CHARLESTON – A federal judge issued an opinion and order in a lawsuit against Star Farm Fire & Casualty Insurance Company in which he said the plaintiff could file an amended complaint for a limited amount of time or her case will be dismissed.
U.S. District Judge John T. Copenhaver Jr. issued the opinion and order on Oct. 5 in the U.S. District Court for the Southern District of West Virginia.
On May 25, Shawna Fisher initiated the action against State Farm in Kanawha Circuit Court. It was removed to federal court on Aug. 4. State Farm filed a motion to dismiss on Aug. 4, contending that Fisher’s complaint failed to state a claim.
“Even accepting all of plaintiff’s facts as true, she has not pled the requisite facts to sustain a claim under the [Unfair Trade Practices] Act,” Copenhaver wrote.
Stripped of the threadbare recitation of portions of the UTPA and her conclusory allegations, Fisher’s complaint does not adequately allege or demonstrate that State Farm has engaged in a “general business practice” in violation of the UTPA, according to the opinion and order.
“Inasmuch as plaintiff’s complaint fails to set forth sufficient factual matter to state a plausible claim against State Farm, it is ordered that defendant’s motion to dismiss be, and herby is, granted,” Copenhaver wrote. “The court will permit the plaintiff to file an amended complaint within a limited time, in the absence of which this case will be dismissed with prejudice.”
Fisher must file an amended complaint by Nov. 6.
“The court takes note that, according to defendant’s Notice of Removal, plaintiff has received payments up to the limits of her insurance policy under every provision other than Coverage B, and much of B has also been paid to plaintiff,” Copenhaver wrote. “Accordingly, in filing a motion to amend, the court expects the amended complaint to be limited to claims that reflect the actual issues in the case.”
On May 26, 2015, Fisher’s home and possessions were destroyed in a fire and she filed a claim for the destruction of the property under the fire and casualty insurance policy issued to her by State Farm.
Fisher claimed her losses exceeded the policy limits of her policy with the defendant.
Fisher claims the defendant violated the UTPA by failing to acknowledge and act reasonably promptly upon communications with respect to her claim and by failing to implement reasonable standards for prompt investigation of the claims.
She claims the defendant refused to pay the claims without conducting a reasonable investigation and failed to make good faith attempts to effectuate a prompt, fair and equitable settlement o f claims in which liability has become reasonably clear.
Fisher is seeking compensatory and punitive damages. She is being represented by James M. Pierson of Pierson Legal Services.
U.S. District Court for the Southern District of West Virginia case number: 2:17-cv-03754