United States District Court, W.D. North Carolina, Charlotte Division
Cogburn, United States District Judge.
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.
The Underlying Action
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
The Present Action
tendered defense of the Underlying Action to Plaintiff
Hartford Casualty Insurance Company (“Hartford”)
under a series of business liability insurance policies (the
“Policies”) 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.
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
Standard for Judgment on the Pleadings
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).
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).
Insurer's Duty to Defend
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 ...