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Gandecha v. Metropolitan Property and Casualty Insurance Co.

United States District Court, E.D. North Carolina, Western Division

August 26, 2014

DILIP GANDECHA and PUSHPLATA GANDECHA, Plaintiffs,
v.
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

ORDER

JAMES C. FOX, Senior District Judge.

This matter is before the court on the Motion to Dismiss [DE-6] filed by Defendant Metropolitan Property and Casualty Insurance Company ("Metropolitan"). For the reasons stated below, the motion is ALLOWED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Dilip Gandecha and Pushplata Gandecha ("Plaintiffs" or "Gandechas") initiated this action by filing a complaint asserting claims against Defendant Metropolitan in Wake County Superior Court on August 14, 2013. Plaintiffs' claims arise out of Metropolitan's failure to pay the full amount of Plaintiffs' claim under a homeowners' insurance policy issued by Metropolitan for damage allegedly caused by a thunderstorm on July 6, 2012. Metropolitan timely filed a notice of removal [DE-1] in this court on October 1, 2013, on the basis of diversity jurisdiction. That same day, Metropolitan filed the instant motion to dismiss, arguing that Plaintiffs failed to state any claims against it.

The allegations in the complaint, which for purposes of this motion the court must accept as true, show the following. Plaintiffs own property at 105 Tecumseh Court, in Cary, North Carolina ("the Property"), which is their primary residence. Compl. [DE-1-2] ¶ 5. Metropolitan issued homeowner's insurance policy number H1192374702 ("the Policy") to Plaintiffs. Id. ¶ 6; Policy [DE-7-2]. Plaintiffs allege they purchased the Policy to insure the Property based on the specific representation by Metropolitan, and/or its agents, that the Policy would provide insurance coverage for the Property for certain perils. Compl. [DE-1-2] ¶ 7.

On July 6, 2012, "a severe thunderstorm producing high winds, hail and rain caused extensive damage to the Property, including, but not limited to, wind and hail damage to the Property's shingle roof, hail and/or wind damage to [the] Property's gutter system, hail and/or wind damage to the Property's exterior window screens, hail damage to metal surfaces on the Property's roof and water damage to the interior of the Property resulting from the wind and/or hail damage to the shingles" ("the Storm Damage"). Id. ¶ 8. Plaintiffs submitted a claim to Metropolitan under the Policy seeking insurance coverage for the Storm Damage ("the Claim"). Id. ¶ 9.

Metropolitan's adjuster inspected the property and found no evidence of hail and/or wind damage to the Property, and offered the Plaintiffs no compensation. Id. ¶ 13. Plaintiffs contend the adjuster employed by Metropolitan was unqualified, and he or she conducted a substandard inspection of the property. Id. ¶ 14. Citing information and estimates provided by their roofing contractors, Plaintiffs disputed the adjuster's findings and requested that the Property be re-evaluated. Id. ¶ 15.

Metropolitan then retained the services of Engineering Design & Testing Corp. ("EDTC") to evaluate the Property and Storm Damage. Id. ¶ 16. Plaintiffs allege that EDTC found multiple instances of hail damage to the Property's roof and metal surface, but Metropolitan only offered to make minor repairs to the Property. Id. . ¶¶ 17-18. Metropolitan specifically refused to replace the Property's roof, "even though the observed Storm Damage justified replacement, roofing industry standards preferred replacement over spot repair and any attempt to complete a spot repair of the Plaintiff's [sic] Property would have voided the existing warranty on the Plaintiffs' roof and would have resulted in areas of obvious repair, thus decreasing the aesthetic appearance of Plaintiffs' Property." Id. ¶ 18.

Plaintiffs again disputed the findings of Metropolitan and requested complete coverage of the claimed Storm Damage, but according to Plaintiffs, Metropolitan "continued to rely on incorrect adjustments and faulty information to again wrongfully deny complete coverage." Id. ¶¶ 19-20. Specifically, Plaintiffs allege:

Metropolitan's adjustments, reports, pictures and accompanying documents failed to initially recognize the Storm Damage, failed to acknowledge the cause and extent of the Storm Damage, provided false or misleading information for the purposes of denying the Claim, was conducted by biased parties using non-industry standard inspection methods to justify denying the Claim and did not allow adequate funds to cover repairs of the actual Storm Damage.

Id. ¶ 21.

Plaintiffs also allege Metropolitan and/or its agents "misrepresented the cause of, scope of, and cost to repair the Storm Damage, and/or the amount of insurance coverage available for the Claim under the Policy." Id. ¶ 22. Plaintiffs further allege that Metropolitan "negligently advised the Plaintiffs as to the condition of the Property, the damage done to the Property, and/or needed repairs to the Property." Id. ¶ 24. Plaintiffs also allege that Metropolitan failed to properly adjust the claim and improperly denied the claim without an adequate investigation, and failed to perform its contractual duty to compensate Plaintiffs under the Policy. Id. ¶¶ 26, 28.

Plaintiffs also allege that Metropolitan violated N.C. Gen. Stat. §§ 58-63-15 and 75-1.1, et seq., by (1) making misrepresentations about the existence of the Storm Damage and whether it was covered under the Policy; (2) failing to make an attempt to settle the Claim in a fair manner; (3) failing to offer an adequate explanation for the denial of the Claim; (4) failing to affirm or deny coverage within a reasonable time; (5) performing an out-come oriented investigation of the Claim, which allegedly resulted in a biased, unfair and ...


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