Blankenship v. Westfield Insurance Company

Filing 43

MEMORANDUM OPINION AND ORDER granting Westfield Insurance Company's 37 MOTION for Partial Summary Judgment. Signed by Judge John T. Copenhaver, Jr. on 5/13/2015. (cc: counsel of record; any unrepresented partyies (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
TONY R. BLANKENSHIP,
Plaintiff,
v.

Civil Action No. 2:14-cv-24740

WESTFIELD INSURANCE COMPANY
Defendant.

MEMORANDUM OPINION AND ORDER
Pending is defendant Westfield Insurance Company’s
(“Westfield”) partial motion for summary judgment, filed April 9,
2015.

For the reasons set forth below, the motion is granted.

Background

Plaintiff Tony R. Blankenship (“Blankenship”) is a
resident of Kanawha County, West Virginia.

Pl. Compl. ¶ 1.

Since

1994, Blankenship has maintained a homeowner’s insurance policy,
issued by Westfield, for a parcel of property located in Dunbar, West
Virginia.

Id. ¶¶ 3-4.

On July 8, 2012, the house located on that

property was struck by lightning during an electrical storm, caught
fire, and was significantly damaged.

Id. ¶ 7.

Blankenship reported

the fire to Westfield the day after the damage occurred, July 9, 2012.
Id. ¶ 8.

In his complaint, Blankenship alleges that Westfield

instructed him to leave the house uninhabited, and he complied with

that request until “approximately August 15, 2012.”

Id. ¶ 9.

Sometime during the month-long period in which the house was
unoccupied, “one or more thefts occurred” at the property, during
which “both personal property and attached home improvements”
including “siding, copper piping, copper wiring, [an] HVAC system
. . . and other items of value that remained in the residence after
the fire” were stolen.

Id. ¶ 10.

The primary contention underlying

Blankenship’s lawsuit is that “while some of the damages regarding
the storm and theft . . . have been paid by [Westfield],” Westfield
has “failed to pay [Blankenship] everything he is entitled to under
the policy.”

Id. ¶ 11.

Blankenship initiated this action in the Circuit Court of
Kanawha County, West Virginia, on July 2, 2014.

His complaint

identified three causes of action: negligence, breach of contract,
and bad faith.

Westfield filed a timely notice of removal on August

14, 2014, citing diversity of citizenship.

On September 4, 2014,

the court granted Westfield’s partial motion to dismiss
Blankenship’s bad faith claim, after being advised that both parties
agreed that the claim should be dismissed.
September 4, 2014 (ECF 8).

See Order Herein of

The case continued and discovery was

conducted on the remaining two claims set forth in the complaint:
negligence and breach of contract.

Westfield moves for summary judgment solely with respect

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to Blankenship’s negligence claim, arguing that it is “nothing more
than a reiteration of his causes of action for breach of contract
or ‘bad faith’ arising from how Westfield handled [his] claim.”

Def.

Mem. in Supp. Mot. for Partial Summ. J. at * 3.

Discussion

A party is entitled to summary judgment “if the pleadings,
the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
P. 56(c).

Fed. R. Civ.

Material facts are those necessary to establish the

elements of a party’s cause of action.

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

“[I]n a negligence suit, a plaintiff is required to show
four basic elements: duty, breach, causation, and damages.”

Hersh

v. E-T Enterprises, Ltd. P'ship, 232 W. Va. 305, 310 (2013).
Westfield argues that summary judgment on Blankenship’s negligence
claim is appropriate because tort liability cannot be predicated
solely on the breach of a contractual duty, and inasmuch as the only
duty owed by Westfield in this case arises from the insurance
contract, Blankenship has not and cannot make the showing of duty
necessary to prevail on his negligence claim.

Blankenship offers

little in the way of rebuttal, other than stating in a conclusory

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fashion, that his negligence claim “is not a reiteration of his causes
of action for breach of contract or bad faith.”

Pl. Mem. of Law

Opposing Def.’s Mot. For Summ. J. at * 4.

West Virginia adheres to the widely recognized principle
that the failure to perform a contractual obligation does not create
tort liability.

See Lockhart v. Airco Heating & Cooling, Inc., 211

W. Va. 609, 614 (2002)(“Tort liability of the parties to a contract
arises from the breach of some positive legal duty imposed by law
because of the relationship of the parties, rather than from a mere
omission to perform a contract obligation. An action in tort will
not arise for breach of contract unless the action in tort would arise
independent of the existence of the contract.”), Syl. pt. 2 Sewell
v. Gregory, 179 W. Va. 585 (1988)(“In the matters of negligence,
liability attaches to a wrongdoer, not because of a breach of a
contractual relationship, but because of a breach of duty which
results in an injury to others.”), see also Dan Ryan Builders, Inc.
v. Crystal Ridge Dev., Inc., --- F.3d. --- 2015 WL 1771537, at *3
n. 6 (4th Cir. 2015)(applying West Virginia law, citing Lockhart,
and stating that “[t]his requirement — that a tort claim must rest
on a non-contractual duty — is hornbook law in most jurisdictions”)
(citing Black’s Law Dictionary (10th Ed. 2014) and the Restatement
(Third) of Torts: Liab. for Econ. Harm § 3 (Tentative Draft No. 1
2012)).

However, West Virginia also recognizes a limited exception

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to this principle.

See Chamberlaine & Flowers, Inc. v. Smith

Contracting, Inc., 176 W. Va. 39 (1986)(recognizing that tort
liability can arise from a contractually-bound party’s “misfeasance,
or negligent affirmative conduct” that occurs during their
performance of the contract).

The facts of Chamberlaine are analogous to those in this
case.

In Chamberlaine an insured plaintiff alleged that the

defendant insurer “negligently adjusted plaintiff's claim and
negligently failed to pay to plaintiff the amount to which it was
entitled by virtue of the policy of insurance.”

Id.

The West

Virginia Supreme Court of Appeals described the plaintiff’s
allegation as “dressing a contract claim in a tort’s clothing” and
upheld a lower court’s dismissal of the negligence cause of action
because there was “no tort liability for [the insurer’s]
nonfeasance.”

Blankenship supports his negligence claim with a

substantially similar allegation, stating that Westfield “had a duty
to properly and timely adjust [his] claim” and that Westfield failed
to do so in the manner of a “reasonably prudent insurance company.”
Pl. Compl. ¶¶ 13-14.

To the extent Blankenship’s negligence claim is predicated
on Westfield’s failure to perform its contractual obligations, that
claim is foreclosed by Chamberlaine.

To the extent the claim is

predicated on an independent legal duty imposed by a source other

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than the contract, it would sound directly in tort, and could survive
summary judgment.

See Lockhart, supra.

West Virginia applies the “gist of the action doctrine”
to determine if a claim sounds in contract or tort.

Cochran v.

Appalachian Power Co., 162 W.Va. 86, 92-93(1978)(“If the action is
not maintainable without pleading and proving the contract, where
the gist of the action is the breach of the contract, either by
malfeasance or nonfeasance, it is, in substance, an action on the
contract, whatever may be the form of the pleading.”)(internal
quotation marks omitted).

In Gaddy Eng'g Co. v. Bowles Rice McDavid

Graff & Love, LLP, the West Virginia Supreme Court identified four
factors to be used by courts applying the “gist of the action”
doctrine.

Gaddy Eng'g Co. v. Bowles Rice McDavid Graff & Love, LLP,

231 W. Va. 577, 586 (2013)(per curiam).

The court stated that:

Recovery in tort will be barred when any of the following
factors is demonstrated:
(1) where liability arises solely from the contractual
relationship between the parties;
(2) when the alleged duties breached were grounded in the
contract itself;
(3) where any liability stems from the contract; and
(4) when the tort claim essentially duplicates the breach
of contract claim or where the success of the tort claim is
dependent on the success of the breach of contract claim.
Id.

The court further noted that “whether a tort claim can coexist

with a contract claim is determined by examining whether the parties'

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obligations are defined by the terms of the contract.”

Id.

Blankenship’s complaint alleges that Westfield has “a duty
to properly and timely adjust” his claim, in the manner of a
“reasonably prudent insurance company” and that the company breached
that duty, as well as being “otherwise negligent.”
13-14.

Pl. Compl. ¶¶

The complaint also contains allegations that outline

Westfield’s duty to “deal with [Blankenship]’s claim fairly, in good
faith and in a timely manner.”

Id. ¶¶ 21-22.

The latter set of

allegations relate to the bad faith claim that has already been
dismissed by the court, and the former arises solely from the
contractual relationship between the parties.

Discovery has ended

and in his opposition to Westfield’s summary judgment motion
Blankenship provides nothing to supplement these allegations – no
new facts, and no substantive argument – that identifies an
independent foundation, outside the contract itself, upon which his
negligence claim can be based.

Simply put, Blankenship has failed

to identify any legal duty, other than the contract, from which
Westfield’s alleged negligence could flow.

Failure to live up to

a contractual obligation cannot alone be the basis of a tort claim.

Accordingly, there being no genuine issue of material
fact, summary judgment in favor of Westfield on the negligence claim
is appropriate.

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Conclusion and Order

For the forgoing reasons, the court ORDERS that
Westfield’s partial motion for summary judgment be, and hereby is
granted.

The Clerk is directed to transmit copies of this order to
counsel of record and any unrepresented parties.

ENTER:

May 13, 2015

John T. Copenhaver, Jr.
United States District Judge

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