Hartford Cas. Ins. Co. v. Ted A. Greve & Assocs., P.A.
| Decision Date | 17 November 2017 |
| Docket Number | 3:17CV183-GCM |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | HARTFORD CASUALTY INSURANCE COMPANY, Plaintiff, v. TED A. GREVE & ASSOCIATES, P.A. And TED GREVE, Defendants. |
This matter is before the Court upon Plaintiff's Motion for Judgment on the Pleadings, filed September 5, 2017. This matter is fully briefed and ripe for disposition.
Plaintiff Hartford Casualty Insurance Company ("Hartford") filed this declaratory judgment action seeking a declaration that it has no duty to defend or indemnify its insured, Defendants Ted A. Greve & Associates and Ted A. Greve (collectively "Greve") in two Underlying Actions, Hatch, et al. v. DeMayo, et al., No. 1:16-cv-925, (the "Hatch Lawsuit"), and Garey, et al. v. James S. Farrin, P.C., et al., No. 1:16-cv-542, (the "Garey Lawsuit"), pursuant to Greve's liability insurance coverage. The two Underlying Actions are putative class actions pending in the Middle District of North Carolina and both assert a single cause of action against Greve (and others) for an alleged violation of the federal Driver's Privacy Protection Act ("DPPA"), based upon Greve's alleged disclosure of information contained in an automobile accident report.1 (See Doc. 1-1 & Doc. 1-2 at p. 3). Underlying plaintiffs seek liquidateddamages in the amount of $2,500.00 for each instance in which a defendant knowingly obtained or used a plaintiff's protected personal information. (Doc. 1-1 & Doc. 1-2 at "Wherefore" clauses). They also seek an injunction prohibiting the defendants from obtaining or using personal information from motor vehicle records for marketing purposes. (Id.). As the complaints disclose, both of these requests are made "pursuant to 18 U.S.C. § 2724 [the DPPA]. . . ." (Id.).
The underlying plaintiffs allege that they were involved in automobile accidents. (Doc. 1-1 at ¶¶ 49-54; Doc. 1-2 at ¶¶ 27, 39 & 51). Pursuant to North Carolina law, a law enforcement officer investigated these accidents and then created an accident report. (Doc. 1-1 at ¶¶ 41-48; Doc. 1-2 at ¶¶ 22-26). When creating the report, the investigating officer copied some information from the underlying plaintiffs' drivers' licenses, such as their name and address. (Id.). Greve then purportedly obtained these publicly available accident reports and disclosed the allegedly protected personal information from the report (i.e., name and address information) by mailing an advertisement for legal services to the underlying plaintiff-drivers. (Doc. 1-1 at ¶ 70; Doc. 1-2 at ¶ 45). The underlying plaintiffs allege that this invaded their privacy by having their name disclosed in connection with a potential need for legal services. (Doc. 1-1 at ¶¶ 127-28). The underlying plaintiffs seek to represent a class of plaintiffs with respect to alleged violations of the DPPA within the four years prior to the July 8, 2016 filing of the Hatch Lawsuit (Doc. 1-2 at ¶ 71) and within the four years prior to the May 27, 2016 filing of the Garey Lawsuit. (Doc. 1-1 at ¶ 132).
Hartford issued a series of business liability insurance policies (the "Policies")2 to Greve. The Policies generally provide business liability coverage for "bodily injury," "property damage" and "personal and advertising injury." Greve, however, admits that the Underlying Actions do not allege bodily injury or property damage. (Doc. No. 6, Answer at ¶¶ 34, 36). Accordingly, the Policies' coverage for bodily injury and property damage do not trigger a duty to defend in this action.
With respect to coverage for personal and advertising injury the Policies provide:
We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies.
(Doc. No. 17-1 at p. 58; Doc. No. 17-2 at p. 89).
(Doc. No. 17-1 at pp. 79-80; Doc. No. 17-2 at pp. 110-11).
Personal and advertising injury liability coverage is also subject to the following policy exclusions:
(Doc. No. 17-1 at pp. 65-66; Doc. No. 17-2 at pp. 95-97).
Hartford filed this lawsuit on April 4, 2017 seeking a declaration that no coverage exists under the Policies for the Underlying Actions. (Doc. 1). Greve filed his Answer on May 25, 2017. (Doc. 6). Hartford moves for judgment on the pleadings that no defense or indemnity are owed in connection with the Underlying Actions.
Rule 12(c) of the Federal Rules of Civil Procedure permits a party to move for judgment on the pleadings. Fed. R. Civ. P. 12(c). The standard applied to a Rule 12(c) motion is the same as a Rule 12(b)(6) motion for failure to state a claim. See Burbach Broad. Co. of Delaware v. Elkins Radio Corp., 278 F.3d 401, 406 (4th Cir. 2002). "A Rule 12(c) motion is designed to dispose of cases when the material facts are not in dispute and the court can judge the case on its merits by considering the pleadings and any attachments to the pleadings and materials referenced, which are incorporated into the pleadings by Rule 10(c)." Preston v. Leake, 629 F. Supp. 2d 517, 521 (E.D.N.C. 2009). The "applicable test under Rule 12(c) is whether, 'when viewed in the light most favorable to the party against whom the motion is made, genuine issues of material fact remain or whether the case can be decided as a matter of law.'" Blue Rhino Glob.Sourcing, Inc. v. Well Traveled Imports, Inc., 888 F. Supp. 2d 718, 721 (M.D.N.C. 2012) (citations omitted). As this Court has recognized, a "motion under Rule 12(c) has appropriately been used for resolving declaratory judgment actions involving the construction of insurance policy language or provisions." Unitrin Auto & Home Ins. Co. v. Siarris, 2015 WL 457630, at *2 (W.D.N.C. Feb. 3, 2015).
"While the Court generally considers only the allegations of the pleadings in ruling on a Rule 12(c) motion, the Court may consider documents that are 'integral to and explicitly relied on in the complaint,' so long as there is no question as to the documents' authenticity." In re Versant Properties, LLC, 2011 WL 1131057, at *3 n.4 (W.D.N.C. Mar. 25, 2011); see also Massey v. Ojaniit, 2013 WL 1320404, at *7 (W.D.N.C. Mar. 29, 2013) .
Under North Carolina law, Waste Mgmt. of Carolinas, Inc. v. Peerless Ins. Co., 340 S.E.2d 374, 377 (N.C. 1986); see also Firemen's Ins. Co. of Washington D.C. v. Glen-Tree Investments, LLC, 2012 WL 4191383, at *5 (E.D.N.C. Sept. 19, 2012) (). "Conversely, when the pleadings allege facts indicating that the event in question is not covered, and the insurer has noknowledge that the facts are otherwise, then it is not bound to defend." Waste Mgmt., 340 S.E.2d at 377. To decide an insurer's duty to defend, "[North Carolina courts] apply the 'comparison test,' reading the policies and the [underlying] complaint 'side-by-side . . . to determine whether the events as alleged are covered or excluded.'" Harleysville Mut. Ins. Co. v. Buzz Off Insect Shield, L.L.C., 692 S.E.2d 605, 610 (N.C. 2010) (citations omitted). "[E]ven a meritorious allegation cannot obligate an insurer to defend if the alleged injury is not within, or is excluded from, the coverage provided by the insurance policy." Id. at 611. Pennsylvania Nat. Mut. Cas. Ins. Co. v. Sharpe Images, Inc., 2012 WL 3962747, at *2 (W.D.N.C. Sept. 11, 2012) (citations omitted).
The Court notes that the meaning of language used in an insurance policy is a question of law for the court. See Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 172 S.E.2d 518, 522 (N.C. 1970). "[I]f the language of the policy is clear and unambiguous, the court must enforce the contract of insurance as it is written." N. Carolina Farm Bureau Mut. Ins. Co. v. Mizell, 530 S.E.2d 93, 95 (N.C. Ct. App. 2000).
A reading of the Amended Complaints in the Underlying actions render it abundantly clear that they seek relief under a federal st...
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