United States District Court, W.D. Virginia, Roanoke Division
VICTORIA DAVIES, as Administrator of the Estate of Lamrana Kamara, Deceased, Plaintiff,
VIRGINIA CVS PHARMACY, LLC, et al., Defendants
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.
Virginia Cvs Pharmacy, LLC, A Virginia Limited Liability
Company, Defendant: Travis Jarrett Graham, LEAD ATTORNEY,
Gentry Locke Rakes & Moore, Roanoke, VA USA.
Onebeacon America Insurance Company, A Minnesota Corporation,
Defendant: Charles Stephen Setliff, Ryan Fitzgerald
Furgurson, LEAD ATTORNEYS, Setliff & Holland, PC, Glen Allen,
Glen E. Conrad, Chief United States District Judge.
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.
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.
and Procedural Background
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.
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:
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.
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.
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
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.
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