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Davies v. Virginia CVS Pharmacy, LLC

United States District Court, W.D. Virginia, Roanoke Division

November 17, 2014

VICTORIA DAVIES, as Administrator of the Estate of Lamrana Kamara, Deceased, Plaintiff,
VIRGINIA CVS PHARMACY, LLC, et al., Defendants

          For Victoria Davies, Administrator of the Estate of Lamrana Kamara, Deceased, Plaintiff: David Adam McKelvey, LEAD ATTORNEY, Crandall and Katt, Attorneys & Counselors at Law, Roanoke, VA USA.

         For Virginia Cvs Pharmacy, LLC, A Virginia Limited Liability Company, Defendant: Travis Jarrett Graham, LEAD ATTORNEY, Gentry Locke Rakes & Moore, Roanoke, VA USA.

         For Onebeacon America Insurance Company, A Minnesota Corporation, Defendant: Charles Stephen Setliff, Ryan Fitzgerald Furgurson, LEAD ATTORNEYS, Setliff & Holland, PC, Glen Allen, VA USA.


         Hon. Glen E. Conrad, Chief United States District Judge.

         Defendants Virginia CVS Pharmacy, LLC (" CVS" ) and OneBeacon America Insurance (" OneBeacon" ) previously filed motions to dismiss plaintiff's complaint, which were argued at a September 2, 2014 hearing. After that hearing, the court granted plaintiff's motion to amend and allowed plaintiff to file an amended complaint. The court also gave each defendant additional time to either file a responsive pleading, file an amended motion to dismiss, or to inform the court that it wished to renew its prior motion to dismiss. Both defendants have now responded.

         CVS has simply re-urged its original motion to dismiss, Dkt. No. 22, noting that the amended complaint did not change the allegations against it. Dkt. No. 51. OneBeacon has filed a separate motion to dismiss the amended complaint. Dkt. No. 52. For the reasons set forth herein, both motions to dismiss will be granted.

         Factual and Procedural Background

         This matter was originally filed in the Circuit Court for the City of Roanoke. Invoking this court's diversity jurisdiction, CVS removed the action to this court. See Dkt. No. 1, Notice of Removal at ¶ ¶ 3-5. OneBeacon joined in and consented to the removal. Id. at ¶ 2; Dkt. No. 13.

         Accepting the well-pled facts in the amended complaint as true, as this court must when ruling on a motion to dismiss, see Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008), the facts are as follows:

         Plaintiff Victoria Davies is the administrator of the estate of Lamrana Kamara. Kamara was involved in a car accident on or about November 28, 2012 that caused him to suffer injuries, including a broken leg. Dkt. No. 49, at ¶ ¶ 2, 5. The amended complaint further alleges that, at the time of the accident, Kamara was working within the scope of his employment and that " his employer provided workers compensation coverage through One[B]eacon and/or OneBeacon provided direct insurance coverage for" him. Id. at ¶ ¶ 10, 11.

         After the accident, Kamara was admitted to Carilion Roanoke Memorial Hospital, where he underwent surgeries and received other medical treatment. His medical providers determined he would need anticoagulation treatment in order to prevent further injury, and he was prescribed Lovenox and Coumadin upon his discharge. The hospital's pharmacy was unable to provide the prescriptions, so arrangements were made to locate a pharmacy that could provide them. The amended complaint alleges, " upon information and belief," that the hospital would not have discharged Kamara if it were not certain that he would receive the prescriptions promptly. Id. at ¶ ¶ 6-8.

         A CVS employee told Davies that CVS had the medicines available and would provide them. When Davies arrived at the pharmacy, however, she was informed that there was a problem with the medications being approved for payment, and that they would be available after a short time. Id. at ¶ 9. Although Davies was able to obtain other discharge prescriptions from CVS, the amended complaint alleges that CVS refused to fill the anticoagulation prescriptions, and that defendant OneBeacon (who issued a medical reimbursement policy allegedly covering Kamara) refused to pay for them. Kamara never received the anticoagulation prescriptions and " subsequently died from complications due to not taking those medications, several days later." Dkt. No. 49 at ¶ 14.

         The amended complaint alleges that " as a direct and proximate result of Kamara's injuries and death, the statutory beneficiaries have been caused to suffer and incur" various damages. These include " sorrow, grief, mental anguish and suffering, and the loss of solace, including society, companionship, comfort guidance, kindly offices, and advice of Lamrana Kamara," as well as the loss of his income and services, and expenses for his care, treatment, hospitalization and funeral services. Id. at ¶ 15.

         The amended complaint asserts only two counts. Count one alleges negligent performance of an assumed duty against both defendants. Count two alleges that a special relationship existed between OneBeacon and Kamara because OneBeacon was " his insurer and/or workers compensation carrier" and because OneBeacon had begun paying for his hospital treatment and prescription medications and thus had a duty to cause treatment to be provided for him, " as in all insurance and/or workers compensation cases, when the medical treatment is provided through doctors and pharmacies selected by the insurance carrier." Id. at ¶ ¶ 18-20. It further alleges that OneBeacon negligently failed to authorize payment for the anticoagulation medication and failed to cause the medication to be provided both on the date of discharge and several days thereafter, proximately causing Kamara's death. Thus, both of the counts assert negligence claims, and do not allege the breach of any contractual duty.[1]

         Standard ...

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