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Perry v. Safeco

United States District Court, E.D. Virginia, Richmond Division

February 16, 2017

GREGORY PERRY, Plaintiff,
v.
SAFECO, Defendant.

          MEMORANDUM OPINION

          M.H United States District Judge

         This matter comes before the Court on what amounts to six motions: (I)pro se Plaintiff Gregory Perry's Motion for Default Judgment, (ECF No. 1-3); (2) Perry's Motion for Judicial Estoppel or Issue Preclusion, (ECF No. 1-3); (3) Perry's Motion to Strike, (ECF Nos. 1-3, 4);[1](4) Perry's Motion Craving Oyer, (ECF No. 1-3); (5) Perry's Motion to Remand, (ECF No. 5); and, (6) Safeco's Demurrer (the "Partial Motion to Dismiss"), [2] (ECF No. 1-2).

         Four of the pending motions-the Motion for Default Judgment, the Motion for Judicial Estoppel or Issue Preclusion, the Motion Craving Oyer, and the Partial Motion to Dismiss-were filed in the State Court. The other two motions were filed in this Court. Safeco has responded to the Motion to Remand, (ECF No. 6), and the Motion to Strike, (ECF No. 7). Perry has not replied to those responses, and the time to do so has expired. Perry has responded to the Partial Motion to Dismiss. (ECF No. 3.) Safeco has not replied to Perry's response to the Partial Motion to Dismiss, and the time to do so has expired. Accordingly, the matters are ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process.

         For the reasons that follow, the Court will deny the Motion for Default Judgment, the Motion for Judicial Estoppel or Issue Preclusion, the Motion to Strike, the Motion Craving Oyer, and the Motion to Remand. The Court will grant the Partial Motion to Dismiss.

         I. Factual and Procedural Background

         A. Procedural Background

         Perry filed his Complaint in the State Court, alleging three counts against Safeco: (1) Breach of Implied Covenant of Good Faith and Fair Dealing; (2) Tortious Interference with Contract Relations and Business Expectancies; and, (3) Breach of Contract and Bad Faith Claims Settlement. (Compl., ECF No. 1-1.) Safeco removed the case to this Court pursuant to 28 U.S.C. §§ 1441[3] and 1446.[4] Safeco asserts diversity jurisdiction under 28 U.S.C. § 1332[5] as its basis for removal.

         Prior to removal, Safeco filed a Demurrer, on behalf of itself and General Insurance Company of America ("General"), seeking to dismiss Perry's Count II with prejudice. (Demurrer, ECF No. 1-2.) Safeco contends that General is the proper defendant in this case. (Id. at 1.) Perry then filed three motions contemporaneously: his Motion for Default Judgment; his Motion for Judicial Estoppel or Issue Preclusion; and, his Motion to Strike (collectively, the "Failure to Respond Motions"). Each of Perry's filings rests on the contention that Safeco, as the defendant in the case, cannot rely on the responsive pleadings of General, a non-party. Perry also filed his Motion for Craving Oyer.[6]

         Following removal, Perry filed a "Response to and Motion to Strike Demurrer, " again suggesting that the Partial Motion to Dismiss was filed, not by Safeco, but by a non-party to the action. (ECF No. 4.) Perry also contends that the Complaint sufficiently states a claim for tortious interference with contract relations and business expectancies. Safeco responded to the Motion to Strike, asserting that Perry cannot meet the high burden needed for striking a pleading. (Opp'n to PL's Mot. Strike, ECF No. 7.) That same day, Perry filed a Motion to Remand pursuant to 28 U.S.C. § 1447, arguing that Safeco cannot remove a case in order to "escape a default judgment." (Mot. Remand 2, ECF No. 5.) Safeco opposed the Motion to Remand, indicating that it filed the Partial Motion to Dismiss "on behalf of both entities." (Opp'n to PL's Mot. Remand 2, ECF No. 6.)

         B. Summary of Allegations in the Complaint[7]

         Perry brings this action against Safeco, his former automobile insurer, for claims arising from a 2011 house fire in the County of Hanover, Virginia.

         On or about December 14, 2011, Perry's residence caught fire in the garage area, where Perry had parked his 2010 Honda Pilot Touring Edition (the "Sport Utility Vehicle" or "SUV"). The fire caused significant damage to the SUV. At the time, the SUV was fully covered by Perry's automobile insurance policy with Safeco. Perry submitted a claim to Safeco for the damage.

         On or about December 15, 2011, Safeco dispatched a towing company to Perry's then-condemned residence and removed the SUV to an unknown location. Without Perry's consent, a repair company "irrigate[ed] the interior of the [SUV] with ozone, in an attempt at remedying the smoke damage done to the [SUV] which had sat in the epicenter of the fire for over an hour period of time." (Compl. ¶ 9.) That company also used aftermarket parts to fix the SUV and painted the front of it "to conceal the warping and discoloration from the fire." (Id. ¶ 10.) While the SUV was being repaired, Safeco provided Perry with a rental car. But when Perry asked the repair shop about the status of his SUV, Safeco canceled his rental car benefits.

         Safeco eventually returned the SUV to Perry. Perry, however, refused to accept it because Safeco had sent his car to its preferred repair shop without his consent, and he otherwise had no input in the repair process. The repairs did not restore the SUV to its pre-flre condition. The interior of the SUV smelled of smoke, the exterior of the SUV had mismatched paint, the vendor had used aftermarket parts, and the engine bay still had corrosion and rust caused by the fire. Nonetheless, Safeco refused to honor any replacement value claim. Perry then filed a claim with his homeowner's insurance carrier, Main Street America Group, which refused to open a claim for damages to Perry's vehicle. Safeco subsequently refused Perry's request to initiate subrogation proceedings against Main Street America Group.

         Perry ultimately paid for an independent inspection of the SUV, which revealed "a diminished value appraisal based upon the shoddy workmanship exhibited by the repairs." (Id. ¶ 18.) Perry submitted the diminished value appraisal to Safeco for consideration, but Safeco again refused to pay Perry's claims. After a few weeks, Safeco presented Perry with a partial payment that covered the payoff value of the SUV's outstanding loan balance. Safeco also required Perry to sign over the SUV's title.

         Perry alleges that, as a result, he: (1) lost his SUV, upgrades made to the SUV, and equity accrued in the SUV; (2) could not resume his profession and business; (3) suffered irreparable damage to his credit after defaulting on his financial ...


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