United States District Court, D. South Carolina, Columbia Division
F. Anderson, Jr. United States District Judge.
matter is before the Court on Defendant Evanston Insurance
Company's (“Defendant”) motion to dismiss
under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon
which relief can be granted. (ECF No. 4). This matter has
been fully briefed, and, after reviewing the briefs and
considering the oral arguments on this motion,
Defendant's motion to dismiss is granted in part and
denied in part.
FACTUAL AND PROCEDURAL HISTORY
Agape Senior Primary Care (“Plaintiff”) filed
this action on April 14, 2016, in the Richland County Court
of Common Pleas, Case No.: 2016-CP-40-02436, against
Defendant. (ECF No. 1-1). According to the complaint,
Plaintiff purchased a Physicians, Surgeons, Dentists, and
Podiatrists Professional Liability Insurance Policy (the
“Policy”) for the policy period of August 1,
2011, to August 1, 2012, from Defendant. (Id.).
Plaintiff has alleged bad faith, or, in the alternative,
breach of contract for Defendant's (A) failure to provide
coverage or a defense in the “Watts
Litigation”; and (B) mishandling of prior claims,
namely (1) reassignment of prior claims to new counsel midway
through the claim process and (2) failure to properly
participate in mediation, adjustment, and settlement of prior
accordance with the requirements of 28 U.S.C. § 1332,
this matter was removed by Defendant on the basis of
diversity jurisdiction to the United States District Court,
District of South Carolina, Columbia Division pursuant to 28
U.S.C. §§ 1441 and 1446 on May 19, 2016. (ECF No.
1). On May 19, 2016, Defendant moved to dismiss the action
for failure to state a claim upon which relief can be
granted. (ECF No. 4). On June 14, 2016, Plaintiff filed a
response. (ECF No. 7). On June 21, 2016, Defendant
replied. (ECF No. 10). On August 11, 2016, a motion hearing
was held and this matter was taken under advisement. (ECF No.
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). “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, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)).
“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.” Iqbal, 556 U.S. at 678.
The court must determine whether the factual allegations in a
complaint state a plausible claim for relief based on
“judicial experience and common sense.”
Id. at 679. In addition, the court “should
view the complaint in a light most favorable to the
plaintiff.” Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993).
argues that Watts' complaint does not allege
“anything outside the issues addressed in this
Court's Amended Order and the Fourth Circuit's
Order” as it “stems solely from allegations
regarding Addo's acts and the negligent hiring and
retention of Addo by [Plaintiff], which are not covered under
the Policy.” (ECF No. 4-1, p. 10). However, Plaintiff
argues that these allegations involve the acts or omissions
of others-nurses and a different physician other than Addo-so
it does not stem solely from those of Addo or the negligent
administrative acts of Plaintiff and, therefore, is covered
by the Policy. (ECF No. 7, p. 4).
the Court will look to the underlying complaint, Watts'
complaint, to determine if insurance coverage may exist.
Collins Holding Corp. v. Wausau Underwriters Ins.
Co., 666 S.E.2d 897 (S.C. 2008).
upon the factual allegations regarding the specific actions
and omissions of the nurses and a physician, other than Addo,
and failure of these agents to properly supervise and
investigate medical care for Ms. Jones, the Watts'
complaint appears to state a claim beyond Addo's or
Plaintiff's acts or omissions as viewed in the light most
favorable to Plaintiff. (See ECF No. 4-5,
¶¶ 15-21, 34). Therefore, it is plausible that the
Policy provides coverage for at least some of the claims in
the Watts' complaint and Defendant unreasonably refused
to defend Plaintiff.
after determining coverage may have been applicable based
upon the Watts' complaint, the Court looks to
Plaintiff's complaint to determine if sufficient facts
are alleged to show ...