United States District Court, S.D. Ohio, Eastern Division
Elizabeth P. Deavers, Magistrate Judge
OPINION AND ORDER
C. SMITH, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on Defendants' Motion to
Compel Appraisal and Dismiss Plaintiffs' Complaint (Doc.
10). Plaintiffs have responded in opposition (Doc. 21) and
Defendants have replied (Doc. 24). For the following reasons,
Defendants' Motion is DENIED.
Janet Davis, Angel Randall, and Melissa Schaller all had
motor vehicle insurance policies with one of the Defendants
(the “Policies”). (Doc. 1, Compl. at ¶¶
25, 33, 41). Plaintiffs allege that they were each involved
in an automobile accident that resulted in a claim for
physical damage to their respective vehicles under the
Policies. (Id. at ¶¶ 27, 35, 43).
Following submission of the claims, GEICO ultimately
determined that Plaintiffs' vehicles were total losses.
(Id. at ¶¶ 28, 36, 44). Under these
circumstances, the GEICO Policy at issue provides that GEICO
must determine Actual Cash Value of the vehicle “at the
time of the loss”, which is defined as “the
replacement costs of the auto or property less depreciation
or betterment.” (Doc. 1-1, GEICO Policy attached as Ex.
A to the Complaint). Plaintiffs allege that GEICO breached the
Policies with Plaintiffs by failing to pay the Actual Cash
Value sales tax, title-transfer fees, and registration fees
at the time of the loss. (Doc. 1, Compl. at ¶¶ 4,
7, 8, 31, 39, 47). Plaintiffs assert that nothing in the
GEICO Policy pertains to the sales tax and other fees, nor
does it provide that Plaintiffs were to pay new sales tax on
the new vehicle before receiving sales tax coverage.
III of the Policies, Physical Damage Coverages, covers the
amount of “each loss, less the applicable
deductible.” (Doc. 1-1, GEICO Policy at 8).
“Loss” is defined as “direct and accidental
loss of or damage to” the insured vehicle.
(Id.). The GEICO Policy does require the Insured to:
“File with us, within 91 days after loss, his sworn
proof of loss including all information we may reasonably
require.” (Id. at 10). Section III also
contains an appraisal provision which states in full:
If we and the insured do not agree
on the amount of loss, either may,
within 60 days after proof of loss is filed, demand an
appraisal of the loss. In that
event, we and the insured will each
select a competent appraiser. The appraisers will select a
competent and disinterested umpire. The appraisers will state
separately the actual cash value
and the amount of the loss. If they
fail to agree, they will submit the dispute to the umpire. An
award in writing of any two will determine the amount of
loss. We and the
insured will each pay his chosen
appraiser and will bear equally the other expenses of the
appraisal and umpire.
We will not waive our rights by any of our acts relating to
(Id. at 10 (emphasis in original)).
the “Conditions” portion of Section III provides
that “[s]uit will not lie against [GEICO] unless the
policy terms have been complied with and until 30 days after
proof of loss is filed and the amount of loss is
initiated this case on June 13, 2019. (Doc. 1). Plaintiffs
each assert a breach of contract claim against Defendants. On
August 15, 2019, in response to Plaintiffs initiating this
case, GEICO invoked its right to appraisal under their
insurance policies by letter to Plaintiffs through their
counsel of record in this case. (Doc. 10-3, GEICO's Ltr.
to Demand Appraisal, attached as Ex. A to the Declaration of
Michael R. Nelson). Defendants now move for the Court to
compel the requested appraisal and/or dismiss this case.
STANDARD OF REVIEW
addition to moving for an appraisal, Defendants also move to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, alleging that Plaintiff has failed to state
a claim upon which relief can be granted.
the Federal Rules, any pleading that states a claim for
relief must contain a “short and plain statement of the
claim” showing that the pleader is entitled to such
relief. Fed.R.Civ.P. 8(a)(2). To meet this standard, a party
must allege sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A claim will be
considered “plausible on its face” when a
plaintiff sets forth “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, 678 (2009).
12(b)(6) allows parties to challenge the sufficiency of a
complaint under the foregoing standards. In considering
whether a complaint fails to state a claim upon which relief
can be granted, the Court must “construe the complaint
in the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in
favor of the plaintiff.” Ohio Police & Fire
Pension Fund v. Standard & Poor's Fin. Servs.
LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting
Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.
2007)). However, “the tenet that a court must accept a
complaint's allegations as true is inapplicable to
threadbare recitals of a cause of action's elements,
supported by mere conclusory statements.”
Iqbal, 556 U.S. at 663. Thus, while a court is to
afford plaintiff every inference, the pleading must still
contain facts sufficient to “provide a plausible basis
for the ...