Kenney Properties, Inc. et al v. Philadelphia Indemnity Insurance Company, No. 5:2021cv00308 - Document 24 (E.D.N.C. 2022)
Court Description: ORDER granting 17 Motion for Judgment on the Pleadings. Signed by District Judge James C. Dever III on 7/13/2022. (Sellers, N.)
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Kenney Properties, Inc. et al v. Philadelphia Indemnity Insurance Company Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DMSION No. 5:21-CV-308-D KENNEY PROPERTIES, INC., KENNEY HOLDINGS, LLC, KENNEY REALTY SERVICES, LLC, and GRESHAM PARK, LLC, Plaintiffs, v. PHILADELPHIA INDEMNITY INSURANCE COMPANY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER On July 27, 2021, Kenney Properties, Inc., Kenney Holdings, LLC, Kenney Realty Services, · LLC, and Gresham Park, LLC doing busin~ss as Autumn Pointe Apartments (collectively "Kenney'' or ''plaintiffs") filed a comp!aint against Philadelphia Indemnity Insurance Company ("Philadelphia" or "defendant'') alleging breach of contract for Philadelphia's failure to defend and indemnify '· Kenney in an underlying state court action, and alleging violations ofNorth Carolina's Unfair and Deceptive Trade Pr~tices Act (''UDTPA"), N.C. Gen. Stat. §§ 7f.1, et~ [D.E. 1]. On September 7, 2021, Philadelphia answered Kenney' s complaint and filed a counterclaim seeking a declaratory judgment that it was not requited to defend or indempify Kenney [D.E.12]; On September 28, 2021, Kenney answered Philadelphia's counterclaim [D.E. 14]. On November 11, 2021, Philadelphia moved for judgment on the pleadings [D.E. 17] and filed a memorandum in support [D.E. 18]. On December 17, 2021, Kenney responded in opposition [D.E. 22]. On December 31, 2021, Philadelphia replied [D.E. 23]. As explained below, the court grants Philadelphia's motion for judgment on the pleadings and dismisses Kenney's complaint. Dockets.Justia.com I. Kenney Properties is a North Carolina corporation with its principal place of business in . Raleigh, North earalina. See Comp!. [D.E. 1] 14; Answer [D.E. f2] 14. Kenney Holdings, Kenney Realty, an~)Gresham. Park are North Carolina limited liability companies with member/managers ! and principal places of business in Raleigh, North Carolina. See Comp!. ft 5~7; Answer ft 5-7. Philadelphia Indemnity Insurance Company is a Pennsylvania insurance company with its principal i / · place of business in Pennsylvania See Comp!. 1 8; Answer 1 8. The Kenney ·entities offer apartments for rent in North C~olina. See Comp!. 1 17. During the relevant period, Philadelphia .\ insured Kenney Properjies under a commercial lines poll~. See Comp!. ft 12-16; Answer ft 12-16; 20l6-2017Policy [D.E. 12-1]; 2017-2018 Policy [D.E. 12-2]; Mem. Supp. Mot. [D.E. 18] 7; Resp. [D.E. 22] 7-8, 7 n.3. The North Carolina Residential RentalAgreementsAct("RRAA"), N.C. Gen. Stat §§ 42-38, et~ governs the rights, obligations, and remedies ofparties to a North Carolina residential rental agreement. The ~ specifies what fees,,costs, and expenses a landlord can charge if a tenant fails to timely pay the agreed-upon rent. See N.C. Gen. Stat. § 42-46. Before 2018, the statute explicitly allowed landlords to charge a "Late Fee" and one of the following: "Complaint-Filing Fee," "Court-Appearance Fee," or"Second Trial Fee." Id.§ 42-46(a), (e), {t), (g), (h)(l). In2018, after a court decision holding that charging other eviction fees violated North Carolina law, the North ' . Carolina General Assembly amended the RR.AA to allow landlords to charge additional "out\ of-pocket expenses," inclµding filing fees charged by the court, costs for,service of process, and reasonable attorneys' fees. See .N~C. Gen. Stat. § 42-46(i); Brogden Comp!. [D.E. 1-1] 5 n.1. - l - Because the RRAA did not specifically delineate these expenses before the 2018 amendment, some '"- litigants argued that the RRAA did not authorize these "out-of-pocket expenses" before the effective 2 date ofthe 2018 amendment. These litigants filed numerous lawsuits seeking reimbursement ofsuch expenses that tenants paid before the 2018 amendment took effect. See, e.g., Hampton v. KPM LLC, 423 F. Supp. 3d 17~ (E.D.N.C. 2019). The action underlying this coverage) dispute is one such suit. On September 4, 2018, Alisa ~rogden filed the underlying state court action (the "Brogden Action") in Wake County Superior• Court. SeeMem. Supp. Mot. at5-6;Resp. at2; BrogdenCompl. [D.E.1..:11. On June 19,2020, the \ United States Court of Appeals for the Fourth Circuit addressed the pre-2018 scope ofthe RRAA I in Suarez v. Camden Property Trust, 818 F. App'x 204 (4th Cir. 2020) (unpublished). On October 8, 2020, after the Fourth Circuit's Suarez decision, Kenney settled the Brogden Action. See Resp. at 6 n.2. In the settlement, Kenney agreed to pay $500,000 into a settlement fund to be disbursed to two classes. See Order Appr. Settl. [D.E. 1-2] fl 15-16. ·0n January 14, 2021, the Wake County Superior Court approved the set!Iement. See Resp. at 6 n.2; Order Appr. Settl. at 13. II. The parties agree that Philadelphia insured Kenney1 under a commercial lines policy that governed Philadelphia's duties to Kenney regarding the Brogden Action.2 The parties agree that Coverage A of the policy does not apply. See [D.E. 14]; Mem. Supp. Mot. at 3. And regardless .of 1 Kenney ~d Philadelphia dispute whether all of the plaintiffs in this action are insureds under the policy. See, ~ Mem, Supp. Mot. at 2-3 n.1. For the purposes of this motion, however, "Philadelphia is willing to agree (without waiving its arguments to the contrary) that the [plaintiffs] qualified as 'insureds' under its policies." Id. ·'- ' 2 Kenney contends there is a dispute about the contents ofthe policy that was in place during the relevant period because Kenney claims that the policy was amended effective December 1S, 2016. See Resp. at 7 n.3. However, the parties agree the definition of ''personal and advertising injury'' in Coverage B, as modified by the "General Liability Deluxe Endorsement Schools" provision, is the relevant policy language. See Mem. Supp. Mot. at 10-12; Resp. at 8-10. The relevant provisions;in the 2016-2017 and the 2017-2018 policies are identical. Compare [D.E.12-1] . 88, 112, with [D.R 12-2] 90, 124. ' ) 3 immaterial disputes ab~ut which version of the policy applies, the parties cite the same policy I language for Coverage B and the applicable endors~ent. See Mem. Supp. Mot. at 10-12; Resp. at9--10. Under Coverage B, Philadelphia ''will pay those sums that the insured becomes legally obligated to pay as• damages because of 'personal and advertising injury' to which this insurance applies." Policy ~.E. 12-1] 79. Philadelphia ''will have·the right and duty to defend the insured against any 'suit' s~eking those damages. However, [Philadelphi~] will hav~ no duty to defend the insured against any 'suit' seeking damages for 'personal and advertising injury' to which this I · insurance does not_ apply.~' Id. The policy defines ''personal and advertising injury'' as "injury, -, including consequential 'bodily injury', arising out of one o~ more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy pf a room, dwelling or premises that a person occupies, committed.by or on behalf of its owner, landlord or lessor; d. Oral or written publication, in any manner, of material that slanders or libels a person or o~ganization or disparages a person's or organization's g9ods, products or services; e. Oral or written publication, in any manner, of material that violates a person's right of privacy; ; · f. The use of another's advertising idea in your 'advertisement'; or g. Infringing upon another's copyright, trade dress or slogan in your 'advertisement'. Id. at 88. The Gen~al Liability Deluxe Endorsement Schools provision modifies the definition of '' ''personal and adv:ertising injury'' by, inter alia, changing paragraph 14b. to read: "Malicious ~ prosecution or ab11$e of process." Id. at 112. 4 m. Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the pleadings "[a]fter the pleadings are clos~-but early enough not !o delay trial." The court may consider the pleadings along with any materials referenced in or attached to the pleadings that are incorporated by reference. See Fed. R. Civ. P. 10(c). A court also may consider ''matters of which a cou,rt may I take judicial notice~" Tellabs, Inc. v. Mak:or Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see, ~ " Thompson v. Greene, 427 F.3d 263,268 (4th Cir. 2005); Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991). The same standard applies under Rule 12(b)(6) and Rule 12(c); therefore, a Rule 12(c) 1 motion tests whether the complaint is legally and factrially sufficient. See, ~ Drager v. PLIVA ' USA.Inc., 741 F.3<1470, 474(4thCir. 2014);Edwardsv. City of Goldsboro, 178 F.3d231,243 (4th : '; Cir. 1999). Accordingly, ''judgment on the pleadings requires a court to accept all well-pleaded allegations as true 1and draw all reasonable factual inferences from those facts in the non-moving - ' party's favor." United States v. Cox, 743 F. App'x 509, 511 (4th Cir. 2018) (per curiam) (unpublished) (cleaned up); Drager, 741 F.3d at 474; Edwards, 178 F.3d_at 244. A court need not, however, acc~a pleading's legal conclusions drawn from the facts. See Ashcroftv. Iqbal, 556 U.S. 662, 678-79 (2009); Giarratano v. Johnson, 521 F.3d 298,302 (4th Cir: 2008). Similarly, a court ''need ,not accept :as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.~d at 302 (quotation omitted). Judgment on the pleadings is appropriate when the ' ; well-pleaded fac~ allegations in the complaint and the uncontroverted allegations in the answer, 'along with any documents attached to the pleadings, show that the case can be decided as a matter oflaw. See Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014); Drager, 741 F.3d at 474; 5 Firemen'slns.Co.v.Glen-Treelnvs.,LLC,No.7:11-CV-59-D,2012WL4191383,~t•4(E.D.N.C. \ Sept. 19, 2012) (unpublished). The CQurt has diversity jurisdiction, andNorth Carolina law governs plaintiffs' claims. See Mem. Supp. Mot. at 8; Resp. at 17. Thus, this coµrt must determine how the Supreme Court of '- North Carolina would rule. See Twin Cicy Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C.; 433 F.3d 365, 369 (4th Cir. 2005). In doing so, the court must look first to opinions of the ' Supreme Court ofNorth Carolina. See id.; Parkway 1046, LLC v. U.~. Home Com., 961 F.3d 301, -·. 306 (4th Cir. 2020); Stahle v. CTS Cor,p., 817 F.3d 96, 100 (4th Cir. 2016). Ifthere are no governing opinionsd~rom the Supreme Court of North Carolina, this court may consider the opinions of the ' ' North Carolina Court of Appeals, treatises, and "the practices of other states." Twin 'cicy Fire Ins. Co., 433 F.3d at 369 (quotation omitted).3 In predicting how the highest court o~ a state would ' address an issu~, this court "must follow the decision of an intermediate state appellate court unless there is persuasiv~ data that the highest court would decide differently." Toloczko, 728 F.3d at 398 (quotation omitted); see Hicks v. Feiock, 485 U.S. 624, 630 & n.3 (1988). Moreover, in predicting . . how the highest court of a state would address an issue, this court "should not create or expand a [s]tate's public policy."_ Time Warner Ent-Advance/Newhouse P'ship v. Carteret-Craven El~. Membership Cor,p., 506 F.3d 304,314 (4th Cir. 2007) (alteration and quotation omitted); see~ \ & Zimmennann Inc. v. Challoner, 423 U.S. 3, 4 (1975) (per curiam); Wade v. Danek Med., Inc., 182 F.3d 281, 286 (4th Cir. 1999). IV. '' Philadelphia argues that it need not defend or indemnify Kenney because the Brogdep. 3 North Carolina has no mechanism for certifying questions of state law to the Supreme Court . ~fNorth Carolina. See Town of Nags Head v. Toloczk:o, 728 F.3d 391, 398 (4th Cir. 2013). \ . 6 \ Complaint does not state a claim within Kenney's coverage. See Mem. Supp. Mot. at 8-19; Reply 1 ' [D.E. 23] 3-9. Ketjney responds that even though the Brogden Complaint did not contain an abuse of process,claim, P~adelphia had to defend Kenney because the Brogden Complaint alleged facts consistent with an abuse of process claim. See Resp. at 3-11, 18-22. \ "The duty of an insurer to defend its insmed is based upon the coverage contracted for in the insurance policy." :Mastrom Inc. v. Cont'l Cas. Co., 78 N.C. App. 483, 484, 337 S.E.2d 162, 163 (1985); see Owners Ins. Co. v. MM Shivah LLC, No. 5:20-CV-21-D, 2022 WL 668382, at •~--4 (E.D.N.C. Mar. 4, 2022) (unpublished); Peerless Ins. Co. v. Strother, 765 F. Supp. 866, 869 < ' (E.D.N.C. 1990). North Carolina law employs the "comparison test," comparing the insmance policy with the allegations in the complaint ''to determine whether the events as alleged are covered or excluded." Waste Mgmt. of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 693, 340 S.E.2d 374, 378 (1986). "[E]ven a meritorious allegation cannot obligate an insmer to defend ifthe alleged 1 injury is not within, or is excluded from, the coverage provided by the insurance policy." Mut. Ins. Co. v. Buzz Off Insect Shield. L.L.C., 364 N.C. 1, 7,692 S.E.2d 605,611 Harleysville . , (2010); see Hartford Cas. Ins. Co. v. Greve, No. 3:17CV183-GCM, 2017 WL 5557669, at *3 (W.D.N.C. Nov. 1?, 2017) (U:ilpublished), aff'd sub nom. Hartford Cas. ~- Co. v. Ted A. Greve & I Assocs.. PA, 742 I<J. App'x 738 (4th Cir. 2018) (per curiam) (unpublished). "When the pleadings state facts demonstrating that the alleged injury is covered by the policy, I then the insmer has a duty to defend, whether or not the insured is ultimately liable." Waste Mgmt. \ , of Carolinas, Inc., 315 N.C. at 691,340 ~.E.2d at 377; see Fieldcrest Cannon, Inc. v. Fireman's Fund Ins. Co., 124 N.C. App. 232, 242, 477 S.E.2d 59, 66 (1996) ("An insmer's duty to defend arises ·, when the claim against the insured sets forth facts representing a risk covered by the terms of the policy. The duty to defend is much broader than the duty to indemnify, and may attach even in an, 7 action in which no damages are ultimately awarded." (citations omitted)}, on reh' gin p~ 127N.C. App. 729, 493 S.E.2d 658 (1997); Peerless Ins. Co., 76~ F. Supp. at 869. In determining whether there is a duty to defend, a court focuses on the facts pled and not on how the litigants characterize the claims. See Holz-Her U.S., Inc. v. U.S. Fid. & Guar. Co., 141 N.C. App. 127, 128, 539 S.E.2d 348, 350 (2000); see also State Auto Prop. & Cas. Ins. Co. v. Travelers.Indem. Co. ofAm., 343 F.3d 249, 255 (4th Cir. 2003). However, "[i]n 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 injury." Harleysville Mut., Ins. Co., 364 N.C. at 7,692 S.E.2d at 611; see Plum Props., LLC v. N.C. Farm Bureau Mut. Ins. Co., 254 N.C. App. 741, 745, 802 S.E.2d 173, 176 (2017). "Of course, allegations of facts that describe a hybrid of covered and excluded events or pleadings that discfose a.mere possibility that the insured is liable (and that the potential liability is covered) suffice to impose a duty to defend upon the insure[r]." Waste Mgmt. of Carolinas, Inc., 315 ·N.C. at 691 n.2, 340 S.E.2d at 377 n.2.' The insurer has a duty to·defend unless the facts as alleged "are not even arguably covered by the policy." Id. at 692,340 S.E.2d at 378. While "[a]n insurer's duty to defend is ordinarily.measured by the facts as alleged in the pleadings; its duty to pay is measured by the facts ultimately determined at trial." Harleysville Mut. Ins. Co., 364 N.C. at 6, 692 S.E.2d at 610. "Thus, the duty to defend is broader than the duty to indemnify .in the sense that an unsubstantiated allegation requires an insurer to defend,against it so long as the allegation is of a covered injury; however, even a meritorious allegation cannot obligate an insurer to defend if the alleged injury is not within, or is excluded from, the coverage provided by the insurance policy." Id. at 7, 364 S.E.2d at 610-11; Kubit v. ~G Mut. Ins. Co., 210 N.C. 8 App. 273,279, 708 S.E.2d 138, 145 (2011). Because the duty to defend is broader than the duty to indemnify, if the dQty to defend ''fails, so too does the duty to indemnify." N.C. Farm Bureau Mut. Ins. Co. v. Phillips; 255 N.C. App. 758, 764, 805 S.E.2d 362, 366 (2017). The insured bears the burden to prove coverage. See N.C. Farm Bureau Mut. Ins. Co. v. Sadler, 365 N.C. 178, 182, 711 S.E.2d 114, 116-17 (2011); Nationwide Mut. Ins. Co. v. McAbee, 268 N.C. 326, 328;, 150 S.E.2d 496,497 (1966); Metric Constructors, Inc. v. Indus. Risk Insurers, 102 N.C. App. 59, :61--62, 401 S.E.2d 126, 128, aff'g, 330 N.C. 439, 410 S.E.2d 392 (1991) (per curl.am). Where the relevant facts are not disputed, construing the policy is an issue oflaw. See , Parkerv. State Cap; Life Ins. Co.,259N.C. 115,117, 130 S.E.2d36, 38 (1963). "The interpretation of language used in an insurance policy is a question of law, governed by well-established rules of construction." Trophy Tracks.Inc. v. Mass. Bay Ins. Co., 195N.C. App. 734,739,673 S.E.2d 787, ' 790 (2009) (quotation omitted); see Wachovia Bank: & Tr. Co. v. Westchester Fire Ins. Co., 276N.C. 348,-354, 172 S.E.2d 518, 522 (1970); N.C. Farm Bureau Mut. Ins. Co. v. Mizell, 138 N.C. App. ; ) 530, 532, 530 S.E.'2d 93, 95 (2000). A court must construe an ins~ance contract as a reasonable ' ' person in the position ofthe insured would have understood it. See Register v. White, 358 N.C. 691, ,_ 695,599 S.E.2d 549,553 (2004); Marriott Fin. Servs., Inc. v. Capitol Funds, Inc., 288N.C. 122, 143, 217 S.E.2d 551, 5~5 (1975); Trophy Tracks, Inc., 195 N.C. App. at 738,673 S.E.2d at 790. Where a policy defines a term, that definition controls. See Gaston Cnty. Dyeing Mach. Co. v. Northfield Ins. Co., 351 N.C. 793, 299, 524 S.E.2d 558, 563 (2000); Woods v. Nationwide Mut. Ins. ·co., 295 N.C. 500, 505--06, 246 S.E.2d 773, 777 (1978). Where a policy does not define a term, a court gives ''nontechnical words . . . their meaning in ordinary spe~ch, unless the context clearly indicates another meaning was intended." Woods, 295 N.C. at 506,246 S.E.2d at 777; see Gaston Cnty. Dyeing Mach. Co.,_ 351 N.C. at 299, 524 S.E.2d at 563; ~rown v. Lumbermens Mut. Cas. Co., 326 9 N.C. 387, 392, 390 S.E.2d 150, 153 (1990); Grant v. Emmco Ins. Co., 295 N.C. 39, 42,243 S.E.2d 894,897 (1978). { The Brogd~ Complaint-contains claims for statutory violations related to landlord-tenant ', regulations and debt collection and a UDTPA claim. See Brogden Compl. fl 74-118 (listing class action claims for alleged violations of the RRAA, the North Carolina Debt Collection Act, N.C. Gen. Stat. §§ 75-50, e t ~ and the UDTPA). These claims do not fall within the policy's definition of ''personal and advertising injury." See Policy [D.E. 12-1] 88, 112. Kenney, however, argues that the Brogden Complaint alleges facts in the "general background" section consistent with an abuse of process claim ~d thereby falls within the General Liability Deluxe Endorsement Schools provision, which adds abuse of process to the definition of''personal and advertising injury." See Resp. at 4-7. Philadelphia disagrees. See Mem. Supp. Mot. at 14-19; Reply at 3-9. In support :Of Kenney's novel theory, Kenney focuses on language from several North . Carolina appellate cases stating that the duty to defend is based on the facts alleged in the complaint, not the legai characteri7.ation of those facts. This court doubts Kenney's theory, however, because . . , those cases involved disputes over whether an action was negligent or intentional. See,~ Kubit, 210 N.C. App. at 285, 708 S.E.2d at 149 ("The mere fact that the tort complaint-'recasts' the intentional acts into a claim for negligence does not trigger coverage or a duty to defend. Thus, no dufy, to defend ar~se from the claim of bodily injury, because the facts alleged in the Welsher . complaint fall under the intentional injury exclusion."); Holz-Her, 141 N.C. App. at 128, 539 S.E.2d ' at 350; State Auto Ins. Cos. v. McClamroch, 129 N.C. App. 214, 220-21, 497 ~.E.2d 439, 443 (1998); Eubanks v. State Farm Fire· & Cas. Co., 126 N.C. App. 483, 488, 485 S.E.2d 870, 873 (1997). Nonetheless, the court will assume without deciding that it should focus on the alleged ' - injuring event and not the precise claim pleaded. See Harleysville, 364 N.C. at 13-28, 692 S.E.2d 10 , at 614-623 (examining what the complaint alleged as the cause of the injury where the same kind of clhlm could be· covered ifthe false statements were not about the insured's own products and not covered ifthe false statements were about the insured's own products); Russ v. Great Am. Ins. Cos., 121 N.C. App. 185, 191,464 S.E.2d 723, 727 (1995) (sexual harassment was not covered under the policy coverage for invasion of privacy where the plaintiffs in the underlying suit "only alleged and recovered for the torts of intentional infliction of, emotional.distress and battery, torts not enumerated in the personal injury provisions of the policies" and the plaintiffs ''neither alleged nor recovered for the invasion of their privacy rights, an enumerated tort under the policies"); see also Wak:e Stone / Con,. v. Aetna Cas. & Sur. Co., 995 F. Supp. 612,615, 618-19 (E.D.N.C. 1998); Whiteville Oil Co. r i. v. Federated Mut. Ins. Co., 889 F. Supp. 241, 246-47 (E.D.N.C. 1995), aff'd, 87 F.3d 1310, 1996 ) WL 327207 (4th Cir. 1996) (per curiam) (unpublished tabled decision). Thus, the court analyzes the injuries alleged in the Brogden Complaint to see whether the Brogden Complaint plausibly includes an abuse of process claim. Under North Carolina law, "[i]n order to succeed on a claim for abuse ofprocess,the plaintiff must establish that (1) a prior procee,ding was initiated against the plaintiff by the defendant or used by him to achieve an ulterior motive or purpose; and (2) once the proceeding was initiated, the r defendant committed some willful act not proper in the regular prosecution of the proceeding.". Semones v. S. Bell Tel. & Tel. Co., 106 N.C. App. 334, 341, 416 S.E.2d 909, 913 (1992); see .Stanback v. Stanback, 297 N.C. 181, 200, 254 ~.E.2d 611, 624 (1979), disapproved of on other. grounds~ Dickens v. Pmyear~ 302 N.C. 437,276 S.E.2d-325 (1981); Pinewood Homes, Inc. v. ' Harris, 184 N.C. App. 597, 602, 646 S.E.2d 826, 831 (2007). A plaintiffsatisfies the ulterior motive requirement ''when the plaintiff alleges that the prior action was initiated by the defendant or used by him to achieve a purpose not within the intended scope of the process used. The act requirement \ 11 is satisfied when the plaintiff alleges that during the course of the prior proceeding, the defendant committed some wilful act whereby he sought to use the proceeding as a vehicle to gain advantage ' . of the plaintiff in r~spect to some collateral matter." Hewes v. Wolfe, 74 N.C. App. 610, 614, 330 S.E.2d 16, 19 (1985) (citations omitted); see Stanback, 297 N.C. at 200,254 S.E.2d at624. "[T]he ; I • gravamen ofa caus~ of action for abuse ofprocess is the improper use ofthe process after it has been '-- issued." Chidnese v. Chidnese, 210 N.C. App. 299, 311, 708 S.E.2d 725, 735 (2011) (emphasis and alteration in original). The Brogden Complaint does not explicitly contain an abuse ofprocess claim. See Brogden ; Compl. fl 74-118., And no single claim includes allegations that would state a plausible abuse of process claim. Moreover, even the factual allegations Kenney cites from the "general background" section of the Brogden Complaint do not plausiply allege an abuse of process claim.4 4 Kenney r~lies on the following allegations in the Brogden Co~plaint: 28. Eviction Fees are fees set by the North Carolina Legislature for filing a complaint in summary ejectment and for service of process by a sheriff, and Defendants' attorneys' fees for filing an eviction. ' 29. Upon information and belief, Defendants entered into a legal services agr~ement with a law firm that charges a flat fee per eviction. Upon information and belief, this legal services agreement limits the scope of the law:' firm's representation to only seeking possession of the apartment , premises on behalf of Defendants and not any money owed.... 53. At the time the Eviction Fees wereplaced on Plaintiff's ledger, no hearing had been held and no attorney had appeared in1Court to evict Plaintiff and/or. seek the award of Eviction Fees. Upon information and belief, the $96 filing fee :and, upon information and belief, the $30 service fee, was paid by _Defendants after Plaintiff was charged with the Eviction Fees. 'I 54. At the time the Eviction Fees were placed on Plaintiff's ledger, no hearing had,been held and no attorney had appeared in Court to evict Plaintiff and/or seek the award of Eviction Fees. \. 12 The eviction action against Brogden is a prior proceeding. And the court assumes without SS. At the time the Eviction Fees were placed on Plaintiff's ledger, no attorney had been hired by Defendants to collect any debt. I l, S6. Upon information and belief, Defendants had not served any of the complaints in summary ejectment at the time the Eviction Fees were placed on the ledger. S7. After the Eviction Fees were placed on the ledger, Defendants, upon information and belief, filed Complaints in Summary Ejectment in the Small Claims Division of Wake County General Court of Justice, alleging Plaintiff owed past due rent. 58. Upon information and beij.ef, in each of the Complaints in Summary Ejectment actions filed against Plaintiff, Defendants wrote that they "hereby omit any claim for rents or damages and is seeking possession of the premises only. [Defendants] reserve the right to seek any monetary damages in a:separate civil action." See e.g., Exhibit 4 and S. S9. Plaintiff paid the Eviction Fees when they were not owed. 60. In some instances, when Plaintiff paid the Eviction Fees to Defendants; Defendants filed a notice of voluntary dismissal without prejudice. By filing nqtice of volµntary dismissal without prejudice, Defendants were not the prev,ailing party. See Exhibit 4. In other instances, Defendants obtained a· judgment and the magistrate judge taxed costs against Defendants (identified in the ejectment proceeding as the ''plaintiff'). See Exhibit S. Even when Defendants had costs taxed against them, upon information and belief, they still_-r~quired Plaintiff to pay Eviction Fees. a 61. When Plaintiffended her lease with.Defendants, she received a. Move Out Sta~ent that included a section on "Outstanding Charges." See Exhibit 6. According to Defendants, the outstanding charges included "Legal Fees," described as an "Eviction fee of$191 + S% charge $4S.7S." . 62. Upon information and belief, no court awarded Defendants with.Eviction Fee~ against Plaintiff in any ~ummary ejectment case or thereafter. 63. ;At no · point did Plaintiff enter into a settlement agreement with Defendants regarding the Eviction Fees during her tenancy with Defendants. Brogden Compl. ft 28-29, S3--63 (emphasis omitted). 13 ' , deciding that chargµig Brogden the eviction fees could constitute a ''wilful act'' to gain advantage over Brogden in the collateral matter ofcollecting the outstanding amount owed on Brodgen' s lease. See Hewes, 74 N.C. App. at 614,330 S.E.2d at 19. However, nothing in the Brogden Complaint, suggests that Kenney instituted the eviction proceeding for an ulterior, improper: purpose. Specifically, the Br~gden Complaint does not allege that Kenney pursued the eviction action for any · reason other than to obtain legal possession ofthe apartment. See Lyon v. May, 108 N.C. App. 633, 639--40, 424 S.E.2d 655, 659 (1993). In fact, the Brogden Complaint explicitly alleges that the ) eviction action w~ not an attempt to collect debt. JSee Brogden Comp!. ff 55, 58. Therefore, even ''\ if synthesizing dis~arate factual allegations to allege a covered tort can trigger the duty to defend, the facts in the Brogden Complaint do not state, a claim for abuse of-process. Thus, under the comparison test, Philadelphia did not have a duty to defend Kenney in the Brogden Action. See Harleysville Mut. Ins. Co., 364 N.C. at 27-28, .-692 S.E.2d at 622-23; see also Main St. Am. Assurance Co. v. CfumleyRoberts,LLP,No. 1~19CV220,2021 WL 1195804,at*3 (M.D.N.C.Mar. 30, 2021) (unpublished); Hartford Cas. Ins., 2017 WL 5557669, at *3-4. The duty to-defend is broader than the duty to indemnify. Accordingly, ifthe duty to defend . ' "fails, so too does;the duty to indemnify." Phillips, 255 N.C, App. at 764, 805 S.E.2d at 366. ' Because Philadelphia did not have a duty to defend Kenney in the Brogden Action, Philadelphia also did not have a duty to indemnify Kenney. V. Kenney all¢ges UDTPA violations based on (1) Philadelphia's ''misrepresentation" of the policy definition of ''personal and advertising injury'' by omitting reference to the endorsement adding "abuse of process" as a covered enumerated offense; and (2) Philadelphia's failure to timely respond to correspondence from Kenney disputing the denial of coverage for the Brogden Action. 14 See Compl. ,r,r 77-90; Resp. at 23-26. In support of its UDTPA claim, Kenney relies on the North I I Carolina Unfair Claim Settlement Practices statute, N.C. Gen. Stat. § S8-63-1S(l 1), as defining unfair acts under tlie UDTPA. See Compl. ,r,r 77-90; Resp. at 23-26. Philadelphia responds that )> Kenney's UDTPA claims are not distinct from its breach of contract claim related to the coverage dispute, that the crux ofKenney's UDTPA claims is an honest disagreement about coverage, and that Kenney does not state a UDTPA claim. See Mem. Supp. Mot. at 21-28;.Reply at 9-11. "In order to establish a prima facie claim for unfair trade practices, a plaintiffmust show: (1) . defendant committed an unfair or deceptive act or practice, (2) the action in question was in or I affecting commerce, and (3) the act proximately caused injury to the plaintiff." SciGrip, Inc. v. Osae, 373 N.C. 409, 426, 838 S.E.2d 334, 347 (2020); see Dalton v. Camp, 3S3 N.C. 647, 6S6, S48 S.E.2d 704, 711 (20QJ); Griffith v. Glen Wood Co., 184 N.C. App. 206,217, 646 S.E.2d SS0, S58 (2007). ' ' As for the first element, a plaintiff must show that the "defendant committed an unfair or deceptive act or pr~ce." SciGrip, Inc., 373 N.C. at 426, 838 S.E.2d at 347. "A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.... [Al practice is deceptive if it . ' '· has the capacity or tendency to deceive." Marshall v. Miller, 302 N.C. S39, S48, 276 S.E.2d 397, ' . i 403 (1981); see Walkerv.FleetwoodHomesofN,C., Inc., 362_N.C. 63, 71-72, 6S3 S.E.2d393,399 (2007). ( "Mere breach of contract is not sufficient ·to sustain" a UDTPA action unless ''the breach is surrounded by substantial aggravating circumstances." Griffith, 184 N.C. App. at 217, 646 S.E.2d . .) at S58; see SciGrip, Inc., 373 N.C. at 426, 838 S.E.2d at 348. The Supreme Court ofNorth Carolina and the North Carolina Court of Appeals have emphasized the need to guard against permitting a IS litigant to transfom;i. a breach of contract claim into a UDTPA claim. See, e.g., SciGrip, Inc., 373 ' ' N.C. at 426,838 S.E.2dat348; Birtba v. Stonemor, N.C., LLC, 220N.C. App. 286,298, 727 S.E.2d 1, 10 (2012); see also PCS Phosphate Co. v. Norfolk S. Corp.• 559 F.3d 212, 224 (4th Cir. 2009); Martinez v. Nat'l Union Fire Ins. Co., 911 F. Supp. 2d 331, 339 (E.D.N.C. 2012). Moreover, "a :fundamental disagr~ement about a contract is not a substantial aggravating circumstance." Martinez, 911 F. Supp. 2d at 339, see Griffith, 184 N.C. App. at 217, 646 S.E.2d at 558. To differentiate its UDTPA claim from a breach of contract claim, Kenney claims that Philadelphia allegedly violated provisions in North Carolina's Unfair Claim Settlement Practices statute, N.C. Gen. Stat. § 58-63-15(11 ), and claims that those alleged acts are unfair or deceptive acts . . or practices. Violating a regulatory statute that "governs business activities" can constitute an unfair act or practice under the UDTPA because the regulated conduct offends ~orth Carolina's public policy or is immor,t., unethical, oppressive, unscrupulous, or .substantially injurious to consumers. . .... Walker, 362N.C. a~70, 362 S.E.2dat398. In the insurance context, committing the acts or practices ; ; proscribed byN.C .. Gen. Stat.§ 58-63-15(11) is unfair and deceptive as a matter oflaw. See Gray v. N.C. Ins. Underwriting Ass'n, 352 N.C. 61, 71, 529 S.E.2d 676, 683 (2000); Country Club of JohnstonCncy.,Jnc. v. U.S. Fid. & Guar. Co., 150N.C.App. 231,246,563 S.E.2d269, 279 (2002). ., As the Supreme Court ofNorth Carolina has explained, N.C. Gen. Stat. § 58-63-15(11) "defined in \.. detail unfair methods of settling claims and unfair and deceptive acts or practices in the insurance a industry, thereby establishing the General Assembly's intent to equate violation ofthat statute with the more general provision of§ 75-1.1." Walker, 362 N.C. at 71,653 S.E.2d at 399. Once a pl~tiff has plausibly alleged a violation ofN.C. Gen. Stat. § 58-63-15(11), the Fourth Circuit has stated it is an open question whether the plaintiff~ then satisfied its burden to plausibly allege a UDTPA claim or whether. a plaintiff also must plausibly allege that the violation 16 of N.C. Gen. Stat. § 58-63-15(11) was in or affecting commerce and proximately caused the plaintiff's injuries. See DENC, LLC v. Philadelphia Indem. Ins. Co., 32 F.4th 3-8, 50 n.4 (4th Cir. 2022); Elliott v. Am. States Ins. Co., 883 F.3d 384, 396 n. 7 (4th Cir. 2018). This court predicts that - the Supreme Court of North Carolina would hold that a plaintiff need not independently allege that a section 58-63-15(11) violation was in or affecting commerce, but a plaintiff would have to - - ' plausibly allege that the section 58-63-15(11) violation proximately caused the plaintiff's injuries. ' Resolving this question depends on the relationship between several statutory provisions. N.C. Gen. Stat. § 58-63-15(11) defines 14 categories of activities that are unfair and deceptive in -settling insurance claims. The statute provides no private ca~e of action. See N.C. Gen. Stat. § 5863-15(11 ). The conduct that section 58-63-15(11) proscribes animates the more general prohibition against unfair and deceptive practices in the insurance industry. That prohibition states that "[n]o ''\ person shall engage in this State in any trade practice which is defined in this Article as or determined pursuant to this Article to be an unfair method ofcompetition or an unfair or deceptive act or practice in the business of insuranceJ' N.C. Gen. Stat. § 58-63-10. This prohibition is similar \ to N.C. Gen. Stat. § 75-1.l(a), which provides: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or prac?ces in ot affecting commerce, are declared unlawful." N.C. Gen. Stat. § 75-1.l(a). Like N.C. Gen. Stat. § 58-63-15(11), section 75-1.1 itself , I does not provide a person, firm, or corporation with a private right of action. Rather, N.C. Gen. Stat. \ § 75-16 grants a person, firm, or corporation a private right of action for violations of section 75-1.l!. Section 75-16 states in relevant part: "If any person shall be injured OJ;"' the business of any person, ' ' - firm, or corporation shall be broken up, destroyed or injured by reason of any act or thing done by any other person, firm, or corporation in violation of this Chapter, such person, firm, or corporation so injured shall have a right of action on account of such injury ...." N.C. Gen. Stat. § 75-16. 17 Under section 75-16, such injured private parties can seek redress for violations of section 75-1.1. Asdiscussed,NorthCarolinacourtshaveheldthatviolatingN.C. Gen. Stat.§ 58-63-15(11) also constitutes a violation, as a matter of law, of the broader standards in section 75-1.1. See , Walker, 362.N.C. 3:t 70, 362 S.E.2d at 398; Gray, 352 N.C. at 71, 529 S.E.2d a:t~683; Country Club, 150 N.C. App. at 246, 563 S.E.2d at 279. Section 75-1.1 's plain language encompasses the ''unfair or deceptive acts or practices" and the "in or affecting commerce" prongs of a UDTPA claim. See N.C. Gen. Stat.§ 75-1.1; SciGrip, Inc., 373 N.C. at 426, 838 S.E.2d at 347 (stating the elements of_ a UDTPA claim)..Accordingly, because conduct that violates section 58-63-15(11) also violates '\ . section 75-1.1, a plaintiff need not independently show that the conduct was in or affecting commerce. It suffices that the unfair or deceptive conduct violates section 58-63-15(11 ). After all, "[t]he business of insurance is unquestionably 'in commerce' -insofar as an 'exchange of value' . ' · occurs when a consumer purchases an insurance policy;. people who buy insurance are consumers whose welfare [the UDTPA] was intende~ to protect." Pearce v. Am. Def. Life Ins. Co., 316 N.C. 461, 469, 343 S.E.2d 174, 179 (1986); see Murray v. Nationwide Mut. Ins. Co., 123 N.C. App. 1, 10, 472 S.E.2d 358, 363 (1996) ("Our courts have repeatedly defined the insurance business as affectingcommer~."); Millerv. NationwideMut. Ins. Co., 112N.C. App. 295, 301--02,435 S.E.2d 1 537, 542 (1993). To the extent a plaintiff must show that the section 58-63-15(11) violation Jasin I. or affecting comm~ce, the b~den is minimal. :R,or example, a defendant's "act of selling plaintiff r /. a policy affects co:rpmerce." Murray, 123 N.C. App. at 12, 472 S.E.2d at 364. In short, plausibly · 1· . all~ging an ~ce-specific unfair or deceptiv'e act or practice under N.C. Gen. Stat. § 58-63- 15(11) necessarily .encompasses conduct in or affecting commerce. See id. 5 5 The parties do not dispute that Philadelphia's actions were in or affecting commerce. See Resp. at 25 n.9. 18 Although plausibly alleging a violation of section 58-63-15(11) satisfies the first two elements of a UDTPA claim,' it does not satisfy the proximate cause and injury eleinent. See SciGrip, Inc., 373 N.C. at 426,838 S.E.2dat347 (stating that the third element of a UDTPA claim is that ''the act proximately caused injury to the plaintiff"). As discussed, section 75-1.1 alone does not give private parties a cause of action to seek redress for unfair and deceptive trade practices. I Instead, section 75-16, a separate statutory provision, provides the ~use of~tion. And section 7516 contains its own prerequisite---i.e., the proximate cause and injury element of a UDTPA claim. Section 75-16 authorizes a plaintiff to seek redress when that plaintiff has been "injured by reason \ . . of any act or thing 4one by any other person, firm, or corporation in violation ofthe provision ofthis Chapter." N.C. Gen. Stat.§ 75-16. Section 75-16 goes further though, expressly specifying that the plaintiff "shall have a right of action on account of such injmy done." Id. (emp~is added). • I . Decisions such as·walker, Gray. and Country Club confirm that violating ''N.C.G.S. § 58-63-15(11) , : J - ' c~nstitutes a violation ofN.C.G.S. § 75-1.1, as a matter oflaw." Gray, 352 N.C. at 71,529 S.E.2d at 683. But the strong parallels between sections 58-63-10 and 75-1.1 that underpin those decisions do not override'the:separate statutory requirement for a party to state a· section 75-16 private cause of action-i.e., that the plaintiff suffered injury as a result of an Ul!fair or deceptive act or practice. See N .C. Gen. Stat. § 75-16. Thus, to state a UDTPA claim, a plaintiff must allege a violation of section 75-1.1 (i.e.; an unfair or deceptive act or practice in or affecting commerce) and the requisite injuryproximatelycaµsed by the section 75-1.1 violation to state a claim wider section 75-16. See, e.g., Ellis v. Smith-Broadhurst, Inc., 48 N.C. App. 180, 184, 268 S.E.2d 211; 273-_74 (1980). Demonstrating a violation of a regulatory statute such as section 58-63-15(11) accomplish~s _the former but not the ~atter. Accordingly, a plaintiff must plausibly alle~e that the regulatory violation 19 proximately cause4 the plaintiff's injuries to state a UDTPA claim. ~ee. e.g., Pearce, 316 N.C. at 463--68, 343 S.E.2d at 176-79. · In Pearce v ~ American Defender Life Insurance Company, the plaintiff sued the defendant ~urance companyfor claims arising from a life insurance contract and alleged, inter all~ a UDTPA claim based on the defendant insurance company's all~ged violation ofa regulatory statute (i.e., N.C. Gen. Stat. § 58-54.4) that profilbited misrepresenting the terms of an insurance policy. Se~ Pearce, 316N.C.at463--68,343S.E.2datl76-79. TheSupremeCourtofNorthCarolinaheldthatviolating section 58-54.4 "as a matter oflaw constitutes an unfair or deceptive trade practice in violation of N.C.G.S. § 75-1.1.," Id. at 470, 343 S.E.2d at 179. Nevertheless, the Supreme Court of North ., Carolina held that ':'to make out a claim under [the regulatory statute] as augmented by section 751.1," the plaintiff stnI had to show an "actual injury as a proximate result of defendant's deceptive statement or misrepresentation." Id. at 470-71, 343 S.E.2d at 180; see also Bumpers ·v. Cmty. Bank ofN. Va., 367 N.C. 81, 88--89, 747 S.E.2d 220, 226 (2013). Consistent with Pearce, the North Carolina Court of Appeals repeatedly has held that ~ven . \ if a plaintiff plausibly alleges a section 58-63-15(11) yio,ation as part of its UDTPA claim, the plaintiff still must plausibly allege proximate cause and damages. See, ,e.g., Defeat The Beat Inc. v. Underwriters At Lloyd's Londo!b 194 N.C. App. 108,117,669 S.E.2d 48, 54 (2008) ("While ' \ , " ' these actions wo~d satisfy the unfair and deceptive trade act or practice element of the. claim, ,, ~ plaintiff has presented no evidence of any present monetary injury caused by these alleged actions . . during the settlement phase; therefore, plaintiff's evidence does not establish the third element of a claim under N.c.; Gen. Stat. § 75-1.1."); Burrell v. Sparkkles Reconstruction Co., 189 N.C. App. 104,111,657 S.E.2d 7,12, 717-18 (2008) (smie); Nelson v. Hartford Underwriters Ins. Co., 177 N.C. App. 595, 612-13, 630 S.E.2d221, 233 (2006) (same); Murray.123 N.C. App. atl0-12, 472 20 , i. I • S.E.2dat363--64(~e);KroriMed.Com. v.CollierCobb&Assocs.,Inc., 107N.C.App.331,335,: 341,420 S.E.2d 192, 194, 197-98 (1992)(sam.e); see also Guessford v. Pa Nat'lMut. Cas. Ins. Co., 983 F. Supp. 2d 652,660 (M.D.N.C. 2013) (sa.t:D:e); cf.DC Custom Freight, LLCv. TammyA.iRoss &%;socs., Inc., 27~ N.C. App. 220,227, 8~8 S.E.2d 552,559, disc. reviewdeni~ 851 S.E.2d45 (N.C. 2020). Kenney all~ges that Philadelphia violatedN.C. Gen. Stat.§ 58-63-15(1 l)(a}.-(d),.(t), and (n) in handling Kenney's coverage claim in the Brogden Action and thereby violated the UDTPA. See Compl. ff 77-90. ;Toe cited statutory provisions regulate: ' - a Misrepresenting pertinent facts or insurance policy provisions relating to coverages atissue; \ I ' b. Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies; C. Failing to adopt and implement reasonable standards for the prompt investigation . of claims a.tjsing under insurance policies; d. Refusing to pay claims without conducting a reasonable investigation based upon all available information; ... , \ f. Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims ~ which liability has become reasonably clear; .. ·( n. Failing~ promptly pr~vide a reasonable explanation of the basis in the insurance policy in reJation to the facts or applicable law for denial of a claim or -for the offer of a compromise settlement. N.C. Gen. Stat. § ~8-63-15(1 l)(aKd), (t), (n). Because Philadelphia was not obligated to provide a defense under the policy, section 58-63-15(11 )(t) does not apply. Cf. Elliott, 883 F.3d at 398. As for Philadelphia's alleged violations of subsections (c) and (d), they rest on Kenney; s assumption that if Philadelphia conducted a prompt and proper investigation of Kenney's claims, Philadelphia would have concluded that it was 21 obligated to defend Kenney. See Compl. ,r,r 41-42; Resp. at 13-16, 24-26 ("The lack of a re-evaluation of its poverage positiop. after July 23., 2020 should have at that point reli1eved [Kenney] of the continued ~curred costs of defending the Brogden action."). Kenney, however, does not ' . allege any specific deficiep.cies in Philadelphia's investigation process, and Philadelphia correctly ' d~ed that Kenney's coverage did not apply to the claims in the Brogden action. Thus, section 58-63-15(1 l)(c) and (d) do not help Kenney. See, e.g.• Barbour v. Fid. Life .Ass'n, 361 F. Supp. 3d 565,575 (E.D.N.C. 2019). As for Philadelphia's alleged violations of section 58-63-15(1 l)(a), (b), and (n), see Resp. at 11-16, 23~26, Kenney does not allege any injury that proximately resulted from any of these ~ - alleged unfair acts,: First, as for Kenney' s allegations that Philadelphia misrepresented the policy ' covei:age in violati~n ofN.C. Gen. Stat. § 58-63-15(1 l)(a) or (n) by failing to include the abuse of process language in its letter denying a duty to defend, Kenney admits that it "did not suffer damages l , ·by the misrepresentation of the definition of a 'personal and advertising injury' under Part B ... since [Kenney] ind¢pendently even!9ally. figured out the letter omitted 'abuse of process' from the applicable policy grant of coverage." Id. at 23. As for Philadelphia's subsequent failure to respond to Kenney' s communication about the coverage, Kenney alleges that Philadelphia's failure to communicate about the coverage demand "establishes the unfair, if hot deceptive, aspects of ! [Philadelphia's] cl~ handling" and violates N.C. Gen. Stat. § 58-63-15(1 l)(b). Id. at 24-25. • I Kenney, however,:, does not allege independent harm from Philadelphia's alleged deficient communication. ~deed, Kenney predicated its allegations about Philadelphia's failure. to respond on the assumption thatifPhiladelphiahadresponded to Kenney, Philadelphia would have concluded ,' ( that it had a duty to defend and indemnify. See id. at 25 ("The lack of a re-evaluation of its coverage position after July 23, 2020 should have at that point relieved [Kenney] of the continued incurred 22 costs of defending the Brogden ~ti.on. Instead the Plaintiffs have been damaged by those additional . . ( incurred expenses a,nd costs ofsettlement."). In fact, Kenney states that "[t]he damages are the funds paid by the Plaintiffs to themselves fund the defense and the eventual settlement of the Brogden action." Id. at 24. Kenney also alleges that the costs ofbringirig this action are UDTPA damages. / See Comp!. ,r 83.' However, because Philadelphia did not owe Kenney a duty to defend or to indemnify, Kenney does not plausibly allege any injury that proximately resulted from the unfair acts. Kenney does not allege any independent injury proximately caus~ by the alleged section, 5663-15(11) violations. See, ' ~ Barbour, 361 ];". Supp. 3d at 575. Th,us, the court dismisses I Kenney's UDTPA claim. ' VI. In sum, the court GRANTS defendant's motion for judgment on the pleadings [D.E. 17] and DIS:MISSES plaintiffs' complaint. Defendant had no duty to defend or indemnify plaintiffs. The ' clerk shall close the case. SO ORDE1:ffiD. This~ day of July, 2022. .J ~-~ A.V ,4A. ~ JiC.DEVERID United States District Judge ,I 23
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