United States District Court, S.D. Ohio, Eastern Division
OPINION & ORDER
ALGENON L. MARBLEY CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Grange Indemnity
Insurance Company's Motion to Dismiss or, in the
alternative, Stay and Compel Appraisal. (ECF No. 7). For the
following reasons, Defendant's Motion is hereby
March 27, 2019, Plaintiff Vicki Ostendorf
(“Ostendorf”) filed a Complaint on behalf of
herself and those similar situated against Grange Indemnity
Insurance Company (“Grange”), bringing claims for
breach of contract and declaratory relief related to her auto
insurance policy with Grange (“the Policy”). (ECF
No. 1). Ostendorf insured her 2001 Grand Prix vehicle with
Grange. (Id. at ¶¶ 12-13). On or about May
6, 2018, the insured vehicle was involved an accident and
Ostendorf filed a total loss insurance claim. (Id.
at ¶ 14). Grange determined that the vehicle was worth
$1, 773, and after applying a $100 deductible, paid Ostendorf
$1, 673. (Id. at ¶ 15).
alleges that Defendant Grange underpaid her and similarly
situated policy holders for failing to include the cost of a
title transfer, tag transfer, and 6% sales tax in the
“actual cash value” (“ACV”)
calculation under the Policy for reimbursements of total
losses. (Id. at ¶ 21). Plaintiff brings a
breach of contract claim, alleging Grange's failure to
pay sales tax and registration fees amounts to a material
breach of their insurance policy contract, and a claim for
declaratory relief that an insured under the policy is
entitled to sales tax and registration fees for total loss
claims. (Id. at ¶¶ 69, 72, 75). On May 30,
2019, Defendant Grange moved to dismiss the Complaint for
failure to state a claim, or in the alternative, moved the
Court to stay and compel Plaintiff to participate in the
mandatory appraisal process pursuant to the Policy. (ECF No.
7 at 1). Plaintiff filed her Response in Opposition to the
Motion to Dismiss on June 20, (ECF No. 12), and Grange filed
its Reply on July 17. (ECF No. 15). The Motion to Dismiss is
now ripe for review.
STANDARD OF REVIEW
Court may dismiss a cause of action under Federal Rule of
Civil Procedure 12(b)(6) for “failure to state a claim
upon which relief can be granted.” Such a motion
“is a test of the plaintiff's cause of action as
stated in the complaint, not a challenge to the
plaintiff's factual allegations.” Golden v.
City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005).
The Court must construe the complaint in the light most
favorable to the non-moving party. Total Benefits
Planning Agency, Inc. v. Anthem Blue Cross & Blue
Shield, 552 F.3d 430, 434 (6th Cir. 2008). If more than
one inference may be drawn from an allegation, the Court must
resolve the conflict in favor of the plaintiff. Mayer v.
Mylod, 988 F.2d 635, 638 (6th Cir. 1993). The Court
cannot dismiss a complaint for failure to state a claim
“unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.” Id. The Court is not
required, however, to accept as true mere legal conclusions
unsupported by factual allegations. Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). Although liberal, Rule 12(b)(6) requires more
than bare assertions of legal conclusions. Allard v.
Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation
omitted). Generally, a complaint must contain a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A
complaint's factual allegations “must be enough to
raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). It must contain
“enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. A claim is
plausible when it contains “factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678.
LAW & ANALYSIS
Breach of Contract
Complaint, Plaintiff brings a claim for breach of contract
and seeks a declaratory judgment that Grange is required to
pay sales tax and vehicle fees as part of the “actual
cash value” (“ACV”) owed to her for the
total loss of her vehicle. To state a breach of contract
claim under Ohio law, Plaintiff must show: “(1)
existence of a valid contract; (2) performance by the
plaintiff; (3) non-performance by the defendant; and (4)
damages resulting from the defendant's breach.”
Yoder v. Hurst, No. 07AP-121, 2007 WL 27943 at *5
(Ohio Ct. App. 2007). Defendant Grange argues that Plaintiff
has failed to allege elements 3 and 4. (ECF No. 7 at 6).
Grange argues that Plaintiff has not alleged non-performance
because there is nothing in the plain language of the Policy
that defines ACV or otherwise requires Grange to reimburse
insureds for sales tax and vehicle fees. (Id. at 6).
Furthermore, Grange argues Plaintiff cannot show damages
related to sales tax or vehicle fees until or unless she
actually incurs such expenses by replacing her vehicle. (ECF
No. 7 at 5-6).
determining whether Plaintiff's claims survive
Defendant's Motion to Dismiss, the Court starts with the
language of the Policy. Under Part D, “Coverage For
Damage to Your Auto, ” the Policy states:
“Subject to the limit of liability, we will pay for
sudden, direct and accidental loss to your covered
auto.” (ECF No. 1 Ex. A at 21). The Policy defines the
limit of liability as the lesser of the:
1. Actual cash value of the stolen or damaged property,
reduced by the salvage value if you or the owner ...