Fisher v. State Farm Fire and Casualty Company

Filing 11

MEMORANDUM OPINION AND ORDER granting defendant State Farm Fire and Casualty Company's 3 Motion to Dismiss for Failure to State a Claim; the court will permit the plaintiff to file an amended complaint within a limited time, in the absence of which this case will be dismissed with prejudice; directing that the plaintiff may file the amended complaint by 11/6/2017; the amended complaint to be limited to claims that reflect the actual issues in the case. Signed by Judge John T. Copenhaver, Jr. on 10/5/2017. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
SHAWNA FISHER,
Plaintiff,
v.

Civil Action No. 2:17-cv-3754

STATE FARM FIRE AND
CASUALTY INSURANCE COMAPNY,
a foreign corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is the motion to dismiss of defendant State
Farm Fire and Casualty Company, filed August 4, 2017.
I.
On May 25, 2017, Shawna Fisher, a resident of West
Virginia, initiated this action against State Farm Fire and
Casualty Insurance Company (“State Farm”) in the Circuit Court
of Kanawha County.

On August 4, 2017, State Farm timely filed

notice of removal, invoking this court’s diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a).

Not. Removal ¶ 3.

Ms. Fisher

seeks compensatory and punitive damages against defendant as
well as attorney’s fees.

Compl. ¶ 27.

1

On May 26, 2015, plaintiff’s home and possessions
therein were destroyed by a fire.

Compl. ¶ 3.

Plaintiff filed

a claim for the destruction of this property under the fire and
casualty insurance policy issued to her by defendant, but
asserts that her losses exceeded the limits of this policy.

Id.

at ¶ 4-5.
Ms. Fisher’s complaint asserts one count alleging that
“defendant violated their [sic] duties described in [the Unfair
Trade Practices Act], and specifically violated . . . the
provisions of West Virginia Code 33-11-4.”

Id. at ¶ 12.

She

alleges particular harms under W. Va. Code § 33-11-4(9)(b-g) and
(m-n) which prohibits unfair claim settlement practices that are
“perform[ed] with such frequency as to indicate a general
business practice.”

W. Va. Code § 33-11-4(9); see Id. at ¶¶

12, 18-21.
On August 4, 2017, State Farm filed its motion to
dismiss under Rule 12(b)(6), contending that plaintiff’s
complaint “fails . . . to set forth even minimal facts which
would state a claim for an alleged violation of the Unfair Trade
Practices Act.”

Mem. in Supp. of Mot. to Dismiss at 2.

The

time for briefing on this motion elapsed without response from
Ms. Fisher.

2

II.
Federal Rule of Civil Procedure 8(a)(2) requires that
a pleader provide “a short and plain statement of the claim
showing . . . entitle[ment] to relief.”

Fed. R. Civ. P.

8(a)(2); Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007).

Rule

12(b)(6) correspondingly permits a defendant to challenge a
complaint when it “fail[s] to state a claim upon which relief
can be granted . . . .”

Fed. R. Civ. P. 12(b)(6).

The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957),
overruled on other grounds, Twombly, 550 U.S. at 563); see also
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007).
In order to survive a motion to dismiss, “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, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S.
at 570); see also Monroe v. City of Charlottesville, 579 F.3d
380, 386 (4th Cir. 2009).

3

Application of the Rule 12(b)(6) standard requires
that the court “‘accept as true all of the factual allegations
contained in the complaint. . . .’” Erickson, 551 U.S. at 94
(quoting Twombly, 550 U.S. at 555-56); see also S.C. Dept. of
Health and Envt’l Control v. Commerce and Indus. Ins. Co., 372
F.3d 245, 255 (4th Cir. 2004) (quoting Franks v. Ross, 313 F.3d
184, 192 (4th Cir. 2002)). The court must likewise “draw[] all
reasonable . . . inferences from th[e] facts in the plaintiff's
favor. . . .” Edwards v. City of Goldsboro, 178 F.3d 231, 244
(4th Cir. 1999).

Although “detailed factual allegations" are

not necessary, the facts alleged must be enough “to raise a
right to relief above the speculative level.” Twombly, 550 U.S.
at 555.

This requires “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation,” and “threadbare recitals of a
cause of action’s elements, supported by mere conclusory
statements.”

Iqbal, 556 U.S. at 663, 678.

4

III.
The Unfair Trade Practices Act (“The Act”), West
Virginia Code § 33-11-1 et seq., provides a cause of action for
unfair trade practices.

Section 33-11-4(9) of the Act provides

remedies for conduct determined to be unfair claim settlement
practices that are “commit[ed] or perform[ed] with such
frequency as to indicate a general business practice.”

To

maintain a cause of action under the Act “more than a single
isolated violation . . . must be shown” to demonstrate the
existence of a “general business practice.”

Syl. Pt. 3, Jenkins

v. J.C. Penney Cas. Ins. Co., 167 W. Va. 597 (1981).

When a

violation of the Act is based upon an insurance company’s
conduct in the settlement of a single claim:
[T]he evidence should establish that the conduct in
question constitutes more than a single violation of
[the Act], that the violations arise from separate,
discrete acts or omissions in the claim settlement,
and that they arise from a habit, custom, usage, or
business policy of the insurer, so that, viewing the
conduct as a whole, the finder of fact is able to
conclude that the practice or practices are
sufficiently pervasive or sufficiently sanctioned by
the insurance company that the conduct can be
considered a “general business practice” and can be
distinguished by fair minds from an isolated event.
Dodrill v. Nationwide Mut. Inc. Co., 201 W.Va. 1, 13 (1996).

5

Even accepting all of plaintiff’s facts as true, she
has not pled the requisite facts to sustain a claim under the
Act.

Plaintiff makes only a few factual statements in her

complaint: (1)

that she is a resident of Kanawha County, West

Virginia, (2) that State Farm is doing business in West
Virginia, (3) that her house was destroyed in a fire on or about
May 26, 2015, (4) that she filed a claim with State Farm
following the fire, (5) that her losses exceed the policy limits
of the fire and casualty insurance policy, (6) that she made
“numerous” communications with State Farm regarding her claim,
upon which State Farm failed to act reasonably promptly, and
(7) that she was not “fully compensat[ed] . . . for the losses
sustained by the fire and destruction of her home and contents.”
See Compl. ¶¶ 1-5, 8, 13.

Stripped of the threadbare recitation

of portions of the Act and her conclusory allegations, Ms.
Fisher’s complaint does not adequately allege or demonstrate
that State Farm has engaged in a “general business practice” in
violation of the Act.
Inasmuch as plaintiff’s complaint fails to set forth
sufficient factual matter to state a plausible claim against
State Farm, it is ORDERED that defendant’s motion to dismiss be,
and herby is, granted.

6

Plaintiff,
v.

Civil Action No. 15-14025

THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
an Employee Welfare Benefits Plan, the plaintiff to file an amended
The court will permit
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
a Massachusetts Corporation, and
complaint within a limited time, in the absence of which this
DOES 1 THROUGH 10, inclusive,
case will be dismissed with prejudice. Noting that plaintiff’s
Defendants.
counsel, James M. Pierson, was involved in an accident on
ORDER AND NOTICE
October 1, 2017 wherein he sustained several fractured ribs and
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby furtheras the time by or on which wish to
a collapsed lung, it is fixed ORDERED that, should she
certain events must occur:
do so, the plaintiffunder F.R. Civ. P. 12(b), together by
01/28/2016
Motions shall file the amended complaint with
supporting briefs, memoranda, affidavits, or other
November 6, such matter court takes thereof. (All motions to
2017. The in support note that, according
unsupported by memoranda will be denied without
defendant’s prejudice pursuant to L.R. Civ. P. 7.1 (a)).
Notice of Removal, plaintiff has received payments
up to the
02/08/2016 limits day her insurance policy under every provision
Last of for Rule 26(f) meeting.
02/15/2016
Last day to file Report has also Planning
other than Coverage B, and much of Bof Parties=been paid to
Meeting. See L.R. Civ. P. 16.1.
plaintiff. Accordingly, in filing a motion to amend, the court
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
expects the Byrd United States to be limited to claims that
amended complaint Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
reflect the directed to appear. case.
actual issues in the
02/29/2016
03/08/2016

Entry of scheduling order.
The Clerk is directed to forward copies of this
Last day to serve F.R. Civ. P 26(a)(1) disclosures.

written opinion and order to all counsel of record and any
The Clerk is requested to transmit this Order and
unrepresented parties.
Notice to all counsel of record and to any unrepresented
parties.
DATED: October 5, 2017
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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