Caravetta v. James River Insurance Company
Filing
13
MEMORANDUM OPINION re Motion to Dismiss. Signed by District Judge James C. Cacheris on 12/21/2011. (klau, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
SYLVIA CARAVETTA,
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Plaintiff,
v.
JAMES RIVER INSURANCE
COMPANY,
Defendant.
1:11cv540 (JCC/JFA)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Defendant James
River Insurance Company’s Motion to Dismiss.
For the following
reasons, the Court will grant Defendant’s motion.
I.
A.
Background
Factual Background
This case involves allegations of medical malpractice.
On May 19, 2009, Plaintiff underwent an abdominal liposuction
procedure performed by Dr. Al Muzzammel, who was licensed to
practice medicine in the Commonwealth of Virginia.
3, 5.)
(Compl. ¶¶
The procedure was performed at Dr. Muzzammel’s office
located in Vienna, Virginia.
(Compl. ¶ 5.)
Plaintiff submits
that she paid at least $300 for the procedure.
(Compl. ¶ 7.)
Plaintiff alleges that Dr. Muzzammel performed the procedure in
a negligent manner, which resulted in “unevenness” in her
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abdominal area and discoloration in the form of “pink blotches.”
(Compl. ¶¶ 12, 13.)
In addition to these physical conditions,
Plaintiff submits that she has suffered various forms of mental
anguish as a result.
(Compl. ¶ 21.)
Plaintiff submits that she
attempted to obtain a refund for the procedure from Dr.
Muzzammel’s office, but that her “calls weren’t returned.”
(Compl. ¶ 17.)
Dr. Muzzammel passed away on March 19, 2011.
(D. Mem. [Dkt. 5] at 1.)
On May 18, 2011, Plaintiff filed a Complaint against
James River Insurance Company (James River).
[Dkt. 1.]
At the
time of the procedure, Dr. Muzzammel was insured by James River.
(Compl. ¶ 5; D. Mem. at 1).
The Complaint focuses primarily on
actions taken by Dr. Muzzammel and his office, but it does state
that “I attempted to settle this situations with James River
Insurance, however I now see that the lady had no intention
whatsoever of settling anything and was only stringing me along
so that my time would run out.”
B.
(Compl. ¶ 18.)
Procedural Background
Plaintiff filed her Complaint pursuant to this Court’s
diversity jurisdiction on May 18, 2011.
[Dkt. 1.]
The
Complaint contains one count of medical negligence.
20.)
(Compl. ¶
Plaintiff seeks a judgment against Defendant “in excess
of” two million dollars, plus interest and costs.
5.)
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(Compl. at
On August 8, 2011, Defendant filed a Motion to
Dismiss.
[Dkt. 4.]
August 23, 2011.
Plaintiff filed a Response in Opposition on
[Dkt. 7.]
On October 20, 2011, Plaintiff
filed a Motion to Seal the Complaint [Dkt. 9], a Motion for a
Hearing on the Motion to Seal [Dkt. 10], and a Motion to Appear
at Hearings by Telephone [Dkt. 11].
On October 27, 2011, the
Court denied Plaintiff’s Motion to Seal and its related Motion
for a Hearing, but granted Plaintiff’s Motion to Appear at
Hearings by Telephone.
[Dkt. 12.]
Defendant’s motion is now before the Court.
II.
Standard of Review
Rule 12(b)(6) allows a court to dismiss those
allegations which fail “to state a claim upon which relief can
be granted.”
Fed. R. Civ. P. 12(b)(6).
In deciding a 12(b)(6)
motion, a court must first be mindful of the liberal pleading
standards under Rule 8, which require only “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
Fed. R. Civ. P. 8.
While Rule 8 does not require
“detailed factual allegations,” a plaintiff must still provide
“more than labels and conclusions” because “a formulaic
recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)(citation omitted).
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To survive a 12(b)(6) motion, “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, 129 S. Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570).
“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.”
Id.
However, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” to meet this standard,
id., and a plaintiff’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level . . . .”
Twombly, 550 U.S. at 555.
Moreover, a court “is not bound to
accept as true a legal conclusion couched as a factual
allegation.”
Iqbal, 129 S. Ct. at 1949-50.
The Court construes the pro se Complaint in this case
more liberally than those drafted by an attorney.
Kerner, 404 U.S. 519, 520 (1972).
See Haines v.
Further, the Court is aware
that “[h]owever inartfully pleaded by a pro se plaintiff,
allegations are sufficient to call for an opportunity to offer
supporting evidence unless it is beyond doubt that the plaintiff
can prove no set of facts entitling him to relief.”
Thompson v.
Echols, No. 99-6304, 1999 U.S. App. LEXIS 22373, 1999 WL 717280,
at *1 (4th Cir. 1999) (citing Cruz v. Beto, 405 U.S. 319
4
(1972)).
Nevertheless, while pro se litigants cannot “be
expected to frame legal issues with the clarity and precision
ideally evident in the work of those trained in law, neither can
district courts be required to conjure up and decide issues
never fairly presented to them.”
Beaudett v. City of Hampton,
775 F.2d 1274, 1276 (4th Cir. 1985).
Thus, even in cases
involving pro se litigants, as in here, the Court “cannot be
expected to construct full blown claims from sentence
fragments.”
Id. at 1278.
III.
Analysis
In order to state a claim for medical negligence, the
pleader must allege a breach of the standard of care, proximate
causation, and resultant damages.
See Perdieu v. Blackstone
Family Practice Ctr., 568 S.E.2d 703, 710 (Va. 2002).
The
Complaint states the “treatment covered by James River Insurance
company . . . was negligent and below the standard of care.”
(Compl. ¶ 20.)
The Complaint does not allege any facts
indicating that James River performed a medical procedure or
breached the standard of care.
As a result, Plaintiff has not
stated a claim for medical negligence upon which relief can be
granted.1
1
Plaintiff’s statement in the Complaint regarding discussions of settlement
with Defendant, and Plaintiff’s statement in her Response that Defendant was
negligent because it “willingly insured Muzzammel even though Muzzammel was
found to be negligent in a previous case” (P. Response ¶ 5), fall short of
stating any other potential claim upon which relief can be granted. (The
Court also notes that Plaintiff had not obtained leave of the Court to file
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Plaintiff’s Complaint asserts a claim for medical
negligence against James River based solely on its status for
insurer of Dr. Muzzamell.
action state.
Virginia, however, is not a direct
See Builders Mut. Ins. Co. v. Futura Group,
L.L.C., 779 F. Supp. 2d 529, 534-35 (E.D. Va. 2011); Brown v.
Slenker, 197 F. Supp. 2d 497, 500 n.4 (E.D. Va. 2002); Hudgins
v. Jones, 205 Va. 495, 500 (Va. 1964); Buchanan v. Doe, 246 Va.
67 (Va. 1993).
Although, “[a]n injured party is a beneficiary
under the tort-feasor's liability policy,” “in Virginia, an
injured person must reduce his claim to judgment before bringing
an action against the tort-feasor’s liability insurer.”
United
Servs. Auto. Asso. v. Nationwide Mut. Ins. Co., 218 Va. 861, 867
(Va. 1978) (citing Railroad v. Hughes-Keegan, Inc., 207 Va. 765,
773, 152 S.E.2d 28, 33-34 (1967); Emp’rs Liab. v. Taylor, 164
Va. 103, 110, 178 S.E. 772, 774 (1935)).
“Moreover, [Virginia]
Code § 8.01-5 (formerly § 8-96), prohibits the joinder of an
insurance company on account of the issuance of an insurance
policy to or for the benefit of any party to any cause.”
Id.2
As a result, Plaintiff cannot maintain an action against
Defendant unless a judgment is first obtained, and then “[a]rmed
additional allegations, considered amendments to the pleadings, in her
Response.)
2
Virginia Code § 8.01-5B states: “Nothing in this section shall be construed
to permit the joinder of any insurance company on account of the issuance to
any party to a cause of any policy or contract of liability insurance, or on
account of the issuance by any such company of any policy or contract of
liability insurance for the benefit of or that will inure to the benefit of
any party to any cause.” Va. Code Ann. § 8.01-5B (2011).
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with a judgment, [she] could do so, subject to the [] statute of
limitations.”
Id.
Here there is no indication Plaintiff has
reduced her claim against Dr. Muzzamell to judgment.
IV.
Conclusion
For these reasons, the Court will grant Defendant’s
Motion to Dismiss.
An appropriate Order will issue.
December 21, 2011
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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