts as alleged in the
Complaint as true, and to resolve all inferences in the light most favorable to the nonmoving
party. E.I. du Pont de Nemours & Co., 637 F.3d at 440. This Court’s role at this juncture is not
to resolve disputed evidence. The Court will therefore deny Defendant’s motion to the extent
that it seeks dismissal of Plaintiff Martin from this lawsuit.
B.

Plaintiffs Plausibly Alleged That Defendant Committed an Unfair and
Deceptive Act by Offering an Unreasonable Explanation of Its Denial

Defendant next moves to dismiss the unfair and deceptive trade practices claim
brought pursuant to N.C. Gen. Stat. § 75-1.1 and N.C. Gen. Stat. § 58-63-15(11). (ECF No.
11 ¶¶ 23–32.)
Under § 75-1.1, “[u]nfair methods of competition in or affecting commerce, and unfair
or deceptive acts or practices in or affecting commerce, are declared unlawful.” To establish
a violation of § 75-1.1, “a plaintiff must show: (1) an unfair or deceptive act or practice, (2) in
or affecting commerce, and (3) which proximately caused injury to plaintiffs.” Gray v. N.C.
Ins. Underwriting Ass’n, 529 S.E.2d 676, 681 (N.C. 2000). A related statute, § 75-16 provides a
right of action to any person injured by any violation of § 75-1.1. In addition, under § 75-16,
a prevailing plaintiff can recover treble damages.

3

Defendant argues that under either version of the Policy there should only be one plaintiff, not two,
in this lawsuit. (ECF No. 16 at 9.) Because Defendant has only moved to dismiss Plaintiff Martin,
the Court will not address whether Plaintiff Blazing 7’s is a proper plaintiff here.
5
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In the insurance context, one way a plaintiff-insured may pursue a § 75-1.1 claim
against a defendant-insurer is by showing the insurer committed an unlawful act enumerated
in § 58-63-15(11), which is part of North Carolina’s Insurance Law. Gray, 529 S.E.2d at 681–
83. “Conduct that violates § 58-63-15(11) constitutes a violation of [§ 75-1.1] as a matter of
law.” DENC, LLC v. Phila. Indem. Ins. Co., 32 F.4th 38, 50 (4th Cir. 2022) (quoting Elliot v.
Am States Ins. Co., 883 F.3d 384, 396 (4th Cir. 2018)); Buchanan v. N.C. Farm Bureau Mut. Ins.
Co., 841 S.E.2d 598, 604 (N.C. Ct. App. 2020) (“A violation of N.C. Gen. Stat. § 58-63-15
constitutes a violation of N.C. Gen. Stat. § 75-1.1.”). Showing a § 58-63-15(11) violation is
not the exclusive means by which an insured can pursue its insurer under § 75-1.1. A plaintiff
may also prevail by showing a breach of contract “accompanied by ‘egregious or aggravating
circumstances.’” Davis v. State Farm Life Ins. Co., 163 F. Supp. 3d 299, 307 (E.D.N.C. 2016)
(quoting Ellis v. La.-Pac. Corp., 699 F.3d 778, 787 (4th Cir. 2012)); see also Modern Auto. Network,
LLC v. E. All. Ins. Grp., No. 17CV152, 2018 WL 1474362, at *6 (M.D.N.C. Mar. 26, 2018)
(citing Griffith v. Glen Wood Co., Inc., 646 S.E.2d 550, 558 (N.C. Ct. App. 2007)). Such
circumstances are, for example, “forged documents, lies, and fraudulent inducements,” though
cases presenting these circumstances are “rare.” Davis, 163 F. Supp. 3d at 307.
Here, Plaintiffs have specifically alleged that Defendant violated § 75-1.1 by violating
subsections (a), (f), and (n) of § 58-63-15(11). (ECF No. 11 ¶¶ 23–32.) For each subsection,
the Complaint lists specific acts allegedly committed by Defendant that Plaintiffs contend
violate the Insurance Law. (Id. ¶ 28.) The Court will address each of these subsections in

6
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turn. The Court concludes that Plaintiffs have plausibly alleged a violation of § 58-6315(11)(n)—but not any of the other predicates set out in the Complaint.4
1.

Plaintiffs Have Failed to Plausibly Alleged Defendant Violated
Subsection (a)

An insurer violates § 58-63-15(11)(a) if it “[m]isrepresent[s] pertinent facts or insurance
policy provisions relating to coverages at issue.” “Although North Carolina’s courts have not
[extensively] analyzed subparagraph (a) or defined misrepresentation in this context, ‘[i]n
making a claim of unfair and deceptive trade practices on a theory of misrepresentation or
fraud, a plaintiff must show that a defendant’s words or conduct possessed ‘the tendency or
capacity to mislead’ or create the likelihood of deception.’” Essentia Ins. Co. v. Stephens, 530 F.
Supp. 3d 582, 606 (E.D.N.C. 2021) (quoting Hospira Inc. v. Alphagary Corp., 671 S.E.2d 7, 12
(N.C. Ct. App. 2009)).
Plaintiffs have identified four actions they contend are violations of this subsection.
One of those actions is Defendant “[r]emitting payment of $10,000.00 . . . as an initial payment
towards the business personal property damaged by fire causing Plaintiffs to reasonably believe
that fire damage would be covered.” (ECF No. 11 ¶ 28(a)(i).) The other three actions relate
to communications in which Defendant somehow conceded that the claim involved “fire,”
but, at the same time, insisted that the burglary alarm provision barred coverage. (ECF No.
11 ¶ 28(a)(ii)–(iv).)
Defendant argues these allegations “fail to provide any indication as to what facts
and/or specific Policy language [Defendant] allegedly misrepresented.” (ECF No. 13 at 11.)
Plaintiffs respond that the Complaint makes it clear that “the Policy’s Burglary and Robbery
4

To the extent that Plaintiffs argue that Defendants conduct was “substantial and aggravating”
irrespective of whether there was a violation § 58-63-15(11), Plaintiffs’ Complaint does not allege such
claim. (See ECF No. 15 at 4–7.)
7
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Protective Safeguards endorsement is the provision Plaintiffs contend were used as a vehicle
of Defendant’s misrepresentation—as nothing in this endorsement speaks to a loss resulting
from arson or fire but only theft or robbery.” (ECF No. 15 at 6.)
The Court agrees with Defendant that that Plaintiffs have not plausibly alleged that
Defendant made any misrepresentation of any underlying fact or policy term. The allegations
describe only a dispute over Defendant’s conclusion about how to interpret and apply the
terms of the Policy under the circumstances. Such conduct does not violate § 58-63-15(11)(a).
See Topsail Reef Homeowners Ass’n v. Zurich Specialties London, Ltd., 11 F. App’x 225, 233 (4th Cir.
2001) (unpublished) (“[A] reasonable, non-negligent misunderstanding regarding a policy term
is insufficient to ground an UDTPA claim.” (citing Cockman v. White, 333 S.E.2d 54, 55 (N.C.
Ct. App. 1985)). Defendant’s motion will be granted as to § 58-63-15(11)(a).
2.

Plaintiffs Have Failed to Plausibly Alleged Defendant Violated
Subsection (f)

An insurer violates § 58-63-15(11)(f) when it “[does n]ot attempt[] in good faith to
effectuate prompt, fair and equitable settlements of claims in which liability has become
reasonably clear.” With respect to this subsection, “advocating a position that is ultimately
determined to be incorrect does not necessarily demonstrate a lack of good faith in attempting
to settle a claim.” Cent. Carolina Bank & Tr. Co. v. Sec. Life of Denver Ins. Co., 247 F. Supp. 2d
791, 801 (M.D.N.C. 2003). “[W]here an insurer ‘ha[s] reasonable bases to challenge the validity
of [the insured’s] claims,’ subparagraph (f) is not applicable.” Essentia Ins. Co., 530 F. Supp. 3d
at 608 (quoting Topsail Reef, 11 F. App’x at 234).
For subsection (f), the actions that Plaintiffs identify as violations of that subsection
are very similar to those identified for subsection (a)—essentially, Defendant relied on the
burglary alarm requirement in the Policy to deny coverage related to fire. (ECF No. 11 ¶
8
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28(b)(i)–(ii).) In the Complaint, Plaintiff alleges that “Defendant asserted no fire coverage
existed under the Policy by pointing to policy language specific to theft coverage,” and it
“should have been reasonably clear to Defendant” that it had to pay the claim because there
was “no exclusion or bar for fire damage in the Policy.” (Id. ¶ 28(b)(ii).)
Defendant argues that the allegations in the Complaint describe a reasonable ongoing
dispute about coverage and therefore do not satisfy the statute’s requirement that “liability
ha[ve] become reasonably clear.” (ECF No. 13 at 12.) Plaintiffs respond that that it was clear
the claim was for fire damage, and that the Policy covered fire damage. (See ECF No. 15 at
6–7.)
The Court finds that Plaintiffs’ allegations do not allege lack of good faith. As the
Complaint makes clear, the situation at the Property was more complicated than just an
accidental fire—the Property was apparently “the target of a burglary and arson.” (ECF No.
11 at 1; see also id. at 2 (mentioning Defendant had determined “the fire occurred during a
theft”).) The Complaint contains no allegation to support any inference that Defendant’s
application of a burglary alarm provision to a burglary/arson was anything but an honest
disagreement over what happened at the Property and how the Policy applied. Similarly, the
combination of a burglary alarm provision with the burglary/arson context makes Plaintiffs’
conclusion that liability “should have been reasonably clear to Defendant” implausible.5 The
Court therefore finds that Plaintiffs have not plausibly alleged any violation of subsection (f)
and Defendant’s motion will be granted as to § 58-63-15(11)(f).

5

For clarity, the Court is not indicating any opinion regarding ambiguity in the Policy, or the effect of
the burglary alarm provision when a theft and fire occur simultaneously. The Court is only addressing
a lack of clarity regarding events at the Property.
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3.

Plaintiffs Have Plausibly Alleged Defendant Violated Subsection (n)

Although the allegations the Complaint uses to support a § 58-63-15(11)(n) violation
are repetitive of the allegations the Complaint uses to support the subsections (a) and (f)
violations, (compare ECF No. 11 ¶ 28(c)(i)–(iv), with id. ¶ 28(a), (b)), the Court’s analysis with
respect to subsection (n) is somewhat different. An insurer violates subsection (n) when it
“fail[s] to promptly provide a reasonable explanation of the basis in the insurance policy in
relation to the facts or applicable law for denial of a claim or for the offer of a compromise
settlement.” Notably, this subsection does not focus on whether there was a reasonable basis
for a denial, rather, it requires a “reasonable explanation.” An insurer may not “hide the ball”
or leave its insured to “connect the dots” by simply stating policy provisions and facts without
“bridg[ing] the gap between policy and fact.” DENC, 32 F.4th at 51–52.
Here, Defendant contends that the Complaint contains allegations that demonstrate
Plaintiffs’ understanding of Defendant’s basis for denying coverage, and that this is an
admission that Defendant did provide a reasonable explanation for its denial of Plaintiffs’
claim. (ECF No. 13 at 14.) Specifically, Defendant highlights what it interprets as the
Complaint alleging that Defendant communicated a causal link between the denial of coverage
and the fact that the Property did not maintain a proper burglary alarm pursuant to the
Burglary and Robbery Protective Safeguards Endorsement. (Id. (citing ECF No. 11 ¶ 11).)
Construing the Complaint in the light most favorable to Plaintiff, the Complaint does not state
that Defendant itself initially explained the denial was based on the lack of burglary alarm, or
how the provision in the endorsement applied to the claim.6 (ECF No. 11 ¶ 11 (describing a

6

Elsewhere in the Complaint, Plaintiffs describe several written communications from Defendant
about how Defendant was denying the claim while “using policy language related to a theft loss.”
(E.g., ECF No. 11 ¶ 28(a)(ii), (iii).) In the light most favorable to Plaintiffs, these allegations do not
amount to a concession that Defendant’s explanation was reasonable.
10
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sequence of events without causal language).) An insured’s eventual understanding of which
facts and which provisions an insurer relies on to deny coverage, and how the insurer has
linked them together, does not necessarily prove the insurer reasonably explained the denial
pursuant to § 58-63-15(11)(n). This is because, as the Fourth Circuit recently emphasized in
DENC, LLC v. Philadelphia Indemnity Insurance Company, an insurer’s duty to offer a reasonable
explanation attaches “in the first instance.” 32 F.4th at 51. The fact that someone coming to
the issue during litigation can work out why a claim was denied does not excuse confusing
communications from an insurer. See id.
DENC is additionally instructive here because some allegations in the Complaint
parallel the situation in DENC. In DENC, the Fourth Circuit affirmed a district court’s
summary judgment finding that an insurer violated § 58-63-15(11)(n) “by first granting
coverage and then denying it in a confusing letter.” 32 F.4th at 50. That case began with a
college party—partygoers in a student housing building gathered on a second-floor breezeway
of the building and then began jumping, causing the breezeway to abruptly collapse. Id. at 43–
44. When the insured owner of the building filed a claim for the collapsed breezeway with its
insurer, the insurer “advised [the insured] that it would be investigating the claim under a
reservation of rights,” then “stated that it [would pay],” but then denied the claim “in a letter
that failed to reference its earlier agreement to pay.” Id. at 50. In that denial letter, the insurer
took the position that the breezeway was damaged because of “long-term water intrusion and
deteriorated wood framing.” Id. (quoting J.A. at 442). However, although the letter listed
many provisions that the insurer said barred coverage, none of them used the phrase “water
intrusion,” and, indeed, “some of the provisions set forth in the letter were not even part of
the policy” and “[o]thers patently [didn’t] apply to the breezeway collapse” and “even included
11
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‘the wrong provision governing collapse.’” Id. at 51 (quoting DENC, LLC v. Phila. Ins. Co.,
426 F. Supp. 3d 151, 156 (M.D.N.C. 2019)). Moreover, the letter “didn’t explain (much less
reasonably so) why the policy’s operative Collapse Endorsement didn’t cover the loss.” Id. In
this way, the insurer violated § 58-63-15(11)(n), which “requires that insurers do more than
list all potentially applicable policy terms alongside the facts.” Id.
Plaintiffs’ Complaint here makes allegations in support of a subsection (n) violation
that generally track DENC. According to the Complaint, shortly after Plaintiffs reported their
claim, Defendant remitted a payment of $10,000 “as an initial payment towards the business
personal property damaged by fire causing Plaintiffs to reasonably believe that fire damage
would be covered.” (ECF No. 11 ¶ 28(c)(i).) This parallels the DENC insurer’s early
statement that it would pay for the breezeway collapse, and the later retraction of that
commitment. DENC, 32 F.4th at 50. Defendant then denied the claim in letters that
“acknowledge[ed] Plaintiffs’ fire loss but at the same time us[ed] policy language related to a
theft loss.” (ECF No. 11 ¶ 28(c)(ii).) This parallels the DENC insurer’s switch to treating the
claim as related to “water intrusion” and citation of provisions that did not relate to a collapse.
DENC, 32 F.4th at 51. And Defendant here allegedly “fail[ed] to provide, cite, and/or address
any policy language specific to fire coverage, or exclusions, that would bar Plaintiffs’ recovery
for damage caused by fire.” (ECF No. 11 ¶ 28(c)(iv); see also id. ¶ 28(b)(ii) (alleging that the
exclusion that Defendant relied on “only excludes loss or damage for theft”).) Although the
Complaint lacks allegations that match how the DENC insurer informed its insured that
provisions that were not even in the policy barred coverage, the foregoing are sufficient to
plausibly state a claim that Defendant did not reasonably explain why Plaintiffs’ loss was not

12
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covered as required by § 58-63-15(11)(n).7 Accordingly, Defendant’s motion will denied as to
§ 58-63-15(11)(n).
IV.

CONCLUSION
For the reasons stated herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss, (ECF

No. 12), is GRANTED in part and DENIED in part. With Respect to the Unfair and
Deceptive Trade Practices Claim Defendant’s motion is granted as to the claims that Defendant
violated N.C. Gen. Stat. § 75-1.1 by committing predicate violations of N.C. Gen. Stat. § 58-6311(a) or (f); and is denied as to the claim that Defendant violated § 75-1.1 by committing a
predicate violation of § 58-63-11(n.) The motion is also denied to the extent that it seeks
dismissal of Plaintiff Martin from the action.
This, the 19th day of September 2022.
/s/ Loretta C. Biggs

7

The Court’s analysis is based strictly on the allegations in the Complaint and does not reach any
interpretation of the underlying letters or verbal communications referenced in the Complaint.
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