Kenney v. Indep. Order of Foresters, No. 13-1788 (4th Cir. 2014)Annotate this Case
Plaintiff filed suit under the West Virginia Unfair Trade Practices Act (WVUTPA), W. Va. Code 33-11-4(9)(f), based on IOF's allegedly unlawful conduct in connection with its handling of her insurance claim. The court held that plaintiff's WVUTPA claim sounds in tort and not in contract; West Virginia governed the underlying lawsuit pursuant to the lex loci delicti approach and the Restatement choice-of-law approach; and, insofar as the Supreme Court of Appeals of West Virginia has previously entertained questions regarding an action brought under the WVUTPA against an insurer subsequent to settlement, where the cause of action was limited to unfair settlement practices, plaintiff's complaint stated a claim upon which relief could be granted. Accordingly, the court reversed the district court's dismissal of the complaint.