United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER GRANTING MOTION TO DISMISS
CAMERON MCGOWAN CURRIE Senior United States District Judge.
this action, Plaintiff, Barbara Rhodes
(“Plaintiff”), seeks a declaratory judgment that
she is entitled to excess insurance coverage under an excess
insurance policy issued by Defendant Evanston Insurance
Company as successor by merger with Associated International
Insurance Company (“Defendant”) to First Fire and
Safety, LLC (“FFS”) for claims arising from a
September 17, 2012 accident in which Plaintiff was
injured. Those claims are now pending in Rhodes
v. Glenn et al., SC Com. Pl. Case No. 2014-CP-46-342
(“Underlying Action”), which has been stayed
pending the outcome of this declaratory judgment action.
matter is before the court on Defendant's motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to
state a claim. ECF No. 13. For the reasons set forth below,
the motion is granted.
motion under Federal Rule of Civil Procedure 12(b)(6) should
be granted only if, after accepting all well-pleaded
allegations as true, it appears certain that the non-moving
party (here, Plaintiff) cannot prove any set of facts in
support of her claims that entitles her to relief. See
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999). Although the court must take the facts in the
light most favorable to the non-moving party, it “need
not accept the legal conclusions [that party would draw] from
the facts.” Giarratano v. Johnson, 521 F.3d
298, 302 (4th Cir. 2008) (quoting Eastern Shore Mkts.,
Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180
(4th Cir. 2000)). The court may also disregard any
“unwarranted inferences, unreasonable conclusions, or
Rule 12(b)(6) standard has often been expressed as precluding
dismissal unless it is certain that the non-moving party is
not entitled to relief under any legal theory that plausibly
could be suggested by the facts alleged. See Mylan Labs.,
Inc. v. Markari, 7 F.3d 1130, 1134 (4th Cir. 1993).
Nonetheless, the party must allege “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)
(quoted in Giarratano, 521 F.3d at 302). Thus, in
applying Rule 12(b)(6), the court also applies the relevant
pleading standard. Despite the liberal pleading standard of
Rule 8, a party advancing a claim must include more than mere
conclusory statements in support of a claim. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (court need only
accept as true the complaint's factual allegations, not
its legal conclusions); see also McCleary-Evans v.
Maryland Dept. of Trans., 780 F.3d 582, 587 (4th Cir.
2015) (noting “Iqbal and Twombly
articulated a new requirement that a complaint must allege a
plausible claim for relief, thus rejecting a standard that
would allow a complaint to survive a motion to dismiss
whenever the pleadings left open the possibility that a
plaintiff might later establish some set of [undisclosed]
facts to support recovery.” (emphasis and alteration in
original, internal quotation marks omitted)); Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing
Robertson v. Sea Pines Real Estate Companies, Inc.,
679 F.3d 278 (4th Cir. 2012) for proposition party need not
forecast evidence sufficient to prove the elements of a
claim, but must allege sufficient facts to establish those
September 17, 2012, Plaintiff suffered “significant
physical injuries including but not limited to her neck,
lower back, arms, head/headaches and both legs” when
her automobile was struck by a Chevrolet Van being driven by
Murray Glenn and owned by FFS. Compl. ¶¶ 12-13. She
alleges Glenn and FFS are liable because Glenn was driving
“recklessly, carelessly, inattentively, and too fast
for conditions” when he “disregarded a stop sign
and collided with the vehicle being operated by
Plaintiff.” Id. at ¶ 13.
filed suit against FFS and Glenn in the underlying action,
and received the policy limits of $250, 000 in mediation from
a State Farm policy of automobile insurance issued to FFS.
Id. at ¶ 19, 23. Plaintiff has identified three
other insurance policies which she alleges should apply; two
that were issued by State Farm to Glenn on his personal
vehicles and an excess liability policy
(“excess policy”) issued to FFS by Defendant.
Id. at ¶¶ 20-22.
excess policy issued by Defendant to FFS states:
We will pay on behalf of the insured those sums in excess of
the limits shown in Item 5 of the Declarations Schedule of
Underlying Insurance that you become legally obligated to pay
as damages because of injury to which this insurance applies,
provided that the underlying insurance also applies, or would
apply but for the exhaustion of its applicable Limits of
Compl. Exhibit D at 1 (ECF No. 1-1 at 28). The excess policy
defines “Underlying Insurance” as “the
policies or self-insurance in the Schedule of Underlying
Insurance, any replacements thereof and other policies
purchased or issued for newly acquired or formed
organizations.” Id. at 3 (ECF No. 1-1 at 30).
The Declarations page lists, under Schedule of Underlying
Insurance, a Colony Insurance Company General Liability
Policy. Id. at “Declarations” (ECF No.
1-1 at 25). Under “Other Underlying Insurance,
Coverage: Auto Liability, ” it says
“Excluded.” No State Farm policy is listed and no
dollar amount provided for the Underlying Limits of Liability
for Auto Liability claims.
raises three arguments as to why its motion to dismiss should
be granted: Plaintiff is not an insured under the policy and
therefore not entitled to declaratory relief; Plaintiff has
not alleged the underlying primary general liability
insurance policy has been exhausted; and Plaintiff is not
entitled to relief because she has not obtained a judgment
against FFS, the insured. ECF No. 13-1. In response,
Plaintiff argues she has a right to assert a declaratory
judgment action with regard to coverage issues even if she is
not the named insured, the automobile policy underlying the