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Hartford Casualty Insurance Co. v. Gelshenen

United States District Court, W.D. North Carolina, Charlotte Division

May 6, 2019

HARTFORD CASUALTY INSURANCE COMPANY, Plaintiff,
v.
JOHN J GELSHENEN JR. DAVIS & GELSHENEN, LLP, Defendants.

          ORDER

          Max O. Cogburn, United States District Judge.

         THIS MATTER is before the Court on Hartford's Motion for Judgment on the Pleadings. Having considered Hartford's motion and reviewed the pleadings, the Court will grant the motion and dismiss this action.

         I. Background

         A. The Underlying Action

         In 2016, Defendants Davis & Gelshenen, LLP and John J. Gelshenen, Jr. (collectively, “Gelshenen”), a personal injury lawyer and firm, were named as defendants in a single-count putative class-action lawsuit, Hatch v. Demayo, No. 1:16-CV-925, 2017 WL 4357447, at *1 (M.D. N.C. Sept. 29, 2017) (the “Underlying Action”). The plaintiffs, drivers who had been involved in automobile accidents in North Carolina, alleged that the defendants, including Gelshenen, violated the federal Driver's Privacy Protection Act (“DPPA”), 18 U.S.C. §§ 2721- 2725 (2012), by obtaining plaintiffs' names and addresses from copies of official accident reports maintained by the State of North Carolina and using that information to mail legal advertisements to plaintiffs.[1]

         B. The Present Action

         Gelshenen tendered defense of the Underlying Action to Plaintiff Hartford Casualty Insurance Company (“Hartford”) under a series of business liability insurance policies (the “Policies”)[2] that Gelshenen purchased from Hartford. The Policies generally provide that Hartford would defend and indemnify Gelshenen against damages for personal and advertising injuries that Gelshenen became legally obligated to pay. Hartford denies that it owes Gelshenen any duty to defend or indemnify the Underlying Action because the DPPA claim asserted in that action falls under two different exclusionary provisions in the Policies.

         The first provision excludes coverage for personal and advertising injury arising out of the violation of a right of privacy created by a federal statute, such as the DPPA (the “Privacy Exclusion”). The second provision excludes coverage for personal and advertising injury arising from the alleged violation of a statute that limits the communication or distribution of material or information, such as the DPPA (the “Communication Exclusion”). Because an alleged violation of the DPPA falls squarely within the plain language of both of these exclusions, and because the only claim asserted in the Underlying Action is based on the DPPA, Hartford has no duty to defend Gelshenen in the Underlying Action. See Hartford Cas. Ins. Co. v. Greve, No. 3:17-CV-183, 2017 WL 5557669 (W.D. N.C. Nov. 17, 2017) (finding that the underlying DPPA actions fell squarely within both policy exclusions, granting Hartford's Fed.R.Civ.P. 12(c) motion for judgment on the pleadings, and entering a declaratory judgment in favor of Hartford), aff'd, 742 Fed.Appx. 738, 741 (4th Cir. 2018).

         II. Standard for Judgment on the Pleadings

         Federal 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.” In resolving a motion for judgment on the pleadings, the court must accept the non-movant's factual statements as true and draw all reasonable inferences in his favor. Bradley v. Ramsey, 329 F.Supp.2d 617, 622 (W.D. N.C. 2004); Atwater v. Nortel Networks, Inc., 394 F.Supp.2d 730, 731 (M.D. N.C. 2005). Judgment on the pleadings is warranted where the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Bradley, 329 F.Supp.2d at 622. The standard is similar to that used in ruling on a Rule 12(b)(6) motion, “with the key difference being that on a 12(c) motion, the court is to consider the answer as well as the complaint.” Continental Cleaning Serv. v. United Parcel Serv., Inc., 1999 WL 1939249, at *1 (M.D. N.C. April 13, 1999) (internal citations omitted).

         In resolving a motion for judgment on the pleadings, the court may rely on admitted facts in the pleadings, documents attached to the pleadings, and facts contained in materials of which the court may take judicial notice. Bradley, 329 F.Supp.2d at 622 (noting the court should consider documents attached to the pleadings); Hebert Abstract Co. v. Touchstone Prop., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (holding the court should consider pleadings and judicially noticed facts). Where an instrument is “integral to and explicitly relied upon in the complaint, ” the instrument itself should be considered along with the factual allegations of the complaint and answer. Colin v. Marconi Commerce Sys. Emps.' Retirement Plan, 335 F.Supp.2d 590, 596 (M.D. N.C. 2004) (insurance policy at issue).

         III. Discussion

         A. Insurer's Duty to Defend

         Under North Carolina law, “[a]n insurer's duty to defend is ordinarily measured by the facts as alleged in the pleadings.... 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.” Waste Mgmt. of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 691 (1986); see also Firemen's Ins. Co. of Washington D.C. v. Glen-Tree Investments, LLC, 2012 WL 4191383, at *5 (E.D. N.C. Sept. 19, 2012) (“An insurer has a duty to defend when pleadings allege facts that impose upon an insured a liability covered by the policy.”). “Conversely, when the pleadings allege ...


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