Bailey v. Bradford, Civil Action No. 2:13–cv–13505.

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Citation12 F.Supp.3d 826
Decision Date28 March 2014
Docket NumberCivil Action No. 2:13–cv–13505.
PartiesChristopher Kyle BAILEY, Plaintiff, v. Joseph BRADFORD, et al., Defendants.

12 F.Supp.3d 826

Christopher Kyle BAILEY, Plaintiff,
Joseph BRADFORD, et al., Defendants.

Civil Action No. 2:13–cv–13505.

United States District Court, S.D. West Virginia.

Signed March 28, 2014

Motions granted in part and denied in part.

[12 F.Supp.3d 827]

Arden J. Curry, II, David K. Schwirian, Pauley Curry, Charleston, WV, for Plaintiff.

Evan R. Kime, Ronda L. Harvey, Bowles Rice, Charleston, WV, for Defendants.


THOMAS E. JOHNSTON, District Judge.

Pending before the Court are Plaintiff Christopher Kyle Bailey's (“Plaintiff”) motion for leave to file a second amended Complaint, and Plaintiff's and Defendant Nationwide Property and Casualty Company's (“Nationwide”) cross motions for partial summary judgment on Plaintiff's claim for attorney's fees pursuant to Hayseeds, Inc. v. State Farm Fire & Casualty, 177 W.Va. 323, 352 S.E.2d 73 (1986). For the reasons that follow Plaintiff's motion for leave to file a second amended complaint [ECF 6] is GRANTED IN PART and DENIED IN PART, Plaintiffs motion for partial summary judgment [ECF 11] is GRANTED, and Nationwide's motion for partial summary judgment [ECF 16] is DENIED.


This case arises from a single-vehicle ATV accident (“the accident”) that occurred on May 19, 2012. Plaintiff, a citizen of West Virginia, was a passenger on an ATV driven by Defendant Bradford and

[12 F.Supp.3d 828]

sustained injuries when the ATV hit a tree. (ECF 16–1 at 1–2; ECF 1–1 at 1.)

In August 2012, Plaintiff filed suit against Defendant Bradford in the Circuit Court of Nicholas County, West Virginia. (ECF 1–3 at 1.) At some point thereafter, Plaintiff made a claim for and accepted the limits of the underlying liability policy held by Defendant Bradford. (ECF 11–1 at 2; ECF 1–1 at 3; ECF 1–2.)

Plaintiff, however, also had underinsured motorist (“UIM”) coverage with Nationwide, which is an Ohio Corporation with its principal place of business in Columbus, Ohio. (ECF 11–1 at 1–2; ECF 1 at 1.) As relevant here, the definition of “underinsured motor vehicle” in Plaintiff's UIM policy excluded “any equipment designed for use mainly off public roads except while on public roads.” (ECF 16–2 at 2 (emphasis added).)

On October 29, 2012, Plaintiff wrote to Nationwide providing notice of a proposed settlement agreement with Defendant Bradford's insurer, and requesting that Nationwide waive its subrogation rights against Bradford. (ECF 11–1 at 1–2; ECF 17 at 2.) Nationwide asserts in its memorandum of law that “Plaintiff provided notice of his potential underinsured motorist claim to Nationwide on November 5, 2012,” which the Court understands to mean that Plaintiff's October 29, 2012, letter was received by Nationwide on that date.1 Additionally, Nationwide further asserts 2 that on that same date it requested and received the West Virginia Uniform Traffic Crash Report (“Crash Report”) for the accident. (ECF 17 at 3.)

In that Crash Report, the officer who completed the report indicated that the “highway class” on which the accident occurred was “private property/off roadway.” (ECF 16–1 at 1.) Elsewhere, in the narrative section of the report, the officer wrote that “[the ATV] driven by [Bradford] was traveling down Nile Road heading towards the Persinger Sandbar on a straight stretch and swirved [sic] to miss hitting his dog and ran into a tree.” (ECF 16–1 at 2.) The report further listed the “location of first harm event” as “on roadway.” (ECF 16–1 at 1.)

Later in November,3 C. William Davis, counsel for Nationwide, and David Schwirian, counsel for Plaintiff, conferred by telephone regarding Plaintiff's settlement with Defendant Bradford's insurer and also discussed Plaintiff's possible underinsured motorist claim. (ECF 19–1 at 1.) The parties disagree regarding the conclusions each reached during that call with respect to whether the accident occurred on a public road. (ECF 19–1 at 2.) Based

[12 F.Supp.3d 829]

on an email provided by Nationwide, Mr. Davis appears to have been under the impression that Mr. Schwirian confirmed that the accident did not occur on a public roadway. (ECF 16–3 at 1.) In an affidavit, Mr. Schwirian indicates that he did not admit that the accident did not occur on a public road as he had no basis to admit or deny such an assertion, and was not, in fact, aware that the location of the accident was of any importance prior to the call. (ECF 19–1 at 1–2.) The parties agree that Mr. Davis agreed to provide Plaintiff's counsel with a copy of Plaintiff's Nationwide policy. (ECF 16–3 at 1; ECF 19–1 at 2.)

On December 7, 2012, Mr. Davis wrote to Mr. Schwirian to “confirm that the accident .... involved a vehicle designed for use mainly off public roads and .... did not occur on a public road. (ECF 16–4 at 1.) “Based upon these facts,” Mr. Davis indicated, the ATV “[did] not meet the definition of an underinsured motor vehicle under [Plaintiff's policy].” ( Id.) Mr. Davis stated that he would forward a certified copy of that policy upon his receipt of it. ( Id.)

On January 16, 2013, Mr. Davis again wrote to Mr. Schwirian attaching a certified copy of Plaintiff's insurance policy. (ECF 16–5 at 1.) Mr. Davis indicated that it was his understanding that “the accident in question did not occur on a public road” and requested that Mr. Schwirian advise him “if [this] understanding is incorrect, or if you believe the attached policy provides coverage for [Plaintiff's] injuries....” (ECF 16–5 at 1.)

On January 29, 2013, Mr. Schwirian wrote Mr. Davis indicating, as pertinent here, that “[i]t appears that the central issue is whether or not the accident occurred on a public road.” (ECF 16–6 at 1.) Mr. Schwirian enclosed the Crash Report and quoted that portion of the narrative indicating that the ATV was “traveling down Nile Road” and also included a map and other materials (including an ambulance patient care report that listed the accident location as “Nile Road”) in support of his belief “that the accident clearly occurred on a ‘public road.’ ” (ECF 16–6 at 2; ECF 19–1 at 7) The letter concluded by making a policy limits settlement demand on behalf of Plaintiff for $20,000. (ECF 16–6 at 2.)

On February 11, 2013, Mr. Davis replied by observing that he understood from Mr. Schwirian's letter “that you now believe that the accident ... occurred on [a public road]” but reiterated that the Crash Report listed it as occurring on “Private Property/Off–Roadway.” (ECF 16–7 at 1.) In light of Mr. Schwirian's “concern,” however, Mr. Davis indicated that he would further investigate the location of the accident and that he “hope[d] to have the investigation completed within the next three weeks.” ( Id.) Mr. Davis indicated that when the investigation was complete, he would report to Mr. Schwirian. ( Id.)

This appears to have been the last communication between the parties prior to Plaintiff's bringing suit against Nationwide. At some point, presumably thereafter,4 Mr. Davis contacted the investigating officer listed on the Crash Report and unsuccessfully tried to arrange to meet him at the accident scene to determine

[12 F.Supp.3d 830]

whether the accident occurred on a public roadway or private roadway. (ECF 16–8 at 1.)

On February 27, 2013, the Circuit Court dismissed with prejudice all of the individual liability claims against Defendant Bradford as a result of the parties' settlement. (ECF 1–2 at 1.) The Circuit Court permitted Defendant Bradford to remain a party to the action in name only for the purpose of allowing Plaintiff to pursue his UIM claims against Nationwide. (ECF 1–2 at 1.)

On April 22, 2013, Plaintiff filed an amended Complaint in the Circuit Court asserting a breach of contract claim and declaratory judgment action against Nationwide and seeking UIM coverage benefits, and, as pertinent here, consequential damages pursuant to the West Virginia Supreme Court of Appeals' decision in Hayseeds, Inc. v. State Farm Fire & Casualty. (ECF 1–1; ECF 1–3.)

On June 5, 2013, Nationwide removed the case to this Court on the basis of diversity jurisdiction. (ECF 1.) Plaintiff did not object to removal or seek remand.

On June 12, 2013, Nationwide filed an answer denying Plaintiff's allegation that it was under an obligation to provide UIM coverage or under an obligation to pay Plaintiff the policy limits. (ECF 4 at 3 ¶ 16; ECF 1–1 at 4 ¶ 16.)

Nationwide asserts in its memorandum of law that on June 28, 2013, it informed Plaintiff's counsel that its investigation was complete, that the Crash Report's representation that the accident occurred on “Private Property/Off–Roadway” appeared to be incorrect, and that Plaintiff's claim was accepted and would be paid.5 (ECF 17 at 6.)

On July 12, 2013, Nationwide tendered payment to Plaintiff for his policy limit of $20,000. (ECF 11–4 at 1.)


Plaintiff seeks leave to file a second amended complaint. (ECF 6.) Nationwide has responded by opposing, in part, Plaintiff's proposed amendments. (ECF 8.)

A. Legal Standard

Federal Rule of Civil Procedure 15(a)(1) states, in pertinent part, that “[a] party may amend its pleading once as a matter of course within ... 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), whichever is earlier.” If a party seeks to amend its pleadings in all other cases, it may only do so “with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Rule 15(a) grants the district court broad discretion concerning motions to amend pleadings, and leave should be granted absent some reason “such as undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment or futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see...

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