United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's renewed
motion for partial dismissal (Dkt. No. 14). Having thoroughly
considered the parties' briefing and the relevant record,
the Court finds oral argument unnecessary and hereby GRANTS
the motion for the reasons explained herein.
Mary Lou Coppinger held an Underinsured Motorist
(“UIM”) policy through Defendant Allstate at the
time she was involved in a car accident. (Dkt. No. 1-1 at 2.)
Following the accident, Defendant denied payment of her UIM
coverage on the basis that the third-party's liability
coverage was adequate to cover her medical bills. Plaintiffs
asserted statutory claims for violations of the Insurance
Fair Conduct Act (“IFCA”) and Washington's
Consumer Protection Act (“CPA”), and common law
claims for breach of contract, bad faith, and unfair
practices. (Dkt. No. 1-1 at 14-17.) The Court dismissed
Plaintiffs' IFCA and bad faith claims with prejudice and
her CPA claim without prejudice and with leave to amend.
(Dkt. No. 11 at 6.) Plaintiffs filed an amended complaint,
and Defendant again moves to dismiss the CPA claim, alleging
that the amended complaint fails to cure the original
complaint's factual deficiencies. (Dkt. Nos. 12, 14.) The
Court refers to its prior order for a recitation of other
relevant facts in this case. (See Dkt. No. 11.)
Legal Standard for Motion to Dismiss
defendant may move to dismiss 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 under
Rule 12(b)(6), 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 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) (internal quotations
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 motion to dismiss.”
Vasquez v. L.A. County, 487 F.3d 1246, 1249 (9th
Cir. 2007) (internal quotations omitted).
Cognizable Injury for CPA Claim
Court previously stated in dismissing Plaintiffs'
original complaint, to bring a CPA claim, a plaintiff must
assert “injury to business or property.” (Dkt.
No. 11 at 4) (citing Hangman Ridge Training Stables, Inc.
v. Safeco Title Ins. Co., 719 P.2d 531, 533 (Wash.
1986)). Damages resulting from a personal injury do not form
a basis for relief under the CPA. See Ambach v.
French, 216 P.3d 405, 409 (Wash. 2009) (upholding
summary judgment against a 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).
Furthermore, non-business and non-property damages that
derive indirectly from personal injury do not qualify for
relief under the CPA. Sadler v. State Farm Mut. Auto.
Ins. Co., C07-0995-TSZ, slip op. at 9 (W.D. Wash. Sept.
22, 2016), aff'd , 351 F. App'x 234 (9th
Cir. 2009). Plaintiffs' amended complaint must therefore
allege an injury to business or property to survive
Defendant's motion to dismiss.
added five allegations to their amended complaint to cure the
original complaint's factual deficiencies. (See
Dkt. No. 12 at ¶¶ 3.53-54, 5.1, 5.6-7.) The
following is an illustrative example: “Defendant
Allstate's violations of the Washington Administrative
Code and other unreasonable actions, as alleged herein,
harmed plaintiff Coppinger and constitute per se violations
of RCW 19.86.” (Dkt. No. 12 at ¶ 5.6.) This is a
conclusory statement that fails to present the Court with a
sufficient factual basis to conclude that relief may be
warranted under the CPA. At most, Plaintiffs' allegations
present the type of bare legal conclusions rejected by the
Supreme Court. See Iqbal, 556 U.S. at 679 (2009).
point the Court to references to money damages in their
amended complaint. Notably a “loss of use of
money” and a “loss of benefits” (Dkt. No.
12 at 14, 17), alleging that the Court can reasonably infer
this resulted in loss of earned interest and investment
opportunities, potentially recoverable under the CPA.
(See generally Dkt. No. 16 at 6) (citing Dees v.
Allstate Ins. Co., 933 F.Supp.2d 1299, 1311 (W.D. Wash.
2013)). But Plaintiff's original complaint contained the
same factual allegations, which the Court found insufficient
to avoid dismissal. (Dkt. No. 11 at 4.) Re-alleging these
damages cannot cure Plaintiffs' factual deficiencies.
See Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.
1993) (applying the “law of the case” doctrine).
Court previously held, to state a cognizable CPA claim based
on an insurer's nonpayment of medical expenses, the
complaint must assert that the insured “received an
insurance policy not conforming with [her]
expectations.” (Dkt. No. 11 at 4); Sadler,
slip op. at 9. The Court granted Plaintiffs narrow leave to
address this issue in their amended complaint. (Dkt. No. 11
at 6.) Plaintiffs have failed to do so.
Impact of Statute of Limitations
reasserts that Plaintiffs' CPA claim is time-barred under
the CPA's four-year statute of limitations. (Dkt. No. 14
at 3); see O'Neill v. Farmers Ins. Co., 125 P.3d
134, 140 (Wash.Ct.App. 2004). A CPA cause of action
“accrues and the statute of limitations begins to run
when a party has the right to apply to a court for
relief.” Shepard v. Holmes, 345 P.3d 786, 790
(Wash. 2014) (internal quotations omitted). The Court
previously granted Plaintiffs leave to amend, with narrow
instructions to address the requirements to apply the
doctrine of equitable tolling. (Dkt. No. 11 at 5.)
Plaintiffs' amended complaint on this issue suffers from