United States District Court, E.D. North Carolina, Western Division
NATIONWIDE MUTUAL INSURANCE COMPANY and NATIONWIDE PROPERTY & CASUALTY INSURANCE COMPANY, Plaintiffs,
KEVIN P. CREASMAN; KANDY M. CREASMAN; HOLLY CREASMAN; and TYLER CREASMAN, Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendants' motion for
partial judgment on the pleadings, motion to dismiss, and, in
the alternative, motion to stay. (DE 7). The motion has been
fully briefed and thus the issues raised are ripe for ruling.
For the reasons that follow, the court grants in part and
denies in part defendants' motion.
OF THE CASE
case arises out of an underlying civil action
(“underlying action”) filed against defendants
Kevin P. Creasman, Kandy M. Creasman, Holly Creasman, and
Tyler Creasman, (collectively, “defendants”), as
well as others. The underlying action was filed by Henry Van
Buren and Magi Van Buren (“the Van Burens”) on
May 23, 2018, in the circuit court of Tennessee for the third
judicial district at Morristown with the caption Henry
Van Buren and Magi Van Buren v. Kevin Creasman, Kandy
Creasman, Holly Creasman, Tyler Creasman, John Lumb, Marnie
Lumb, Bryan Lumb, and Erie Insurance Company,
18 CV 077, and asserts claims as to defendants for
negligence, intentional misconduct, trover, conversion,
personal injury, property damage, and punitive damages for
acts and omissions committed by Holly and Tyler Creasman when
they were minors and against their parents, Kevin and Kandy
Creasman, arising out of negligent supervision.The Van Burens
allege they have sustained damages in excess of $10,
August 2, 2018, plaintiffs filed this action seeking
declaration there is no liability coverage for the claims
brought against defendants in the underlying action pursuant
to the following policies issued by plaintiffs to defendants:
policy 6132HP379612 (“North Carolina homeowner's
policy”), policy 6341HO390810 (“Tennessee
homeowner's policy”), and policy 6132PU599285
(“umbrella policy”) (“the policies”).
(Compl. (DE 1) ¶10; DE 1-1; DE 1-2; DE 1-3). Plaintiffs
attach to their complaint the policies as well the complaint
filed in the underlying action.
filed the instant motion on October 5, 2018, arguing that 1)
plaintiffs have a duty to defend defendants and 2)
plaintiffs' claim for declaratory judgment regarding its
duty to indemnify is premature, or, in the alternative, a
balancing of state and federal interests weighs in favor of
staying this action until resolution of the underlying action
OF THE FACTS
facts alleged in the underlying complaint relevant to the
resolution of the instant motion may be summarized as
Burens left Belcaro, their estate, to travel to Miami,
Florida in early August, 2013. (See DE 1-4
¶¶ 1, 9). Before leaving, the Van Burens installed
surveillance cameras throughout the property, which revealed
the following acts.
August 5, 2013, Holly Creasman and a female accomplice drove
up to Belcaro's front door to “case” the
house. Later, Tyler Creasman and another female accomplice
joined them. The four teenagers looked repeatedly under
flower pots and other ornamental items. The following day,
Tyler Creasman drove up to Belcaro with his young child, his
girlfriend, Holly Creasman, and her original female
accomplice. Based on the camera footage, it appears that
Tyler Creasman broke into Belcaro on August 6, 2013, just
after 6 p.m.
the next three to four weeks, camera footage shows repeated
incursions upon Belcaro by Holly and Tyler Creasman and
others, wherein theft, vandalism, and attempted acts of
vandalism occurred, including eventually the disabling of the
surveillance cameras on September 12, 2013.
Burens noticed a significant spike in their utility bill on
December 31, 2013 and January 1, 2014, which the Van Burens
allege was caused by a New Year's eve party thrown at
Belcaro. Before leaving Belcaro for the last time, Holly
Creasman, Tyler Creasman, or another person left open
multiple skylights, doors and windows, causing the pipes to
thereafter freeze and burst, thereby also causing the
interior walls and floors to be irreparably damaged by water
from both inside and out.
the Van Burens' personal property inside the house was
irreparably damaged or outright destroyed. Upon returning to
Belcaro several months later, the Van Burens found the
following items missing and presumed stolen: a .357 Ruger
handgun model 01707; an AR 15 rifle; two AK 47 rifles; $5,
600.00 in cash; thousands of dollars' worth of expensive
champagne and liquor; a $6, 000.00 Rolex; numerous sports and
entertainment trading cards, including a Mickey Mantle rookie
card and cards featuring Yogi Berra, Hank Aaron, Johnny
Bench, Wilt Chamberlain and Johnny Unitas; and numerous
articles of clothing including several expensive suits and
coats. Additionally, the Van Burens later discovered that
antifreeze had been poured directly into their vehicles's
crankshaft, destroying the engine of the $80, 000.00 vehicle.
Finally, the Van Buren's allege that “Magi Van
Buren suffered a significant heart attack likely caused by
the stress she was under.” (DE 1-4 ¶ 38).
relevant here, the Van Burens claim “damages resulting
from negligence, intentional misconduct, trover and
conversion, ” that “Kevin Creasman, Kandy
Creasman . . . were all negligent in the supervision of their
children by failing to prevent them from causing damages that
were reasonably foreseeable, ” and that “Tyler
Creasman, Holly Creasman . . . were negligent by allowing so
many vandals and thieves into Belcaro after Holly Creasman
‘cased' the property and Tyler Creasman broke into
it.” (DE 1-4 at 1, ¶¶ 45, 47).
Standard of Review
Rule of Civil Procedure 12(c) provides that “[a]fter
the pleadings are closed but within such time as not to delay
the trial, any party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). In resolving a motion
for judgment on the pleadings, the court must accept all of
the nonmovant's factual allegations as true and draw all
reasonable inferences in their favor. Bradley v.
Ramsey, 329 F.Supp.2d 617, 622 (W.D. N.C. 2004).
Judgment on the pleadings is warranted where the undisputed
facts demonstrate that the moving party is entitled to
judgment as a matter of law. Id. The court is
permitted to consider the complaint, answer, and any
materials attached to those pleadings or motions for judgment
on the pleadings “so long as they are integral to the
complaint and authentic.” Philips v. Pitt Cty. Mem.
Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
a motion for judgment on the pleadings pursuant to Rule 12(c)
is separate and distinct from a motion to dismiss under Rule
12(b)(6), federal courts apply the same standard for Rule
12(c) motions as for motions made pursuant to Rule 12(b)(6).
Indep. News, Inc. v. City of Charlotte, 568 F.3d
148, 154 (4th Cir. 2009); Burbach Broad. Co. of Delaware
v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir.
2002); Edwards v. City of Goldsboro, 178 F.3d 231,
243 (4th Cir. 1999).
motion to dismiss under Rule 12(b)(6) determines only whether
a claim is stated; “it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A
claim is stated if the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In evaluating whether a claim is stated,
“[the] court accepts all well-pled facts as true and
construes these facts in the light most favorable to the
plaintiff[, ]” but does not consider “legal
conclusions, elements of a cause of action, . . . bare
assertions devoid of further factual enhancement[, ] . . .
unwarranted inferences, unreasonable conclusions, or
arguments.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009) (citations omitted). In other words, the plausibility
standard requires a plaintiff to articulate facts, that, when
accepted as true, demonstrate that the plaintiff has stated a
claim that makes it plausible he is entitled to relief.
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (quotations omitted).
Defendants' Motion for Partial Judgment on the Pleadings
determining whether an insurer has a duty to defend its
insured, North Carolina courts use the “comparison
test, ” analyzing the insurance policy side-by-side
with the underlying complaint, taking all of the
claimant's allegations as true. Harleysville Mut.
Ins. Co. v. Buzz Off Insect Shield, L.L.C., 364
N.C. 1, 7 (2010). As stated by the North Carolina Supreme
When the pleadings state facts demonstrating that the alleged
injury is covered by the policy, then the insurer has a duty
to defend, whether or not the insured is ultimately liable.
Consequently, when the pleadings allege facts indicating that
the event in question is not covered, and the insurer has no
knowledge that the facts are otherwise, then it is not bound
Waste Management v. Peerless Ins. Co., 315 N.C. 688,
691 (1986) (citations omitted); see also
Harleysville, 364 N.C. at 7 (“In addressing
the duty to defend, the question is not whether some
interpretation of the facts as alleged could possibly bring
the injury within the coverage provided by the insurance
policy; the question is, assuming the facts as alleged to be
true, whether the insurance policy covers that
pleadings allege multiple claims, some of which may be
covered by the insurer and some of which may not, the mere
possibility the insured is liable, and that the potential
liability is covered, impose a duty to defend. Waste
Management v. Peerless Ins. Co., 315 N.C. at 691 n.2
(“Of course, allegations of facts that describe a
hybrid of covered and excluded events or pleadings that
disclose a mere possibility that the insured is liable (and
that the potential liability is covered) suffice to ...