United States District Court, W.D. Virginia, Danville Division
For Trustees of Hackberry Baptist Church, Plaintiff: Leslie Ray Adams, Timothy Martin Fisk, LEAD ATTORNEYS, Adams, Elmore & Fisk, PLC, Chatham, VA USA.
For Rhonda Dody Womack, doing business as Womack Agency, Nationwide Mutual Insurance Company, Defendants: Gemma L. Saluta, Rachel E. Daly, LEAD ATTORNEYS, PRO HAC VICE, Womble Caryle Sandridge & Rice, LLP, Winston-Salem, NC USA; Jason C. Hicks, LEAD ATTORNEY, Womble Carlyle Sandridge & Rice, LLP, Washington, DC USA.
Hon. Jackson L. Kiser, Senior United States District Judge.
The Trustees of Hackberry Baptist Church (" Plaintiff" ) filed suit against Rhonda Dody Womack and Nationwide Mutual Insurance Company (collectively, " Defendants" ) in the Circuit Court of Halifax County on June 27, 2014. (Not. of Removal ¶ 3, July 29, 2014.) Defendants removed the action to this Court on July 29, 2014. (Id.) Although both Plaintiff and Womack are residents of Virginia and are non-diverse for purposes of jurisdiction, Defendants argued in their Notice of Removal that Womack was fraudulently joined and thus her citizenship should be ignored when determining whether jurisdiction exists. (See id. ¶ ¶ 8-10.) Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(6) on August 29, 2014, arguing that there is no cognizable cause of action against Womack, and that the Complaint fails to state a claim against Nationwide. (See Mot. to Dismiss, Aug. 29, 2014 [ECF No. 10]; Def.'s Br. in Supp. of Mot.
to Dismiss, Aug. 29, 2014 [ECF No. 11].) Plaintiff filed a Motion to Remand the same day, contending that the state court should determine whether Womack is liable to Plaintiff. (See Mot. to Remand, Aug. 29, 2014 [ECF No. 13]; Pl.'s Br. in Supp. of Mot. to Remand, Aug. 29, 2014 [ECF No. 14].) Both motions were fully briefed and the parties appeared in open court on October 9, 2014, to argue their respective positions. At the conclusion of oral arguments, I informed the parties that I would deny Plaintiff's Motion to Remand and grant in part and deny in part Defendants' Motion to Dismiss. This opinion serves to supplement my in-court statements.
I. STATEMENT OF FACTS
Hackberry Baptist Church is a duly organized house of worship located in Halifax County, Virginia. It acts by and through its board of trustees (" Plaintiff" ), the plaintiff in this action. (Compl. ¶ 1, June 27, 2014 [ECF No. 1-1].)
Defendant Nationwide Mutual Insurance Company (" Nationwide" ) is an Ohio-based corporation that is licensed to transact business in Virginia. (Compl. ¶ 2; Not. of Removal ¶ 7 [ECF No. 1].) Defendant Rhonda Dody Womack (" Womack" ) is an insurance agent who owns and operates the Womack Insurance Agency in Danville, Virginia. (Compl. ¶ 3.) Womack sold Plaintiff the insurance policy at issue in this case. (Id. ¶ 6.)
On February 5, 1999, Nationwide issued Plaintiff commercial property insurance policy number ACP CPP 2442989278 (" the policy" ) to cover Plaintiff's property. (Compl. ¶ 6.) The initial policy term was one year, and Nationwide renewed the policy every year thereafter. (Id.) Plaintiff paid all premiums due under the policy. (Id. ¶ 7.) The policy provided for property coverage of up to $396,400.00 on Plaintiff's church building. There is no allegation that Womack was a party to the insurance contract (see id. ¶ 6), and Plaintiff conceded at oral argument that she was not.
Plaintiff contends that, on June 29, 2012, its church building was severely damaged by an extreme wind event, which rendered part of the building unusable and unsafe. (Id. ¶ 9.) Plaintiff filed a claim under the policy. (Id. ¶ 10.) Nationwide commissioned an engineering report in July 2012, and the internal engineer concluded that the damage to the church building was not caused by wind. (Id. ¶ 11.) Nationwide denied Plaintiff's claim on August 22, 2012. (Id. ¶ 10.)
After receiving Nationwide's denial of its claim, Plaintiff commissioned its own engineering report. In September 2012, Gary Loomis, P.E., concluded that " [i]t is very possible that the wind from the June 29, 2012[,] storm caused [the] damage" to Plaintiff's church building. (Id. ¶ 12-13.) On January 13, 2014, Plaintiff and Defendants met at the church building to attempt to resolve their dispute over Nationwide's denial of Plaintiff's claim. (Id. ¶ 14.) As a result of that meeting, Nationwide commissioned Donan Forensic Engineering to prepare a third engineering report providing an independent review of the damage. (Id. ¶ 15.) That report supported Nationwide's original ...