Biltmore Avenue Condominium Association, Inc. v. Hanover American Insurance Company

Filing 21

ORDER denying Defendant's 19 Motion for Reconsideration; granting Defendant's 19 Motion for Extension of Time to Answer. Hanover American Insurance Company answer due 3/9/2016. Signed by District Judge Martin Reidinger on 2/17/2016. (khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:15-cv-43-MR-DLH

BILTMORE AVENUE CONDOMINIUM )
ASSOCIATION, INC.,
)
)
Plaintiff,
)
)
vs.
)
)
)
HANOVER AMERICAN INSURANCE )
COMPANY,
)
)
Defendant.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Defendant’s Motion for
Reconsideration and Motion for Extension of Time to Respond to Plaintiff’s
Complaint. [Doc. 19]. The primary thrust of the Defendant’s motion is to
seek the Court’s reconsideration of its February 2, 2016, Order denying the
Defendant’s request to dismiss Plaintiff’s unfair and deceptive trade
practices claim asserted under Chapter 75 of the North Carolina General
Statutes. [Doc. 18].
When faced with a motion for reconsideration, the Court does not apply
the same strictures it would with regard to final orders pursuant to Federal

Rules of Civil Procedure 59 and 60. American Canoe Ass'n v. Murphy Farms,
Inc., 326 F.3d 505, 514 (4th Cir. 2003). Rather, in deciding whether to
reconsider an interlocutory order, the Court should consider whether there
has been an intervening change in controlling law, whether there is additional
evidence not previously available, and whether the prior decision was based
on clear error or will work a manifest injustice. American Canoe, 326 F.3d
at 515, citing Sejman v. Warner–Lambert Co., Inc., 845 F.2d 66, 69 (4th Cir.
1988). The Defendant focuses on the last of these considerations and
argues that the Court’s prior Order is erroneous because: “(1) controlling
authority from the North Carolina Supreme Court requires dismissal of
Plaintiff’s claim and (2) the case law relied upon by the Court in support of
its decision is inapposite.” [Doc. 19-1 at 1]. According to the Defendant, the
“controlling authority” relied upon by Defendant is Gray v. N.C. Ins.
Underwriting Assoc., 352 N.C. 61, 529 S.E.2d 676 (2000), and the
“inapposite” case relied upon by the Court is Garlock v. Henson, 112 N.C.
App. 243, 435 S.E.2d 114 (1993). [Id.]. The Court carefully examined both
of these cases in its prior Order.
In its request for reconsideration, the Defendant has offered nothing
new to substantiate its contention that the Court’s prior Order is erroneous.
The Defendant still maintains that “Plaintiff has not alleged any damages
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beyond the alleged contractual damages – which, per Gray, are not
recoverable as part of an unfair and deceptive trade practices claim.” [Doc.
19-1 at 3]. As stated in its prior Order, Defendant’s reliance on Gray is
misplaced. The court in Gray did not hold that a plaintiff must allege some
damages “independent of” damages for breach of contract in order to state
a claim for unfair and deceptive trade practices arising from the same course
of conduct. Gray, 352 N.C. at 65-66, 529 S.E.2d at 679-80. Further, the
North Carolina Court Appeals did conclude that the same course of conduct
giving rise to a traditionally recognized cause of action, as, for example, an
action for breach of contract, can also give rise to a cause of action for
violation of N.C. Gen. Stat. § 75-1.1, and damages may be recovered either
for the breach of contract, or for violation of section 75-1.1. Garlock v.
Henson, 112 N.C. App. 243, 246, 435 S.E.2d 114, 116 (1993). While the
Defendant is correct that a mere breach of contract allegation cannot sustain
a UDTPA claim without a showing of aggravating circumstances [Doc. 19-1
at 5], the Plaintiff has alleged multiple aggravating circumstances committed
by the Defendant. [Doc. 7 at 7, ¶¶ 23-25].
The Plaintiff’s Complaint states a claim for unfair and deceptive trade
practices. If Plaintiff is able to prove such a claim, its damages may be the
same as what its contract damages would have been; and they may be
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different. But, as stated in its prior Order, that inquiry is not before the Court
on the present motion pursuant to Rule 12(b)(6). Accordingly, the Court will
deny the Defendant’s motion for reconsideration and will grant Defendant’s
motion for additional time to file its Answer.
ORDER
IT IS, THEREFORE, ORDERED that the Defendant’s Motion for
Reconsideration [Doc. 19] is DENIED and Defendant’s Motion for Extension
of Time to Respond to Plaintiff’s Complaint [Doc. 19] is GRANTED. The
Defendant shall have twenty-one days from the entry of this Order within
which to file its Answer.
IT IS SO ORDERED.

Signed: February 17, 2016

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