United States District Court, W.D. Washington, Seattle
MARY LOU COPPINGER and MARK COPPINGER, individually and the marital community thereof, Plaintiffs,
ALLSTATE INSURANCE COMPANY,  Defendant.
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant's motion for
partial dismissal (Dkt. No. 6). Having thoroughly considered
the parties' briefing and the relevant record, the Court
GRANTS the motion for the reasons explained herein.
following facts are based on the complaint and the documents
referenced therein. Plaintiff Mary Coppinger was injured in
2010 when her vehicle was struck from behind by Daniel Klein.
(Dkt. No. 1-1 at 5-6.) She now suffers from a variety of neck
and back ailments. (Id. at 6.) Both she and Mr.
Klein were insured through Defendant Allstate Property and
Casualty Insurance Company (“Allstate”).
(Id. at 6.) At the time of the accident, Mr.
Klein's policy limit was $50, 000, and Ms. Coppinger had
$100, 000 in uninsured/underinsured motorist
(“UIM”) coverage and $10, 000 in personal injury
protection (“PIP”). (Id. at 5-6.)
Anticipating her damages would exceed $50, 000, Ms. Coppinger
demanded full payment of Mr. Klein's policy limit in July
2012 and filed an uninsured/underinsured motorist
(“UIM”) claim with Allstate in January 2013.
(Id. at 6-7.)
concluded in January 2013 that Ms. Coppinger's damages,
primarily medical bills, would not exceed $50, 000 and denied
Ms. Coppinger's UIM claim, indicating that it “did
not see any value into the UIM coverage.” (Id.
at 7.) Ms. Coppinger pursued the matter. Through counsel, she
again made demands for UIM coverage in May 2013, June 2013,
and August 2013, all of which Allstate denied. (Id.
at 8-10.) Ms. Coppinger continued to pursue the matter
through 2017. (Id. at 9-13.) Allstate reconsidered
its valuation of the UIM claim in 2016 and 2017, based on
information Ms. Coppinger provided, but it never changed its
determination. (Id.) It maintained that Ms.
Coppinger's permissible damages would not exceed Mr.
Klein's policy limit of $50, 000 and, on this basis, her
UIM claim had no value. (Id.)
October 2017, following a September 2017 denial of UIM
coverage, Ms. Coppinger filed suit against Allstate in
Whatcom County Superior Court. (Id. at 1.) She
asserted statutory claims for violations of Washington's
Consumer Protection Act (“CPA”) and the Insurance
Fair Conduct Act (“IFCA”), and common law claims
for breach of contract, bad faith, and unfair practices.
(Id. 13-17.) Allstate removed the matter to this
Court. (Dkt. No. 1.)
now moves for dismissal of the CPA, IFCA, and common law bad
faith claims pursuant to Federal Rule of Civil Procedure
12(b)(6). (Dkt. No. 6.) It alleges the CPA claim fails as a
matter of law because the complaint does not assert injury to
business or property, a required element of a CPA claim.
(Id. at 10.) It further alleges the CPA, IFCA and
common law bad faith claims are untimely, maintaining that
the period for bringing such actions commenced in early 2013,
when Allstate issued what the complaint describes as
“blanket denials”-more than four years before the
complaint was filed. (Id. at 5-6.)
defendant may move for dismissal when a plaintiff
“fails to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To grant a motion to
dismiss, the Court must be able to conclude that the moving
party is entitled to judgment as a matter of law, even after
accepting all factual allegations in the complaint as true
and construing them in the light most favorable to the
non-moving party. Fleming v. Pickard, 581 F.3d 922,
925 (9th Cir. 2009). To survive a motion to dismiss, a
plaintiff must merely cite facts supporting a
“plausible” cause of action. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). A claim
has “facial plausibility” when the party seeking
relief “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 672 (2009). A court may grant
dismissal based on the statute of limitations “only if
the assertions of the complaint, read with the required
liberality, would not permit the plaintiff to prove that the
statute was tolled.” TwoRivers v. Lewis, 174
F.3d 987, 991 (9th Cir. 1999) (citation and quotation marks
omitted). Although the Court must accept as true a
complaint's well-pleaded facts, conclusory allegations of
law and unwarranted inferences will not defeat an otherwise
proper Rule 12(b)(6) motion. Vasquez v. L.A. County,
487 F.3d 1246, 1249 (9th Cir. 2007).
Cognizable Injury for CPA Claim
bring a CPA claim, a plaintiff must assert facts
establishing, among other things, “injury to business
or property.” Hangman Ridge Training Stables, Inc.
v. Safeco Title Ins. Co., 719 P.2d 531, 533 (Wash.
1986). Damages arising from personal injury do not qualify.
See Ambach v. French, 216 P.3d 405, 409 (Wash. 2009)
(upholding summary judgment against plaintiff bringing a CPA
claim based on medical expenses); Ledcor Industries
(USA), Inc. v. Mut. of Enumclaw Ins. Co., 206 P.3d 1255,
1262 (Wash. App. 2009) (similar result for emotional
distress). Nor can a plaintiff base a CPA claim on his or her
insurer's failure to pay medical bills because
“those injuries are derivative of her personal
injuries.” Kovarik v. State Farm Mut. Automobile
Ins. Co., C15-1058-TSZ, slip op. at *3 (W.D. Wash. Aug.
31, 2016). To state a cognizable CPA claim based on an
insurer's non-payment of medical expenses, the complaint
must assert that the insured “received an insurance
policy not conforming with [her] expectations.”
Sadler v. State Farm Mut. Auto. Ins. Co.,
C07-0995-TSZ, slip op. at *9 (W.D. Wash. Sept. 22, 2008),
aff'd, 351 Fed.Appx. 234 (9th Cir. 2009).
Plaintiffs' complaint makes no such allegation. (See
generally Dkt. No. 1-1.) Furthermore, Plaintiffs'
response does not meaningfully address this issue, other than
to ask for leave to amend. (Dkt. No. 8 at 9.) On this basis,
dismissal is warranted.
motion to dismiss Plaintiffs' CPA claim is GRANTED
without prejudice and with leave to amend. See Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“a
district court should grant leave to amend . . . unless it
determines that the pleading could not possibly be cured by
the allegation of other facts.”).