United States District Court, E.D. Virginia, Richmond Division
A. Gibney Jr. United States District Judge.
plaintiffs, John and Caroline York ("the Yorks"),
took out a homeowner's insurance policy with Nationwide
General Insurance Company ("Nationwide") that
covered fire damage. After a fire damaged the Yorks'
home, the Yorks submitted claims to Nationwide under the
policy. Nationwide paid some, but not all, of the claims. The
Yorks have sued Nationwide for failing to fully satisfy their
now moves to dismiss, arguing that a limitations provision in
the policy bars this action. The Court will grant the motion
to dismiss because the limitations period passed more than
three years ago, and the principles of equitable estoppel do
not prevent the application of the limitations provision.
16, 2014, a fire damaged the Yorks' home. The Yorks had a
homeowner's insurance policy with Nationwide that covered
fire damage. Following the fire, the Yorks submitted claims
for the fire damage and provided all requested documentation.
Nationwide has paid some of the claims on the policy, but it
has not paid all of them.
Yorks filed their complaint on May 14, 2019, alleging that
Nationwide breached the insurance policy by failing to fully
satisfy the Yorks' claims. Nationwide alleges in its
motion that the policy contains a provision that requires
policyholders to bring an action within two years of the loss
or damage. Because the fire occurred on May 16, 2014,
Nationwide argues that the limitations period expired more
than three years ago.
limitations provision in the policy follows Virginia Code
§ 38.2-2105(A), which requires all fire insurance
policies to contain a provision requiring the insured to
bring suit under the policy within two years of the inception
of the loss. "Virginia law is settled that the
'inception of the loss' occurs at the time of the
fire." Swiacki v. State Farm Fire & Cas.
Co., No. 1:09-cv-647, 2009 WL 10688150, at *1 (E.D. Va.
July 10, 2009). All fire insurance policies must contain the
exact language of § 38.2-2105(A) or language no less
favorable. See Va. Code Ann. §§
38.2-2105(A), 38.2-2107(A). Thus, under the policy, the Yorks
should have brought this action no later than May 16, 2016.
Yorks argue, however, that equitable estoppel prevents
Nationwide from asserting a limitations defense because
Nationwide lured the Yorks into a false sense of security by
paying some of the claims and continuing to ask for
information and documentation. The doctrine of equitable
estoppel "bars a statute of limitations defense by a
defendant whom by his own conduct, lulls another into a false
sense of security." Neal v. Stryker Corp., No.
1:11-cv-62, 2011 WL 841509, at *3 (E.D. Va. Mar. 8, 2011).
The defendant must also act "with the aim of lulling
[the plaintiff] into a false sense of security concerning the
statute of limitations." Cominelli v. Rector &
Visitors of the Univ. of Va., 589 F.Supp.2d 706, 718
(W.D. Va. 2008).
faced with a Rule 12(b)(6) motion to dismiss, 'where it
is apparent that the statute of limitations expired before
the filing of the plaintiffs complaint, the plaintiff has the
burden of pleading facts that would support a finding that
equitable estoppel applies.'" Snap v. Lincoln
Fin. Sec. Corp., No. 5:17-cv-00059, 2018 WL 1144383, at
*5 (W.D. Va. Mar. 2, 2018) (quoting Neal, 2011 WL
841509, at *3). If the plaintiff fails to meet this burden,
the Court will dismiss the action. Id.
the Yorks merely allege that Nationwide lured them into a
false sense of security by paying some of the claims and
requiring the Yorks to continue to provide documentation,
inventories, and damage estimates. (Dk. No. 1-1, at
¶¶ 10, 11, 12.) The Yorks do not plead any facts
showing that Nationwide made any affirmative
misrepresentations or acted "with the aim of getting the
Yorks to delay filing a lawsuit until after the limitations
period had already expired. Cf. Bilicki v. Windsor-Mount
Joy Mut. Ins. Co., 954 F.Supp. 129, 133 (E.D. Va. 1996)
(rejecting an equitable estoppel claim on summary judgment
and holding that making partial payments and entering into
settlement negotiations did not constitute affirmative acts
or misrepresentations that lulled the plaintiffs into
extent that Nationwide made any misrepresentations after the
two-year limitations period had already expired, the
misrepresentations would not have delayed a viable suit
because the limitations provision already barred this action.
See Caviness v. DerandRes. Corp., 983 F.2d 1295,
1302 (4th Cir.1993) ("The doctrine of equitable estoppel
has been applied only where a defendant has misled a
plaintiff, causing that plaintiff to delay filing a viable
suit until after that suit becomes barred by a statute of
limitations."); Sewraz v. First Liberty Ins.
Corp, No. 3:10-cv-120, 2012 WL 12438, at *5 (E.D. Va.
Jan. 3, 2012).
the principles of equitable estoppel do not prevent the
application of the limitations provision in this case.
Because more than two years have passed since "the date
of the loss of damage," the limitations provision in the
policy bars the Yorks' claim. See Va. Code
§ 38.2-2105; Swiacki, 2009 WL 10688150, at *1
("On multiple occasions, the Supreme Court of Virginia
has ruled that § 38.2-2105 is a ...