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Rozinsky v. Assurance Company of America

United States District Court, D. Maryland

March 4, 2016

VALERY ROZINSKY, et al, Plaintiffs,



Plaintiffs Valery Rozinsky and Galina Rozinsky ("Plaintiffs" or "the Rozinskys") bring this two-count cause of action against Defendant Assurance Company of America ("Defendant" or "Assurance") asserting breach of contract (Count One) and loss of consortium (Count Two). Presently pending before this Court is Defendant's Motion to Dismiss Count Two of the Complaint (ECF No. 9). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Defendant Assurance Company of America's Motion to Dismiss Count Two (ECF No. 9) is GRANTED, Count Two is DISMISSED WITH PREJUDICE, and the Plaintiff Galina Rozinsky is DISMISSED as a party in this action.


This Court accepts as true the facts alleged in the plaintiffs complaint. See Aziz p. Aicolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). This case involves a dispute stemming from an automobile accident in which Plaintiff Valery Rozinsky ("Mr. Rozinsky") was injured. Compl. ¶¶ 5, 8, ECF No. 2. Defendant Assurance issued the insurance policy for the automobile operated by Mr. Rozinsky. Id. ¶ 10. Mr. Rozinsky, individually, claims that Assurance breached this contract by failing to provide the required coverage pursuant to the uninsured/underinsured motorist ("UIM") provision of the insurance policy (Count One). Id. 12. Plaintiffs, joindy as husband and wife, assert a loss of consortium claim for the interference with their marital relationship due to the accident and resulting injuries to Mr. Rozinksy (Count Two). Id. 14.

On October 22, 2012, Mr. Rozinsky was operating a motor vehicle owned by his employer, Milhouse, LLC d/b/a Edible Arrangements ("Milhouse") in the Brenbrook Plaza Shopping Center in Baltimore County, Maryland. Id. ¶ 1. While driving through an intersection on the primary driveway of the shopping center, Mr. Rozinsky was allegedly struck by a vehicle operated by Paris David, Sr. ("David"). Id. ¶¶ 2-4. The collision was caused by David's negligent and reckless operation of his vehicle. Id. ¶ 5. Mr. Rozinsky suffered serious and permanent injuries to his head, neck, body, and limbs; required treatment of hospitals and physicians for the aforesaid injuries; incurred expenses for these treatments; and was unable to work as a result, thus suffering a loss of income. Id. ¶ 8.

At the time of the collision, David was insured with Government Employees Insurance Company ("GEICO") under an automobile insurance policy with primary Eability coverage limits of $30, 000. Id. ¶ 11. Mr. Rozinsky filed a lawsuit against David on June 12, 2014 in the Circuit Court for Baltimore County. Mot. to Dismiss, 2, ECF No. 9.[1] Mr. Rozinsky recovered the full policy limits recovery amount of $30, 000 from GEICO. Compl. ¶ 11.

Mr. Rozinsky's employer, Milhouse, had a motor vehicle insurance policy through Assurance for the company vehicles. Id. ¶ 10. The policy provided for uninsured/underinsured motorist ("UIM") coverage, which stipulated that Assurance would "pay all sums, subject to policy limits, which the Plaintiffs would legally be entitled to recover as damages from the owner and/or operator of a motor vehicle resulting in bodily injury and whose limits of liability under all valid and collectible liability insurance policies is less than the amount of coverage provided by Assurance under the applicable portions of its underinsured motorist provisions covering the Plaintiffs." Id.

On June 22, 2015, Plaintiffs filed the subject Complaint in the Circuit Court for Baltimore County, Maryland. Notice of Removal 1, ECF No. 1. Assurance's agent received the Writ of Summons, Complaint and Civil Case information on July 20, 2015 and then timely removed the action to federal court pursuant to 28 U.S.C. § 1332. Id. Defendant now moves to dismiss Count Two, arguing that a loss of consortium claim cannot be asserted when the sole underlying claim is breach of contract. See generally Mot to Dismiss.


Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is "to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

The Supreme Court's recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), "require that complaints in civil actions be alleged with greater specificity than previously was required." Walters v. McMaben, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). In Twombly, the Supreme Court articulated "[t]wo working principles" that courts must employ when ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all the factual allegations contained in the complaint, legal conclusions drawn from those facts are not afforded such deference. Id. (stating that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to plead a claim); see also Wag More Dogs, LLC p. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) ("Although we are constrained to take the facts in the light most favorable to the plaintiff, we need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments." (internal question marks omitted)). Second, a complaint must be dismissed if it does not allege "a plausible claim for relief." Iqbal, 556 U.S. at 679. Although a "plaintiff need not plead the evidentiary standard for proving" her claim, she may no longer rely on the mere possibility that she could later establish her claim. McCkary-Evans v. Maryland Department of Transportation, State Highway Administration, 780 F.3d 583, 584 (4th Cir. 2015) (emphasis omitted) (discussing Smerkiemcz v. Sorema N.A., 534 U.S. 506 (2002) in light of Twombly and Iqbal).


Defendant moves to dismiss Plaintiffs' loss of consortium claim on the ground that such a claim can only be asserted when attached to an underlying tort claim. As a preliminary matter, this Court must decide what law governs the present action. This Court notes that neither party discloses whether the contract specifies a governing law. In the absence of this information, this Court will apply the general rule that a federal court sitting in diversity must apply the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). Maryland adheres to the doctrine of lex loci delicti, which applies the law of the state in which the alleged injury occurred. Laboratory Corp. of America v. Hood, 911 A.2d 841, 845 (Md. 2006). Because Mr. Rozinsky's injury occurred in Maryland, this Court will apply Maryland law to Plaintiffs', loss of consortium claim. As Plaintiffs assert their derivative loss of consortium claim only accompanied by an underlying breach of contract claim, the loss of consortium claim must be dismissed.

A loss of consortium claim seeks damages for injury to the marital relationship, representing the "loss of society, affection, assistance, and conjugal fellowship." Deems v. Western Maryland' Ry. Co., 231 A.2d 514, 517 (Md. 1967). In Maryland, loss of consortium claims are "derivative of the injured spouse's claim for personal injury." Oaks v. Connors, 660 A.2d 423, 430 (Md. 1995). A loss of consortium claim thus "can only be asserted in a joint action for injury to the marital relationship [and] . . . [t]hat action is to be tried at the same time as the ...

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