United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL, UNITED STATES DISTRICT JUDGE
action arises from a contractual dispute between Plaintiff
Rudolph Rush and Defendant Zurich American Insurance Company.
Plaintiff filed this action in state court, but Defendant
removed it to this Court on October 27, 2015. See
ECF No. 1. Presently before the Court is Defendant’s
Motion for Partial Dismissal of Plaintiff’s claims
brought under the South Carolina Improper Claims Practices
and the South Carolina Insurance Trade Practices
See ECF No. 6. For the reasons set forth below, the
Court grants in part and denies in part Defendant’s
October 2012, Plaintiff, a truck driver, sustained a shoulder
injury while making a delivery. His employer maintained an
insurance policy with Defendant that provided benefits to
Plaintiff as an injured person under the policy. Plaintiff
reported his injury to his employer, sought treatment from
his physician, and submitted a claim to Defendant seeking the
benefits under the policy. Defendant responded by requesting
additional documentation concerning Plaintiff’s claim.
Plaintiff complied, yet Defendant still requested more
information. This back-and-forth occurred several more times
without Defendant processing Plaintiff’s claim.
October 2015, Plaintiff filed a complaint in state court
alleging five causes of action: breach of contract, improper
claims practice, improper trade practices, breach of contract
accompanied by a fraudulent act, and bad faith. See
Complaint, ECF No. 1-1. Defendant removed the action to this
Court and filed a motion for partial dismissal pursuant to
Federal Rule of Civil Procedure 12(b)(6), seeking dismissal
of Plaintiff’s causes of action brought under the
Improper Claims Practices Act and the Insurance Trade
Practices Act on the basis that neither law creates a private
cause of action. See ECF No. 6. Plaintiff filed a
response in opposition, and Defendant filed a reply.
See ECF Nos. 13 & 14.
deciding a motion to dismiss made under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all well-pled facts
alleged in the complaint as true and draw all reasonable
inferences in the plaintiff’s favor. Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 253 (4th Cir. 2009). A complaint must state a
“‘plausible claim for relief’” to
survive a 12(b)(6) motion to dismiss. Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The
Court will not dismiss the plaintiff’s complaint so
long as he provides adequate detail about his claims to show
he has a “more-than-conceivable chance of success on
the merits.” Owens v. Baltimore City State’s
Attorneys Office, 767 F.3d 379, 396 (4th Cir. 2014)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2006)). “Once a claim has been stated adequately,
it may be supported by showing any set of facts consistent
with the allegations in the complaint.”
Twombly, 550 U.S. at 563. A complaint will survive a
motion to dismiss if it contains “enough facts to state
a claim to relief that is plausible on its face.”
Id. at 570.
Improper Claims Practices Act Claim
second cause of action, Plaintiff alleges Defendant violated
section 38-59-20 of the Improper Claims Practice Act (S.C.
Code Ann. § 38-59-20 (2015)) and that it did so without
reasonable cause and in bad faith. See Compl. at
¶ 29. Plaintiff seeks an award of attorney’s fees
pursuant to S.C. Code Ann. § 38-59-40 (2015).
Id. at ¶ 30. Defendant requests dismissal of
this cause of action, arguing the Improper Claims Practice
Act does not create a private cause of action. See
ECF No. 6-1.
Improper Claims Practices Act states that if an insurer
commits any of the specific actions listed in the statute
without just cause and so frequently that it indicates a
general business practice, the action constitutes an improper
claim practice. S.C. Code Ann. § 38-59-20 (2015). Such
(1) Knowingly misrepresenting to insureds or third-party
claimants pertinent facts or policy provisions relating to
coverages at issue or providing deceptive or misleading
information with respect to coverages.
(2) Failing to acknowledge with reasonable promptness
pertinent communications with respect to claims arising under
its policies, including third-party claims arising under
liability insurance policies.
(3) Failing to adopt and implement reasonable standards for
the prompt investigation and settlement of claims, including
third-party liability ...