Whitehead v. Travelers Indemnity Company of America, The et al

Filing 37

ORDER AND OPINION granting 14 MOTION for Summary Judgment in favor of Defendant on Plaintiff's SCUTPA violation claim. Signed by Honorable J Michelle Childs on 10/11/2016. (asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Jodi A. Whitehead

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Plaintiff,
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v.
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The Travelers Indemnity Company of
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America, Plaintiff’s UIM Insurance,
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Defendant.
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____________________________________)

Civil Action No.: 3:15-cv-04200-JMC

ORDER

Plaintiff Jodi A. Whitehead (“Plaintiff”) filed this action alleging a claim, among others,
of a violation of the South Carolina Unfair Trade Practices Act (“SCUTPA”), S.C. Code Ann. §
39-5-10, et seq. (2014), against Defendant The Travelers Indemnity Company of America
(“Defendant”), 1 arising from Defendant’s refusal to pay benefits under an underinsured motorist
policy (“UIM”). (See ECF No. 26-1 at 10-11.) Defendant filed a Motion for Summary Judgment
(ECF No. 14), which, by separate order, the court denied with respect to the claim of SCUTPA
violation.
Pursuant to Fed. R. Civ. P. 56(f)(2), the court ordered the parties to respond and to show
cause why the court should not grant summary judgment in Defendant’s favor on Plaintiff’s claim
of SCUTPA violation on the ground that SCUTPA does not apply to the trade practices at issue in
this case. See Lewis v. Omni Indem. Co., 970 F. Supp. 2d 437, 451-52 (D.S.C. 2013) (citing S.C.
Code Ann. § 39–5–40 (2016); Trs. of Grace Reformed Episcopal Church v. Charleston Ins. Co.,

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Defense counsel has asserted that the correct name of the defendant in this matter is The Travelers
Indemnity Company of America (see, e.g., ECF No. 1 at 1), and Plaintiff has not disagreed.
Although the court retains that caption used in Plaintiff’s complaint, the court refers to The
Travelers Indemnity Company of America as the Defendant.
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868 F. Supp. 128, 132 (D.S.C. 1994)). The parties’ responses were timely filed after the court
afforded them ten days after the date the show cause order was entered in which to respond. See
Koninklijke Philips Elecs. N.V. v. Cardiac Sci. Operating Co., 590 F.3d 1326, 1332 (Fed. Cir.
2010); Amzura Enters., Inc. v. Ratcher, 18 F. App’x 95, 103 (4th Cir. 2001).
In her response, Plaintiff first argues that the court should treat the amended complaint she
filed in state court as filed in this court. (ECF No. 36 at 1.) The court declines to do so. As the
court previously explained, the amended complaint is void ab initio because it was filed in state
court after the case was properly removed to this court. See 28 U.S.C. § 1446(d); Mid S. Carbon
Corp. v. TriCamp Capital, LLC, 622 F. App’x 223, 225 (4th Cir. 2015); South Carolina v. Moore,
447 F.2d 1067, 1073 (4th Cir. 1971); Holmes v. AC & S, Inc., 388 F. Supp. 2d 663, 667 (E.D. Va.
2004). Further, Plaintiff failed to seek an amendment in accordance with the procedures applicable
in federal district courts. See Hall v. Morales, No. PWG-14-944, 2014 WL 7204918, at *4 (D. Md.
Dec. 16, 2014) (“Although Fed. R. Civ. P. 15 does not expressly require a motion before the court
may grant leave to amend a pleading, Fed. R. Civ. P. 7(b)(1) clearly states that a request for a court
order must be made by motion.” (internal quotation marks and brackets omitted)). And, even if
Plaintiff had properly sought to amend her complaint, the court would not grant leave to do so
because, as the court previously explained, the proposed amended complaint does not cure the
deficiency that the court identified in its previous order. (See ECF No. 32 at 8 n.3); Scott v. Family
Dollar Stores, Inc., 733 F.3d 105, 121 (4th Cir. 2013) (“Denying leave to amend is appropriate
when . . . the amendment would have been futile.”).
Plaintiff next contends that, to the extent the SCUTPA claim was raised in her initial
complaint, the court should not enter summary judgment on it because, as it “does not involve the
amount of coverage or concern[] the business of insurance, this court should find that the SCUTPA

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does apply in this matter due to a lack of proper compensation.” (ECF No. 36 at 3.) The court
rejects this argument. As the court explained in Grace Reformed:
[B]ecause § 39–5–40(c) exempts from coverage unfair trade practices
regulated by Chapter 57 of Title 38 it exempts from coverage all unfair trade
practices regarding the business of insurance. The Insurance Trade Practices
Act to which § 39–5–40(c) refers is intended to regulate all unfair trade
practices in the business of insurance as evidenced by § 38–57–10. Therefore,
by precluding unfair trade practices covered and regulated under Chapter 57,
§ 39–5–40(c) exempts from the coverage of SCUTPA all unfair trade
practices in the business of insurance.
868 F. Supp. at 132 (emphasis added) (internal citations omitted) (citing State v. Thrift, 440 S.E.2d
341, 354 (1994); Spartanburg v. Leonard, 186 S.E. 395 (1936)). The court sees no reason why
Plaintiff’s SCUTPA violation claim here is not subject to the rule stated in Grace Reformed.
Accordingly, summary judgment in favor of Defendant on Plaintiff’s SCUTPA violation
claim is hereby GRANTED, and the claim is DISMISSED.
IT IS SO ORDERED.

United States District Court Judge
October 11, 2016
Columbia, South Carolina

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