Modern Automotive Network, Llc v. Eastern Alliance Insurance Group et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D.N.C.March 2, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA Civil Action No. 1:17-cv-00152 MODERN AUTOMOTIVE NETWORK, LLC, Plaintiff, v. EASTERN ALLIANCE INSURANCE GROUP, EASTERN ALLIANCE INSURANCE COMPANY, EASTERN ADVANTAGE ASSURANCE COMPANY and ALLIED EASTERN INDEMNITY COMPANY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Defendants’ Motion to Dismiss Plaintiff’s Complaint DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendants Eastern Alliance Insurance Group (“EAIG”), Eastern Alliance Insurance Company (“EAIC”), Eastern Advantage Assurance Company (“EAAC”), and Allied Eastern Indemnity Company (“AEIC”), by and through their undersigned counsel, file this Motion to Dismiss Plaintiff’s Complaint. In support of their Motion, Defendants state the following: 1. On January 20, 2017, Plaintiff filed a Complaint against Defendants in the Superior Court of Forsyth County, North Carolina. (ECF No. 1-2.) 2. The Complaint purports to assert four causes of action against all Defendants: (1) breach of contract; (2) negligent claims handling; (3) a claim under North Carolina’s Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C. Gen. Stat. §75- Case 1:17-cv-00152-LCB-JEP Document 9 Filed 03/02/17 Page 1 of 4 1.1, based on alleged violations of §58-63-15(11); and (4) a claim under the UDTPA based on general allegations of unfair or deceptive practices. 3. On February 23, 2017, Defendants removed the action to this Court. (ECF No. 1.) 4. Defendants move to dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(1). 5. First, Plaintiff has failed to state a plausible claim for any relief against EAIG, EAAC, or AEIC. Therefore, all claims against EAIG, EAAC, and AEIC should be dismissed. 6. Second, Plaintiff has failed to state a plausible claim for negligent claims handling because such claim is barred by the economic loss rule. Therefore, Plaintiff’s second cause of action should be dismissed. 7. Third, Plaintiff has failed to state a plausible claim under the UDTPA, whether based on alleged violations of §58-63-15(11) or general allegations of unfair or deceptive practices. Therefore, Plaintiff’s third and fourth causes of action should be dismissed. 8. Fourth, Plaintiff’s claims based on EAIC’s alleged handling of Mr. G’s claim, to the extent such claims are based on a “heightened risk” of “future” damages, are not ripe or are legally insufficient and, therefore, should be dismissed. Case 1:17-cv-00152-LCB-JEP Document 9 Filed 03/02/17 Page 2 of 4 9. In further support of this Motion, Defendants incorporate by reference, as if fully set forth herein, their Brief in Support of Motion to Dismiss filed contemporaneously herewith. WHEREFORE, Defendants Eastern Alliance Insurance Group, Eastern Alliance Insurance Company, Eastern Advantage Assurance Company, and Allied Eastern Indemnity Company respectfully request that this Court grant their Motion to Dismiss Plaintiff’s Complaint. Respectfully submitted, this the 2nd day of March, 2017. /s/ Reid C. Adams, Jr. Reid C. Adams, Jr., NC State Bar # 9669 Jonathan R. Reich, NC State Bar #41546 WOMBLE CARLYLE SANDRIDGE & RICE, LLP One West Fourth Street Winston Salem, North Carolina 27101 Telephone: (336)721-3600 Facsimile: (336) 721-3660 Email: cadams@wcsr.com Email: jreich@wcsr.com /s/ Thomas A. French Thomas A. French, PA Bar # 39305 William C. Boak, PA Bar # 203506 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, Pennsylvania 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 260-4325 Email: tfrench@rhoads-sinon.com Email: wboak@rhoads-sinon.com Counsel for Defendants Case 1:17-cv-00152-LCB-JEP Document 9 Filed 03/02/17 Page 3 of 4 CERTIFICATE OF SERVICE I hereby certify that on March 2, 2017, a true and correct copy of the foregoing “Defendants’ Motion to Dismiss Plaintiff’s Complaint” was served electronically on the following: Andrew L. Fitzgerald, Esquire D. Stuart Punger, Esquire Fitzgerald Litigation 119 Brookstown Avenue, Suite 402 Winston-Salem, NC 27101 Attorneys for Plaintiff I understand that notice of this filing will be sent to all parties of record by operation of the Court’s electronic filing system, and that parties may access this filing through the Court’s system. /s/ William C. Boak Case 1:17-cv-00152-LCB-JEP Document 9 Filed 03/02/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA Civil Action No. 1:17-cv-00152 MODERN AUTOMOTIVE NETWORK, LLC, Plaintiff, v. EASTERN ALLIANCE INSURANCE GROUP, EASTERN ALLIANCE INSURANCE COMPANY, EASTERN ADVANTAGE ASSURANCE COMPANY and ALLIED EASTERN INDEMNITY COMPANY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER AND NOW, THIS ____ DAY OF ________, 2017, upon consideration of Defendants’ Motion to Dismiss Plaintiff’s Complaint (ECF No. __), IT IS HEREBY ORDERED THAT: 1. Defendants’ Motion to Dismiss Plaintiff’s Complaint (ECF No. __) is GRANTED. 2. Plaintiff’s Complaint against Defendants Eastern Alliance Insurance Group, Eastern Advantage Assurance Company, and Allied Eastern Indemnity Company is DISMISSED, WITH PREJUDICE. 3. Plaintiff’s second, third, and fourth causes of action in the Complaint are DISMISSED, WITH PREJUDICE. Case 1:17-cv-00152-LCB-JEP Document 9-1 Filed 03/02/17 Page 1 of 2 4. Plaintiff’s claims related to the handling of Mr. G’s workers’ compensation claim are DISMISSED, WITH PREJUDICE. BY THE COURT: Loretta C. Biggs United States District Judge Case 1:17-cv-00152-LCB-JEP Document 9-1 Filed 03/02/17 Page 2 of 2